European Court of Human Rights
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Cite as: [2010] ECHR 1525
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
5480/02
by Vladimir Antonov FIMIANOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 21 September 2010 as a Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek, SectionRegistrar,
Having regard to the above application lodged on 22 November 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 Vladimir Antonov Fimianov, is a Bulgarian national who was born in 1940 and lives in Montana. He was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.
1. Death of the applicant's son
On 2 September 1996 the applicant's son died while he was completing his military service as a private in the Bulgarian army (the “private”).
On 3 September 1996 the private's commanding officer informed the applicant that his son had accidentally electrocuted himself when, together with two other army privates, he had tried to open a transformer in an electrical substation. The private's body was delivered to his family later the same day. While preparing the body for burial his family discovered various wounds, bruises and an alleged cigarette burn.
The applicant's son was buried on 4 September 1996.
2. Investigation into the death of the applicant's son
A preliminary investigation was opened into the death of the applicant's son on 2 September 1996.
An autopsy was performed on 3 September 1996. The autopsy report contained the following information in respect of the death of the applicant's son:
“On 2 September 1996 at around 6 p.m. in the village of Bozhurishte, while [the private was] working with a high voltage transformer and at a moment when he was standing holding a metal rod, he received an electric shock. ... The immediate attempts to resuscitate him were unsuccessful.”
The autopsy concluded the following:
“The death of the [private] was caused by severe cardiovascular failure resulting from the effects of electricity on the body. This [finding] is supported by the place where the death occurred, the signs on the body of a quick death such as cyanosis of the face; spotted haemorrhaging under the mucous membranes of the eyelids, under the pleurae of the lungs, under the outer coating of the heart and under the mucous membrane of the renal pelvis; significant blood stagnation in the internal organs; swelling of the brain and the lungs; and, in particular, the presence of an electrical burn mark in the area of the right palm.”
On 28 November 1996 the Sofia regional military prosecutor's office terminated the preliminary investigation into the death of the applicant's son. It concluded that on 2 September 1996 the private, together with two other army privates, had decided to remove the cover of an electrical transformer at an electrical substation with the aim of stealing copper cables. In the process, the private had used a metal rod to lever the cover open, but when he touched it he had been electrocuted. Based on the findings of the medical report and the testimonies of the two army privates who had witnessed the event, the public prosecutor's office concluded that there was a lack of evidence of an offence and terminated the preliminary investigation. A technical report into the incident had also been commissioned, which reached the following conclusion:
“the three [army privates] entered the building of the [electrical] substation without the necessary qualifications and training and were operating there [in an environment of] 20,000 volts [of electricity]”.
A letter dated 29 November 1996 was sent to the private's mother informing her of the decision of the public prosecutor's office.
On 18 July 2000 the applicant appealed against that decision. He argued that the investigation had been superfluous, its findings inconclusive and that it had failed to satisfactorily address and account for all the bruises and wounds found on the body of his son.
On 28 December 2000 the military appellate prosecutor's office quashed the decision of 28 November 1996 and remitted the case for further investigation. As a result, witnesses were once again questioned during January 2001.
The results of the additional preliminary investigation were presented to the applicant on 12 February 2001.
On 22 February 2001 the preliminary investigation into the death of the applicant's son was once again terminated by the Sofia regional military prosecutor's office, whose decision was upheld by the military appellate prosecutor's office on 6 March 2001.
On the next day, 7 March 2001, the Military Court of Appeal, sitting in camera, upheld the above decisions to terminate the preliminary investigation into the death of the applicant's son. The applicant was informed of this in a letter dated 14 March 2001. The letter was sent by registered post on 16 March 2001, but it is unclear when it was received.
Subsequently, the applicant petitioned the Chief Public Prosecutor's Office to request the reopening of the preliminary investigation. The petition was dated 2 May 2000 (“02.05.00” in the document), but the applicant himself indicated on the copy he provided to the Court that he had made a mistake in the date. In it the applicant referred to his appeal of 18 July 2000 and argued that the subsequent investigation had also been flawed as it had failed to comply with the instructions given by the higher prosecutor's office. Thus, he asked the Chief Public Prosecutor's Office to quash the decisions of the Sofia regional military prosecutor's office and the military appellate prosecutor's office and to propose the reopening of the preliminary investigation on the basis of the amendments of the Code of Criminal Procedure of 2 May 2000 (“02.05.00” in the document). The applicant filed his petition on an unknown date, but in order to process it the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 14 May 2001; it was sent on the 16th.
On 14 June 2001 the supreme cassation public prosecutor's office rejected the applicant's petition and informed him that preliminary investigations terminated by court decisions were not subject to reopening. On the same day, the supreme cassation public prosecutor's office sent the case file back to the regional military prosecutor's office.
The applicant filed a second petition with the Chief Public Prosecutor to request the reopening of the preliminary investigation, dated 25 July 2001. In order to process it, the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 13 September 2001; it was sent on the 18th.
