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Cite as: [2011] ECHR 118
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
34137/03
by Georgi Todorov GEORGIEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 11 January 2011 as a Chamber composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
Angelika
Nußberger,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 21 October 2003,
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 Georgi Todorov Georgiev, is a Bulgarian national who was born in 1929 and lives in the village of Trud, in the Plovdiv region. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The incident of 22 April 1996
At about 6.30 p.m. on 22 April 1996 the applicant’s son, who had earlier consumed alcohol, entered a pub in the centre of Trud. There he met Mr I.M., whom he apparently knew, who had also consumed a considerable amount of alcohol. The applicant’s son sat down at Mr I.M.’s table and asked him to lend him some money. Mr I.M. refused, but offered to buy him a drink instead. The applicant’s son became angry and started swearing at Mr I.M. He went outside and returned several times, visibly enraged. At one point he said to his cousin, who was also in the pub: “Just watch me slap the halva-seller around in two minutes”. The quarrel escalated. The applicant’s son grabbed Mr I.M.’s clothes and pulled him up from his chair. After that the two stood opposite each other, shouting. A waitress asked them to take their quarrel outside. The applicant’s son pushed Mr I.M. through the door causing him to fall on his back. The applicant’s son then proceeded to kick him in the midriff and jump on top of him, pinning him to the ground with his knee. According to the findings of the prosecutors who later dealt with the case, he also grabbed Mr I.M. by the throat and started strangling him. The applicant strongly disputed that finding. The prosecutors also found that Mr I.M. had tried to free himself from the applicant’s son’s grip, but to no avail.
According to the prosecutors’ findings, at that point Mr I.M., who was choking, drew a knife from a sheath attached to his belt and stabbed the applicant’s son in the chest. Seeing the knife, a bystander intervened and separated the two men. The applicant’s son got up and took a few steps towards a car parked nearby. Mr I.M. followed him with the bloodstained knife, but did not try to hit him again. He said “Now see who you have sworn at and what it is to hit someone”. According to the applicant, the stabbing took place after his son had already been separated from Mr I.M.
After that two eyewitness, Mr Z.P. and Mr T.K., put the applicant’s son in a car to take him to hospital. They came across a police car and told the officers about the incident. The police called an ambulance, but the applicant’s son died before it arrived.
A test revealed that at the time of the incident the alcohol content in the applicant’s son’s blood was 2.06 mg per ml. Mr I.M.’s blood alcohol content, measured three hours after the incident, was 2.39 mg per ml.
2. The investigation
(a) The initial investigation and its discontinuance
At about 7 p.m. the same day the police dispatched two officers to the scene of the incident. They impounded I.M.’s knife, arrested him, took him to a police station in Plovdiv and took a statement from him.
Later that day the authorities opened an official investigation into the incident. Between 8.20 p.m. and 8.50 p.m. the investigator to whom the case was assigned and a forensic technician inspected the body of the applicant’s son. Between 8.55 p.m. and 9.15 p.m. they inspected the scene of the incident.
At the investigator’s request, at about 9.30 p.m. a medical doctor examined Mr I.M. Between 9.45 p.m. and 10.50 p.m. two police officers, acting on the investigator’s instructions, interviewed five eyewitnesses (Mr H.G., Mr Z.P., Ms Y.K., Mr T.K. and Ms E.B.).
The next day, 23 April 1996, a forensic pathologist performed an autopsy on the body of the applicant’s son. He found that he had died as a result of the stabbing, which had ruptured key blood vessels, causing massive loss of blood. He found that the angle of entry of the wound was upwards, from front to back and from right to left.
The same day, 23 April 1996, the case was taken up by another investigator. He placed Mr I.M. in pre trial detention, charged him with murder under Article 115 of the Criminal Code (see Relevant domestic law below) and interviewed him, first alone and then in the presence of his counsel. Mr I.M. chose not to make a statement, saying that he did not feel very well.
On 24 April 1996 the investigator ordered an expert report on the blood found on the knife impounded from Mr I.M. and on a blood sample taken from the scene of the incident. The results were ready on 8 May 1996.
On 25 April 1996 the investigator asked a forensic expert to examine Mr I.M. for injuries and express his opinion on how they had been inflicted. In his report, filed the same day, the expert said, inter alia, that although Mr I.M. complained of pain in the neck, he bore no visible traces of strangulation.
