CASE OF PANKOV v. BULGARIA
No violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);No violation of Art. 13
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1980 and lives in Pleven. 6. In April 1999 the applicant was conscripted into the Bulgarian Army to perform his mandatory military service. He was serving in a regiment in the town of Gorna Banya. In mid-July 1999 the regiment doctor relieved him from physical exercise and daily duty because of illness. Nevertheless, on the night of 21 July 1999 he was assigned to night duty. 7. After finishing his duty, in the morning of 22 July 1999 the applicant was sent, together with other soldiers from his regiment, to shooting practice at a military shooting range near the town of Slivnitsa. During the practice soldiers from the applicant's regiment and another regiment were present on the range. The applicant performed his task, which consisted of firing twelve rounds. After that he handed back all spent cartridge cases and was sent to a watchtower to guard against outsiders penetrating into the range. The tower was a square concrete construction 9.3 metres long and 7 metres wide. In the middle it had a threemetrehigh chimney. 8. At about 11.10 a.m., minutes after climbing up the tower, the applicant was shot in the abdomen. According to the findings of the ensuing investigation, the shot was fired at close range from his own automatic rifle, whose breechblock he was trying to fix without following the applicable safety procedures. The applicant disputes those findings and asserts that the shot was in all probability fired by another soldier from afar. 9. After the shot the applicant fell down on the roof of the tower, screaming and moaning. Chief Lieutenant P.P., who was sitting with a few soldiers from his regiment at the foot of the tower, rushed up the stairs. He brought the applicant down with the help of soldier T. and medical officer N.G., who were also at the foot of the tower and climbed up after the shot. 10. After that the applicant was put into an ambulance and transported, accompanied by medical officer N.G., to the Military Medical Academy in Sofia, where he underwent lifesaving surgical operations on 23, 26 and 27 July 1999. On 28 July 1999 his condition was found to be serious but stable. He was discharged from hospital on 9 September 1999, and later received a medical discharge from the army. 11. On the day of the incident a military investigator, notified by the military police, opened a preliminary investigation whose aim was to “determine the causes and the circumstances in which [the applicant] shot himself”. 12. At 2.30 p.m. the investigator inspected the scene of the incident. He found that it had not been preserved intact. He described in detail everything he found. He also identified, on the basis of the statement of Chief Lieutenant P.P., the likely positions of the applicant's body and of his rifle “after the shot”. He impounded the rifle, a halfscrubbed and oxygenated cartridge case, some pieces of dark reddish matter, dactyloscopic traces from the rifle, and traces from the surface of the tower. 13. Later that day the hospital where the applicant had been operated upon sent the investigator the piece of skin surrounding his entry wound and acetone smears from his palms. The applicant's commander handed over to the investigator the shirt he had been wearing during the shooting and some of his personal items. 14. The next day, 23 July 1999, the investigator interviewed Chief Lieutenant P.P., a sergeant responsible for counting the targets at the shooting range, the applicant's mother, and Captain Y.P., the officer in charge of the shooting practice. He also ordered a complex ballistic, microbiological and physicochemical report and a medical expert report. 15. Chief Lieutenant P.P. said that while he was sitting at the foot of the watchtower he heard a single shot from above, much louder than those coming from the firing range, and then heard screaming from the top of the tower. He climbed up the stairs and saw the applicant lying on the ground, moaning and tossing his upper body up and down. He noticed that the applicant's shirt was unbuttoned and that he had a wound on the left side of his abdomen. The wound did not have a clear shape and looked more like a star than a hole. It was surrounded by a round black patch with a diameter of five to seven centimetres and consisting of many black spots close together. The lieutenant saw another wound on the applicant's back, with a clear round shape, one centimetre in diameter, with a little blood on it. He also saw the applicant's rifle, which did not have a round in its chamber, had its safety lever down and was in semiautomatic mode. 16. Captain Y.P. handed over to the investigator the order and the plan for the shooting practice, and described the safety briefing given to all soldiers before the start of the shooting practice. He said that after the briefing a chief lieutenant checked the weapons of all soldiers taking part in the practice, and ordered two soldiers to step aside and clean their weapons. Then the captain announced to the soldiers the manner in which the practice would be conducted and the