CASE OF NIKOLOVA AND VELICHKOVA v. BULGARIA
Preliminary objection (victim) joined to merits and dismissed;Violation of the substantive aspect of Art. 2;Violation of the procedural aspect of Art. 2;No separate issue under Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
Peer Lorenzen
6. The applicants are the wife and daughter of Mr Atanas Velichkov Nikolov. Mr Nikolov died on 1 October 1994 as a result of assault and battery by two police officers on 27 September 1994. 7. At about 2 p.m. on 27 September 1994 the twelve members of the rapid response force of the Shumen Regional Police Department were training just outside town. They spotted at a distance Mr Nikolov, aged sixtytwo at the time, and Mr N.R., who were testing a homemade metal detector. The leader of the team, lieutenant I.I., assumed that the two were treasurehunters and sent a party to verify his suspicion. Two police officers approached Mr N.R., while two others, chief sergeants B.I. and H.T., moved towards Mr Nikolov. None of the officers was in uniform. Chief sergeants B.I. and H.T. reached Mr Nikolov as he was trying to hide a hoe in nearby bushes. Surprised by the sudden appearance of the two men, Mr Nikolov did not throw the hoe away, but held it in front of him, taking a defensive posture. Chief sergeant B.I. brusquely pulled it out of his hands and threw it to a safe distance. Each of the officers then proceeded to deliver blows to Mr Nikolov's head. They then brought him to the ground, handcuffed him, and took him to their colleagues. A car was called and Mr Nikolov and Mr N.R., who had also been apprehended, were taken to the premises of the Shumen Regional Police Department. At about 3 p.m., while waiting to be questioned on the precinct premises, Mr Nikolov fainted. An ambulance was subsequently called and he was taken to hospital, where it was found that he had slipped into a coma. 8. After an unsuccessful operation to evacuate a subdural haematoma, Mr Nikolov died on 1 October 1994. A medical report drawn up in the course of the criminal proceedings opened pursuant to his death concluded that the cause of death was a severe cranial and cerebral trauma and internal brain haemorrhage. 9. On 2 October 1994 criminal proceedings were opened into the incident by the Shumen Regional Investigation Service. The offence was provisionally characterised as murder under Article 115 of the Criminal Code of 1968 (“the CC”) (see paragraph 39 below). 10. On 3 October 1994 the investigator in charge of the case questioned chief sergeants B.I. and H.T. Mr N.R. was also questioned on the site of the incident in the presence of a medical doctor. The investigator took a number of pictures of the site. 11. Most of the other witnesses were interviewed in October 1994 and in March and May 1995. Several expert reports were drawn up. 12. Chief sergeants B.I. and H.T. were charged and questioned again on 27 April 1995. They were released on bail. 13. The two officers who had arrested Mr N.R. were likewise charged and questioned on 2 May 1995. 14. On 12 May 1995 the investigator in charge of the case drew up his final report, concluding that chief sergeants B.I. and H.T. should be tried for wilfully inflicting grievous bodily harm on Mr Nikolov and thus having negligently caused his death, contrary to Article 124 § 1 of the CC (see paragraph 37 below). He also concluded that the two officers who had arrested Mr N.R. should be tried for inflicting light bodily harm on him. He noted, inter alia, that all of the officers had denied any wrongdoing, in spite of the evidence to the contrary, had drawn no lessons from their act and had shown no signs of remorse. He also noted that chief sergeant B.I. and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm on another person on 18 April 1994, only a few months before the act in issue in the proceedings. Reflecting on the conditions which had led to the perpetration of the alleged offences, the investigator expressed the opinion that these were “the recent increase in crime which ha[d] led lawenforcement officers to suspect a criminal intent in all citizens until proven otherwise; the physicality of their training at the [police officers' school in the town of Pazardzhik], where, year after year, they [we]re instructed in how to deal with violent resistance but [we]re inadequately trained on the legal aspects of law enforcement, a practice that ha[d] been maintained within the newlyformed rapid response force centre in Shumen, as evidenced by the curriculum attached to the case file: it abound[ed] in physical training classes and lack[ed] any classes in legal training; the sense of authority that the law-enforcement officers ha[d] over the public, who [were] expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens; the sense of impunity; the absence of any eyewitnesses to the two offences, committed in a forested area out of the public's sight, and the hope that all [would] be covered up”. 15. In view of an amendment in June 1995 to the Code of Criminal Procedure of 1974, whereby military courts were given jurisdiction to try police officers, on an unspecified date in 1995 the case was sent to the Varna Regional Military Prosecutor's Office. Apparently it was not processed there until January 1998. The applicants complained about this inactivity to the President of the Republic, the Chief Prosecutor and the Council of Ministers. All of them forwarded the complaints to the military prosecution authorities. 16. On 12 January 1998 the Varna Regional Military Prosecutor's Office sent the case to a military investigator for further processing. 17. In a letter of 6 February 1998 the Varna Regional Military Prosecutor's Office informed the applicants that the work on the case had been held up until the beginning of 1998 because of staffing and backlog problems. 