TONKEVI v. BULGARIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicants, Mr Georgi Vasilev Tonkev and Ms Viktoria Vasileva Tonkeva, are Bulgarian nationals. Mr Georgi Vasilev Tonkev was born in 1990 and lives in Varna, while Ms Viktoria Vasileva Tonkeva was born in 1996 and lives in Pazardzhik. The applicants were represented before the Court by Mr L. Takov and Mr H. Donchev, lawyers practising in Sofia. 2. The applicants are the children of Mr Vasil Tonkev, who was killed on 1 May 2011 during a police operation aimed at apprehending him. 3. About twenty luxury cars were stolen in the Plovdiv region in April 2011. Mr Tonkev was one of the suspected perpetrators of the thefts. 4. On 30 April 2011 the head of the Directorate of the Ministry of the Interior in Plovdiv ordered an operation aimed at apprehending the perpetrators. He selected twenty police officers to participate in the operation, scheduled for that evening. The officers were briefed in advance; they were advised, in particular, that the individuals they were seeking to apprehend were dangerous and armed and would be unlikely to obey police orders. 5. At about 8 p.m. on 30 April 2011 the officers, in two police cars and a minivan, left Plovdiv for the city of Veliko Tarnovo, where, according to operational intelligence data, a theft was planned for that evening. They arrived in the city at around 11 p.m. At about 1 a.m. on 1 May 2011 they were informed that a car, a BMW X5, had been stolen and was heading towards Plovdiv. It transpired subsequently that the car had been stolen and was being driven by Mr Tonkev. Once in Plovdiv, he stole another car together with an accomplice. 6. The police officers returned to Plovdiv, where they were informed that the two stolen cars were taking the motorway to Sofia. Four police cars and a minivan followed them. At about 5 a.m. the two stolen cars left the motorway and entered nearby fields. The police officers set up four roadblocks, obstructing roads in the area. 7. At about 7 a.m. the two cars left the fields and headed towards the first roadblock. Once the drivers had seen it, they made a U-turn. One of the cars, driven by Mr Tonkev’s accomplice, took a dirt road back towards the fields, followed by several officers. The car was subsequently found, but the driver managed to escape. Mr Tonkev remained on the road in the other stolen car, driving at high speed towards the second roadblock. The officers who were there tried to stop him, placing the police car in the middle of the road. However, Mr Tonkev did not stop but managed to drive round the car, hitting it. Then he continued towards the third roadblock. 8. Having been told on the radio by their colleagues that Mr Tonkev had driven past the second roadblock, had hit the police car and was driving towards them, the officers at the third roadblock made preparations to stop him. They parked their police minivan in the middle of the road and stood around it. 9. Mr Tonkev approached at high speed. With their hands raised, the officers signalled to him to stop. He did not do that, but instead directed the car at the officer who was standing to the left of the minivan and who had to jump hastily into the ditch to escape. The other officers from the group stated later that they had thought the car had knocked him down, as they had not been able to see him. Mr Tonkev then drove towards the other officers, who were standing in a group to the right of the minivan. The first two of them, after once again making gestures indicating that he should stop, jumped out of the way. This left the third officer, Mr K.A., alone in front of the speeding car. Mr K.A. was armed with an AK-47 assault rifle, set to semi-automatic fire. He fired two warning shots aimed to be into the air. However, at that very moment he had to jump hastily out of the way to avoid being hit by the car and fell to the ground. This changed the direction of the shots, which instead hit the front right-hand door of the car driven by Mr Tonkev. Already on the ground, Mr K.A. fired one more shot, which hit the car’s right rear tyre. One of the other officers attempted to deploy a spike strip to stop the car, but did not succeed. Mr Tonkev continued driving and headed towards the fourth roadblock. 10. Approaching the roadblock at high speed, he once again directed the car at the police officers trying to stop him and they had to jump to one side to escape. They managed to deploy a spike strip, but despite passing through it, Mr Tonkev continued driving and soon after that turned off onto a small dirt road. The police officers started searching the area. Sometime later they found the abandoned car. They heard Mr Tonkev cry for help and found him close by, wounded. They called an ambulance, but Mr Tonkev died before its arrival. 11. Criminal proceedings concerning a possible offence under Article 119 of the Criminal Code (see paragraph 25 below) were instigated on 1 May 2011. The investigation was conducted against an “unknown perpetrator” until its conclusion. 12. On 1 May 2011 the scene of the incident was visited by an investigator from the investigation service in Pazardzhik. He also inspected the car which had been driven by Mr Tonkev. Two bullet holes were found in its front right-hand door, but only one of the bullets had pierced the door and penetrated the interior. Stains of dry blood were found on the left-hand front seat. A bag of tools including pliers and screwdrivers was found on the back seat. 13. A post mortem of Mr Tonkev’s body was carried out on 3 May 2011. A gunshot wound measuring 2.5 to 3 cm was found in the right lower part of the thorax. The bullet, which had penetrated horizontally, had caused a laceration of the liver. This had resulted in a severe intra-abdominal haemorrhage, which had caused the death. The expert concluded that the lethal shot had not been fired at close range. 14. A ballistic expert report was drawn up on 11 May 2011. It established that the lethal shot had been fired from the AK-47 rifle used by Mr K.A. 15. Many of the officers who took part in the operation on 30 April and 1 May 2011, including all of those who had been stationed at the third roadblock, were interviewed on different dates. Mr K.A. was interviewed on 4 May 2011. He said that he had fired into the air and immediately after that had jumped back to escape the speeding car. He also stated that his aim had been to preserve the life and physical integrity of his colleagues and of Mr Tonkev. 