safety measures. They were to fire solely upon his command, and stop firing immediately if he so ordered, or if they received a visual signal from the watchtower, or if they noticed people, animals or machines near the targets. The firing range was delimited by markers at both ends. It was strictly forbidden, under any circumstances, to point a firearm outside the firing range. If a firearm jammed, the soldier had to report it immediately, remain still, put the safety catch down and not touch the firearm. The soldiers fired in groups of four, with those waiting their turn having unloaded weapons. The soldiers first went to the starting point, received magazines containing twelve rounds, and put them in their bags, while keeping their rifles on their backs. When they received the order to fire, they had to run to the firing position with their rifles pointing towards the firing range. Then, on a further order, they had to take the magazines out of the bags, put them onto the rifles, load a round, lift the safety catch and report that they were ready to fire. When ordered to fire, after the captain had made sure that each of them had loaded his weapon and was ready to fire, they put the safety catch in automatic firing mode and started firing. After finishing firing, they had to report, remove the magazine, and, when ordered, fire a control shot towards the firing range and put the safety catch on. After that they had to stand up, have their rifles checked by the captain with the magazine removed, fire a second control shot, and hand back the spent cartridges. At the time of the incident a group of soldiers was firing, with the captain standing about two metres behind them. Immediately after hearing the applicant's screams the captain ordered the soldiers to stop firing and empty their weapons, and then checked the weapons. 17. The order for the shooting practice, issued by the head of the regiment, designed a commanding officer, an officer, a sergeant and a soldier ensuring the sealing off of the area, a technician, an emergency medical officer, a standby ambulance, two guards, one of whom was the applicant, and a head of the ammunition supply point. It directed the commanding officer to ensure compliance with the safety measures in line with the applicable instructions. An annex to that order shows that all the soldiers confirmed that they had been briefed about the safety measures. 18. On 27 July 1999 the investigator interviewed medical officer N.G., SergeantMajor G.I., the person in charge of ammunition safety during the shooting practice, and soldier R.V. of the applicant's regiment. 19. N.G. said that, while sitting at the foot of the watchtower, she heard a loud whizzing sound and then screaming. She climbed up the tower and saw a wound on the applicant's abdomen. It was a small hole with a round darkbrown patch around it. Later, the officer was with the applicant in the ambulance, she noticed another wound, with a diameter of one centimetre, on the left side of his lower back. In the ambulance, she repeatedly asked the applicant how he had sustained the injury, but he kept silent. At one point, he said “I wanted to fix it”. She pressed him for more, but he said “Oh, leave me, leave me” and asked whether they had already reached the hospital. 20. G.I. said that following the incident, when he had been counting the cartridge cases spent during the shooting practice, somebody, probably Lieutenant M., threw a cartridge case on to the pile, and it got mixed up with the others. When G.I. enquired about the case's origin, lieutenant M. had replied that it had come from the scene of the incident. Later, with a view to identifying the case, the officer in charge of the practice ordered G.I. to divide the cases up into lots. He found only one with a diverging serial number, and handed it over to the investigator. G.I. also said that he was certain that the applicant had earlier returned to him all twelve cases of the cartridges allotted to him for the shooting practice. 21. R.V. said that the applicant had been in a good mood on the day of the incident, that both of them had had their rifles checked and returned their spent cartridge cases after the shooting practice, and that, prior to climbing up the watchtower, the applicant did not have a magazine on his rifle. 22. On 29 July 1999 the investigator interviewed the applicant, who was still in the intensive care unit of the emergency surgical department of the Military Medical Academy in Sofia (see paragraph 10 above). According to the record of this interview, the applicant said that while he was on the watchtower he tried to fix his rifle's sling. He knelt down on his right knee and laid the rifle on the ground with the muzzle pointing towards him. He noticed that the safety catch was in automatic firing position and the breechblock was not in position. With his right hand he pushed the breechblock forward. It jammed and he used force to push it, with the rifle's barrel lying on his left hand and the magazine holder pointing upwards. When the breechblock moved into position, he heard a shot. He became short of breath and started crying for help. 23. The applicant strongly disputes the