18. In June 1998 the military investigator in charge of the case was transferred to another post. For this reason, on 31 July 1998 the case was assigned to another military investigator. 19. Having concluded his work on the case, on 30 December 1998 the investigator drew up his final report, proposing that chief sergeants B.I. and H.T. be committed for trial. He noted, inter alia, that, by that date, chief sergeant B.I. was a unit commander at the riotpolice sector of the Shumen Regional Police Department and that chief sergeant H.T. was a police officer at the specialised unit in charge of bank and cash transfer safety in Sofia. 20. On 18 August 1999 the Varna Regional Military Prosecutor's Office issued an indictment against chief sergeants B.I and H.T. It noted, inter alia, that on 15 January 1999 chief sergeant B.I. had resigned from the police force and that chief sergeant H.T. was still on the force, assigned as a guard in a commercial bank. Concerning the factors which had led to the perpetration of the offence, the prosecutor observed that these were “the defendants' sense of impunity as officers of the special force of the [Ministry of Internal Affairs], their lack of respect for human dignity and the health and inviolability of citizens and their habit of treating citizens as dummies for testing their physical force and abilities, which [were] only needed for apprehending dangerous criminals”. 21. The trial at the Varna Military Court started on an unspecified date in the autumn of 1999. 22. On 13 November 1999 the applicants and Mr Nikolov's son brought claims for compensation against the two police officers (5,000 Bulgarian levs (BGN) for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son) and joined the proceedings as private prosecuting parties alongside the public prosecutor. 23. The court held a hearing on 3 December 1999. It heard the applicants, Mr Nikolov's son and the accused officers. It also heard the concluding argument of the parties. In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants B.I. and H.T. He requested that immediate custodial sentences, ranging between four and a half and five years' imprisonment, be imposed. In their final statement the defendants said that they were not guilty and asked the court to acquit them. 24. In a judgment of 3 December 1999 the Varna Military Court convicted chief sergeants B.I. and H.T. of having negligently caused the death of Mr Nikolov by wilfully inflicting grievous bodily harm on him, contrary to Article 124 § 1 of the CC. It sentenced each of them to three years' imprisonment, suspended for five years. It also awarded the first applicant BGN 4,000, the second applicant BGN 3,000, and Mr Nikolov's son BGN 3,000, payable jointly and severally by the two officers. The court described in detail the events of 27 September 1994 and held, as relevant: “... the act was committed negligently ... The case at hand concerns a complex offence, where the intention in respect of the lesser outcome is combined with negligence in respect of the more serious outcome, in other words, the offence was committed with both forms of mens rea ... The court is of the opinion that both of the defendants wilfully inflicted grievous bodily harm on [Mr Nikolov], which later brought about his death. The intentions must be judged through their actions. Taking into account the subjective attitude of the defendants towards their act, the court deems that their intention did not go beyond inflicting bodily harm. They merely behaved negligently in respect of the ensuing death. The objective analysis of the defendants' conduct shows that they did not foresee the imminent death of [Mr Nikolov] and neither wished nor envisaged a fatal outcome, their intention being solely to inflict bodily harm... ...The evidence in the case suggests that no persons other than the defendants were in physical contact with [Mr Nikolov]... All the traumatic injuries which were established were inflicted at the same time, in quick succession. The evidence shows that between 2 and 2.15 p.m. on 27 September 1994 in the area of the Shumen plateau the defendants, ..., in their capacity as officers of the Shumen Regional Police Department, arrested [Mr Nikolov] using physical force, and in the process delivered numerous blows to his body, some of which were strong, as a result of their prior training in arrests. There is a direct and proximate causal link between the beating and [Mr Nikolov']s traumatic injuries and the ensuing fatal outcome. In pursuing their direct aim of inflicting bodily harm on [Mr Nikolov], the defendants did not envisage the end result, but – in view of the force and the direction of the blows, they could have. It must however also be noted that, as members of the rapid response force, the defendants had acquired special skills for subduing and apprehending offenders. They were executing an order given by their immediate superior ... which included the arrest of [Mr Nikolov]... In this connection, the court finds that the conduct of the head of the team, lieutenant I.I., is also reprehensible, because he was the individual who could and should have determined whether Mr Nikolov and Mr N.R. were offenders who had to be apprehended without fail. ... The causes and the conditions for the commission of the offence are the defendants' feeling of impunity as members of the special force of the Ministry of Internal Affairs. In determining the type and the quantum of the penalty the court had regard both to the defendants' young age and to their good character as mitigating circumstances. The court deemed the unlawful use of physical force as an aggravating