On 29 April 1996 the investigator interviewed Mr H.G. and Mr Y.K. Both of them said that their earlier statements had not been comprehensive and gave fuller accounts of their versions of the events. Mr H.G. mentioned that the hands of the applicant’s son had left red marks on Mr I.M.’s throat. On 30 April 1996 the investigator interviewed Mr I.M., who gave a full account of his version of the events. On 2 May 1996 the investigator interviewed Ms E.B., Mr T.K. and Mr Z.P. On 13 and 14 May 1996 he interviewed three other witnesses who had not directly seen the incident.
On 14 May 1996 the investigator ordered a psychiatric expert report on Mr I.M.’s state of mind at the time of the incident. In their report, filed the same day, three experts said that at the time of the incident Mr I.M. had been in a state of fear which had influenced his conduct, additionally affected by his state of alcoholic intoxication.
On 23 May 1996 the investigator amended the charges against Mr I.M. to murder committed through the use of excessive force in self defence, contrary to Article 119 of the Criminal Code (see Relevant domestic law below).
On 27 May 1996 the investigator asked a forensic expert to express his opinion, based on the materials in the case file, on the relative positions of the applicant’s son and Mr I.M. at the time of the stabbing and on the strength of the blow. In his report, filed on 29 May 1996, the expert said that the wound could have been inflicted while the applicant’s son had been pinning Mr I.M. to the ground and strangling him, or if the two had been standing opposite each other, or if Mr I.M. had been standing behind the applicant’s son. However, the manner in which the incident had unfolded suggested that the most likely version was that the stabbing had taken place while the two men had been struggling on the ground.
In February 1997 the case was assigned again to the investigator who had dealt with it initially. On 7 February and 2 April 1997 he interviewed Mr T.K., Mr H.G. and Mr Z.P., as well as another eyewitness, Ms S.P., in the presence of counsel for the applicant and his wife and of counsel for Mr I.M. While on 7 February 1997 Ms S.P. had maintained that Mr I.M. had stabbed the applicant’s son long after the two had been separated, on 2 April 1997 she said that she had not seen clearly how the stabbing had taken place. When asked to explain the divergence, she said that she had been frightened, had not seen the stabbing directly, and was too frail psychologically and burdened with other problems to be able to have a clear recollection of the events.
Meanwhile, on 2 April 1997 the applicant and his wife applied to join the proceedings as civil parties. The investigator granted their application the same day.
On 16 June 1997 the investigator interviewed the former wife and the child of the applicant’s son.
On 25 June 1997 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file.
On 26 June 1997 the investigator allowed Mr I.M. and his counsel to inspect the case file. They objected against the investigator’s decision to allow the applicant and his wife to join the proceedings as civil parties, pointing out that they had failed to specify the amount of their claim.
The same day, 26 June 1997, the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office, proposing that Mr I.M. be put on trial. He described in detail his findings of fact and concluded that by resorting to a knife Mr I.M. had used excessive force in self defence.
However, on 11 July 1997 the Plovdiv Regional Prosecutor’s Office decided to discontinue the investigation. It reasoned that Mr I.M.’s act fell within the ambit of Article 12 § 3 of the Criminal Code (see Relevant domestic law below), because he had used excessive force out of fear. He had acted under the influence of fear induced by the applicant’s son’s attack, which had significantly reduced his ability to assess the situation correctly and adapt his conduct so as to remain within the limits of self defence. His act, which had consisted in a single blow with a knife, had essentially been defensive, in spite of his words after the fight. It was apparent from the statements of the eyewitnesses that the applicant’s son had pinned Mr I.M. to the ground and grabbed him by the throat, preventing him from breathing normally. He had at first unsuccessfully tried to free himself from that robust grip, which had caused him to fear for his life and safety.
(b) The applicant’s legal challenges to the discontinuance
On 28 July 1997 the applicant and his wife appealed against the discontinuance to the Chief Prosecutor’s Office. They argued that the stabbing had taken place after their son had already been separated from Mr I.M. and that the latter had continued chasing him with a bloodstained knife. They argued that the witnesses had said so in their initial interviews, and had changed their statements only later. Moreover, the fight had been brief and Mr I.M. was physically the stronger. In those circumstances, there was no room for the application of Article 12 § 3 of the Criminal Code.
