CASE OF ANGELOVA AND ILIEV v. BULGARIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;No separate issue under Art. 3;No separate issue under Art. 13;Violation of Art. 14 +2;No separate issue under Art. 14+3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
6. The first applicant was the mother and the second applicant was the brother of Mr Angel Dimitrov Iliev (“the victim”), who was of Roma origin and twenty-eight years old at the time of his death. 7. On the evening of 18 April 1996, in the town of Shumen, the victim was attacked by seven teenagers (“the assailants”) and beaten severely. He was also stabbed several times by one of the assailants. 8. The victim was taken to a hospital after the attack but died on the following morning, 19 April 1996. 9. As later submitted by the assailants, the attack was motivated by the victim's Roma ethnicity (see paragraphs 12-13 and 18-21 below). 10. All of the assailants were detained and questioned by the police on the day of the attack, 18 April 1996. With one exception, all were juveniles. 11. The assailants were all released after questioning, with the exception of G.M.G. (“the first assailant”), who was seventeen years old at the time. A knife had been found on him and two of the other assailants, N.R. and S.H., had implicated him as the person who had wielded the weapon. The first assailant was remanded in custody on suspicion of murder. 12. On 19 April 1996 the assailants were again questioned by the police. N.R. and S.H. confirmed their statements to the effect that the first assailant had wielded the weapon. Thereupon, a preliminary investigation was opened against him and he was charged with murder stemming from an act of hooliganism (see paragraph 56 below). He was then questioned, but declined to give a statement other than to confirm that the knife found on him was his own. 13. D.K., who was fifteen years old at the time, gave a statement on 19 April 1996, the relevant part of which reads: “...[We have been meeting] with the boys regularly for the past several months. We agree in advance where and when we will meet the next time, because we do not go to the same school... We hate junkies and [do not] take drugs... we [also] do not drink alcohol, either when we see each other or when we are apart... We talk about films, music and have [stated] on many occasions that we hate Gypsies – we call them “soot” (сажди) and “mangals” (мангали)... Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and the Gypsies[,] it is known that a high percentage of criminal offences are [committed] by Gypsies and Turks. At home I have heard my father talk about them that way... Last night... we met... as we had previously agreed. [It was a] simple gathering without any aim or idea of what we would do... We went for a walk in the city [park]... We [then] headed towards the train station... [Then] down towards the road... We passed by the bridge... and were walking [close to] the tracks. We were just passing and I [do not know] who noticed the Gypsy first... [The Gypsy] was about ten metres away, we were on one side of the road and he was on the other. We started walking after him... The first to catch up with him was [the first assailant] and the Gypsy asked him if he had [the time]. I do not think that anyone of us knew the Gypsy. [The first assailant] told him “I have, I have” and knocked his head against the wall. [He] held the Gypsy by the jacket from behind [so] that when he hit him the first time he did not [collapse] because [the first assailant] was holding him [up]. [The first assailant] turned him around immediately and knocked him [once] again [against] the wall. I think he hit him on the head again. [S.H.] went over... and kicked the Gypsy somewhere on the body. I did not see where. I and [one of the others] went over to [them] and [we all] brought the Gypsy to the ground. [He] was not able to put up any resistance because everything happened very quickly. He was shouting, because he was hurt. I was not thinking about what the Gypsy was saying and I did not care. Personally, I wanted to beat him up and nothing more. I think that the others also just wanted to beat him up... The others... were [also] hitting the Gypsy. I saw them when they hit him. The Gypsy was on the floor and was not able to put up any resistance. I was doing what the others were doing and did not watch what they were doing... At some point I saw that there was bleeding from his head. The blood was somewhere on [his] face. He was [still] moving... the same night I had seen that [the first assailant] had a knife... The knife is mine, [but] I gave it to [the first assailant]... a long time before this [night]... I did not know that [that] night [the first assailant had] the knife [with him]... ... While we were walking [behind] the Gypsy [and] before we caught up with him[,] I saw that [N.B.]