On 9 October 2001 the supreme cassation public prosecutor's office once again rejected the applicant's petition but also informed him that the decisions to terminate the preliminary investigation were correct in so far as there was a lack of evidence of an offence.
B. Relevant domestic law and practice
The relevant provisions of the Criminal Code and of the Code of Criminal Procedure, as well as the practice of the domestic courts, have been summarised in the inadmissibility decision in the case of Nenkov v. Bulgaria (dec.) (no. 24128/02, 7 October 2008).
COMPLAINTS
THE LAW
The Government argued that the application had been lodged after the expiry of the six month time limit under Article 35 § 1 of the Convention. They pointed out that the Military Court of Appeal's decision of 7 March 2001 to uphold the termination of the preliminary investigation had not been subject to appeal and had become final on the day of its delivery.
The Government further noted that the applicant had been informed of the said decision by registered mail sent on 16 March 2001. Even assuming that it had been received ten days later, it would still mean that the applicant would have become aware of the final decision in the present case no later than 26 March 2001.
The Government also noted that the applicant had filed a petition with the Chief Public Prosecutor's Office to request the reopening of the investigation. The petition was dated 2 May 2000, but the Government considered that it was clear that there was a typing error and that the document had been prepared in 2001 because it referred to facts, events and amendments of domestic legislation which date from 2001. Moreover, the supreme cassation public prosecutor's office had reacted in response to the filing of the applicant's petition and, on 14 May 2001, had officially requested the case file from the regional military prosecutor's office.
Accordingly, the Government argued that even if it was considered that the applicant had found out about the decision of the Military Court of Appeal sometime towards the end of March 2001, it would still mean that the six month time limit had expired at the end of September 2001, whereas the applicant had lodged his application on 22 November 2002. Moreover, the applicant's attempt to obtain a reopening of the preliminary investigation was not an effective remedy and was immaterial for the calculation of the six month time limit.
The applicant replied that he did not recollect when he had been informed of the decision of the Military Court of Appeal of 7 March 2001. He also noted that it was up to the Government to produce the relevant receipts in order to prove the date on which he had received the said decision. In any event, the applicant considered that it must have been some time shortly before the decision of 14 June 2001 of the supreme cassation public prosecutor's office, which places it within the six month time limit.
Separately, the applicant claimed that the six month time limit should be calculated not from the date of the decision of the Military Court of Appeal, but from the date on which he became aware of the decision of 9 October 2001 of the supreme cassation public prosecutor's office. He argued that this decision was the final decision in the present case because the said public prosecutor's office had undertaken a full assessment of the facts of the case and had come to the conclusion that the decisions to terminate the preliminary investigation had been correct because there was lack of evidence of an offence. Accordingly, this represented an effective remedy which the applicant had validly exhausted.
In view of the above arguments, the applicant concluded that he had complied with the six month time limit for submitting his complaints to the Court.
Article 35 § 1 of the Convention provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Court notes at the outset that the facts of the present case are almost identical to those in Nenkov v. Bulgaria (dec.) (no. 24128/02, 7 October 2008), which was declared inadmissible for failure to comply with the six-month time limit. The only material difference with the cited case is that in it the applicant had successfully petitioned the Chief Public Prosecutor to request the Supreme Court of Cassation to reopen the proceedings, which had then been refused. In the present case, however, the applicant had not even been successful in his petition to the supreme cassation public prosecutor's office. Thus, the Court refers entirely to its conclusions in the inadmissibility decision in the case of Nenkov (cited above) as they are just as pertinent to the facts of the present case. The Court refers in particular to its finding that the request to reopen a preliminary investigation is not an effective remedy to exhaust and that the six-month time-limit for submitting a complaint to the Court starts to run from the date on which the applicant becomes aware of the domestic court's decision to uphold the termination of the preliminary investigation (ibid.).
In applying the above principles to the facts of the present case, the Court notes that on 7 March 2001 the Military Court of Appeal upheld the termination of the preliminary investigation into the death of the applicant's son. The applicant was informed of this decision in a letter dated 14 March 2001 sent by registered post on 16 March 2001. However, it is unclear when he actually received it.
In any event, at the beginning of May 2001 the applicant appears to have drafted a petition to the Chief Public Prosecutor's Office requesting the reopening of the preliminary investigation. The Court notes in this respect that although it was dated 2 May 2000, the petition refers to facts, events and amendments of domestic legislation which date from 2001. Moreover, the applicant himself noted on the copy of the document presented to the Court that he had made a mistake in the date. Thus, the Court accepts that there was a typing error in the date and that the document was drafted in 2001. Furthermore, the Court notes that, in response to the applicant filing his petition on an unspecified date, the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 14 May 2001, and it was sent on the 16th.
Accordingly, irrespective of the date on which the applicant was served with the registered letter of 16 March 2001 or on which he drafted his petition to the Chief Public Prosecutor's Office, it is clear that by 14 May 2001 the petition procedure had been initiated by him. Thus, the Court comes to the conclusion that the six month time limit started to run at the latest on 14 May 2001. The application was lodged on 22 November 2001, more than six months after that.
It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President