On 20 August 1997 a prosecutor from the Chief Prosecutor’s Office allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to resume its work on the case. He reasoned that the investigation had failed to elucidate the exact timing of the stabbing and the applicant’s son’s and Mr I.M.’s relative positions at that moment. The witnesses’ initial and subsequent statements on that point were contradictory. It was also unclear whether or not the applicant’s son had in fact been able to walk after the stabbing and at what point he had halted his assault on Mr I.M. Finally, it had not been clarified whether or not the fatal blow was delivered while the two men were still wrestling on the ground and whether or not it had been indeed feasible for Mr I.M. to draw the knife from its sheath and administer a forceful upward blow, as described in the medical expert report.
On 5 September 1997 Mr I.M. appealed against that decision. On 1 October 1997 the Head of the Investigations Division of the Chief Prosecutor’s Office quashed it and upheld the discontinuance. He found that the lower prosecutor’s misgivings about unclarified aspects of the incident were unsupported by the evidence. While it was true that there were discrepancies between the witnesses’ initial statements as to the timing of the stabbing, on re questioning one of the witnesses had maintained that the stabbing had taken place while the attack by the applicant’s son was still continuing and the others said that they had not seen the actual stabbing. Moreover, the medical expert report had concluded that the blow had been delivered in a horizontal position. Therefore, all possibilities of clarifying the facts had been exhausted and the decision to discontinue the investigation had been warranted.
The applicant and his wife appealed to the Chief Prosecutor. On 31 March 1998 the Deputy Chief Prosecutor, to whom the case had been referred, allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to investigate further. He considered that it had not been made clear what had caused the eyewitnesses to change their statements. There were also serious discrepancies between the subsequent statements and the statements of other witnesses. These could have been cleared up by arranging a confrontation between the witnesses. Since the reports describing the crime scene were quite laconic, it would have been helpful to interview the persons present when they were drawn up. No efforts had been made to check the clothes and the shoes worn by the applicant’s son and Mr I.M. in order to determine whether the bloodstains on them corresponded to their relative positions and movements as described by the eyewitnesses. The persons who had taken the applicant’s son to hospital had not been asked whether he had said anything. No reconstruction had been staged to test the witnesses’ statements. The medical expert had not been asked clear and comprehensive questions. In view of the force of the blow, the expert should have been asked whether or not it was possible for an individual who was under the influence of drink, gripped by the throat to the point of strangling and had a damaged right elbow joint to draw a knife out of its sheath, swing it forcefully and administer a strong blow. The expert should also have been asked whether or not it would have been possible for the applicant’s son to walk after receiving such a blow. No consideration had been given to bringing in other experts whose specialist knowledge could have shed more light on the circumstances in which the applicant’s son had died.
On 20 May 1998 Mr I.M. appealed to the Chief Prosecutor. On 14 July 1998 the Chief Prosecutor quashed his deputy’s decision and upheld the discontinuance. He noted that all eyewitnesses had been questioned several times and all the discrepancies between their initial statements had been cleared up. Fresh interviews would not add anything. The clothes and shoes worn by the applicant’s son and Mr I.M. would not alter the findings either, because the manner of stabbing had been established through a medical expert’s report and the statements of witnesses. It was also clear that the applicant’s son had not spoken to the witnesses before his death. Mr I.M.’s act amounted to self defence, because he had used the only means at his disposal to repel the attack.
In February 1999 the Chief Prosecutor’s term of office came to an end and a new one was sworn in. The applicant and his wife challenged his predecessor’s decision. On 20 May 1999 the new Chief Prosecutor assigned the case to a prosecutor of the newly created Supreme Cassation Prosecutor’s Office. On 22 June 1999 that prosecutor upheld the challenge and ordered the Plovdiv Regional Prosecutor’s Office to resume the investigation and carry out various steps. Firstly, in view of the dubious validity of the medical expert report and its failure to take into account the eyewitnesses’ initial statements, it was necessary to order a further report to be drawn up by two forensic specialists and a surgeon. Secondly, in view of evidence by Mr H.G. that he had seen red marks on Mr I.M.’s throat, and of the fact that a medical expert who had examined Mr I.M. that same evening and two days later had not found any visible traces of injuries to his throat, it was necessary to clarify whether it was medically possible for them to have disappeared so fast. It was also not clear why the eyewitnesses had changed their statements and why the investigator who had initially taken up the case had been replaced. The applicant had alleged that the replacement was a friend of Mr I.M.’s son. It was therefore necessary to assign the case to another investigator with instructions to re question the eyewitnesses and specifically ask them why they had changed their statements and whether they had been pressured into doing so.
