CASE OF VELIKOVA v. BULGARIA
Violation of Art. 2 with regard to the applicant's death;Violation of Art. 2 with regard to the lack of effective investigation;Violation of Art. 13;No violation of Art. 14;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award
Matti Pellonpää
12. The applicant is a Bulgarian national, born in 1942 and residing in Pleven. At the relevant time she lived in Bukovlak, a village in the district of Pleven. 13. In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft. 14. On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven. There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter. 15. In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.” It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames. 16. The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev. They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”. 17. According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that. According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally. 18. The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr Tsonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but ... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered. According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30 p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty. 19. Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr Tsonchev had been seated on a couch in the hallway. Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr Tsonchev had defecated into his trousers. It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note. Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows. 20. At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned. Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova. The order stated that it was issued on 24 September 1994 at 7 p.m. 21. According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance. At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr Tsonchev had displayed signs of ill-health. Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government. According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7 p.m. The note did not specify the source of this information. 22. According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly. The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up. No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established. 23. At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there. According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government. 24. According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed. He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch. Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station. The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25 September 1994. The source of the information about the hour was not mentioned. 25. According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2 a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy. 26. Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene. According to the written record of the inspection, the dead body of Mr Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator. Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof. 27. Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death. He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death. 28. On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr Tsonchev. On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov. The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station. 29. The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions: “1. What traumatic injuries are to be found on the corpse [of Mr Tsonchev]? 2. What was the cause of his death? 3. How were the injuries inflicted?” 30. The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1 cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5 cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18 cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left thigh, perpendicular to the femur, measuring 8 to 10 cm by 1.5 to 2 cm. The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand. The report concluded: “The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face. The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy. The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2 cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face. The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.” The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator. 31. On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening. 32. On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen. 33. On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government. 34. On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected. 35. The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994. 36. In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994. 37. On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура). On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia: “Tsonchev's death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District ... In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.” 38. In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation. By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia: “[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded ... ... it is necessary to establish Mr Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.” 39. According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case. Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8 July 1996. Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings. 40. On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”. She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov. The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case. 41. Under Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)). In accordance with the law as in force at the relevant time and until 1 January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1 January 2000). No further remedies existed under the relevant law.