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Cite as: [2010] ECHR 138
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
74137/01
by Anton Stefanov ILIEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 12 January 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having regard to the above application lodged on 23 May 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anton Stefanov Iliev, is a Bulgarian national who was born in 1977 and lives in Ruse. He was represented before the Court by Mr A. Kazakov, a lawyer practising in Ruse. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Alleged ill-treatment of the applicant while in the Bulgarian armed forces and deterioration of his health
On 6 January 1997 the applicant was conscripted into the Bulgarian armed forces to complete his military service. He was physically fit at the time. The applicant served primarily with the Air Force and was stationed in several garrisons.
On 1 April 1997 he was transferred to garrison no. 26600 in the town of Yambol to attend a radiotelegraph training course.
A medical examination of 2 April 1997 pronounced the applicant physically fit.
According to the applicant his platoon commander in Yambol, Lieutenant A., started to systematically ill-treat him because he failed to meet the performance standards required of him.
The applicant visited the garrison’s infirmary on 8 and 10 May 1997. He was diagnosed with “neurosis” and prescribed antidepressants.
One morning in May 1997 the applicant was ordered to the office of the platoon officers. Lieutenant A., Senior Sergeant H. and Sergeant P. were present. According to the applicant, they criticised him for his low performance in the training course and, as punishment, ordered him to do twenty pushups. When he got down and started the pushups, Lieutenant A. and Senior Sergeant H. started to kick him with their military boots. He was allegedly kicked numerous times in the head, neck and stomach. Sergeant P. allegedly witnessed the beating. The officers then warned the applicant not to tell anyone what had happened.
According to the applicant, soon after that he started having problems with his vision and had pain in his neck.
On an unspecified date the applicant visited the garrison’s infirmary. It is unclear whether any injuries were found on his person. The garrison doctor apparently diagnosed the applicant with cervical spondylosis and redirected him to the Sliven Military Hospital for an X-ray examination.
On 27 May 1997 the applicant was examined in the Sliven Military Hospital where the diagnosis of cervical spondylosis was confirmed.
The applicant visited the garrison’s infirmary on 28 and 30 May and again on 3 June 1997 when he was diagnosed with “neurosis”. He was redirected to the Sliven Military Hospital where he was hospitalised for an undetermined number of days. Upon his discharge from the hospital he was given home leave on medical grounds.
Upon expiration of the home leave, on 10 July 1997 the applicant returned to his former garrison in the village of Bezmer.
The applicant continued to seek medical treatment. He visited the garrison’s infirmary in Bezmer on 16 and 17 July and 11 and 13 August 1997. On each occasion he was diagnosed with “neurosis” and was prescribed antidepressants.
After a medical examination on 3 November 1997 the applicant was pronounced physically fit.
On 25 November 1997 the applicant suffered his first seizure involving convulsion of the limbs, frothing at the mouth and loss of consciousness. The applicant was taken to the Sliven Military Hospital where he was hospitalised from 25 November to 10 December 1997. He suffered a second seizure while in hospital and was diagnosed with “suspected epilepsy”. Upon being discharged from the hospital the applicant was given home leave on medical grounds.
While on home leave he suffered a third seizure on 21 December 1997.
After returning to his garrison, the applicant had a follow-up examination at the Sliven Military Hospital on 5 January 1998. He was apparently redirected to the Neurological Department of the Military Medical Academy in Sofia (“MMA”), where he was hospitalised from 7 to 9 January 1998. The applicant was diagnosed with:
“Neurovegetative dystonia. Syncope. [Observed] pro-epilepsy”.
On 10 January 1998 the applicant was discharged from the military as the term of his military service had expired.
On an unspecified later date he was pronounced unfit for active military service on medical grounds and was removed from the military’s reserve list.
2. The applicant’s medical condition following his discharge from the military
Following the applicant’s discharge from the military his medical condition continued to deteriorate and the number and frequency of the seizures increased.
Following a fourth seizure on 15 January 1998 the applicant was hospitalised at the MMA from 23 January to 18 February 1998. He was diagnosed with:
“Epilepsy – acute seizures. Lymphadenitis generalised non-specific”.
On 25 February 1998 a CAT scan was performed on the applicant’s head at the Pleven Medical University. It was discovered that he had a cerebral oedema.
