KABUROV v. BULGARIA
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
The applicant, Mr Spas Spasov Kaburov, is a Bulgarian national who was born in 1996 and lives in Pazardzhik. He is represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The respondent Government are represented by Ms M. Dimova, of the Ministry of Justice. 1. The applicant is the son of Mr Kaburov, who died on 14 June 2000. The facts of the case, as submitted by the parties, may be summarised as follows. 2. According to the applicant, in the evening of 4 November 1997 his father, Mr Kaburov, was stopped by a police officer in front of his house. The officer wanted to seize Mr Kaburov’s car on suspicion that it had been stolen. 3. Mr Kaburov refused to surrender the car, as the police officer did not present any seizure order or other relevant document. He got into the car and drove away, with the police chasing him. 4. Shortly thereafter more police cars joined the chase. The policemen signalled Mr Kaburov to stop but he failed to do so. They fired shots at his car, shooting its tyres flat. Mr Kaburov got out of the car. Allegedly, after the police officers had caught him, they beat him, punching and kicking him, as a result of which he lost consciousness. 5. According to the Government, in the evening of 4 November 1997 a police officer, acting with the consent of the district prosecutor, went to Mr Kaburov’s home to seize his car on suspicion that it had been imported and registered with false documents. He informed Mr Kaburov that the car was being seized and requested the registration documents and the keys of the car. Mr Kaburov refused to comply with the instructions, threatened the police officer and drove away in the car. The police officer called for help and started chasing Mr Kaburov. Three patrol cars joined the chase. The policemen shot the tyres of Mr Kaburov’s car flat and stopped it. Then Mr Kaburov resisted the policemen and they had to use physical force and other means of restraint in order to arrest him, thereby causing him minor bodily harm. His car was seized. 6. After the incident the policemen called an ambulance and Mr Kaburov was taken to the hospital in Pazardzhik, where he was examined by a doctor and the wounds on his head were stitched. He discharged himself from the hospital the following morning. 7. On 5 November 1997 Mr Kaburov was examined by a forensic doctor, who found wounds on his forehead and nose, abrasions on his face and thighs and many bruises on his back. The doctor found that these injuries could have been inflicted at the time and in the way Mr Kaburov alleged and that the allegations that he had lost consciousness had to be proved by witnesses. 8. On 6 November 1997 Mr Kaburov went to the hospital in Plovdiv, where he stayed for four days, as it was established that he had broken ribs. 9. On 4 and 5 November 1997 the police took written statements from the policemen who had been involved in the chase. The policemen, Mr B., Mr G., Mr S.P., Mr T. and Mr V., stated that after Mr Kaburov’s tyres had been shot flat, he had got out of the car and had stumbled and fallen. He got up and cursed and threatened them. According to Mr B., his resistance lasted about a minute, after which he was handcuffed and put in the patrol car. 10. The road traffic policemen Mr S.B. and Mr D. stated that they had been called after Mr Kaburov’s arrest and requested to test him for alcohol. However, when they arrived, Mr Kaburov’s condition did not permit the use of a breath alcohol test, and therefore a physician took a blood sample from him. 11. On 14 November 1997 Mr Kaburov lodged a criminal complaint with the military prosecutor. He enclosed written statements from three individuals, Mr M., Mr H.P. and Mr S.T., who had allegedly observed his arrest from a nearby café. According to their statements, after Mr Kaburov’s tyres had been shot flat, he had got out of the car and was standing next to it. Two policemen had started beating him and kicking him. He had lost consciousness. Then the policemen had handcuffed him and put him into the police car. 12. On 11 May 1998 the Plovidiv regional military prosecutor refused to open criminal proceedings. He reasoned that Mr Kaburov’s car had been registered with false documents and that during the police check he had refused to comply with the policemen’s orders and had tried to escape in his car. Therefore the policemen had shot at its tyres and subsequently had used physical force against him. He further stated that it had not been proved that the policemen had abused their power. 