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STOYANOVI v. BULGARIA - 42980/04 [2010] ECHR 1782 (9 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1782.html
Cite as:
[2010] ECHR 1782
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FIFTH
SECTION
CASE OF
STOYANOVI v. BULGARIA
(Application
no. 42980/04)
JUDGMENT
STRASBOURG
9
November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Stoyanovi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 42980/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Bulgarian nationals, Ms Veselka Vasileva
Stoyanova and Mr Grigor Kirilov Stoyanov (“the applicants”),
on 25 November 2004.
The
applicants were represented by Mr Y. Grozev, a lawyer practising in
Sofia, and Mr B. Boev, a legal officer at Article 19, a
non governmental organisation based in London. On 8 October 2008
the President of the Fifth Section granted leave to Mr Boev to
represent the applicants, in accordance with Rule 36 § 4 (a) in
fine of the Rules of Court. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova,
of the Ministry of Justice.
The
applicants alleged that the State was responsible for the death of
their son, an army officer, and that it had failed to respond to his
death in an effective manner.
On
6 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1946 and 1938 respectively and live in
Kazichene.
On
27 May 1998 their son, Mr Rosen Stoyanov, born in 1967, a parachute
instructor in the Bulgarian Army, died when performing a parachute
jump from a Mi-17 helicopter during a training exercise of the
Ministry of the Interior's Special
Anti-Terrorism Squad.
1. The 27 May 1998 accident
Six
paratroopers were scheduled to jump on that day. Before getting into
the helicopter they were examined by a doctor who confirmed that they
were physically fit. The helicopter took off at 1 p.m. and several
minutes later reached a height of about 1,100 metres. Immediately
before the start of the parachute jumps Chief Sergeant T., in charge
of the jumps, instructed the helicopter's pilots to speed up. The
pilots responded “You have it”. It is unclear what the
exact speed thus reached was, because, as it was established later,
the helicopter's device recording the parameters of the flight had
not been loaded with a tape.
One
of the paratroopers, Mr G., jumped first. Immediately after the jump,
his body was thrust back by the air stream and his head passed about
20 centimetres from the left rear tyre of the helicopter.
The
applicants' son jumped four seconds later. Immediately after the
jump, his head hit the left rear tyre of the helicopter and he became
unconscious. His body fell freely and hit the ground.
Four
seconds later the next paratrooper, Mr V., jumped. His head also hit
the left rear tyre of the helicopter and he became unconscious. Sixty
to seventy metres from the ground he regained consciousness and
attempted unsuccessfully to open his parachute. His body also hit the
ground.
After
the accidents with the applicants' son and Mr V. the parachute jumps
stopped and the helicopter landed. The two bodies were located soon
afterwards.
2. The internal inquiry
On
27 May 1998 the Ministers of the Interior and Defence appointed a
ten-member commission to investigate the reasons that had led to the
fatal accident. The commission, which included paratroopers, doctors
and other experts, conducted inspections, interviewed witnesses and
examined documents. On 6 June 1998 it presented an interim report
proposing, with a view to establishing properly the circumstances of
the accident, that an experiment with a dummy being thrown from a
helicopter at different speeds be carried out and that the
helicopter's manufacturer be asked for additional technical
information. However, it appears that none of these actions was
taken.
On
24 June 1998 the commission submitted its final report. It
established that after Chief Sergeant T. had instructed the crew to
speed up (see paragraph 7 above), the helicopter had increased its
speed from about 150 to about 200 km/h. This estimation was based on
ground control data.
Furthermore,
the commission established that the helicopter, which was built in
1986, had been in a good state of technical repair, and that its
equipment had been functioning well during the fatal flight. The
three members of the crew were experienced and qualified. The
commission established that up to 27 May 1998 Mr Rosen Stoyanov had
performed 450 parachute jumps, 112 of which were from a Mi-17
helicopter. Mr V. had performed 178 jumps, 120 of which were from a
Mi-17 helicopter.