(c) The renewed investigation
After that the case was assigned to another investigator. On 14 July 1999 she interviewed Mr H.G., Mr Z.P. and Mr T.K.
On 15 July 1999 she interviewed Ms S.P. and Ms E.B. As Ms S.P.’s account differed from the one that she had given on 7 February 1997 but coincided with the one that she had given on 2 April 1997, the investigator asked her to explain the difference and to confirm which one was true. After a certain amount of hesitation, Ms S.P. said that her statement of 7 February 1997 was true and that her statement on 2 April 1997 had been made under pressure by counsel for Mr I.M., who had talked to her just before the interview. However, she then said that she had not clearly seen the stabbing.
On 23 July 1999 the investigator interviewed Ms Y.K. On 3, 7, 8 and 16 September 1999 she interviewed the police officers who had seen the applicant’s son in the car on his way to hospital and the police officers who had arrested Mr I.M.
On 25 August 1999 Mr I.M. appealed to the Chief Prosecutor against the investigation’s renewal. The appeal was rejected on 22 March 2001 and the case file was sent back to the investigator on 29 March 2001.
On 1 June 2001 the investigator interviewed Mr I.M. On 5 June 2001 she interviewed the applicant and his wife and their other son, the deceased’s brother.
At the request of Mr I.M., on 6 June 2001 the investigator revoked the earlier decision to accept the application by the applicant and his wife to join the proceedings as civil parties (see above). She found that the application had been defective, as it had only mentioned their names and their wish to join the proceedings as civil parties, whereas under Article 61 § 1 of the 1974 Code of Criminal Procedure (see Relevant domestic law below) it should have contained a number of other items. On 10 April 2002 the Plovdiv Regional Prosecutor’s Office endorsed that decision. The applicant appealed, but the decision was upheld by the Plovdiv Appellate Prosecutor’s Office on 25 April 2002. The applicant appealed further. On 6 June 2002 a prosecutor of the “Investigations” division of the Supreme Cassation Prosecutor’s Office also upheld the decision. In his view, there was no legal impediment preventing the investigator from revoking an earlier procedural decision.
On 27 June 2001 the applicant and his wife lodged a fresh application to join the proceedings as civil parties. On 26 July 2001 the investigator allowed their application.
In the meantime, on 7 June 2001 the investigator asked three forensic experts to express their opinion on the exact mechanism of the stabbing, based on the materials in the case file. She asked three other experts to explain whether it was possible for Mr I.M. to have been strangled and to have had no marks of that on his throat, and, if so, to determine how strong the strangling had been.
In their report, filed on 19 June 2001, the first three experts said that the stabbing had occurred from a close distance. It was entirely possible that it had occurred while the applicant’s son was strangling Mr I.M. However, it could not be excluded that the blow had been delivered when the two were standing upright, or when Mr I.M. was chasing the applicant’s son.
In their report, also filed on the same date, the second group of experts said that the red marks on Mr I.M.’s throat mentioned by Mr H.G. could have many explanations, and that no trace of them had been found during the later medical examinations. It was however possible that they had disappeared in the meantime.
On 12 October 2001 the investigator amended the charges against Mr I.M., accusing him of an offence under Article 118 of the Criminal Code (see Relevant domestic law below), and interviewed him.
On 27 November 2001 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. The same day she allowed the wife of the deceased to inspect the file as well.
On 29 November 2001 Mr I.M. was allowed to inspect the case file, in the presence of his counsel. He made a number of objections and requests. The investigator rejected them on 22 March 2002.
On 5 April 2002 the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office with a recommendation to bring Mr I.M. to trial. She analysed the statements of the witnesses in detail, noting that they were quite contradictory and, save for those of Mr S.P., unclear as to the exact timing and mechanism of the stabbing. She also analysed the expert reports and concluded that Mr I.M. could not have genuinely feared for his life and had stabbed the applicant’s son when the two had already been separated. Based on that, she found that by pulling out his knife and administering a blow with it Mr I.M. had used excessive force in self defence, contrary to Article 118 of the Criminal Code (see Relevant domestic law below).
