FIMIANOV v. BULGARIA
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
The applicant, Mr Vladimir Antonov Fimianov, is a Bulgarian national who was born in 1940 and lives in Montana. He was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. On 2 September 1996 the applicant's son died while he was completing his military service as a private in the Bulgarian army (the “private”). On 3 September 1996 the private's commanding officer informed the applicant that his son had accidentally electrocuted himself when, together with two other army privates, he had tried to open a transformer in an electrical substation. The private's body was delivered to his family later the same day. While preparing the body for burial his family discovered various wounds, bruises and an alleged cigarette burn. The applicant's son was buried on 4 September 1996. A preliminary investigation was opened into the death of the applicant's son on 2 September 1996. An autopsy was performed on 3 September 1996. The autopsy report contained the following information in respect of the death of the applicant's son: “On 2 September 1996 at around 6 p.m. in the village of Bozhurishte, while [the private was] working with a high voltage transformer and at a moment when he was standing holding a metal rod, he received an electric shock. ... The immediate attempts to resuscitate him were unsuccessful.” The autopsy concluded the following: “The death of the [private] was caused by severe cardiovascular failure resulting from the effects of electricity on the body. This [finding] is supported by the place where the death occurred, the signs on the body of a quick death such as cyanosis of the face; spotted haemorrhaging under the mucous membranes of the eyelids, under the pleurae of the lungs, under the outer coating of the heart and under the mucous membrane of the renal pelvis; significant blood stagnation in the internal organs; swelling of the brain and the lungs; and, in particular, the presence of an electrical burn mark in the area of the right palm.” On 28 November 1996 the Sofia regional military prosecutor's office terminated the preliminary investigation into the death of the applicant's son. It concluded that on 2 September 1996 the private, together with two other army privates, had decided to remove the cover of an electrical transformer at an electrical substation with the aim of stealing copper cables. In the process, the private had used a metal rod to lever the cover open, but when he touched it he had been electrocuted. Based on the findings of the medical report and the testimonies of the two army privates who had witnessed the event, the public prosecutor's office concluded that there was a lack of evidence of an offence and terminated the preliminary investigation. A technical report into the incident had also been commissioned, which reached the following conclusion: “the three [army privates] entered the building of the [electrical] substation without the necessary qualifications and training and were operating there [in an environment of] 20,000 volts [of electricity]”. A letter dated 29 November 1996 was sent to the private's mother informing her of the decision of the public prosecutor's office. On 18 July 2000 the applicant appealed against that decision. He argued that the investigation had been superfluous, its findings inconclusive and that it had failed to satisfactorily address and account for all the bruises and wounds found on the body of his son. On 28 December 2000 the military appellate prosecutor's office quashed the decision of 28 November 1996 and remitted the case for further investigation. As a result, witnesses were once again questioned during January 2001. The results of the additional preliminary investigation were presented to the applicant on 12 February 2001. On 22 February 2001 the preliminary investigation into the death of the applicant's son was once again terminated by the Sofia regional military prosecutor's office, whose decision was upheld by the military appellate prosecutor's office on 6 March 2001. On the next day, 7 March 2001, the Military Court of Appeal, sitting in camera, upheld the above decisions to terminate the preliminary investigation into the death of the applicant's son. The applicant was informed of this in a letter dated 14 March 2001. The letter was sent by registered post on 16 March 2001, but it is unclear when it was received. Subsequently, the applicant petitioned the Chief Public Prosecutor's Office to request the reopening of the preliminary investigation. The petition was dated 2 May 2000 (“02.05.00” in the document), but the applicant himself indicated on the copy he provided to the Court that he had made a mistake in the date. In it the applicant referred to his appeal of 18 July 2000 and argued that the subsequent investigation had also been flawed as it had failed to comply with the instructions given by the higher prosecutor's office. Thus, he asked the Chief Public Prosecutor's Office to quash the decisions of the Sofia regional military prosecutor's office and the military appellate prosecutor's office and to propose the reopening of the preliminary investigation on the basis of the amendments of the Code of Criminal Procedure of 2 May 2000 (“02.05.00” in the document). The applicant filed his petition on an unknown date, but in order to process it the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 14 May 2001; it was sent on the 16th. On 14 June 2001 the supreme cassation public prosecutor's office rejected the applicant's petition and informed him that preliminary investigations terminated by court decisions were not subject to reopening. On the same day, the supreme cassation public prosecutor's office sent the case file back to the regional military prosecutor's office. The applicant filed a second petition with the Chief Public Prosecutor to request the reopening of the preliminary investigation, dated 25 July 2001. In order to process it, the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 13 September 2001; it was sent on the 18th. On 9 October 2001 the supreme cassation public prosecutor's office once again rejected the applicant's petition but also informed him that the decisions to terminate the preliminary investigation were correct in so far as there was a lack of evidence of an offence. The relevant provisions of the Criminal Code and of the Code of Criminal Procedure, as well as the practice of the domestic courts, have been summarised in the inadmissibility decision in the case of Nenkov v. Bulgaria (dec.) (no. 24128/02, 7 October 2008).