The
commission concluded that the accident had been caused by
“the inappropriate speed of the helicopter and the
position of the paratroopers' bodies at the time of jumping, not in
conformity with that speed”.
Additionally,
the accident had been due to:
“1) incomplete coordination between the
helicopter's crew and the paratroopers; 2) shortcomings in the
preparation and conduct of the flight on the part of the helicopter's
crew; and 3) shortcomings in the organisation and the conducting of
the parachute jumps on the part of the Ministry of the Interior's
Special Anti-Terrorism Squad.”
The
commission criticised the failure of the officials responsible for
the organisation of the flight to load the helicopter's recording
device with a tape (see paragraph 7 above), which was against the
rules.
Furthermore,
the commission criticised Chief Sergeant T.'s failure to communicate
to the crew the exact speed he needed when he requested them to speed
up. Neither had the speed at which the jumps were to be performed
been indicated by the officer in charge of the training (he had
remained on the ground) before the helicopter took off.
The
commission recommended various measures for the prevention of similar
accidents in the future, mostly concerning the training of
paratroopers and flight preparation. It is unclear whether any of
them were put into practice.
On
30 June 1998 the commission's report was affirmed by the Minister of
Defence, but not by the Minister of the Interior. Subsequently, the
document was extended to the prosecuting authorities who investigated
the deaths of Mr Stoyanov and Mr V. (see below).
3. The criminal proceedings
On
27 May 1998 the Sofia military regional prosecutor's office opened a
preliminary investigation into the accident.
(a) Initial investigative actions
A
post-mortem examination of the bodies of the applicants' son and
Mr V. was carried out on 28 May 1998. It concluded that the
death had been caused by “numerous traumas incompatible with
the maintenance of life”. There were no traces of alcohol or
poison in the blood.
Nor
were any traces of alcohol or poison found in the crew members'
blood.
Colonel
O., the flight captain, was questioned on 28 May 1998. He stated that
the helicopter had been checked and found to be in good technical
repair just before the flight. Furthermore, he stated that after
Chief Sergeant T. had asked the pilots to speed up he had increased
speed from 130 to 150 km/h. After the first three paratroopers had
jumped, he had been told to land as two of the paratroopers'
parachutes had not opened.
Senior
Sergeant A., the flight engineer, was questioned on 1 June 1998. He
also testified that the helicopter's speed at the time when the
parachute jumps had started had been 150 km/h. The speed and the
height had not changed during the jumps. When jumping from the
helicopter, Mr G. had plunged energetically and Mr Rosen
Stoyanov and Mr V. had not, which, in Senior Sergeant A.'s view, had
been the reason for the fatal accident.
On
29 May 1998 Mr G., who had jumped before Mr Stoyanov, testified that
immediately after jumping he had felt an unexpectedly strong air
stream.
Chief
Sergeant P., who had been on board the helicopter, was questioned on
29 May 1998. He explained that he had seen Mr G.'s head pass about 20
centimetres from the helicopter's left rear tyre and then Mr Rosen
Stoyanov and Mr V. hit the tyre. Because of the force of the blow, Mr
Stoyanov's body had turned several times in the air.
Lieutenant
D., who had also been in the helicopter, testified that he, too, had
seen Mr Rosen Stoyanov's head hit the tyre. Captain C., who had also
been on board, described the position of Mr G.'s body immediately
after he had jumped as “totally abnormal”.
Chief
Sergeant T., who had been in charge of the jumps and had been
scheduled to jump after Mr V., was questioned on 29 May 1998. He
explained that he had not seen Mr Rosen Stoyanov and Mr V. hit the
tyre but had become aware of the abnormal position of Mr V.'s body
and had not jumped. He had not noticed any change in the speed,
height or direction of the helicopter during the parachute jumps.
During
the first several weeks after 27 May 1998 the investigator in charge
of the case examined other witnesses, conducted inspections and
collected documentary evidence.
On
28 May 1998 he appointed the members of the internal inquiry
commission of the Ministries of the Interior and Defence (see
paragraphs 12-19 above) as experts in the criminal proceedings, with
the task of determining the cause of the two paratroopers' deaths.