16. A combined medico-ballistic expert report was drawn up on 26 June 2011. It established that the lethal shot which had killed Mr Tonkev had been fired from between 0.8 and 3.8 metres. Whoever fired the shot had been positioned to the right and slightly in front of the victim. The shot had been fired while he was falling, staggering or jumping backwards and the gun had been in a horizontal position. The victim had been sitting in the driver’s seat, leaning against the backrest in the normal way. 17. Another medico-ballistic expert report, drawn up on 6 April 2012, concluded that, while firing the first two shots, Mr K.A. had been moving to the right, attempting to escape the approaching car. It was possible that at the time the second of these shots was fired he was no longer supporting the rifle with his left hand, which was thus in a position close to horizontal. The experts were of the view that it was impossible for shots fired into the air to have the trajectory observed in the case. 18. On several occasions in the course of the investigation the applicants’ representatives requested the replacement of the investigator and the prosecutor in charge of the case, arguing that they were not carrying out a thorough and independent investigation. In particular, the applicant’s representatives considered that the investigator and the prosecutor, by commencing an investigation concerning a possible offence under Article 119 of the Criminal Code, had predetermined the course of the criminal proceedings and had allegedly unjustifiably sought to discontinue the proceedings (see below). On all occasions the requests for replacement of the investigator and the prosecutor were refused by their superiors, it being found that the investigation was being carried out in a thorough and vigorous manner and that the allegations made by the applicants could not justify the conclusion that the investigator and the prosecutor were not independent. 19. On 30 December 2011 the prosecutor in charge of the case decided to discontinue the criminal proceedings, finding, on the basis of Article 12 § 1 of the Criminal Code (see paragraph 24 below), that no offence had been committed in connection with Mr Tonkev’s death. The prosecutor considered that Mr Tonkev’s actions, namely his directing of the powerful car he had been driving at high speed towards the police officers, represented an unlawful direct attack that placed their health and lives at risk. It therefore justified self-defence on their part, in particular the firing of the two shots by Mr K.A. 20. Upon an appeal by the first applicant, on 24 January 2012 the Pazardzhik Regional Court quashed the prosecutor’s decision, considering that she had not examined in a thorough manner the particular circumstances in which Mr K.A. had fired the lethal shot, such as the position of his body and the possible trajectory of the bullet. 21. The prosecutor collected further evidence, in particular the expert report mentioned in paragraph 17 above, and on 27 June 2012 decided to discontinue the criminal proceedings, relying once again on the provision contained in Article 12 § 1 of the Criminal Code. She considered that Mr Tonkev had launched a “direct and unlawful attack” on the police officers at the second, third and fourth roadblocks, using the car he was driving “as a weapon” capable of injuring or killing any one of them. Thus, Mr K.A. had “no longer aimed at apprehending” Mr Tonkev, but had acted in self-defence, in order to protect his own life, and also the lives of his colleagues. Given Mr Tonkev’s aggressiveness, the action taken in selfdefence had not been disproportionate. Mr K.A. had used his firearm after all other attempts to halt the attack had proved futile. 22. Upon an appeal by the first applicant, on 3 August 2012 the Pazardzhik Regional Court upheld the prosecutor’s decision, confirming her conclusion that Mr K.A. had acted in self-defence, and finding that the investigation of Mr Tonkev’s death had been objective and thorough. The court dismissed the first applicant’s argument that it had been necessary to examine as witnesses all officers who had participated in the operation of 30 April-1 May 2011, pointing out that all the eye-witnesses to the relevant events had been interviewed. The domestic court dismissed a further argument put forward by the first applicant that Mr Tonkev had not been armed, that his actions had been predictable and that he had not posed a danger to the officers. The court pointed out that Mr Tonkev had used the car driven by him “as a weapon” and that he had aimed at injuring or even killing the police officers trying to stop him. Thus, it did not appear that the use of lethal force was unjustified. Lastly, the domestic court dismissed the argument that the police officers’ actions had been “inadequate” and that they could have halted the car’s movement by using spike strips at a point earlier than the fourth roadblock. It noted that the place where Mr Tonkev and his accomplice had been hiding and the route they were intending to take had been unclear and that, moreover, the situation had unfolded very quickly. 23. Upon a further appeal by the first applicant, in a final decision of 19 October 2012 the Plovdiv Court of Appeal upheld the discontinuation of the criminal proceedings. It noted that Mr Tonkev’s death had occurred within the framework of a police operation organised with the aim of apprehending him after he had stolen a car. It observed also that Mr Tonkev’s actions had created “a real and immediate danger” for the police officers at the third roadblock and that in firing the shot which had killed Mr Tonkev, Mr K.A. had acted in self-defence. The Court of Appeal noted further that at the moment when the shots were fired, the attack carried out by Mr Tonkev had not ceased and that the actions taken in defence had been aimed at repelling it. This was illustrated by the fact that the shots fired by Mr K.A. had been directed at the front right door of the car, and not at the side windows; thus, he had aimed to halt the car’s movement and prevent its running over him and his colleagues. Lastly, the Court of Appeal concluded that the self-defence manifested in the case had been within the necessary limits, seeing that the attack launched by Mr Tonkev had been strongly violent. For the self-defence to be considered disproportionate, it would have to have clearly exceeded what had been necessary to repel the attack, and this had not been the case. 24. Article 12 § 1 of the Criminal Code of 1968 provides that an act committed in self-defence and not causing disproportionate harm to the attacker is not criminal. 25. Under Article 119 of the Criminal Code, causing death by a disproportionate reaction to an attack is punishable by up to five years’ imprisonment.