accuracy of this record and maintains that, being in a very serious medical condition, he could not remember how this interview unfolded or the statements he made during it. He submits that the only reliable statements were those which he made during a subsequent interview on 13 September 1999, four days after his discharge from hospital. At that interview he said that before going to the tower he fired all twelve cartridges at the shooting range and then returned the spent cases to SergeantMajor G.I. When going up the tower, he noticed two sergeants there, talked to them for a while and then remained alone. When standing with his left side toward the shooting range and his rifle slung over his shoulder, he suddenly felt powerless, weak in the knees and short of breath, but did not hear a shot close by. He started shouting for help and ten seconds later someone came up to him. 24. On 11 and 17 November 1999 the investigator interviewed Captain V.P., a staff doctor from the applicant's regiment, and two soldiers serving with the applicant. All of them said that they had not seen any signs of depression in the applicant prior to the incident. 25. The medical expert report ordered by the investigator was drawn up on 28 July 1999 by Dr G.D., deputy chief of the Forensic Medicine Centre of the Bulgarian Army. He had not examined the applicant but based his report on the existing medical documentation. The report read as follows: “... The entry wound is situated on the front left side of the abdomen, slightly above the navel and on the midclavicular line, with burns on the surrounding skin. The exit wound is on the left side of the back, under the corner of the scapula. If the body was in an upright position the channel of the wound would go slightly upward from the front to the back. The entry wound's description in the medical documents shows that it was the result of a shot from a very close range. To determine precisely the distance of the shot it is necessary to carry out a ballistic testing of the clothes worn by [the applicant] at the time when the shot was fired. When passing through the body the projectile (the bullet), in addition to damaging the soft tissues, broke the twelfth rib on the left, ruptured the front and the back walls of the stomach, the transverse colon, the splenic flexure (in two places), and the spleen. As a result, there was a flow of faeces and a massive haemorrhage in the abdominal cavity, causing a temporarily lifethreatening medical condition. The above necessitated an emergency lifesaving surgery, consisting of a full midline laparotomy, with a drainage of the blood and the faeces from the abdominal cavity and a resection of the omentum, a wedge-shaped resection and stitching of the stomach, partial resection of the transversal colon and of the splenic flexure, with a removal of a bitruncular colostoma, surgical removal of the spleen, treatment of the fractured rib, lavage and drainage of the abdominal cavity, and laparostoma. After that surgical intervention the bleeding was stopped and the risk to [the applicant's] life was averted, i.e. the case concerns loss of the spleen. It should be borne in mind that without a timely and highlyqualified medical intervention death would have occurred very rapidly. After the surgical intervention [the applicant] was placed in an intensive care unit. Following Xray data about a haemorrhage in the left pleural cavity on 23 July 1999, a left-side thoracentesis (drainage of the pleural fluid) was carried out. On 26 July 1999 a surgical bandage was made, and on 27 July 1999 – a second laparotomy with a revision of the laparostoma and of the abdominal cavity was carried out, a local aesthetic was applied on the mesentery, ileostomy and debrissage of the small intestine through it were performed, and a new laparostoma was placed. After the surgical intervention the [applicant] was again placed in an intensive care unit. On 28 July 1999 his condition was assessed as being stable but serious.” 26. On 10 September 1999 a biology expert drew up a report saying that the blood-red dry matter taken from the scene of the incident was indeed human blood. However, as a result of the depletion of the sample, it was impossible to determine its type or to tell whether it was identical with the applicant's blood. The applicant's shirt had blood on it. 27. In a report of 14 September 1999 three experts stated that the applicant's rifle was in good working order and able to produce a shot. The force needed to be applied to the trigger in order to fire was within the acceptable limits. They further found that the rifle had been fired since it had last been cleaned, and that the cartridge case handed over by SergeantMajor G.I. to the investigator did not come from that rifle. 