The applicant was again hospitalised at the Neurological Unit of the Ruse District Hospital from 2 to 25 March 1998 and then from 28 July to 2 August 1999. During his first stay he was diagnosed with:
“Head contusion. Symptomatic [of epilepsy].”
During his second stay the diagnosis was:
“[Epilepsy] – acute seizures. Massive functional cumulation.”
Between 25 June and 9 July 2001 the applicant was hospitalised at the MMA. On 3 July 2001 he underwent an operation during which a cavernous angioma (a benign vascular malformation which can be caused by a trauma to the spinal cord) was removed from his brain.
3. The applicant’ s complaints about the alleged ill-treatment
On an unspecified date in early 1998 the applicant’s mother complained to the General Staff of the Bulgarian armed forces (the “General Staff”) of the deterioration in her son’s health while he was in the military. In response, by letter of 23 March 1998, the General Staff informed her that her son had received all the medical assistance required.
In September 1999, at the applicant’s request, a doctor drew up an expert report on his state of health. On the basis of the relevant medical documents and the applicant’s explanations, he concluded that the applicant had developed epilepsy during the time of his military service but that it could not be established with certainty whether its cause had been related to the alleged beating of the applicant in May 1997.
On 5 January 2000 the applicant himself complained to the General Staff. He apparently named the officers involved in the alleged beating in the Yambol garrison and Sergeant P., who had allegedly witnessed it.
By order of 15 December 2000 the Chairman of the General Staff of the Air Force set up an internal commission to investigate the applicant’s accusations. In the course of its work, the commission questioned Lieutenant A., Senior Sergeant H. and the doctor at the Yambol garrison’s infirmary. Sergeant P. was not sought out for questioning because he had left the military in 1998. The officers questioned denied that the applicant had been ill-treated or that they had beaten him. The garrison’s doctor also denied that she had seen any injuries on the applicant during the medical examinations performed at the time.
By letter of 16 January 2001 the General Staff informed the applicant that the investigation had concluded that his accusations were unfounded and that his complaints would not be followed up any further.
On 15 November 2000 the applicant also filed a complaint with the Sliven military prosecutor’s office, which opened a preliminary investigation and questioned Senior Sergeant H. and the doctor at the Yambol garrison, who both said that they did not remember the applicant. Sergeant H. denied ever beating or hitting soldiers and the garrison doctor denied any knowledge of ill-treatment of the applicant. Sergeant P. was not questioned as he had not been found at his known address.
On 19 January 2001 a prosecutor from the Sliven military prosecutor’s office refused to open criminal proceedings in relation to the alleged ill treatment of the applicant. On the basis of the testimonies obtained, the applicant’s medical records and the medical expert report drawn up in 1999, he concluded that it had not been established that the applicant had been beaten in the Yambol garrison or that his medical condition had resulted from a trauma allegedly sustained during that beating.
On appeal by the applicant, on 11 September 2001 that decision was upheld by the military appellate prosecutor’s office in Sofia.
It appears that the applicant did not appeal against that decision to the Chief Public Prosecutor’s Office.
4. Assessment of the applicant’s disability
By decision of 5 March 2001, the Ruse Labour-Expert Medical Commission (“the LEMC”) assessed the applicant’s medical condition and recognised him to be disabled with 69.75% disability. Upon appeal, by decisions of 22 June and 22 October 2001, the Central Labour-Expert Medical Commission (“the CLEMC”) quashed the decision of the LEMC and assessed the applicant to be disabled with 90% disability. The starting date of the disability was determined to be 11 December 1997. In its decisions, the CLEMC referred to the applicant’s allegations that he had been beaten in May 1997 but did not conclude that this had caused his medical condition.
In December 2001 the applicant started to receive an army pension.
His disability was reassessed by the LEMC on 20 February 2003. The commission found that the number and frequency of his seizures had decreased and assessed the applicant to be disabled with 74.80% disability. Upon appeal, by decision of 13 November 2003, the CLEMC quashed the decision of the LEMC and further decreased the applicant’s percentage of disability to 50%. Once again the CLEMC referred to the applicant’s alleged beating in May 1997 but did not state that it considered this to be the cause of his medical condition.