... said to the [the first assailant] “Give me the knife” and I saw that [he] took it out of his pants and gave it to him. I did not see where [N.B.] put the knife and whether it remained in his hand. [But] when we were hitting the Gypsy on the floor I saw how [N.B.] stabbed [him] with the knife in [the buttocks] area... I saw that [N.B.] plunged the knife several times into the body of the Gypsy[,] always in that part of his body. The Gypsy was screaming. [N.B.] did not say anything, he was not swearing. [N.B.] made three or four jabs... [T]he Gypsy was still moving. Blood began to flow from the place where [N.B.] had [stabbed him]... The rest of us were continuing to hit... the Gypsy while [N.B.] was stabbing him...The Gypsy had not provoked us in any way[,] neither with words nor with actions... We beat him because he was a Gypsy... He had had enough. I saw that he was not bleeding profusely... We did not want to kill him, just to beat him up...I am not sure that only [N.B.] used the knife, but I cannot indicate that any one of the others used it. I did not see another [person using it]... ... I still do not know what happened to this person, whether he is [still] alive... We have beaten up Gypsies [before] and we [always] hear what happens [to them]...”. 14. An autopsy of the victim was performed on 20 April 1996. It established that he had been stabbed three times in the left outer thigh and twice in the abdominal cavity which resulted in the severance of the ischiadic nerve, the profunda femoris artery (deep artery of the thigh), the main intestine and the urethra. He also had bruises and contusions to his face and the back of his head. The autopsy concluded that the cause of death was massive internal loss of blood, resulting from the severance of the profunda femoris artery. 15. On the same day, 20 April 1996, the investigator commissioned a medical expert's report to establish the victim's wounds, whether any of them were in the stomach area, how they had been inflicted, what force had been used and whether his death had been inevitable or whether it could have been avoided by timely specialised medical assistance. It is unclear what was established by the medical expert. 16. On 15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B., were charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). They were questioned in the presence of their lawyers and then released into their parents' charge. 17. D.K. confirmed his previous statement but denied knowing anything about the stabbing of the victim. He was unable to determine whether he was guilty or not. 18. S.H., who was sixteen years old at the time, pled guilty to the offence with which he had been charged. He expressed his hatred for Gypsies and stated that the group had purposefully looked for someone from that minority group to attack. S.H. retracted his previous statement of 19 April 1996 in respect of who had perpetrated the stabbings (see paragraph 11 above) and implicated N.B. as having been responsible. As to why he was changing his testimony, he claimed that the members of the group had had an understanding always to implicate the first assailant if they were ever caught, which the latter had apparently suggested and condoned. 19. N.R., who was seventeen years old at the time, also pled guilty to the offence with which he had been charged. He also confirmed that they had purposefully looked for a Gypsy to attack, retracted his statement of 19 April 1996 (see paragraph 11 above) and implicated N.B. as having stabbed the victim. 20. N.B. (“the second assailant”), who was fifteen years old at the time, pled guilty to the offence with which he had been charged but denied any knowledge of the stabbings or of having perpetrated them. 21. On 22 May 1996 G.R.G., who was eighteen years old at the time, was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below) and questioned in the presence of his lawyer. He was then released but a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. In his statement, he pled guilty to the offence with which he had been charged and confirmed the attack was motivated by the victim's Roma ethnicity but was unable to indicate who had perpetrated the stabbings. 22. The seventh member of the group, S.K., was never charged as he did not participate in the attack on the victim. 23. Also on 22 May 1996 two witnesses were questioned, one of whom was I.D., a member of the group who had not been present during the attack on 18 April 1996. He gave a statement to the investigation that he had met the first assailant later on the same evening and that the latter had confided in him that the second assailant had stabbed a Gypsy whom they had attacked but that he had taken the knife from him after the attack. I.D. also stated that in a subsequent conversation with the second assailant on 6 May 1996, the latter had inquired what kind of sentence he might receive if he were to confess but that he was scared to do so for fear of being sent to a juvenile correctional facility. The other witness, N.D., gave a statement attesting to the aforementioned conversation. 24. On 23 May 1996 the first assailant was questioned again. He confirmed that the group had purposefully looked for a Gypsy to assault on the evening of 18 April 1996. The first assailant also stated that he had given N.B. his knife before the attack and that the latter had stabbed the victim, but that there had been no prior warning or agreement about the incident. Lastly, the first assailant confirmed that he had taken the knife back from N.B. after the attack and that there had been a general understanding in the group that he would take responsibility if they were ever to get caught, but that it had not been agreed for this instance in particular. 