Since the experts failed to submit a report within the months that
followed, on 25 November 1998 a prosecutor from the Sofia military
regional prosecutor's office stayed the proceedings.
(b) Subsequent developments
On
several occasions in 1999 and early 2000 the Sofia military regional
prosecutor's office sent letters to the Ministries of the Interior
and Defence requesting that their officials appointed as experts
prepare and submit a report for the purposes of the criminal
proceedings.
On
18 April 2000 the criminal proceedings were resumed and the
prosecutor in charge of the case appointed a new group of experts
from the National Military University in Dolna Mitropoliya, with the
task of assessing the reasons for the deaths of the applicants' son
and Mr V.
On
25 April 2000 the experts submitted their conclusions, specifying
that the information they had been given was insufficient, there
being no data on the exact parameters of the flight, and also that
they were not experts in parachuting; therefore, they were not able
to draw up a formal expert report.
The
experts considered that the helicopter's speed at the time of
Mr Rosen Stoyanov's and Mr V.'s jumps had been between 150 and
170 km/h. However, in their view, the speed was not related to
the fatal accident, which had instead been caused by the two
paratroopers' jumping technique; this had not been in compliance with
the respective instructions for performing parachute jumps.
In
July and October 2000 the Sofia military regional prosecutor's office
sent new letters to the Ministries of the Interior and Defence
requesting again that the experts appointed on 28 May 1998 (see
paragraph 30 above) draw up a formal report.
On
17 November 2000 the Ministry of Defence experts submitted their
report. The group included four paratroopers and a doctor. The
Ministry of the Interior experts did not sign the document.
On
the basis of ground control data, the Ministry of Defence experts
established that the helicopter's speed at the time of Mr Rosen
Stoyanov's and Mr V.'s jumps had been 210 km/h. The experts were of
the opinion that Mr Stoyanov and Mr V. had not committed any errors
when jumping from the helicopter, but pointed out that they did not
possess the expertise to assess whether the helicopter's crew had
committed any errors that might have led to the tragic accident. The
experts noted that the two paratroopers' parachutes had been well
packed and in good repair and that the weather conditions at the time
had not affected the flight.
(c) Discontinuance of the criminal
proceedings
On
4 February 2002 a prosecutor from the Sofia military regional
prosecutor's office discontinued the criminal proceedings. Relying on
witness testimony and the conclusions of the National Military
University experts (see paragraph 34 above), he found that the
helicopter's speed and course of flight did not change significantly
during the parachute jumps and were not related to the fatal
accident. He accepted that sufficient data could not be collected to
assess whether the helicopter's crew had committed any errors and
that the applicants' son and Mr V. had not complied with the
respective instructions on performing parachute jumps.
On
an appeal by the applicants, on 6 August 2002 the Sofia Military
Court quashed the prosecutor's decision. On 28 November 2002 the
Military Court of Appeal affirmed the lower court's findings. It held
that the prosecutor had breached the procedural rules and that the
conclusions of the National Military University experts, on which his
decision had been based, could not serve as valid evidence in the
case.
After
the case was remitted to the prosecution, some of the witnesses were
re-examined. On an unspecified date Chief Sergeant T., who had been
in charge of the parachute jumps, explained that when he had
instructed the helicopter crew to speed up he had meant a speed of
about 150 km/h, as was usual. He had become aware later, apparently
from the conclusions of the internal inquiry, that the speed had been
above 200 km/h. He considered that this, coupled with a possible
minor side inclination of the helicopter, which would have shifted
the position of the left rear tyre vis-à-vis the
paratroopers' bodies, had been the reason for the accident with the
applicants' son and Mr V.
On
13 May 2003 a prosecutor from the Sofia military regional
prosecutor's office requested the Ministers of the Interior and
Defence to nominate seven experts in aerodynamics, aviation,
meteorology and parachuting to be appointed experts in the criminal
proceedings and draw up a new expert report. He received no reply.
