CASE OF ABDU v. BULGARIA [Extracts]
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1968 and lives in Sofia. 6. On 13 May 2007, at around 7.30 p.m., the applicant and one of his friends, Z.N., also a Sudanese national, were involved in a fight with two Bulgarian youths outside a shopping centre in central Sofia. The two Bulgarian youths, M.V. and R.G., fled before the police arrived, but they were arrested and remanded in custody for breach of the peace (хулиганство). The report drawn up by the police officers described the two Bulgarian youths as skinheads, adding that they were already known to the police for various offences such as breach of the peace, theft, burglary and drug trafficking. 7. The police initiated a preliminary investigation. The applicant and his friend, the two Bulgarian youths and an eyewitness were interviewed. According to the applicant’s submissions, Z.N. and he had been coming out of the shopping centre when they were attacked by the two young men. The first Bulgarian, who had a shaved head, had thrown the applicant on to the ground and kicked him. The applicant had then got up and punched him back. The two Bulgarians had insulted them by calling them “Negros” (негри), also shouting “dirty Negros, what are you doing here?”. The second Bulgarian, who had long hair, had brandished a knife and threatened Z.N. with it. The applicant and Z.N. had fled, and had met a police patrol, which had started looking for the two Bulgarians and managed to arrest them a few minutes later. Z.N.’s statements broadly corroborated those of the applicant. 8. According to M.V., the fight had begun because one of the Sudanese youths had shoved him with his shoulder when they had passed each other at the entrance to the shopping centre. He said that he had not paid any attention to what his friend R.G. had been doing. The fighting had stopped at some stage and his friend and he had fled when someone warned them that the police were on their way. 9. R.G. confirmed that one of the Sudanese men had pushed his friend M.V. as he passed by and that that was when the fight had started. Blows had been exchanged on both sides, and M.V. had had his face bloodied. At one stage R.G. had taken out his knife, which had put an end to the fight, and the two groups had then gone their separate ways. M.V. and R.G had been arrested by the police a few minutes later. 10. The eyewitness stated that he had seen one of the Bulgarians, the one with the shaved head, trip up one of the Sudanese men, who had then riposted with a punch. A general fight had then broken out among the four persons involved. 11. The applicant was examined by a forensic medical expert on 15 May 2007. According to the medical certificate drawn up on that occasion, the applicant had a swelling of the nasal base, an approximately onecentimetrelong abrasion on the left-hand side of his nose, covered with a scab, a swollen finger on his left hand and a contusion to the right knee. According to the medical certificate, the injuries noted had caused physical pain. They had resulted from blows struck by blunt instruments and could have been occasioned in the manner described by the applicant, namely in the course of a fight. 12. At the end of the investigation the police transmitted the evidence gathered to the public prosecutor for a decision on instituting a criminal prosecution for racist violence pursuant to Article 162 § 2 of the Criminal Code. 13. By an order of 15 June 2007 the district prosecutor decided not to bring a criminal prosecution. He considered that while a fight had indeed occurred among the four men, it had not been established that M.V. and R.G. had acted for reasons linked to Z.N’s and the applicant’s racial origins. The causes of the altercation were unclear, and the three versions of the facts – by the applicant and Z.N., by M.V. and R.G., and by the eyewitness –conflicted as to how and by whom the fight had been started. The two Sudanese men had claimed that they had been called “dirty Negros”, but the fact that it had been precisely their racial origin that had motivated the violence had not been corroborated by any other piece of evidence. The eyewitness, in particular, had not mentioned having heard any exchanges between those involved. The prosecutor concluded that in the absence of evidence of the specific motivation provided for by law, the offence had not been made out. 14. The applicant lodged an appeal with the higher prosecutor against the decision not to prosecute. He submitted that the investigation had been incomplete and that the investigators should have questioned M.V. and R.G. about their motivation and their reasons for wearing black clothing, “Ranger-style” military shoes and even Nazi insignia, as he remembered seeing such insignia on a T-shirt worn by one of the assailants. According to the applicant, the police officers who had attended the scene should also have been interviewed about how M.V. and R.G. had been dressed at the time of their arrest. Similarly, the investigators should have explicitly asked the eyewitness whether he had heard the exchanges between those involved, which they had not. 15. On 15 October 2007 the Sofia public prosecutor’s office confirmed the district prosecutor’s decision. The public prosecutor held that there was nothing to suggest that the violence had been perpetrated on the grounds of the applicant’s racial origin as the sole fact that he was black was insufficient to make out the offence. 16. By a letter of 29 July 2008 the applicant’s lawyer asked for a copy of the criminal case file, without providing reasons for her request. On 6 August 2008 the district prosecutor refused to supply the copies requested on the grounds that the lawyer had already been notified of the prosecutor’s decisions and that now that the appeal had been dismissed, the case was closed. ...