25. On 14 June 1996 the Shumen District Prosecutor's Office found that there was a lack of evidence that the first assailant had stabbed the victim, dismissed the charges against him and released him. 26. The charges against the first assailant were amended on 17 June 1996 and, like the other members of the group, he was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). A restrictive measure was imposed on him whereby he was placed under the supervision of an inspector from the Juvenile Delinquency Unit (инспектор към Детска педагогическа стая). He was also questioned in the presence of his lawyer, pled not guilty to the offence with which he had been charged and reiterated his statement of 23 May 1996. 27. On 21 June 1996 N.R. and S.H. were charged with having made false statements to the investigation authorities on 19 April 1999, accusing the first assailant of the offence of murder, which resulted in charges being brought against him (see paragraphs 11 and 13 above and 59 below). They were questioned and then released into the charge of their parents. 28. On 26 June 1996 the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 57 below). He pled not guilty to the offence and insisted that he had not stabbed the victim. 29. Due to their conflicting testimonies, a confrontation was organised on 3 July 1996 between the second assailant, N.R. and S.H. They each confirmed their previous statements. 30. On 15 April 1997 the results of the preliminary investigation were presented to the first and second assailants. 31. On 18 April 1997 the investigator in charge concluded in a report (обвинително заключение) that there was sufficient evidence against the assailants to obtain a conviction and that the case should proceed to trial. It is unclear when and whether the case file was transferred to the competent Prosecutor's Office. 32. A little more than a year later on 26 June 1998, a confrontation was organised between the second assailant and I.D. during which they confirmed their previous statements to the investigation. 33. On several occasions during the course of the preliminary investigation the applicants approached the investigator in charge with requests for information on the progress of the case. They were either refused information or were provided with scant details. Sometime in the spring of 1999 the lawyer of the applicants was granted access to the case file. 34. A confrontation was organised on 30 March 1999 between the second assailant and N.D., during which they confirmed their previous statements to the investigation. 35. On 6 April 1999 the second assailant petitioned the investigator to commission a medical report into his state of health, as he claimed to be suffering from a serious incurable disease. Such a report was ordered on 6 October 1999. The resulting medical report of 21 October 1999 established that the second assailant suffered from chronic pyelonephritis and back pain, which were typical for teenagers and would be naturally outgrown. 36. On 18 October 1999 the applicants filed a request with the investigator to be recognised as civil claimants in the criminal proceedings. 37. On 3 November 1999 the investigator commissioned a psychiatric evaluation of the second assailant. The resulting report, of an unknown date, found that he did not suffer from any serious psychiatric condition and that on the day of the attack his illnesses did not affect his understanding of the nature and consequences of his actions nor his ability to control them. 38. On 18 December 1999 the applicants filed a complaint with the Shumen Regional Prosecutor's Office, alleging that the investigation was being protracted. No apparent action was taken in response to their complaint. 39. A confrontation was organised on 12 January 2000 between the second assailant and N.R., at which they gave conflicting testimony in respect of a conversation they had had shortly after the attack on the subject of whether to blame the first assailant for the stabbing. 40. On 17 April 2000 the investigator recognised the first applicant as a civil claimant in the criminal proceedings. 41. Between 17 April and 1 June 2000 the results of the preliminary investigation were presented to the second assailant, the other five accused and the first applicant. 42. On 2 June 2000 the investigator in charge concluded in a new report that the case should proceed to trial, but proposed that the charges for falsely incriminating the first assailant be dismissed. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 43. On 3 July 2000 the Shumen Regional Prosecutor's Office remitted the case with instructions that S.K. be questioned concerning the reasons why the group had initially blamed the first assailant for the stabbing, that the accused undergo psychiatric evaluations as to whether or not on the day of the attack they understood the nature and consequences of their actions and could control them, and that the charges against the second assailant be amended. 44. On 11 October 2000 a confrontation was organised between the first and second assailants, at which they gave conflicting testimony in respect of who had had the knife at the time of the attack. 45. On 12 October 2000 S.K. was questioned and gave a statement that there had not been a prior understanding in the group that the first assailant would always take the blame, but that following the attack the group had met and the first assailant had informed them that he would take responsibility for what had happened. 46. On 23 March 2001 D.K. was questioned but declined to answer any questions. 