13. On an appeal, on 17 June 1998 the military appeals prosecutor quashed the refusal and remitted the case for further inquiry. He instructed the regional military prosecutor to question the policemen and Mr Kaburov’s wife. 14. In a letter to the military appeals prosecutor of 3 August 1998 Mr Kaburov insisted that the inquiry should not be carried out by the policemen’s superiors, because they had an interest in the outcome of the case. He again requested that eyewitnesses Mr M., Mr H.P. and Mr S.T. be questioned and enclosed written statements from two other individuals who had allegedly seen policemen shooting at Mr Kaburov’s car during the chase. 15. On 5 August 1998 the military appeals prosecutor forwarded Mr Kaburov’s letter to the regional military prosecutor. There is no information as to whether the latter responded to his requests. 16. In October 1998 the regional military prosecutor questioned Mr Kaburov’s wife and three policemen and took written statements from several other policemen. On 27 October 1999 he again refused to open criminal proceedings, reasoning, without elaborating further, that he could not reach an unequivocal conclusion that the policemen had used excessive force against Mr Kaburov. 17. In a letter to the regional military prosecutor’s office in March 2000 Mr Kaburov requested that the prosecutor working on his case be replaced. It appears that his request was dismissed. 18. On 28 April 2000 the regional military prosecutor opened an investigation into Mr Kaburov’s allegations of ill-treatment. 19. Between April and June 2000 the regional military prosecutor and the military investigator questioned at least thirteen witnesses. 20. The policeman Mr B. confirmed his earlier statement that Mr Kaburov had stumbled and fallen down while getting out of his car (see paragraph 9 above). He further stated that after Mr Kaburov had stood up, he had insulted and threatened the policemen. Then one of the officers had knocked him over and Mr B. had managed to handcuff him and put him into the car. Mr B. also stated that the purpose of calling an ambulance was to carry out an alcohol test on Mr Kaburov. 21. The policeman Mr G. stated that after Mr Kaburov’s car had been stopped, Mr Kaburov had attacked him and had shouted threats at him, after which they had grappled and fallen to the ground. Then another policeman had managed to handcuff Mr Kaburov. Other policemen had arrived and Mr Kaburov had been put into the police car. 22. Eyewitnesses Mr M. and Mr S.T. stated that one policeman had grabbed Mr Kaburov and another had hit him with his pistol. Then other policemen had kicked him. The witnesses stated that they would not be able to recognise the policemen. 23. On 14 June 2000 Mr Kaburov was killed. His widow and another individual were convicted of the murder. 24. In August 2000 the eyewitnesses Mr M. and Mr S.T. were questioned again. They confirmed their previous testimony. 25. On 28 August 2000 the military investigator suggested that the criminal proceedings be discontinued. He reasoned that it had not been established which officer had hit Mr Kaburov, and again concluded that it had not been unequivocally proved that the policemen had used excessive force against him. He further stated that after Mr Kaburov’s death it was no longer possible to hold a confrontation between him and the police officers. 26. On 18 September 2000 the regional military prosecutor terminated the criminal proceedings, giving similar reasoning. 27. On 10 October 2000 the military appeals prosecutor quashed the decision of 18 September 2000 and remitted the case with instructions for a thorough investigation. 28. On 27 November 2000 the regional military prosecutor remitted the case to the investigator. 29. On 5 March 2001 eyewitness Mr S.T. was questioned again. He stated that he had previously been addicted to drugs but had undergone successful treatment. He further stated that on 4 November 1997 Mr Kaburov had not resisted the policemen. He also stated that he was not sure if any of the policemen had hit Mr Kaburov. 30. On 26 January 2001 the investigator organised an identity parade at which eyewitnesses Mr M. and Mr H.P. could not identify any of the individuals presented as the policemen who had beaten Mr Kaburov. 31. On 5 February 2001 the military investigator suggested that the proceedings be terminated, finding that there was no indication of any unlawful conduct on the part of the policemen during Mr Kaburov’s arrest. 32. On 2 April 2001 the regional military prosecutor terminated the proceedings. He stated that Mr Kaburov had resisted the policemen and that therefore the use of physical force against him had been justified. 33. On 11 April 2001 the military appeals prosecutor upheld the decree of 2 April 2001 with similar reasoning. 34. In a final decision of 27 April 2001 the Military Court of Appeal upheld the decree of 11 April 2001. It reasoned that Mr Kaburov had resisted the policemen, which had prompted them to use “physical force and other means of restraint” against him, thereby inflicting wounds and bruises on his face, back and both thighs. 