(d) The discontinuance of the renewed investigation and its review by the courts
On 19 July 2002 the Plovdiv Regional Prosecutor’s Office, disagreeing with the investigator’s proposal, discontinued the proceedings. It noted that the medical expert report had concluded that the applicant’s son’s wound could have been inflicted either while he and Mr I.M. were wrestling on the ground, or later, when they had been already separated. Whereas the first scenario was consistent with the statements of three witnesses – Mr H.G., Ms Y.K. and Ms E.B. –, the second scenario was not supported by any evidence save for the account of one witness – Ms S.P. – whose statement had been changed several times and was therefore not credible. The experts had, moreover, found that the applicant’s son would not have lost all his strength immediately and would have been able to take a few steps before falling to the ground. It could therefore be concluded that in stabbing the applicant’s son Mr I.M. had used excessive force in his self defence on account of the fear caused by the applicant’s son’s attack. Mr I.M.’s inability to assess the facts correctly had been exacerbated by the influence of drink. His act had been intended to repel a direct attack posing a threat to his life, not to cause the death of the applicant’s son. This was borne out by the fact that before drawing the knife he had tried to free himself from the latter’s grip.
On 26 July 2002 the applicant sought judicial review of that decision. He argued that it was almost identical to the previous decision to discontinue the investigation and failed to take into account the newly gathered evidence. No consideration had been given to the explanation which Ms S.P. had provided for changing her statement. It would, moreover, have been impossible to deliver such a strong blow while being strangled and pinned to the ground. In addition, Mr I.M. had been so heavily intoxicated that his actions had been driven entirely by drink and not by fear. It was necessary to order an additional expert report on that point.
On 2 September 2002 the Plovdiv Regional Court decided to examine the case at a public hearing, which took place on 18 February 2003. The applicant appeared together with his counsel. Mr I.M. also appeared with his counsel. The court heard the public prosecutor, counsel for the applicant, counsel for Mr I.M. and Mr I.M.
On 5 March 2003 the court upheld the prosecutor’s decision. It found that the investigation had not been characterised by significant omissions and that the authorities had taken the necessary steps to establish the facts. The higher prosecutor’s offices had ordered further investigatory measures – re questioning of witnesses and fresh expert reports – which had been carried out. The prosecutor’s findings, based on the evidence thus obtained, were correct, and the applicant’s arguments were not sufficient to cast serious doubt on them. The main issue in determining whether Mr I.M.’s act had been justified under Article 12 of the Criminal Code, was at which point the applicant’s son had stopped attacking him. The available evidence categorically showed that he had used the knife at a time when the attack was still going on. That was confirmed by the accounts of the eyewitnesses Mr H.G. and Ms S.P., who had clarified the discrepancies between their various statements. Moreover, their statements supporting the version that Mr I.M. stabbed the applicant’s son when he was still strangling him fully coincided with the statements of the other eyewitnesses (Mr Z.P., Mr T.K., Ms E.B. and Ms Y.K.), and the remaining witnesses. The second medical expert report came to the conclusion that the blow could have been administered when the applicant’s son had been on top of Mr I.M. and had been strangling him. That conclusion, as well as the report’s other conclusions, fully matched the statements of the witnesses. The court went on to say that there was no need for an additional psychiatric expert report. There was enough evidence to allow the conclusion that Mr I.M. had used excessive force out of fear.
On 18 March 2003 the applicant appealed to the Plovdiv Court of Appeal, reiterating his arguments. However, an amendment to the 1974 Code of Criminal Procedure which came into force on 2 June 2003 (see Relevant domestic law below) removed the possibility of appealing against first instance court decisions reviewing discontinuances of preliminary investigations. Accordingly, on 3 June 2003 the Plovdiv Court of Appeal terminated the proceedings.
According to information produced by the Government, the applicant has not tried to bring separate civil proceedings against Mr I.M.
B. Relevant domestic law
1. The Criminal Code
Article 12 of the 1968 Criminal Code provides for a defence of self defence. Under paragraph 1 of that provision, an act committed in self defence and not inflicting disproportionate damage on the attacker is not criminal. Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault (paragraph 2). The use of excessive force is nevertheless not punishable if committed out of fear or bewilderment (at the relevant time paragraph 3, now paragraph 4).
Article 115 of the Code makes it an offence to wilfully take the life of another. The penalty on conviction is ten to twenty years’ imprisonment.
Article 118 of the Code provides that murder committed under provocation is punishable by one to eight years’ imprisonment. Aggravated cases carry a penalty of three to ten years’ imprisonment.
Article 119 of the Code provides that homicide committed through the use of excessive force in self defence is punishable by up to five years’ imprisonment.