28. In a physicochemical report of 4 October 1999 two experts said that they had been unable to conclude whether the gunpowder from the rifle's barrel was identical to that taken from the applicant's shirt. They also said that the smears from the applicant's palms and wrist-bands did not contain traces of a shot. 29. On 22 November 1999 the investigator proposed discontinuing the investigation. He found that the applicant had shot himself at close range. There was no evidence pointing to breaches of the regulations on conducting shooting exercises or the applicable safety rules. Nor was there any indication that the applicant had had psychological problems or depression which could push him to commit suicide, or that he had tried to damage his health with a view to evading military service. The evidence thus led to the conclusion that his injury was the result of an accidental shot fired because of his improper handling of his firearm. 30. On 30 November 1999 the Sofia Military Regional Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator verbatim. 31. On 9 April 2001 the applicant appealed to the Military Appellate Prosecutor's Office. He argued, among other things, that the authorities had explored solely the version that he had shot himself. No expert report had been drawn up on the identity of the firearm which had produced the shot. It was absurd to think that this was the rifle he had been carrying while on the watchtower, because it had not been loaded and had its safety catch down. His clothes had not been examined by an expert and it was therefore impossible to conclude whether or nor the shot had been fired at close range. The medical expert report was not based on primary medical documents and had thus come to the erroneous conclusion that the bullet had left his body, producing a second wound on his back. There were indications, such as the noise of the shot, noted by the witnesses, that he had been wounded by a ricochet and that the bullet had shattered. 32. On 18 June 2002 the Military Appellate Prosecutor's Office dismissed the appeal. It noted that during his interview on 29 July 1999 the applicant had stated that he had shot himself. Moreover, the medical expert had found that he had both an entry and an exit wound. The medical documents showed that the wound was from a shot fired at close range. Noone else was around the applicant at the time of the shot. The lower prosecutor's findings were thus correct. 33. On 9 July 2002 the applicant appealed to the Chief Prosecutor. He asserted that his statement of 29 July 1999 was far from reliable. At that time he had been in hospital, in a very bad condition following several lifesaving operations. It was therefore surprising to see that the official record of this statement seemed so detailed and logical. No expert report had been drawn up on the identity of the firearm which had produced the shot, whereas the evidence showing that it had been fired by his rifle was unreliable and was called into doubt by other evidence. There was no evidence showing that the shot had been fired at close range. Lastly, no consideration had been given to the fact that he had been ordered to take part in the shooting exercises after night duty and while he was ill. 34. On 11 October 2002 the Supreme Cassation Prosecutor's Office dismissed the appeal. It observed that the testing of the piece of skin surrounding the applicant's entry wound showed that the shot had been fired at close range. This was consistent with the applicant's statement of 29 July 1999 and the statement of medical officer N.G. It was impossible to examine the bullet, because it had not been found. It was established that the spent cartridge case handed over to the investigator by SergeantMajor G.I. did not come from the applicant's rifle. However, it could not be ruled out that G.I. had mistakenly identified it as the one thrown on to the pile by lieutenant M., given that the pile contained in total more than nine hundred spent cartridge cases. Even if all of them were to be tested, which was impossible in view of the time elapsed since the events, that would not have led to a definite conclusion about the firearm's identity. The lower prosecutors had thus correctly found that the applicant had injured himself by handling his rifle improperly. There was no indication that other soldiers had shot him or that he had injured himself deliberately. 35. On 11 June 2003 the applicant's representative before the Court wrote to Dr P.L., the head of the forensic department of the Pleven Medical University. He sent him the relevant medical documents and asked for his opinion on (a) whether the description of the applicant's wound was comprehensive; (b) whether it was possible to determine, on the basis of that description, the distance from which the shot had been fired; (c) what could be the exact basis for such determination; (d) what could be the possibility for error; and (e) what type of data would allow a more precise determination of the distance from which the shot had been fired. 36. Dr P.L.'s opinion, drawn up on 13 June 2003, read as follows: “The questions you pose in your letter ... may be answered like this: 1. The description, which says 'visible entry wound in the abdominal area, at the midclavicular line, slightly above the navel, with burns', is not detailed – the shape of the wound, the condition of the edges, the size of the wound (diameter or diameters), the size of the 'burn' and its position relative to the edges of the wound – concentric or eccentric – are lacking. 