CASE OF STEFAN ILIEV v. BULGARIA
No substantive violation of Art. 3;Violation of Art. 3 on account of the lack of an effective investigation into the applicant's complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
7. The applicant was seventy-two years old at the time of the events and had previously suffered from tuberculosis on at least three occasions. 8. On 19 December 1996 the applicant visited a café-bar where he drank and became intoxicated. On his way home, at around 6 p.m., he passed by the building of the Bulgarian national television (“BNT”), in front of which there was a demonstration. The applicant was carrying a beer bottle, which he either dropped or threw against the building of the BNT. He then went to a nearby café. 9. Two police officers, who were providing security in front of the BNT, approached the applicant in the café. When they saw that he was intoxicated they led him off to the security guards' duty room in the BNT. 10. In response to the applicant's request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the BNT in an attempt to break its windows. 11. The applicant was kept in the security guards' duty room of the BNT until 8 p.m. He was then taken to the First District Police Station (Първо районно управление на МВР) for questioning, but, in view of his intoxicated state, was transferred to the Sobering-up Centre of the Sofia Police. The applicant arrived there at around 9 p.m. and remained overnight. 12. The applicant was discharged at around 9 a.m. on the next day, 20 December 1996, into the custody of the police and was taken to the Investigative Division of the First District Police Station for questioning. 13. At 11:15 a.m. on 20 December 1996 the applicant was given a written reprimand by the police to refrain from disturbing the peace, to drink with caution and not to resist inspections by the police. The applicant refused to be served with the written reprimand. 14. The applicant contended, which the Government did not challenge, that he was released from the police station sometime in the afternoon on 20 December 1996. 15. The applicant submitted that when he was detained by the two police officers in front of the building of the BNT he may have showed some resistance as he believed he was being wrongly detained. He contended, however, which the Government did not challenge, that while he was being led to the security guards' duty room of the BNT the police officers repeatedly hit him with a truncheon on his hands, kicked him in his ankles and punched him in the back and in the area of his kidneys. The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention. 16. In their subsequent statements before the Prosecutor's Office, the police officers stated that the applicant was somewhat aggressive when they tried to detain him, but that they did not use any special measures to subdue him. 17. After being released on 20 December 1996 the applicant was examined by a doctor and a special medical report for use in legal proceedings was prepared, the relevant part of which stated the following. “Preliminary data: The [patient] indicates that on 19.12.1996 at approximately 6 p.m. he was beaten by uniformed police officers. The examination established: On the back of the right hand in the area of the [bracelet] joint it is visible that a linear contusion of the skin exists of reddish-dark colour with a size of 5 cm by 2 cm. On the back of the wrist of the right hand another contusion can be seen with a size of 4 cm by 2 cm. On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish-dark colour protruding above the skin around them with a size of 3 cm by 2 cm. CONCLUSION The examination of [the patient] established: contusions and abrasions on the skin of both hands. These injuries resulted from blows by or against solid blunt objects or blunt-cornered objects, as well as from the tangential affects of such objects and [considering] their morphological characteristics [they] reasonably correspond and could have been sustained in the manner and at the time indicated by [the patient]. They caused him pain and suffering.” 18. In 1998 the applicant received treatment to ailments in his ankles and wrists. 19. On 13 January 1997 the applicant complained to the Chief Prosecutor's Office regarding the beating by the police officers on 19 December 1996 and of being detained. On an unspecified date, he was informed that his complaint was being forwarded to the Sofia's Regional Military Prosecutor's Office. 20. On 21 March 1997 the Sofia Regional Military Prosecutor's Office refused to open a preliminary investigation because of lack of evidence of an offence. It based its decision on the applicant's complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering-up centre. The Prosecutor's Office considered the applicant's assertions to be unfounded and unsupported by any facts other than his complaints. The applicant appealed against the decision of the Prosecutor's Office on an unspecified date. 21. By decision of 17 December 1997 the Armed Forces Prosecutor's Office upheld the decision of the Sofia Regional Military Prosecutor's Office. It found that the facts of the case did not warrant the opening of a preliminary investigation. The decision of 17 December 1997 stated, inter alia, the following: “From the materials [contained] in the file it [can be] ascertained that [the complaint] relates to the forced detention in a sobering-up centre of the applicant [following] a disturbance of public order [while] in an intoxicated state. The inquiries performed do not indicate that any unlawful actions [were performed] by the police. The collected data show that there was in fact a disturbance of public order – breaking of bottles, throwing objects at the building of the [Bulgarian national] television, etc. In such case quite rightly [the Sofia Regional Military Prosecutor's Office] refused to open a preliminary investigation.” 22. It is unclear whether a copy of the decision of the Armed Forces Prosecutor's Office was ever sent to the applicant. 23. On 30 December 1997 the applicant filed a complaint with the Chief Prosecutor's Office claiming that he had not received a response to his previous complaints. 24. On an undetermined date a prosecutor from the Armed Forces Prosecutor's Office responded, in the form of a resolution, which stated, inter alia, the following: “On 30 December 1997 a complaint was filed by [the applicant], who was not satisfied with the decision of the prosecutors from the Armed Forces Prosecutor's Office and the Sofia Regional Military Prosecutor's Office. I reject the complaint of [the applicant] because the Armed Forces Prosecutor's Office has already ruled on the matter and there is no necessity for it to change its position [expressed] in the decision of 17 December 1997.” 25. The Government contended that a copy of the above resolution was sent to the applicant on 14 January 1998. The applicant maintained, however, that he never received it and that he only became aware of the decisions of the Prosecutor's Office not to open a preliminary investigation on 21 November 1998. A note to that effect was inscribed in the applicant's handwriting on the copies of the decisions he provided to the Court. 26. Section 40 (1) of the National Police Act, as in force at the relevant time, provided, as relevant: “... [P]olice [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 a police [officer]; ... 5. attack against citizens or police [officers]; ...” 27. Section 41 (2) provided that the use of force had to be proportionate to, in particular, the specific circumstances and the personality of the offender. 28. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”. 29. Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another individual. 30. Article 131 § 1 (2) of the Criminal Code 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 Criminal Code). 31. Under the Code of Criminal Procedure (1974), as in force at the relevant time, preliminary investigations for publicly prosecutable offences could be opened only by a decision of a prosecutor or an investigator (Article 192). 32. The prosecutor or the investigator must open a preliminary investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code of Criminal Procedure). 33. During the relevant period, the Code of Criminal Procedure provided that if the information provided to the authorities was not sufficiently supported by evidence, the latter had to conduct a preliminary inquiry (verification) in order to determine whether the opening of a preliminary investigation was warranted (Article 191).