The applicant was entitled to appeal against the decision of the CLEMC but apparently failed to do so.
Apparently, as a result of the reduction of his disability level, on 1 June 2004 the applicant’s army pension was decreased from an unspecified amount to 60.95 Bulgarian levs (the equivalent of 31 euros).
5. Other developments
On 2 August 2001 the applicant filed a complaint with the prosecutor’s office, challenging the grounds for his discharge from the military on 10 January 1998.
By letter of 6 August 2001 the Sliven regional prosecutor’s office informed him that it was not competent to rule on the matter and that instead he should initiate an administrative action challenging the order for his discharge. It does not appear that the applicant initiated any such action.
The applicant filed several more complaints to various authorities seeking compensation for the damage caused as a result of the illness he developed while in the military. In response, by letters of 4 and 8 February 2001 from the Ministry of Defence, letters of 9 February and 5 March 2001 from the General Staff and a letter of 17 October 2001 from the MMA, he was informed of the procedure and formalities required to claim the special compensation provided for in section 249 § 1 of the Armed Forces Act, in force at the time. In particular, the applicant was advised of the need to obtain an evaluation of his medical condition by the Military Medical Commission, which apparently he did not do.
Neither did he bring an action before the civil courts to seek compensation, as he was expressly entitled to do under section 249 § 6 of the Armed Forces Act, in force at the time.
COMPLAINTS
(a) that in May 1997, as a conscript in the Bulgarian army, he had been beaten by serving officers in garrison No. 26600 in the town of Yambol and had sustained injuries, which had led to him later developing epilepsy.
(b) that the authorities had failed to conduct an effective and impartial investigation into his alleged beating.
THE LAW
A. Complaints under Article 3 of the Convention
1. Complaint of ill-treatment
The applicant complained under Article 3 of the Convention that while doing his military service in the Bulgarian army he had been ill-treated by serving officers and had sustained injuries which had later led to him developing epilepsy.
Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In support of his allegations of ill-treatment, the applicant noted that he had discussed the alleged beating in May 1997 with another private, Mr I., who could corroborate his version of the events. Furthermore, he alleged that the army doctors who had examined him initially had attempted to cover up the beating and had thus come up with the apparently wrong diagnosis of cervical spondylosis. In his view, the cerebral oedema found on 25 February 1998 and the cavernous angioma removed from his brain in 2001 were indications of the same trauma, which had led to him developing epilepsy.
The Government considered that the applicant’s allegations of being beaten were unproved and that there was no evidence establishing a causal link between any beating and the applicant’s medical condition. They pointed out that the applicant had apparently not mentioned the alleged beating during the initial medical examinations and considered it possible that his referral to that beating later had been linked to his attempts to obtain compensation and an army pension.
The Court observes at the outset that allegations of ill-treatment brought to it must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 IV). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may also follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64 65, § 161 in fine).
The Court must therefore examine whether the applicant has established, by evidence reaching the above-mentioned standard, first, that he was beaten by serving officers in the Yambol garrison and, second, that this led to him developing epilepsy.
The Court observes that the applicant’s initial medical examinations after the alleged beating did not reveal any contusions, bruises or other signs of beating, and that although the applicant contends that Mr I. could corroborate his version, he has not submitted a written statement or any other testimony concerning the impugned events.
Furthermore, although in May 1997 the applicant was diagnosed with cervical spondylosis, a diagnosis (later apparently abandoned) which could indicate that he had neck pain at the time, this cannot prove that he had been beaten, or establish the time when the neck pain had started. Nor does it appear to the Court that the doctors who diagnosed the applicant with cervical spondylosis acted in bad faith in order to cover up his alleged beating. Moreover, the applicant made no apparent mention of the beating to these doctors so as to have the fact included in the history of his medical complaints.
The Court notes in this respect that in the documents presented to it and relating to the applicant’s state of health, the only reference to his alleged beating is contained in the Central Labour-Expert Medical Commission’s assessments of his disability of 2001 and 2003. However, these documents were issued four to six years after the impugned events and only repeated the applicant’s account of those events, so they cannot be considered to have any significant evidentiary value.