35. On 5 January 1998 the Pazardzhik district prosecutor opened an investigation in respect of Mr Kaburov, on suspicion that during the incident of 4 November 1997 he had insulted a police officer and threatened him with murder, and had refused to comply with the orders of police officers. During the investigation she questioned the individuals who had participated in the events of 4 November 1997. Following Mr Kaburov’s death, she terminated the proceedings on 23 August 2000. In a final decision of 5 October 2000 the Pazardzhik Regional Court upheld the termination. 36. During the incident of 4 November 1997 Mr Kaburov’s car was seized in connection with the alleged document fraud. It is not clear whether any proceedings were instituted against him. Eventually, on 4 October 1998 the car was returned to him, as the prosecution authorities found that its seizure was no longer necessary for the purposes of the investigation. Apparently, it turned out that the car had not been stolen. 37. On 25 January 2000 Mr Kaburov brought an action against the Pazardzhik District Police Directorate and the prosecution authorities under the State and Municipalities Responsibility for Damage Act. The applicant presented his version of the events of 4 November 1997 and submitted medical certificates in support of his allegations that he had been beaten by police officers. He sought 9,000 Bulgarian levs (BGN) (approximately 4,500 euros (EUR)) in damages, stemming from the suffering, anguish and anxiety that he had undergone because of the shooting and the beating. He also claimed that the seizure of the car had been unlawful as the seizure procedure had been breached, and claimed initially BGN 3,000, later increased to BGN 3,300 (approximately EUR 1,150) in pecuniary damages, stemming from the impossibility to use his car for the period of its seizure between 4 November 1997 and 4 October 1998. 38. In the course of the proceedings, on 14 June 2000 Mr Kaburov died. The applicant, then aged four and represented by his mother, intervened in the proceedings as his son. 39. In a judgment of 28 May 2005 the Pazardzhik District Court dismissed the claim. Relying on the documents gathered in the course of the criminal investigation against the police officers (see paragraphs 9-34 above) and against Mr Kaburov (see paragraph 35 above), on medical expert opinions and on witness statements, the District Court established that in the evening of 4 November 1997 a police officer had visited Mr Kaburov’s home to seize his car in connection with a police inquiry. Mr Kaburov had refused to surrender the car, had threatened to kill the police officer and had driven away. The police officer and three patrol cars had started chasing Mr Kaburov. The policemen had shot the tyres of Mr Kaburov’s car flat and had stopped it. The District Court further established: “Kaburov’s arrest followed, [he] resisted the policemen and [they] had to use physical force and other means of restraint, whereby minor bodily harm was caused to Kaburov...” 40. The District Court noted that Mr Kaburov had wounds on the head, skin abrasions and bruises on the face, back and both thighs as well as a closed thoracic trauma. However, it found that it had not been proved that Mr Kaburov had experienced any pain or suffering as a result of those injuries. It also noted that the policemen had fired shots at his car because he had tried to escape, and concluded that the force used during his arrest had been necessary within the boundaries allowed by the relevant legislation. It further noted that the plaintiff had not proved that Mr Kaburov had been frightened by the shots. 41. The District Court held that the seizure of the car had been lawful. It also found that no damages were due, as the applicant had claimed compensation for lost rental income but had failed to prove that he would have rented out the car. 42. On appeal, the judgment was upheld in a final judgment of the Pazardzhik Regional Court of 6 January 2006. 43. The applicable provisions of the Criminal Code and the State and Municipalities Responsibility for Damage Act (“the SMRDA”) concerning ill-treatment by the police are set out in the Court’s judgment in the case of Shishkovi v. Bulgaria, no. 17322/04, §§ 22-23, 25 March 2010. Pursuant to section 6 of the SMRDA, if the alleged victim dies, their right to compensation for pecuniary damage is inherited. However, the right to compensation for non-pecuniary damage is inherited only if such an action has been brought by the alleged victim before his or her death. In the latter case the heirs may intervene in the pending proceedings in the alleged victim’s stead.