On
16 June 2003 the prosecutor appointed another group of experts –
a physician from the Military Medical Academy
and five lecturers from the Air Transport Department of the
Technical University in Sofia – with the task of assessing the
reasons for the two paratroopers' deaths on 27 May 1998.
The
experts submitted their report on 25 July 2003. They considered it
scientifically impossible for Mr Stoyanov and Mr V. to have hit the
helicopter's left rear tyre; in their view those blows had been “made
up”. The experts considered that the two paratroopers had
wrongly estimated the distance to the ground and had failed to open
their parachutes in time; this had led to their deaths. Furthermore,
the paratroopers had failed to comply with the relevant instructions
on the position of their bodies at the time of jumping. The speed and
course of the helicopter had not been related to their death.
On
10 June 2004 a prosecutor from the Sofia military regional
prosecutor's office once again discontinued the criminal proceedings.
In his decision, he referred to the expert report of 25 July 2003 and
its conclusion that the applicants' son and Mr V. had not in fact hit
the left rear tyre of the helicopter (see paragraph 43 above).
However, he also mentioned the witness testimony indicating that
these impacts had happened (see paragraphs 26-27 above). He failed to
examine the apparent controversy between those two groups of evidence
and to indicate which version he found plausible. He merely
concluded, after describing the evidence collected in the case, that
there was no appearance of a crime.
Upon
appeal by the first applicant, on 30 June 2004 the prosecutor's
decision was upheld by the Sofia Military Court. Examining the
evidence collected in the case, that court dismissed the conclusion
of the expert report of 25 July 2003 (see paragraph 43 above) that Mr
Stoyanov and Mr V. had not hit the helicopter's left rear tyre; it
considered that in this regard the testimony of the other
participants in the flight was reliable. Nevertheless, the domestic
court accepted the experts' conclusion to the effect that Mr Stoyanov
and Mr V. had not positioned themselves correctly when they jumped.
It concluded that this had been the reason for their hitting the tyre
and falling to the ground. Accordingly, it upheld the prosecution's
conclusion that no offence had been committed in the case.
4. Other developments
Soon
after their son's death, the applicants sought the compensation
provided for in section 249(2) of the Armed Forces Act 1995 (see
paragraph 49 below). As they had not received that sum by 2003, they
brought a claim. They sought the compensation provided for in section
249(2) of the Armed Forces Act, plus interest, as provided for in
section 250 (ibid.).
While
the proceedings were pending, the Bulgarian Army paid up the
compensation due, which was in the amount of 8,316.48 Bulgarian levs
(BGN), the equivalent of approximately 4,300 euros (EUR). Therefore,
in a judgment of 6 July 2004 the Sofia District Court only awarded
the applicants the interest accrued, in accordance with section 250
of the Armed Forces Act, which amounted to BGN 427.58, the equivalent
of EUR 220. That judgment was not appealed against and entered into
force.
In
September 2003 the applicants also sought indemnification from the
company with which their son had been insured by the Bulgarian Army.
They claimed a sum of about BGN 3,000, the equivalent of EUR 1,540.
However, that indemnification was refused as they had failed to claim
it within the statutory three-year time-limit from the date of their
son's death.
II. RELEVANT DOMESTIC LAW
A. The Armed Forces Act of 1995
Section
249(2) of that Act, in force at the relevant time, provided that the
Bulgarian Army would be liable to pay compensation in the amount of
twelve months' salary, to each of the heirs (spouse, children or
parents) of an army serviceman who had died during military service.
By section 250 of the same Act, the Army was also liable to pay any
interest accrued in the event of a delay of payment.
Where
the heirs of an army serviceman who had died during military service
sought a larger amount in damages, they could, by virtue of the
provision of section 249(6) of the Armed Forces Act, bring an action
before the civil courts.
B. State liability for damage
Section 1(1) of the 1988 State Responsibility for
Damage Caused to Citizens Act (on 12 July 2006 its name was changed
to “State and Municipalities Responsibility for Damage Act”)
provides that the State is liable for damage suffered by private
persons as a result of unlawful decisions, actions or omissions by
civil servants committed in the course of or in connection with the
performance of their duties.
In addition, section 45(1) of the 1951 Contracts and
Obligations Act provides that everyone is obliged to make good the
damage which they have, through their fault, caused to another
person. Section 49 of the Act provides that a person who has
entrusted another with performing a job is liable for the damage
caused by that other person in the course of or in connection with
the performance of the job.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
The
applicants complained under Article 2 of the Convention that the
State had been responsible for the death of their son, Mr Rosen
Stoyanov, and that the investigation of his death had been
ineffective. Article 2, in so far as relevant, reads:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
....”
The
Government considered that the investigation of Mr Stoyanov's death
had been thorough and effective and that the Sofia Military Court's
conclusion that no criminal offences had been committed in the course
of the preparation and conduct of the parachute jumps on 27 May 1998
was tenable and well-reasoned.
The
applicants contested these arguments.
A. Admissibility
The
Court notes that in 2003 the applicants received compensation for
their son's death from the Bulgarian Army (see paragraphs 46-47
above). However, the obligation to pay that compensation resulted
directly from the fact that the applicants' son had died during his
military service (see paragraph 49 above) and there is nothing to
suggest in the case that in paying it the authorities also
acknowledged, expressly or in substance, alleged breaches of Article
2 of the Convention (see Rotaru v. Romania [GC], no. 28341/95,
§§ 33-38, ECHR 2000 V). Accordingly, the Court
considers that the applicants have remained victims of the alleged
violations of that provision.
Furthermore,
the Court is of the view that the complaints under Article 2 are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
The
Court notes that the first sentence of Article 2 § 1 enjoins the
State not only to refrain from the intentional and unlawful taking of
life, but also to take appropriate steps to safeguard the lives of
those within its jurisdiction (see L.C.B. v. the United Kingdom,
9 June 1998, § 36, Reports of Judgments and Decisions
1998 III).
Where
the threat to life derives from the criminal acts of others, this
positive obligation has been held to include a primary duty to secure
the right to life by putting in place effective criminal-law
provisions to deter the commission of offences against the person
backed up by law-enforcement machinery for the prevention,
suppression and sanctioning of breaches of such provisions. In
certain well-defined circumstances it may extend to requiring the
authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another
individual. Subject to considerations as to the difficulties involved
in policing modern societies, the unpredictability of human conduct
and the operational choices which must be made in terms of priorities
and resources, such an obligation must be interpreted in a way which
does not impose an impossible or disproportionate burden on the
authorities and which also conforms with the other rights guaranteed
under the Convention. The test imposed in the context of the duty to
prevent and suppress offences against the person is that it must be
established that the authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an
identified individual or individuals from the criminal acts of a
third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to
avoid that risk (see Osman v. the United Kingdom, 28 October
1998, § 116, Reports of Judgments and Decisions
1998 VIII). This approach has been applied also to areas where
risks to life have arisen due to dangerous situations, such as the
settlement of people in slum dwellings next to a massive rubbish dump
and naturally-occurring hazards such as mudslides, where the
authorities, knowing about the potential danger, are under
obligations to respond with due regard to protection of the right to
life. In this context, the Court has found failures on a substantive
level, in the failures to take the necessary measures to inform and
safeguard the population, and also on procedural level, due to
inadequate investigatory and judicial response permitting the cause
of the disaster to be established, for the persons responsible to be
held accountable and for compensatory relief to be available to the
victims (see Öneryıldız v. Turkey [GC], no.
48939/99, ECHR 2004 XII, and Budayeva and Others v. Russia,
nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, ECHR
2008 ... (extracts)).
Positive
obligations apply in the public-health sphere too. They require
States to make regulations compelling hospitals, whether private or
public, to adopt appropriate measures for the protection of patients'
lives. They also require an effective independent judicial system to
be set up so that the cause of death of patients in the care of the
medical profession, whether in the public or the private sector, can
be determined and those responsible made accountable (see Powell
v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V;
Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR
2002 I; Vo v. France [GC], no. 53924/00, ECHR 2004 VIII).
Where the infringement of the right to life or to physical integrity
is not caused intentionally, the positive obligation imposed by
Article 2 to set up an effective judicial system does not necessarily
require the provision of a criminal-law remedy in every case. In the
specific sphere of medical negligence, “the obligation may for
instance also be satisfied if the legal system affords victims a
remedy in the civil courts, either alone or in conjunction with a
remedy in the criminal courts, enabling any liability of the doctors
concerned to be established and any appropriate civil redress, such
as an order for damages and for the publication of the decision, to
be obtained. Disciplinary measures may also be envisaged” (see
Calvelli and Ciglio, cited above, § 51; Lazzarini and
Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002; and
Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR
2002-VIII).
Positive
obligations will vary therefore in their application depending on the
context. It is primarily the task of the domestic systems to
investigate the cause of fatal accidents and to establish facts and
responsibility. In the present case, which concerns an accident
during a military training exercise, the Court notes that while it
may indeed be considered that the armed forces' activities pose a
risk to life, this is a situation which differs from those
“dangerous” situations of specific threat to life which
arise exceptionally from risks posed by violent, unlawful acts of
others or man-made or natural hazards. The armed forces, just as
doctors in the medical world, routinely engage in activities that
potentially could cause harm; it is, in a manner of speaking, part of
their essential functioning. Thus, in the present case, parachute
training was inherently dangerous but an ordinary part of military
duties. Whenever a State undertakes or organises dangerous
activities, or authorises them, it must ensure through a system of
rules and through sufficient control that the risk is reduced to a
reasonable minimum. If nevertheless damage arises, it will only
amount to a breach of the State's positive obligations if it was due
to insufficient regulations or insufficient control, but not if the
damage was caused through the negligent conduct of an individual or
the concatenation of unfortunate events (see, for comparison,
Kalender v. Turkey, no. 4314/02, §§ 43-47,
15 December 2009).
There
is no claim in the present case that there was any deliberate
infliction of injury or that any specific risk to life of the
applicants' son arose that should have been foreseen in advance. It
is however the case that there should be an appropriate legal,
regulatory and judicial framework such that the cause of the accident
should be determined and provision made for establishing any
liability and affording appropriate redress.
In
the present case the applicants do not argue that the legislative and
administrative framework set up by the State was defective in any
general or systemic sense. The Court's supervision must rather focus
on the response by the authorities to the accident. In the case at
hand, the relevant events which led to loss of life occurred under
the responsibility of the Ministry of the Interior, which organised
and carried out the parachuting training of 27 May 1998 (see
paragraph 6 above). Having regard to the context, the circumstances
surrounding the accident which led to the death of the applicants'
son were largely confined within the knowledge of the public
authorities, which were also the only entities possessing sufficient
expertise and resources to identify and establish the reasons behind
it. Thus it was for these authorities to ensure that there was an
effective investigation. As such investigation necessarily includes a
significant element of technical expertise, the Court must give
particular weight to the domestic authorities' findings in this
regard
The
Court notes that in fact there were two official inquiries into the
fatal accident in which Mr Rosen Stoyanov lost his life. On the first
place, an internal inquiry was carried out by a joint commission of
the Ministries of the Interior and Defence, which gathered numerous
pieces of evidence and submitted a report, concluding that the
accident had been caused by the helicopter's “inappropriate”
speed and by deficiencies in the preparation of the parachute
training and in the coordination between the helicopter's crew and
the paratroopers (see paragraphs 12-17 above). The Court is satisfied
that the commission possessed the necessary expertise and
impartiality, that its investigation was comprehensive and that its
conclusions were adequate, tenable and convincing. Indeed, the Court
notes, as the commission did, that the communication between the
helicopter's crew and the paratroopers appears to have been deficient
as, firstly, Chief Sergeant T., who was in charge of the parachute
jumps, failed to indicate to the crew the exact speed needed (see
paragraphs 7 and 40 above) and, secondly, the crew failed to
communicate to the paratroopers the exact speed attained after his
instructions to “speed up” (see paragraph 7 above).