The applicant has not presented any other evidence or argument about his alleged beating by officers in the Yambol garrison. The Court thus concludes that he has not established the facts he relies on “beyond reasonable doubt”. Nor does the Court see grounds to draw from the facts any inferences about ill-treatment.
Furthermore, while not doubting that during his military service the applicant developed epilepsy, the Court is not satisfied that the deterioration of his health was the result of any contusion or trauma sustained during his time as a member of the Yambol garrison.
The Court notes that the only medical assessment in that regard was made in an expert report of 1999; the doctor’s conclusion was that it could not be established with certainty whether the applicant’s medical condition had any link with his alleged beating in 1997. The Court has not been presented with any evidence which could disprove this conclusion. It notes that indeed in February and March 1998 it was established that the applicant had a brain oedema and that he was diagnosed with head contusion symptomatic of epilepsy. It is possible that these conditions were linked with the applicant’s epilepsy; however, it has not been established at what time they originated and what their cause was. As for the 2001 operation during which a cavernous angioma was removed from the applicant’s brain, it could be indicative of a trauma to the spinal cord but is again insufficient proof that the applicant had sustained that trauma during his military service, or as a result of the alleged ill-treatment.
It follows from the above considerations that the complaint that the applicant was beaten by serving officers in May 1997, while in the military, and sustained injuries which led to him developing epilepsy, is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
2. Complaint in respect of the effectiveness of the investigation
The applicant complained also that the investigation of his alleged beating had not been effective and comprehensive.
The Government contested this allegation and considered the investigation to have been effective.
The Court recalls that it has held that where an individual raises an arguable claim that he has been seriously ill-treated by State agents in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation, capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
In the case at hand, the Court is of the view that the applicant did raise an arguable claim about ill-treatment. However, the General Staff of the Bulgarian armed forces carried out an internal investigation, which concluded that the applicant’s allegations were ill-founded. The impugned events were also investigated by the prosecutor’s office, which concluded that there was no ground to open criminal proceedings.
The question in the present case is, therefore, not so much whether there was an investigation but whether it was conducted diligently, whether the authorities were determined to prosecute those responsible and, accordingly, whether the investigation was effective (see Krastanov v. Bulgaria, no. 50222/99, § 59, 30 September 2004).
In the present case, the Court notes that the applicant complained of the alleged beating to the General Staff of the Bulgarian armed forces in January 2000, almost three years after the impugned events of May 1997. As for his mother’s complaint filed in 1998, it does not appear that it concerned the alleged beating, but the deterioration of the applicant’s health while in the army. Separately, the applicant complained to the prosecutor’s office three and a half years after the alleged beating, in November 2000. His explanation that he had failed to complain earlier because he was scared of new violence against him is not tenable, seeing that he was discharged from the army at the beginning of 1998. Undoubtedly, the applicant’s delay in complaining of the alleged ill-treatment restricted the capability of the investigations carried out by the military and the prosecution to fully and exhaustively establish the circumstances. Nevertheless, the Court observes that the internal commission set up by the Chairman of the General Staff of the Air Force in order to investigate the applicant’s allegations questioned Lieutenant A. and Senior Sergeant H., the officers allegedly involved in the applicant’s beating, and the garrison’s doctor. The Sliven military prosecutor’s office also questioned Senior Sergeant H. and the doctor. Furthermore, it examined the documents relating to the applicant’s medical condition and the 1999 medical expert report.
The Court considers that in view of the time that had passed since the impugned events, the investigating authorities acted diligently and adequately in verifying the applicant’s allegations.
The Court notes also that the conclusions reached by the military commission and the prosecution appear reasonable, in view of the evidence collected. There is no indication that those bodies were not determined to identify and eventually punish those responsible.
Lastly, the Court notes that the applicant failed to appeal against the decision of the military appellate prosecutor’s office of 11 September 2001 or to complain about the alleged deficiencies of the investigation.
In view of the above, the Court concludes that the investigations conducted by the General Staff of the Bulgarian armed forces and the Sliven military prosecutor’s office into the applicant’s alleged ill-treatment were effective for the purposes of Article 3 of the Convention.
Therefore, the present complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The remainder of the applicant’s complaints
The Court has examined the remainder of the applicant’s complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips Peer Lorenzen
Deputy Registrar President