circumstance. The court imposed the penalties having regard to the preponderance of mitigating circumstances... Taking into account the personality of the offenders, the gravity of the offence, and the fact that the defendants have no prior convictions, and bearing in mind the aims of punishment ... the court considers that the penalties do not need to be served immediately. For this reason ... the serving of the sentences is postponed ... The main purpose of punishment in our law is general deterrence, which is achieved through the imposition of just punishment. In matching the severity of the punishment to the gravity of the offence [the court] must have regard to the personality of the offender as an additional factor. In the case of a suspended sentence, [the court] must put the emphasis on individual deterrence, namely reform of the offender. In the instant case, the court, having regard to the facts as established above, the type of mens rea involved – negligence –, and the low level of public threat of the two offenders, who perpetrated their act in the relatively distant past, concludes that there is no need for the penalties of imprisonment to be served immediately in order to achieve the aims of the criminal law. ...” 25. Both the applicants and the officers appealed to the Military Appellate Court. The applicants submitted that the sentence was too lenient and that the compensation awarded was too low. They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty. In their view, the officers ought to be sentenced to an effective prison term of about five years. 26. Having held a hearing on 25 October 2000, in a judgment of 29 December 2000 the Military Appellate Court partly upheld and partly reversed the lower court's judgment. It increased the amount of compensation to BGN 5,000 for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov's son, but upheld the sentence. The court described in detail the events of 27 September 1994 and held that “in view of the police officers' numerical superiority, their younger age, their special training, the proximity of their colleagues, and the fact that in his further actions [Mr] Nikolov [had not] resisted or refused to obey their lawful orders, the physical force used had been in breach of section 40(1)(1) and (2) and section 41(2) and (4) of the National Police Act [1993], in force at the material time” (see paragraphs 42 and 43 below). The court's opinion continued, as relevant: “The factual findings of the [lower] court are based on the evidence gathered and are fully accepted by [this] court. In view of the facts, the acts committed by the defendants were properly characterised as an offence under Article 124 § 1 of the CC... I. Concerning the defendants' appeal In the indictment the prosecution brought charges against the two defendants for an offence ... committed in concert. The prosecution has not taken into consideration that the offence under Article 124 § 1 of the CC is only negligent as regards the graver consequence [death]. Complicity in a criminal offence is only possible in respect of wilful offences, as it presupposes the joint wilful participation of two or more persons, whose actions lead in their entirety to the perpetration of the offence, provided always that these persons realise that they are acting in concert with others. The actus reus of the offence under Article 124 [§ 1 of the CC] is complex. The intention to achieve the lesser outcome [bodily harm] is combined with negligence in respect of the graver outcome, i.e. the offence is committed with differing types of mens rea, which excludes the possibility of complicity. ... The defendants' objection concerning the unfoundedness of the lower court's judgment as regards the authors of the offence is groundless. The experts' conclusion is that the cranial and cerebral traumas were caused by two separate blows to the head, with or against a solid object, delivered with considerable force. The experts provide two explanations as to its possible source. According to the first explanation, one blow was to the head, either on the left temple or on the right occiput, followed by a fall to the ground and a further blow to the opposite side. According to the second explanation, the two injuries may be due to two separate consecutive blows with a blunt, solid object. The experts categorically exclude the possibility that the blows were inflicted with the sharp (metal) part of the hoe... The [lower] court was correct in accepting the second explanation, which is supported by the remaining evidence... In their statements, including those made at the trial, the two defendants admit the fact that they acted violently in apprehending [Mr] Nikolov. ... [B]oth defendants state that the victim did not fall on the ground at any point. Both aver that [Mr] Nikolov was standing or squatting. It was therefore impossible for one of the injuries ... to have been the result of a fall to the ground. The defendants' assertion that the victim's death was the result of light and not grievous bodily harm, as accepted by the [lower] court, is groundless and completely unsubstantiated. The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall lifeendangering disruption to health, i.e. it corresponded to the medical and biological indications of grievous bodily harm. The [lower] court has correctly found that the two defendants wilfully inflicted grievous bodily harm resulting in death. Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death – are convincing and fully accepted by [this] court, so there is no need to repeat them. ... II. Concerning the [applicants'] appeal The appeal is partially well-founded. The punishments imposed – three years' imprisonment – although the minimum possible by law, are not disproportionately lenient. The [lower] court has examined and taken account of all the factors which are material in determining the sentence. On the one hand, it is true that a human life was taken in a situation which did not call for the use of such intense physical violence in respect of [Mr] Nikolov. On the other hand, the defendants have no prior convictions, are of good character, each of them administered one blow to the head of the victim, the death was caused negligently, the [defendants] acted with a view to arresting an offender pursuant to the direct orders of their immediate superior, [Mr] Nikolov did not initially obey and did not throw away the hoe which he was holding and the defendants were discharged from the [police]. In view of all this the [court] finds that the [lower] court's conclusions as to the quantum of the penalties are wellfounded, as is its conclusion that the correction and reform of the defendants do not call for the imposition of an immediate custodial sentence. The appeal is ... wellfounded as regards [the amount of compensation awarded]. The quantum of the compensation for non-pecuniary damage is to be determined at the time of delivery of the judgment. At present the courts' practice is to allow claims in respect of nonpecuniary damage for amounts higher than the claims submitted by the [applicants]. For this reason the [court] finds that the judgment should be revised, by increasing the sums awarded to each of the applicants up to the full amount of their claims. This level of compensation will reflect the actual pain and suffering which [the applicants] have sustained from the loss of their relative.” 27. Both the applicants and the police officers appealed to the Supreme Court of Cassation. The applicants again submitted, inter alia, that the suspended sentence was too lenient. They argued that the lower court's characterisation of chief sergeant B.I. as a person “of good character” was questionable as he had been charged with the battery of a detainee six months before the beating of Mr Nikolov. The police officers submitted, inter alia, that the lower courts had imposed a very severe punishment. 28. Having held a hearing on 5 December 2001, in a final judgment of 14 January 2002 the Supreme Court of Cassation upheld the lower court's judgment in the following terms: “As regards the [applicants'] appeal: It is being argued that the [lower] courts have erred in ordering the suspension of the sentences of the two defendants, and a request is made to order that they serve their sentences. This ground of appeal ... is not supported by the materials in the case file and is illfounded. In applying Article 66 of the CC, [the lower courts] have weighed all the factors relating to the individual and general deterrence functions [of the criminal law]. Taking into consideration [the defendants'] clean criminal record, their good character, the manner in which the offence was committed, namely one blow each, the form of the mens rea, namely, negligence by each of the defendants, the behaviour of the victim, and in view of the aims of the punishment ..., the conclusion that the correction and reform of the defendants does not call for the sentence is lawful. This court fully shares it... As regards the appeal by the two defendants: The grounds of appeal are a breach of the substantive law and the obvious inequity of the sentences imposed and compensation awarded Bearing in mind the [lower courts'] findings of fact, which are not subject to review [by this court], this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file. The authorship of the offence has been proven beyond doubt, and the legal characterisation is correct. Each of the accused ... has executed all the elements of the offence under Article 124 § 1 of the CC. The evidence – the statements of the defendants, the witness testimony, combined with the medical expert report and the other written evidence, correctly assessed by both levels of jurisdication ... has led them to hold that the two have committed the offence independently of each other, in their capacity of police officers on active duty, in connection with the performance of their duties, thus negligently bringing about the death of [Mr Nikolov] by wilfully causing him grievous bodily harm. The personal conviction of the courts has been based on objective, comprehensive and complete assessment of all the facts of the case, which have been subjected to a serious and through analysis. In view of the facts, as thus established by the appellate court, the conclusions concerning the actus reus and the mens rea are lawful. In this connection, the defendants' objection that death resulted from light bodily harm is unfounded. An identical objection was made before the appellate court, which reviewed it and ultimately rejected it. The reasons given are detailed and based on the evidence, and therefore shared by this court. ... The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless. In determining the punishment of the two defendants, [the lower courts] analysed all the mitigating and aggravating circumstances. They correctly found a preponderance of the former and have imposed [a minimal suspended sentence, within the bounds provided for by law]. Extra lenience would be unwarranted, as it would not further [the deterrent and reforming purposes of the criminal law]. The amounts of compensation are likewise equitable. The reparation of the nonpecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and the principles of equity... Taking into account the pain and suffering as well as the irreversibility of the loss sustained, this court considers that the amount set by the [lower] court is just and would recompense the [applicants] to the utmost degree.” 