D.E. v. BULGARIA
Inadmissible
Christos Rozakis
The applicant, Mr D.E., is a Bulgarian national who was born in 1973 and lives in Gabrovo. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, co-agent of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At approximately 1.30 a.m. on 5 February 1997 the applicant and another person were arrested in the home of a person who had called the police indicating that the two were trying to steal from his car. After his arrest the applicant was taken to the regional police department in Gabrovo, where he was placed in police custody for twentyfour hours. The applicant alleges that when he was brought to the police department, several police officers started to shout at him, to kick his legs and to hit him in the stomach and in the kidneys. When he said that “[he did not] know about any thefts”, one police officer started to beat his head and back with a rubber hose. The others joined him with truncheons. Then the applicant was thrown to the ground and kicked. The applicant further submits that at approximately 9 a.m. the following morning he was brought for questioning to a room on the third floor of the police department. When he denied involvement in the commission of the alleged thefts the two officers who were questioning him began to hit him with wooden bats. He sustained blows all over his body, fell on the floor and tried to hide under a table. The two officers then started kicking him. One kick in the face allegedly broke two of his teeth. Later that day, 5 February 1997, criminal proceedings were opened against the applicant. The investigator who opened the proceedings ordered that the applicant be placed in pre-trial detention. Thereafter the applicant was transferred to a pre-trial detention facility, upon the admission to which he was examined by a paramedic. According to the report drawn up by the paramedic, the examination took place at 4.30 p.m. The paramedic noted that the applicant did not state that he had any ailments and stated that he had no medical complaints. The applicant signed the report. The applicant alleges that in fact the paramedic refused to describe his injuries, because he was not sure whether they had been sustained while the applicant had been in police custody or before that. The applicant alleges that in the following months he had to ask his relatives to provide him with analgesics, as his jaw had swelled and he was experiencing pain in the area of the broken teeth. Finally, the applicant alleges that, since the medical facilities in the pretrial detention centre and in the prison, where he was transferred on 15 April 1997, lacked the necessary material, the broken teeth could not be treated and had to be removed. In an undated written statement, apparently prepared for the purposes of the proceedings before the Court, the person who was arrested with the applicant on 5 February 1997 and co-accused with him submits that the applicant and himself were beaten by police officers immediately after their arrest. He also submits that he was later refused examination by a doctor. A police officer with whom he talked several days later told him that the applicant had also been seriously beaten. Lastly, he submits that at a confrontation on an unspecified date he saw that the applicant was “swollen and blue” and that the applicant had told him that he had been beaten in room no. 5 on the third floor of the police department. The documents in the case file indicate in that only one confrontation between the applicant and his coaccused took place on 14 April 1997. A medical certificate issued by a Gabrovo dental clinic on 22 October 1998 indicates that on 23 December 1997 the applicant underwent surgical treatment for an abscess of the soft tissues of the upper jaw. A medical certificate issued by the prison authorities on 24 March 2000 indicates that the applicant underwent extraction of teeth roots as follows: root of the 8th upper left tooth extracted on 23 March 1998; root of the 5th lower right tooth extracted on 26 March 1998; roots of the 4th and 5th upper left teeth extracted on 27 May 1998; roots of the 6th and 7th upper right teeth extracted on 28 October 1998; and root of the 3rd upper right tooth extracted on 25 November 1998. On 7 February 1997, after he was acquainted with the charges against him, the applicant was questioned by an investigator in the presence of counsel. He stated that he understood the charges and wished to exercise his right to remain silent. He did not make any reference to being illtreated after his arrest. When the applicant was questioned by the same investigator on 28 March 1997, he stated the following: “Stefan [the applicant’s coaccused] and I were taken to the police station. Beside Stefan I got a licking as well.” The applicant, who was assisted by counsel during the questioning, did not elaborate on that statement and did not provide any further details. On 19 December 1997 the applicant’s father filed an appeal against the applicant’s pretrial detention with the Gabrovo Regional Prosecutor’s Office, with a copy to the Gabrovo Regional Court. The appeal was returned, as it was not filed by the detained person or a duly authorised representative. On the second page of the document the applicant’s father stated as follows: “... according to our son, as well as to other sources, ... he had been illtreated on the third floor, room no. 5, where he had been beaten by [S.B.] and another police officer, because he would not admit of having thieved”. Section 40(1) of the National Police Act, as in force at the material time, read, as relevant: “... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists the police authorities; ... 5. attack against citizens or police [officers]; ...” Section 41(2) provided that the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of the persons against whom [force was being used]”. Articles 128, 129 and 130 of the Criminal Code (“the CC”) make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the CC). Article 287 of the CC makes it an offence for an official to engage, in the course of or in connection with the performance of his or her duties, in illegal coercive action towards an accused in order to extract a confession. This offence is likewise publicly prosecutable. Under Bulgarian law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure (“the CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 186, 187 and 190 of the CCP). During the relevant period the CCP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP).