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ZASHEVI v. BULGARIA - 19406/05 [2010] ECHR 1847 (2 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1847.html
Cite as:
[2010] ECHR 1847
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FIFTH
SECTION
CASE OF
ZASHEVI v. BULGARIA
(Application
no. 19406/05)
JUDGMENT
STRASBOURG
2 December
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 Zashevi 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 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19406/05) 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 Genka Ivanova
Zasheva and Mr Metodi Dimitrov Zashev (“the applicants”),
on 26 April 2005.
The
applicants were represented by Mr Y. Grozev, a lawyer practising in
Sofia and by Mr B. Boev, formerly a lawyer practising in Sofia, who
on 7 October 2008 was granted leave under Rule 36 § 4 (a)
in fine of the Rules of Court to continue representing the
applicants. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Dimova, of the Ministry of
Justice.
The
applicants alleged that the authorities had failed to carry out an
effective investigation into their son’s death and that they
had not had effective remedies in that regard.
On
7 September 2009 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1939 and 1933 respectively and live in Sofia.
They
are the parents of Mr Ivaylo Zashev, who was shot and killed by
people trying to rob him in his aunt’s house in the village of
Stavertsi, in the Pleven region, in the late hours of 3 February or
the early hours of 4 February 1997.
A. The events of 3 and 4 February 1997
In
the morning of 3 February 1997 Mr Ivaylo Zashev and his brother,
Mr Valeri Zashev, both of whom had come to Stavertsi for a
business venture, went to a neighbouring village to see if they could
buy cattle. Later that day they went to Pleven to exchange 2,000
German marks and 1,000 United States dollars. They were also carrying
200,000 old Bulgarian levs. They did not exchange the money and in
the evening went back to Stavertsi. At about 10.45 p.m. they went to
sleep. Their aunt, Ms T.L., was sleeping in the adjoining room.
Around
midnight the two brothers woke up and saw in the room three men
wearing masks and gloves. One of them was carrying a shotgun, the
other a metal pipe, and the third was unarmed. The two armed
assailants started fighting with Mr Ivaylo Zashev and Mr Valeri
Zashev, while the unarmed one sifted through the items in the room.
While the assailant with the pipe was hitting Mr Valeri Zashev, Mr
Ivaylo Zashev was trying to protect himself with a chair from the one
with the shotgun. The assailants ordered the brothers to hand over
the money they had. Mr Ivaylo Zashev replied that it was in his
trousers and, while the assailants were checking them, he managed
secretly to slip the bag with the money under his bed. At that point
Ms T.L. entered the room. The assailants were startled. One of them
told the one with the shotgun to fire. He pulled the trigger, but the
gun jammed. However, after that he fired two shots, the second of
which hit Mr Ivaylo Zashev in the chest and pierced his heart
and lungs; about a minute later he died. The assailants pushed Ms
T.L. to the ground, face down. Then they went out of the house
despite Mr Valeri Zashev’s efforts to stop them. They reached
their car, which was parked nearby, and left the village.
B. The proceedings
1. The pre trial investigation
Approximately two hours after the events, at 1.55 a.m.
on 4 February 1997, an investigator from the Pleven Investigation
Service inspected the crime scene with two police officers, an expert
and a forensic doctor. He found and seized a hunting bullet, a
hunting cartridge case, a pistol cartridge case, four rubber bullets
and two hunting bullet caps.
Later
that day the investigator asked an expert to express an opinion on
the extent of the injuries suffered by Mr Valeri Zashev and Ms T.L.
and the manner in which they had been inflicted. He also asked a
clinic in Pleven to clarify the exact cause of Mr Ivaylo Zashev’s
death, the distance and the position from which the shot had been
fired, and the relative positions of the victim and the shooter.
Between
12 February and the end of March 1997 the investigator interviewed Mr
Valeri Zashev, Ms T.L. and a number of other witnesses.
One of those witnesses was a Mr V.K., the personal
driver of a Mr P.T., a local businessman. He was arrested by the
police on 8 February 1997, and after that kept in custody for a few
days in a house in the country near Pleven and repeatedly questioned.
According to his subsequent allegations, he was ill treated and
pressured into testifying in line with the instructions of the
police, as well as into identifying certain individuals and objects
during identity parades. The police denied these allegations and said
that Mr V.K. had made all his statements freely.
Mr V.K. was interviewed by the investigator on 13, 16,
18 and 20 February 1997. He said, inter alia, that on the
evening of 3 February 1997 he had seen his boss, Mr P.T., a Mr I.K.,
and two other men. Mr P.T. had instructed him to go to Stavertsi with
Mr I.K. and the two others, in an Audi. When getting out of the car
the three men had put masks and gloves on. Mr V.K. had waited for
them for a few minutes, during which time he had heard two shots.
After that the three had come back to the car, carrying a shotgun.
They had driven out of the village and had told Mr V.K. to get out of
the car. Mr V.K. had then returned to Mr P.T.’s house, where Mr
P.T. had asked him whether the three men had had any United States
dollars on them. He had then told him to forget the events of that
night. The next day Mr V.K. had heard Mr P.T. and Mr I.K. discussing
the incident, with Mr I.K. mentioning a pipe and chair broken in
the scuffle, and saying that an old woman had entered and messed up
their plans.
Meanwhile,
on 15 February 1997 the police seized an Audi, suspected of being the
car used by the assailants for their escape. It was inspected on 19
February 1997, and a dark spot measuring four millimetres in diameter
was found on the back seat. The same day the investigator asked an
expert to determine whether that spot was blood, and if so, of which
group. The expert confirmed that the spot was human blood, but could
not determine its group because of the insufficiency of the material
available for testing.
On
15 February 1997 Mr P.T., Mr I.K. and a Mr V.P. were arrested. On 16
February 1997 Mr P.T. was released, and the investigator carried out
an identity parade in which Mr V.K. identified Mr I.K. and Mr V.P.
They were then charged and placed in detention. They remained in
custody until April 1998, when they were released on bail.
On
21 February 1997 Mr V.K. was presented with a tracksuit seized at Mr
I.K.’s home and allegedly worn by him at the time of the
offence; he recognised it.
On
25 March 1997 a Mr G.G. was arrested. On 28 March 1997 he was also
charged with taking part in the robbery.
On
8 April 1997 the investigator sent the ballistics evidence seized at
the crime scene for testing.
Mr V.K. was interviewed again on 12 June 1997. He
withdrew his earlier statements and said that he had been coerced by
the police into giving false evidence.
On 7 August 1997 the Pleven Regional Prosecutor’s
Office, observing that no investigatory steps had been taken for
several months, replaced the investigator.
In an interview on 13 August 1997 an individual
detained in the same cell as Mr G.G. stated that he had asked him to
kill Mr V.K. In an interview of the same date two employees of the
country house in which Mr V.K. had been held by the police (see
paragraph 12 above) said that while there he had confided in them
that he was afraid that his boss, Mr P.T., might kill him
because he had testified against him. Mr V.K. had no marks of
ill treatment.
In August 1997 the Pleven Regional Prosecutor’s
Office noted that the accused should remain in custody in view of
their apparent resolve to liquidate the witnesses against them.
On
25 September 1997 the investigator ordered Mr P.T.’s detention.
Some time after that Mr P.T. was arrested and on 28 October 1997 he
was charged. He remained in custody until 18 May 1998.
On 6 and 7 November 1997 the investigator interviewed
Mr V.K. again. He again changed his position, reasserting his
statements of February 1997 (see paragraph 13 above) and withdrawing
his statement of 12 June 1997 (see paragraph 19 above). He said that
it had been given under pressure from Mr P.T., who had kidnapped him
and deprived him of his liberty for a month.
On
3 and 4 December 1997 Mr V.K. was interviewed again. On 4 December
1997, during an identity parade, he did not recognise Mr G.G.
In
a memorandum of 2 September 1998 the head of the Pleven police
technical department said that the ballistics evidence seized at the
crime scene had been lost when transferred between various
departments without the required documents. It was therefore
impossible to test it.
No investigative steps were taken in 1998, 1999 and
2000.
On 5 August 1999 the Veliko Tarnovo Appellate
Prosecutor’s Office noted that the investigation had suffered
from serious setbacks and that not enough had been done to elucidate
how and why the missing real evidence had been lost.
On
12 June 2000 Mr Valeri Zashev died. Ms T.L. also died, on 2 October
2000.
On 20 March 2001 the Veliko Tarnovo Appellate
Prosecutor’s Office noted that, for no apparent reason, no
investigatory steps had been taken after 18 May 1998. It further
observed that the file was not bound and ordered properly, which made
it difficult to check on the progress of the unfolding of the
investigation. It recommended finding out why the case had not been
concluded for more than four years and punishing those responsible,
as well as taking steps to finalise the case in the near future.
Accordingly, on 26 March 2001 the Pleven Regional Prosecutor’s
Office instructed the investigator to renew work on the case.
On
23 April 2001 the investigator recommended that the charges be
dropped for lack of evidence. The prosecuting authorities disagreed
and in July and August 2001 instructed him to question Mr V.K. again
and to order a further expert report. However, in the meantime, on 1
August 2001 the investigator left his job and had to be replaced.
On
22 January 2002 the new investigator commissioned a DNA expert report
of the blood spot found on the back seat of the seized Audi. On
30 January 2002 the expert said that no blood could be found on
the seat.
On 28 May 2002 Mr V.K. was interviewed by the
investigator at a public hearing held at the Pleven Regional Court.
Mr V.K. stated that he would not testify until measures were taken to
protect him, as he had received threats made on behalf of the
accused. Accordingly, on 30 May 2002 the investigator requested the
police to take measures to protect the witness. The police made
contact with Mr V.K. on 18 June 2002. The next day, 19 June 2002, he
was asked to go to the police station, where he said that he did not
require protection for the time being, but would contact the police
if he was threatened again in the future.
On 16 December 2002 Mr V.K. was interviewed again at a
public hearing before the Pleven Regional Court. He stated that he
had been ill treated and pressured by the police into testifying
in a certain way about the robbery and into recognising a specific
individual during identity parades. He further said that he did not
know any of the accused apart from Mr P.T.
On
11 March 2003 the investigator again recommended that the charges be
dropped. On 24 March 2003 the Pleven Regional Prosecutor’s
Office decided to follow this recommendation.
On an appeal by the applicants, on 16 July 2003 the
Pleven Regional Court set this decision aside. It found, inter
alia, that it was unclear whether Mr V.K. had made his
incriminating statements under police pressure or had retracted them
under threats from the accused. The case file contained ample
material supporting both versions, but the authorities had done
nothing to provide protection for the witness. That had eventually
led to him refusing to testify. Nevertheless, the analysis of his
statements showed that he had been with the accused both before and
after the time when the offence had been committed. The court went on
to say that not enough effort had been made to find the lost
ballistics evidence. It instructed the investigating authorities to,
inter alia, check Mr V.K.’s allegations of police
violence against him, take measures to protect him, and then question
him again, if need be in the presence of a judge, in order to clarify
which of his statements was genuine. The court also said that further
efforts should be made to find the missing ballistics evidence.
Between
October and December 2003 the investigator interviewed seven police
officers who had taken part in the investigation. All of them said
that Mr V.K. had given his evidence freely. They were unable to
provide definite clues as to the disappearance of the ballistics
evidence.
When interviewed on 15 December 2003, Mr V.K. again
said that he had been ill-treated by the police and pressured into
testifying in a way indicated by them.
On
26 March 2004 the investigator again recommended that the charges
against Mr P.T., Mr G.G., Mr V.P. and Mr I.K. be dropped. However,
the Pleven Regional Prosecutor’s Office disagreed and on
14 April 2004 indicted them. It alleged that Mr P.T. had incited
the rest to rob Mr Ivaylo Zashev and Mr Valeri Zashev; it further
alleged that the other three had carried out an armed robbery in the
course of which they had killed Mr Ivaylo Zashev.
2. The trial
The
trial took place before the Pleven Regional Court (Плевенски
окръжен съд)
on 15 October and 20 December 2004 and 17 March 2006. The applicants
were not summoned and did not take part in it. The court heard
numerous witnesses and admitted various documents in evidence.
In a judgment of 17 March 2006 the court acquitted Mr
P.T., Mr G.G., Mr V.P. and Mr I.K. of the charges against them.
It found that there was no evidence to show that they
had committed the offence. The shotgun had not been found or
identified. Likewise, the bullets causing the death of Mr Ivaylo
Zashev had not been positively identified. The ballistics evidence
found at the crime scene had later been lost because of failure to
follow procedures for storing and transporting real evidence, and
thus had never been analysed. It was therefore impossible to make any
findings about the weapon used to commit the offence or its owner.
Furthermore, the investigator had not taken any samples or real
evidence from the crime scene, such as tyre or shoe marks,
fingerprints or objects, to support even a supposition that any of
the accused had been at or even near the crime scene. Nor had the
outside of Ms T.L.’s house been checked for traces of the
assailants or of the car which they had used to escape. There were no
witnesses – save for the brother of the deceased Mr Valeri
Zashev and Ms T.L. – who had seen the assailants or the car.
The available evidence showed that the Zashevi brothers had neither
met the accused or any persons close to them, nor told any of them
that they were carrying a sum of money. The analysis of Mr Valeri
Zashev’s and Ms T.L.’s statements showed that even they
had not seen the assailants properly or identified them. Nor had they
seen the car properly.
There was not enough evidence to show that the Audi,
which had not been seized until fifteen days after the commission of
the offence, had been the one used by the assailants. It had been
washed inside and outside before being handed over to the police, and
had remained unlocked, including when stored in the police station’s
yard. It could not therefore be conclusively established whether the
small dark blood spot on its back seat was linked with the offence.
The first expert report on this point could not be admitted in
evidence, as the investigator’s decision to commission it did
not contain any description of the car to be analysed. As to the
second expert, he had been unable to reach any conclusion about the
blood’s group.
The court went on to say that Mr V.K.’s
incriminating statements could not be considered reliable. After
analysing in detail the circumstances in which they had been made, it
found that it was clear that Mr V.K. had been pressured by the
police, who had detained him unlawfully, to testify in a way
indicated by them. Nor did the court find the identity parades
carried out with Mr V.K.’s participation reliable. Contrary to
the rules of procedure, he had not been asked about any distinctive
features of the individuals to be recognised before the
identification, nor had those individuals been lined up among persons
who resembled them. Moreover, Mr V.K. had been instructed whom to
identify and on the basis of what physical features.
Finally, the expert examination of the clothes seized
at Mr I.K.’s home showed that there were no traces of blood on
them.
No other evidence had been put forward by the
prosecution to link any of the accused to the commission of the
offence.
3. The appeal
The
prosecution appealed, arguing that the acquittal was ill-founded.
On
30 May 2006 the Veliko Tarnovo Court of Appeal (Великотърновски
апелативен
съд) set the case down for hearing. It
noted that the appeal did not point to specific irregularities in the
lower court’s judgment, and that there was no request for
further evidence to be gathered.
At
the hearing, which took place on 18 September 2006, the prosecutor on
appeal reluctantly endorsed the appeal. He did not call further
evidence.
In a judgment of 4 October 2006 the Veliko Tarnovo
Court of Appeal upheld the acquittal. It found that the lower court
had properly analysed the entirety of the available material, finding
that key pieces of evidence had been lost or spoiled. Its conclusion
that the evidence adduced could not link the accused to the
commission of the offence had been fully warranted. No arguments had
been put forward by the prosecution in the appeal proceedings to cast
doubt on that finding.
The
prosecution did not appeal again and the judgment became final on 24
October 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants complained that the authorities had failed to carry out an
effective investigation into their son’s death. They relied on
Article 2 of the Convention, which provides, in so far as relevant:
“1. Everyone’s right to life
shall be protected by law. ...”
A. The parties’ submissions
The Government submitted that there was no doubt that
Bulgaria had set up a legal framework safeguarding the right to life.
They pointed out that the authorities had immediately launched an
official investigation, and had taken steps to gather the evidence
and establish the facts. Initially the investigation had progressed
at a good pace. The numerous investigative steps had been
illustrative of the authorities’ determination to identify the
perpetrators and bring them to account. At the same time, it could
not be overlooked that, as noted by the domestic courts, the
investigating authorities had breached the rules of procedure and had
made mistakes. Had they complied strictly with the rules governing
the gathering of evidence, they would have stood a much better chance
of identifying the culprits. However, the fact that the assailants
had worn masks had posed serious difficulties in that respect.
Another problem had been the scarcity of witness evidence.
Nonetheless, the authorities’ failure to identify those
responsible for an offence did not automatically entail a breach of
their procedural obligations under Article 2. The authorities could
not be blamed if, despite carrying out an effective investigation,
they still could not establish the identity of and punish those
responsible. The investigation was continuing, and could go on until
the expiry of the limitation period, which was thirty years from the
commission of the offence. Lastly, the Government pointed out that
the Assistance and Financial Compensation of the Victims of Crime
Act, which applied in respect of offences committed after 30 June
2005, had come into force on 1 January 2007.
The
applicants submitted that to comply with its positive obligations
under Article 2 of the Convention the State had to do more than adopt
laws mandating the investigation and punishment of homicide. It also
had to carry out effective official investigations of all instances
of homicide. The investigation in the case at hand had not been
effective; on the contrary, it had been tainted by a number of grave
omissions, which had completely undermined its ability to establish
both the exact circumstances in which Mr Ivaylo Zashev had been
killed and the identity of the persons responsible for his death. The
most serious error had been the loss of the cartridges impounded from
the crime scene, as well as the failure to provide protection to Mr
V.K., which had been both possible and indispensable, and the lack of
which had led to his changing his statements several times. Other
deficiencies had been the substandard inspection of the crime scene,
the belated conducting of interviews with the neighbours, the belated
commissioning of DNA and ballistic expert reports, and in general the
excessive length of the investigation, which had lasted almost eight
years. The applicants also criticised the passive conduct of the
prosecution during the trial, in the course of which it had made only
one – poorly substantiated – request for further
evidence to be gathered. In addition, in its appeal against the
acquittal the prosecution had not raised any additional arguments and
had not made further evidentiary requests; nor had it sought later to
appeal on points of law.
B. The Court’s assessment
The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
It
considers that despite the lack of involvement of State agents in Mr
Ivaylo Zashev’s killing, the authorities were under an
obligation to carry out an effective investigation of the
circumstances in which he lost his life. Article 2 § 1 imposes
on the State a 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 (see Osman v. the United Kingdom, 28
October 1998, § 115, Reports of Judgments and Decisions
1998 VIII). That obligation requires by implication that there
should be some form of effective official investigation when
individuals have died in violent or suspicious circumstances, even if
there is no indication that the death is due to State action (see,
concerning inter prisoner violence, Paul and Audrey Edwards
v. the United Kingdom, no. 46477/99, § 69, ECHR 2002 II;
concerning homicides by prisoners benefiting from early release or
social reintegration schemes, Mastromatteo v. Italy [GC], no.
37703/97, §§ 89, 92 and 93, ECHR 2002 VIII, and
Maiorano and Others v. Italy, no. 28634/06,
§§ 123 26, 15 December 2009; concerning racist
attacks, Menson v. the United Kingdom (dec.), no. 47916/99,
ECHR 2003 V, and Angelova and Iliev v. Bulgaria,
no. 55523/00, §§ 91 105, ECHR 2007 IX;
concerning high profile assassinations, Kolevi
v. Bulgaria, no. 1108/02, §§
191-215, 5 November 2009; concerning domestic violence, Opuz
v. Turkey, no. 33401/02, §§
150 and 151, ECHR 2009 ...; concerning car accidents, Al
Fayed v. France (dec.), no. 38501/02, §§ 73 78, 27
September 2007; Rajkowska v. Poland (dec.), no. 37393/02, 27
November 2007; and Railean v. Moldova, no. 23401/04,
§ 28, 5 January 2010; concerning deadly accidents on
construction sites, Pereira Henriques v. Luxembourg, no.
60255/00, §§ 12 and 54 63, 9 May 2006; and, concerning
suspicious deaths, Rantsev v. Cyprus and
Russia, no. 25965/04, §
234, 7 January 2010, and Iorga v. Moldova, no.
12219/05, § 26, 23 March 2010). The Court recently
described that obligation as having evolved into a “separate
and autonomous duty” (see Šilih v. Slovenia [GC],
no. 71463/01, § 159, 9 April 2009).
Indeed, this need for scrutiny was acknowledged by the national
authorities, which initiated an investigation immediately after the
incident (see paragraph 9 above).
While
that obligation may differ, both in content and in terms of its
underlying rationale, depending on the particular situation that has
triggered it (see Banks and Others v. the United Kingdom
(dec.), no. 21387/05, 6 February 2007, and, mutatis mutandis,
Beganović v. Croatia,
no. 46423/06, §
69, ECHR 2009 ... (extracts)), any such investigation must
comply with certain minimum requirements which have recently been set
out, with reference to deaths not involving State action, in
paragraphs 192 94 of the Court’s judgment in the case of
Kolevi (cited above). The Court would add that the nature and
degree of scrutiny which satisfy the minimum threshold of
effectiveness depend on the circumstances of each particular case.
They must be assessed on the basis of all relevant facts and with
regard to the practical realities of investigation work (see, among
other authorities, Velikova v. Bulgaria, no. 41488/98, §
80, ECHR 2000 VI, and Ülkü Ekinci v. Turkey,
no. 27602/95, § 144, 16 July 2002). Moreover, this is not an
obligation of result, but of means only (see, among other
authorities, Paul and Audrey Edwards, cited above, § 71).
Article 2 does not entail the right to have others prosecuted or
sentenced for an offence, or an absolute obligation for all
prosecutions to result in conviction or in a particular sentence (see
Öneryıldız v. Turkey [GC], no. 48939/99, §§
94 and 96, ECHR 2004 XII).
In
the instant case, the authorities carried out an investigation which
led to the trial of the alleged perpetrators. However, that trial
resulted in an acquittal, the reason for which was the lack of proof
that the offence had been committed by those accused of it (see,
mutatis mutandis, Makaratzis v. Greece [GC], no.
50385/99, § 77, ECHR 2004 XI). Pleven Regional Court
analysed in detail the material adduced by the prosecution and found
that, due to a number of omissions during the investigation, there
was not a single piece of evidence to link the accused to the
commission of the offence. In particular, no samples had been taken
and no real evidence seized from the crime scene; the bullets and
cartridges found there had been lost before being tested, due to a
failure to comply with proper procedures; the seized car had not been
examined in a timely fashion; the key witness for the prosecution had
been unlawfully pressured by the police into testifying in a certain
way; and the identity parades he attended had not been conducted
properly (see paragraphs 41 46 above). On appeal, the Veliko
Tarnovo Court of Appeal fully endorsed those findings (see paragraph
50 above). One additional weakness, also criticised by Pleven
Regional Court but not remedied effectively, was the authorities’
failure to provide effective protection for that key witness, who had
received threats and eventually retracted all of his incriminating
statements, possibly as a result of those threats (see paragraphs 21,
22, 24, 33, 34, 36 and 38 above).
In
view of those flaws, described in detail by the domestic courts, the
investigation can hardly be regarded as effective within the meaning
of this Court’s case law, which says that any deficiency
which undermines the investigation’s ability to identify the
perpetrators is liable to fall foul of the required measure of
effectiveness (see Kolevi, cited above, 192). While the
Government pointed out that the investigation is ongoing and would
continue until the expiry of the applicable limitation period (see
paragraph 53 above), there is no indication that the authorities are
taking any real steps to establish the identity of those responsible
for Mr Ivaylo Zashev’s death.
It
should in addition be pointed out that, while starting promptly, the
investigation later on suffered from lengthy delays – such as
the unexplained gap between May 1998 and March 2001 – which
were criticised by the prosecuting authorities (see paragraphs 20, 27,
28 and 30 above). Its overall duration of more than seven years until
the case was brought to trial can therefore be regarded as
problematic.
In
view of the foregoing, the Court concludes that the investigation
into Mr Ivaylo Zashev’s death fell foul of the requirements of
Article 2 of the Convention. There has therefore been a violation of
that provision.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that the lack of an effective investigation had
deprived them of effective remedies in respect of the death of their
son, in breach of Article 13 of the Convention, which 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 address this complaint in their observations.
The
applicants submitted that the investigation’s failure to
identify the persons responsible for Mr Ivaylo Zashev’s death
prevented them from seeking any compensation in that regard.
The
Court finds that this complaint is linked to the one examined above
and must therefore likewise be declared admissible. However, having
regard to the reasons for which it found a breach of the State’s
procedural obligations under Article 2, the Court considers that it
is not necessary to examine whether there has also been a violation
of Article 13 (see Angelova and Iliev, cited above, §
106, with further references).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants jointly claimed 40,000 euros (EUR) in respect of
non pecuniary damage. They submitted that they had suffered
emotional pain and anguish as a result of the authorities’
failure to effectively investigate Mr Ivaylo Zashev’s death and
identify those responsible. That had undermined their faith in the
capacity of the Bulgarian judicial system to prevent and punish
violations of the right to life. Any compensation awarded to them
would in reality compensate Mr Ivaylo Zashev’s daughter and her
mother, who were receiving support from the applicants.
The
Government did not comment on the applicants’ claim.
The
Court observes that the State was found liable solely for the lack of
an effective investigation of the circumstances in which Mr Ivaylo
Zashev was killed. The Court nevertheless considers that the
applicants must have experienced severe anguish and frustration on
account of the inability of authorities to identify his assailants
and bring them to justice. Ruling in equity, as required under
Article 41, the Court awards the two applicants jointly EUR 20,000,
plus any tax that may be chargeable.
B. Costs and expenses
The
applicants sought reimbursement of EUR 5,840 incurred in fees for
seventy three hours of work by their lawyers on the proceedings
before the Court, at EUR 80 per hour. They submitted a fee agreement
and a time sheet, and requested that any amount awarded be made
payable directly to Mr Y. Grozev.
The
Government did not comment on the applicants’ claim.
According
to the Court’s case law, costs and expenses can be awarded
under Article 41 only if it is established that they were actually
and necessarily incurred and are reasonable as to quantum. In the
present case, having regard to the information in its possession and
the above criteria, the Court considers it reasonable to award the
applicants EUR 4,000, plus any tax that may be chargeable to them.
That amount is to be paid into the bank account of their legal
representative, Mr Y. Grozev.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
2 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any tax that
may be chargeable to the applicants, in respect of costs and
expenses, to be paid into the bank account of the applicants’
legal representative, Mr Y. Grozev;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Section Registrar President