29. The applicants obtained writs of execution against the two police officers on 25 January 2002. As the latter apparently refused to pay the applicants of their own accord, on 28 December 2002 the applicants issued enforcement proceedings against them. During the period 200204 the enforcement judge at the Shumen Regional Court tried to collect the amounts from the two officers, but to no avail, since the officers did not own any seizable assets. For this reason the two enforcement proceedings were discontinued towards the end of 2004 at the applicants' request. 30. On 24 July 1997 the two applicants and Mr Nikolov's son brought a tort action against the Ministry of Internal Affairs and the Shumen Regional Police Department before the Shumen District Court. They sought nonpecuniary damages for Mr Nikolov's death in the amount of 1,500,000 Bulgarian levs (BGL) for the first applicant, BGL 750,000 for the second applicant and BGL 750,000 for Mr Nikolov's son. 31. At the first hearing on 16 October 1997, the Shumen District Court stayed the proceedings in anticipation of the outcome of the investigation against the officers. Following completion of the criminal proceedings on 14 January 2002 (see paragraph 28 above), on 16 July 2003 the Shumen District Court resumed examination of the case. 32. The court held three hearings, on 5 November 2003 and 30 January and 12 May 2004. It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the parties' pleadings. In a bench ruling of 12 May 2004 it discontinued the proceedings against the Ministry of Internal Affairs, holding that the Shumen Regional Police Department, which had employed the police officers, was the only entity capable of being vicariously liable for their actions. 33. In a judgment of 24 June 2004 the Shumen District Court ordered the Shumen Regional Police Department to pay BGN 1,500 to the first applicant, BGN 750 to the second applicant and BGN 750 to Mr Nikolov's son, together with interest at the statutory rate, from 27 September 1994, the date of Mr Nikolov's death. It also awarded costs and expenses in the amount of BGN 149.40. It held that the facts surrounding Mr Nikolov's death and the nonpecuniary damage sustained by the applicants as a result had been fully established in the judgments of the criminal courts which had tried the police officers. These judgments, which assessed the applicants' nonpecuniary damage at BGN 5,000 and BGN 4,000 respectively, were binding on the civil court. The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers' actions. It observed however that the applicants had claimed lesser amounts – BGN 1,500 and BGN 750 – and it was therefore unable to increase the amount of the awards. 34. On 19 July 2004 the Shumen Regional Police Department appealed. On 15 November 2004 the applicants increased their claims to BGN 5,000 and BGN 4,000 respectively. The Shumen Regional Court held five hearings, on 16 November and 14 December 2004 and on 11 January, 1 and 24 February 2005. 35. In a final judgment of 29 March 2005 the Shumen Regional Court upheld the lower court's judgment. It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers. Concerning the increase in the applicants' claims, the court held that this could not be taken into account, since it had been made for the first time on appeal and as only the defendant had appealed against the firstinstance judgment. 36. The Shumen Regional Police Department paid the award of damages to the applicants shortly after the end of the proceedings. 37. Article 124 § 1 of the CC provides that whoever negligently causes the death of another by wilfully inflicting bodily harm on him or her is punishable by a term of imprisonment ranging from three to twelve years in the case of grievous bodily harm, from two to eight years in the case of intermediate bodily harm, and up to five years in the case of light bodily harm. 38. Articles 128 § 2, 129 § 2 and 130 § 2 of the CC differentiate bodily harm as grievous, intermediate or light, on the basis of various medical criteria. 39. Under Article 115 of the CC, murder is punishable by ten to twenty years' imprisonment. Under Article 116 § 1 (2) of the CC, murder committed by police officers in the performance of their duties is punishable by fifteen to twenty years' imprisonment or life, with or without parole. 40. Article 54 § 1 of the CC directs the criminal court to determine the sentence within the bounds provided for by law, taking into account the general rules of criminal law, the dangerousness of the offence and of the offender, the motives for committing the offence, and the remainder of the mitigating and aggravating circumstances. 41. Under Article 66 § 1 of the CC, the court may suspend a sentence of up to three years' imprisonment for three to five years, provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence, and also provided that the court finds that the aims of the criminal law (in particular, reform of the offender) may be furthered without the sentence being served immediately. 42. The relevant part of section 40(1) of the now repealed National Police Act 1993 („Закон за националната полиция“), as in force at the material time, provided: “... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action], in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists the police [officers]; ... 5. attack against citizens or police [officers]; ...” 43. Under section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained. 44. Under section 49 of the Contracts and Obligations Act 1951 („Закон за задълженията и договорите“), legal persons – including public bodies – are vicariously liable for the tortuous conduct of individuals employed by them.