Furthermore, the helicopter's device recording the parameters of the
flight had not been loaded with a tape (see paragraphs 7 and 16
above). The Court notes also that the internal inquiry's conclusions
provide a plausible and convincing explanation of the events of 27
May 1998, and in particular of the fact that two very experienced
paratroopers died in the same way, within seconds of each other,
after their heads hit the left rear tyre of the helicopter, and that
Mr G., the paratrooper who had jumped first, did not jump normally
either, his head barely missing the same tyre. The Court sees no
reason to doubt the thoroughness and the correctness of the internal
inquiry's conclusions. It notes that even if the measures recommended
in the commission's interim report of 6 June 1998, namely an
experiment with a dummy and requesting additional information from
the helicopter's manufacturer, were apparently never carried out (see
paragraph 12 above), the final report of 24 June 1998 still appears
to have been based on ample and diverse evidence, namely site
inspections, witness testimony and documents (ibid.). Furthermore,
even if the commission's members were officials of the Ministries of
the Interior and Defence, the Court sees no reason to question their
impartiality in this exercise. These officials included paratroopers,
doctors and other experts (see paragraph 12 above). Their expertise
has not been challenged and was apparently also recognised by the
prosecuting authorities who initially appointed the commission's
members as experts in the criminal proceedings (see paragraph 30
above). The internal inquiry's conclusion that the paratroopers bore
no fault for the fatal accident was also reiterated in the expert
report submitted for the purposes of the criminal proceedings on 17
November 2000 (see paragraphs 36-37 above).
Furthermore,
the Court notes that the internal inquiry was prompt, as it was
concluded less than a month after the fatal accident of 27 May 1998
(see paragraph 13 above).
The
prosecuting authorities also carried out an investigation into the
accident of 27 May 1998 (see paragraphs 20-45 above) but differed
from the internal inquiry as to the interpretation of the evidence
and as to where the fault for the accident lay. The Court does not
find problematic in itself the fact that these inquiries carried out
by the authorities did not lead to establishing any degree of
criminal responsibility of the persons responsible for the parachute
training of 27 May 1998. It notes that Article 2 of the Convention
obliges the authorities to carry out a meaningful investigation; it
is not required that there is an ensuing criminal conviction (see
paragraph 60 above). Although the conclusions of the prosecuting
authorities as to the causes of the fatal accident of 27 May 1998 did
not provide convincing explanation for the way in which two
experienced paratroopers died one after the other and one other
paratrooper almost hit the wheel of the helicopter, it does not
necessarily follow that they erred in not applying criminal
sanctions. It is not apparent that the evidence concerning
Mr Stoyanov's death, gathered by the authorities, suggested that
a particular individual or individuals committed such grave errors as
to be justifiably held criminally responsible. Nor do the applicants
in their submissions point to such individuals.
The
Court would emphasise that the inquiries described above allowed the
applicants to acquaint themselves with the evidence concerning their
son's death. Furthermore, the internal inquiry carried out by the
Ministries of the Interior and the Defence concluded, as the
applicants argued themselves, that the responsibility for their son's
death lay on the State. Had the applicants sought to pursue the
matter further and have a court finding to that effect, it was open
for them, on the basis of the factual findings of the two inquiries,
to bring civil proceedings. Domestic law at the time, namely section
249(6) of the Armed Forces Act, expressly authorised them to bring an
action for damages against the Ministry of Defence, irrespective of
whether or not they had already received compensation (see paragraphs
47 and 50 above). Furthermore, as regards the alleged responsibility
of the Ministry of the Interior, they could bring an action for
damages under the general legislation providing for tort liability of
the State (see paragraphs 51-52 above). The Court sees no reason to
find that such actions would not have been capable of establishing
the fault of the authorities, which would have been a prerequisite
for their liability for damages.
To
sum up, the Court considers that while the authorities were the only
entities to have sufficient knowledge to establish the circumstances
of Mr Rosen Stoyanov's death, once they had investigated the
accident and laid the evidence on the table, it was up to the
applicants to pursue the matter and bring proceedings to establish
the State's responsibility and liability in damages. As to the
authorities, they complied with their obligation to carry out an
effective investigation, as required under Article 2 of the
Convention.
In
the circumstances of the present case, the Court concludes therefore
that there has been no failure on the part of the State to comply
with its positive obligation to respect the right to life under
Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants also complained under Article 13 of the Convention that in
view of the findings of the criminal investigation in the case they
could not seek damages for their son's death. Article 13 reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government did not submit observations on this complaint.
The
Court notes that the applicants received compensation for their son's
death and were, moreover, entitled to seek indemnification from his
insurer (see paragraphs 46-48 above).
In
so far as they may be understood to complain that they could not seek
additional damages, the Court notes that it already found that they
had possibilities to do so (see paragraph 67 above). Accordingly, it
finds that no separate issue arises under Article 13 of the
Convention.
FOR THESE REASONS, THE COURT
Declares the application admissible by a
majority;
Holds by six votes to one that there has been no
violation of Article 2 of the Convention;
Holds unanimously that no separate issue arises
under Article 13 of the Convention.
Done in English, and notified in writing on 9 November 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Kalaydjieva is annexed to this judgment.
P.L.
C.W.
SEPARATE OPINION OF JUDGE KALAYDJIEVA
I
fully share the conclusions of the majority on the merits of the
applicants' complaints in regard of the alleged failure of the
authorities to meet their positive obligations under Article 2 of the
Convention. Unlike in cases of wilful deprivation of life and use of
lethal force, in cases of negligence the positive obligations of
State authorities do not necessarily involve a duty to institute
criminal proceedings or to prosecute those responsible for negligent
omissions leading to tragic incidents. In such circumstances the
obligation of the State is to provide a regulatory and judicial
framework, in which the availability of civil proceedings will very
often be sufficient.
In
the present case the applicants were satisfied with the conclusions
of the internal inquiry carried out by the Ministry of the Interior
and the Ministry of Defence that there had been deficiencies and
negligent failures in following the existing clear regulations on
parachute exercises. The applicants do not complain that these
conclusions gave rise to suspicions as to the circumstances in which
their son died, or that any facts related to the death were withheld
by the authorities. They also do not contest the fact that by the
time they were informed on this report, they could file a claim
against the Ministry of the Interior for compensation of their loss
and sufferings. In my view by this time the authorities had met their
positive obligations in similar circumstances.
It is
not clear why - once aware of the established circumstances in their
son's death - the applicants neither availed themselves of the
existing opportunity for civil compensation under the general tort
law, nor complained before the Court of any specific deficiencies of
the internal inquiry within six months after they were informed on
the outcome of the internal inquiry. Since this was not done, I
believe that the applicants' complaints under Article 2 are late and
inadmissible, regardless of their merits.
As
concerns the parallel criminal investigation proceedings, the
applicants fail to explain whether and how their outcome would
influence their prospects for civil compensation, or would in any way
override, or be more binding for the civil courts than the different
conclusions of the internal inquiry commission of the Ministry of the
Interior. I fully agree with the majority that the purpose of the
criminal investigation was to inquire into possible criminal acts,
which – where appropriate – could result in the
indictment of those responsible. In the present case the applicants
do not maintain that the established negligent omissions leading to
their son's death constituted any criminal acts, or that the
authorities failed to meet any obligations by not prosecuting the
officers responsible for negligent acts. In the face of the proper
conclusions of the internal inquiry, with which the applicants
agreed, it remains unclear why they expected the outcome of the
criminal proceedings as a panacea for their grieving, or as an
obstacle to their opportunity to file a compensation claim before the
prescription time-limit expired.
In my
view the fact that the authorities found it necessary to institute
criminal investigation proceedings does not mean that those
proceeding are part of the positive obligations of the State in the
context of negligence, nor does it justify the applicants' decision
to await the outcome of these proceedings before complaining to the
Court.