47. The first assailant was questioned on 30 March 2001 and gave a statement attesting to the physical state of the second assailant at the time of the attack, the history of their relationship and his lack of knowledge as to any collusion by the other members of the group to help him by changing their respective testimonies. 48. The charges against the second assailant were amended on 2 April 2001 and a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. He was questioned and reiterated his previous statement that he had not been in possession of a knife during the attack and that he had not stabbed the victim. The results of the preliminary investigation were also presented to the second assailant on the same day. 49. Between 3 April and 4 June 2001 the results of the preliminary investigation were presented to the other five accused and the first applicant. 50. On 12 June 2001 the investigator in charge concluded in a new report that the case should proceed to trial. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 51. There was no development in the criminal proceedings during the following four years. 52. On 18 March 2005 the Shumen Regional Prosecutor's Office dismissed the charges of hooliganism of exceptional cynicism and impudence and of falsely incriminating someone before the authorities against all of the assailants who had been juveniles at the time of the attack – namely the first and second assailants, N.R., S.H. and D.K. – because the statute of limitation had expired in respect of them. Relying on the evidence collected and the tests conducted in the course of the preliminary investigation, the Shumen Regional Prosecutor's Office argued that the first assailant had stabbed the victim, given that he had had the knife and the victim's blood had been found on his clothes. It therefore dismissed the charges against the second assailant for negligent homicide resulting from an inflicted median bodily injury and remitted the case for further investigation, with instructions that the first assailant be again charged with murder stemming from an act of hooliganism (see paragraphs 12 above and 56 below). The only other remaining accused was G.R.G., who had been eighteen years old at the time of the attack and who continued to be charged with hooliganism of exceptional cynicism and impudence as the statute of limitation had not expired in respect of him (see paragraphs 21 above and 58 below). 53. On 22 April 2005 the applicants and the victim's three sisters filed a request with the authorities to be recognised as civil claimants in the criminal proceedings and claimed 75,000 Bulgarian levs (approximately 38,461 euros) in damages. 54. On 16 May 2005 the applicants' lawyer met with a prosecutor from the Shumen Regional Prosecutor's Office who informed him that the case file had been requested and was being held by the Ministry of Justice. 55. The Court has been informed of no further developments in the criminal proceedings. 56. For the offence of murder stemming from an act of hooliganism the Criminal Code, as in force in 1996, envisaged a sentence of fifteen to twenty years' imprisonment, life imprisonment or death (Article 116 (10)). In 1998 the death penalty was replaced with “life imprisonment without the possibility of substitution”. For juveniles aged from sixteen to eighteen years, the sentence was five to twelve years' imprisonment (Article 63 § 2 (1)) and for those from fourteen to sixteen years – up to ten years' imprisonment (Article 63 § 1 (1) and (2)). The statute of limitation was twenty-two-and-a-half years for juveniles aged from sixteen to eighteen years (Article 80 § 1 (2) in conjunction with § 2 and Article 81 § 3) and fifteen years for those aged from fourteen to sixteen years (Article 80 § 1 (3) in conjunction with § 2 and Article 81 § 3). 57. For negligent homicide resulting from an inflicted median bodily injury, the Criminal Code envisaged a sentence of two to eight years' imprisonment (Article 124 § 1), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3). 58. For hooliganism of exceptional cynicism and impudence, the Criminal Code envisaged a sentence of up to five years' imprisonment (Article 325 § 2 (2)), which for juveniles aged fourteen to sixteen years was up to two years' imprisonment (Article 63 § 1 (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3). 59. For making false statements to the authorities incriminating someone in having committed an offence, as a result of which charges were brought against that individual, the Criminal Code envisaged a sentence of one to ten years' imprisonment (Article 286 § 3), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3). 60. Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia, on racial grounds. The relevant part of the Article provides: “1. [A person] who propagates or incites towards racial... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand. 2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race... shall be punished with imprisonment of up to three years and a public reprimand. 3. [A person] who forms or leads an organisation or group, the set goal of which is the perpetration of an offence under the preceding paragraphs, shall be punished with imprisonment of between one to six years and a public reprimand. 4. A member of such an organisation or group shall be punished with imprisonment of up to three years and a public reprimand.” 