2. On the basis of that description, one could make the very general conclusion that the wound was the result of a shot from a close distance. Indeed, the shot could have been even a contact one, if it was fired through several layers of clothing, or thicker, or damp clothing. In forensic medicine, shot distances are categorised in three ways: contact shots (complete or incomplete), closedistance shots (within the range of action of the shot's additional effects), and longdistance shots (outside the range of action of the shot's additional effects), without this being linked with a concrete distance in centimetres or meters. 3. The basis for the conclusion in point 2 is the fact that the wound was surrounded by a ring, described as a 'burn'. 4. In the case of closedistance shots (and sometimes in the case of contact shots), one can see traces of unburned powder, metal particles, grease, etc. around the wound (the socalled 'stain ring' or 'blackened ring'). The range at which those can make an impact (in the case of a shot with a Kalashnikov rifle) is twentyfive to thirty centimetres. With the increase in the distance, the intensity of those additional effects of the shot diminishes. There is no burning around an entry firearm wound because the action of the flame and the hot gases is short-term. Sometimes one can find traces of the high temperature – slight burning of thin or more tender hairs or of artificial tissues. The 'stain ring' around the wound is a result of the mechanical action of the blacks and of the other particles and their ramming into the skin, as well as of the chemical action of the powder gases and the other residues from the shot. It is also possible that the so-called 'burn' was in fact a 'muzzle mark' – a bruise around the entry wound resulting from the impact of the muzzle in the case of a full contact shot. Such marks are characteristic for shots in the head or in areas having a solid surface (bone) underneath, but can sometimes occur in cases of shots in the abdominal area. The available description does not allow a more specific conclusion to be drawn. The possibility for error when concluding that a shot has been fired from a close distance on the basis of a 'stain ring' is minimal. The medical literature refers to the so-called 'phenomenon of Vinogradov', in which such a ring appears after a shot from a distance of even several hundred meters. However, such occurrences are rare and do not correspond to the description of the wound in the present case. The description of the wound allows one to conclude that the shot was fired either from a close distance or that it was a contact shot. A long-distance shot is to be excluded. 5. It would be possible to make a more specific assessment of the distance from which the shot has been fired on the basis of: – a more detailed medical description (as mentioned in point 1); – more information about the conditions in which the shot was fired (clothes, type of bullet, etc.); – a special analysis determining the composition of the stain around the wound or on the clothes; – experimental shots with the same weapon and in the same conditions as the shot under consideration.” 37. Article 192 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator. When military courts had jurisdiction to hear a case, as for example when it concerned soldiers or army officers (Article 388 § 1(1) of the Code), the responsibility for conducting the preliminary investigation lay with military investigators and prosecutors. 38. Under Article 237 § 1 (1) of the Code, as in force at the relevant time, prosecutors were to discontinue an investigation if they found that the matters alleged did not amount to a criminal offence. Until 31 December 1999 their decisions to do so could be appealed against before the superior prosecutor (paragraph 6 of that Article, as in force until 31 December 1999). 39. Paragraphs 3 and 4 of Article 237 of the Code, as in force between 1 January 2000 and 30 April 2001, provided that after the discontinuance the prosecutor had to send the case file and his decision to the superior prosecutor's office, which could confirm, modify or quash it. If it confirmed the decision, it had to send the case file to the appropriate court, which had to rule in private as to whether the discontinuation was or was not warranted (Article 237 §§ 5, 6 and 7 of the Code, as in force at that time). Paragraph 9 of that Article provided that no appeal lay against the court's decision. No provision was made for the victim of the offence to be notified of the discontinuance. 40. Article 237 of the Code was completely changed with effect from 1 May 2001 and from that point on provided that the prosecutor's decision to discontinue the proceedings was to be served on the accused and on the victim of the offence. Either of them could then seek judicial review. 41. Under the 2005 Code of Criminal Procedure, which superseded the 1974 Code on 29 April 2006, a prosecutor's decision to discontinue an investigation is served on the accused and the victim of the offence and is subject to judicial review by the relevant firstinstance court. An appeal lies against the court's decision to the higher court, whose decision is final (Article 243 §§ 37 of that Code).