61. Article 163 of the Criminal Code criminalises, inter alia, racially motivated mob violence. The relevant part of the Article provides: “1. Persons who participate in a mob rallied in order to attack groups of [people], individuals or their property because of their... racial affiliation shall be punished [as follows]: (1) the instigators and leaders – with imprisonment of up to five years; (2) the remainder – with imprisonment of up to one year or probation. 2. If the mob or some of its participants are armed, the punishment shall be: (1) for the instigators and leaders – imprisonment of one to six years; (2) for the remainder – imprisonment of up to three years. 3. If an attack is carried out and, as a result, a serious bodily injury or death occurs, the instigators and leaders shall be punished with imprisonment of three to fifteen years, while the remainder shall be punished with imprisonment of up to five years, unless they are subject to a more severe punishment.” 62. Articles 416 to 418 of the Criminal Code criminalise racially motivated genocide and apartheid. 63. Article 54 § 1 provides that domestic courts are to take into account, inter alia, the motives of the perpetrator when determining the sentence to be imposed. 64. Article 192, as in force at the relevant time, provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. The offences with which the assailants were charged were publicly prosecutable offences. 65. Under Article 237 § 6, as worded until 1 January 2000, a victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. After 30 April 2001 the victim had the right of appeal against such a decision by a prosecutor to the domestic courts. The victim had no other means to challenge a refusal to prosecute. 66. Victims of crime, or their successors, had the right to join the criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 60 § 1 and 63). They had the right to appeal against decisions of the courts which impinged on their rights and interests, which right they also had in respect of decisions of the investigating and prosecuting authorities until 2 May 2003 (Article 63 § 1). 67. The new Code of Criminal Procedure introduced separate rights in the criminal proceedings for victims or their heirs , such as the right to participate in them, to be informed of their progress and to appeal against decisions terminating or suspending them (Articles 74 and 75). 68. Victims of crime or their heirs have the right to join criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 84 § 1 and 87). They also have the right to appeal against decisions of the courts which impinge on their rights and interests (Article 87 § 1). 69. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. The Act created a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints (sections 40 and 50). 70. Section 9 of the Act provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference might be drawn that there had been discriminatory treatment, it is incumbent on the defendant to prove that there had not been a violation of the right to equal treatment. 71. Once successful before the Commission, a plaintiff can initiate a tort action for damages before the domestic courts (section 74 (1)). If the damages were caused to a private person as a result of an unlawful act, action or inaction by State bodies or officials, the action for damages has to be filed under the State Responsibility for Damage Act (section 74 (2)). No relevant case-law was presented by the parties or was identified as having been reported, to indicate whether or how frequently the aforementioned provision has been utilised in obtaining redress for acts of discrimination from State bodies and officials. 72. The State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides that (a) the State and municipalities are liable for damage caused to private and juridical persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) that in certain cases the State is liable for damage caused to private persons by the organs of the investigation, the prosecution and the courts (sections 1-2). 73. The relevant domestic law and practice under section 1 of the SMRDA has been summarised in the case of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006). 74. Section 2 of the SMRDA provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for unlawful: 1. detention..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the [accused] has been acquitted or the criminal proceedings have been terminated on the grounds that the actions were not perpetrated by the [accused] or that the actions do not constitute an offence, or because the criminal proceedings were opened after the statute of limitations expired or the actions were amnestied; 3. conviction of a crime ..., if the person concerned is subsequently acquitted...; 4. imposition by a court of compulsory medical treatment..., if [the decision] has been set aside for lack of lawful grounds; 5. imposition by a court of an administrative measure..., if [the decision] has been set aside as unlawful; 6. execution of an imposed sentence in excess of the set term or amount.” 75. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law, as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). 76. The relevant international instruments and comparative law on racist violence has been summarised in paragraphs 76-82 of the Court's judgment in the case of Nachova and Others v. Bulgaria [GC] (nos. 43577/98 and 43579/98, 6 July 2005).