2. Tort claims in civil proceedings and in the context of criminal proceedings
Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civil party claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civil party claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003). At present it can be made only after the case has already been brought to trial (Article 60 § 1 of the 1974 Code, as in force after June 2003, and Article 84 § 1 of the 2005 Code). The claim can be made in writing or orally, and has to specify the claimants’ and the defendants’ names, the number of the criminal case, the offence which has caused the damage, and the nature and extent of the damage (Article 61 §§ 1 and 2 of the 1974 Code and Article 85 §§ 1 and 2 of the 2005 Code). In a judgment of 28 October 2002 the Supreme Court of Cassation accepted that it could be made even by simply taking an active part in the preliminary investigation (реш. № 541 от 28 октомври 2002 г. по н. д. № 420/2002 г., ВКС, I н. о.).
Civil party claimants are entitled to take part in the proceedings, inspect the case file and make copies, adduce evidence, make requests and objections, and challenge rulings which impinge on their rights and legitimate interests (Article 63 § 1 of the 1974 Code, superseded by Article 87 § 1 of the 2005 Code). Those rights can be exercised only in so far as necessary for establishing the well foundedness of the claim and the extent of the damage suffered (Article 63 § 2 of the 1974 Code, superseded by Article 87 § 2 of the 2005 Code).
Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code) the examination of the civil party claim cannot cause the criminal case to be adjourned. If the proceedings are discontinued, the claim is not determined, but can be lodged separately with the civil courts (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code). The criminal court rules on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it finds that the accused’s criminal liability has been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н. д. № 849/2003, ВКС, II н. о.).
3. Discontinuance of preliminary investigations
Under Article 237 § 1 (1) of the Code, as in force until 31 December 1999, public prosecutors were to discontinue proceedings if they found that, inter alia, the acts alleged did not constitute an offence. Copies of the decision were to be served on the accused and the victim (paragraph 5 of the same Article), who were entitled to challenge it before a more senior prosecutor (paragraph 6 of the same Article).
As worded after May 2001, Article 237 provided that the decision to discontinue the proceedings was reviewable by a first instance court, whose decision was in turn subject to appeal to a higher court (Article 344 § 1 of the Code, as in force between May 2001 and June 2003, and Article 345 § 1 of the Code) and, from there, on points of law (Article 349 § 5 of the Code, as in force between May 2001 and June 2003, and Article 353 of the Code). An amendment which came into force on 2 June 2003 removed the possibility of appealing against the first instance court’s decision.
4. Tort liability in cases of self defence
Section 46 of the 1951 Obligations and Contracts Act provides that no tort liability arises in cases of self defence. In a binding interpretative decision of 12 November 1973 (пост. № 12 от 29 ноември 1973 г. по н. д. № 11/ 73 г., Пленум на ВС) the former Supreme Court held that in cases where excessive force has been used in self-defence the individual defending himself is liable in tort, even if not subject to a criminal sanction under Article 12 § 4 (former § 3) of the 1968 Criminal Code (see above).
5. Limitation period for tort claims
The limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(h) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. In some cases the courts construed that phrase as meaning that time stops running not only during the pendency of a civil suit, but also during the pendency of criminal proceedings relating to the same facts, even at their preliminary investigation phase (реш. № 456 от 18 май 2000 г. по н. д. № 435/1999 г., ВКС, І н. о.). In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time, because these proceedings are not “judicial” (реш. № 2110 от 28 март 2005 г. по гр. д. № 3159/ 2002 г., ВКС, ІІІ г. о.). The matter was settled by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation, which held, in a binding interpretative decision of 5 April 2006, that time stops running under section 115(1)(h) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).
COMPLAINTS
THE LAW
“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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence; ...”
The Government submitted that the authorities had undertaken all necessary steps to establish the circumstances surrounding the death of the applicant’s son. In their view, the decision to discontinue the proceedings had been based on an objective, impartial and comprehensive analysis of all the evidence, and they fully shared the reasons given by the Plovdiv Regional Court to uphold the discontinuance. All of that showed that the authorities had fully complied with their procedural obligations under Article 2 of the Convention. The applicant had been able to take part in the proceedings and effectively exercise his procedural rights.
The applicant submitted that the investigation had not been effective, for several reasons. Firstly, the authorities had failed to address the discrepancies between the statements of several witnesses given to the police on the day of the incident and later, before the investigators, the second of whom was a friend of Mr I.M.’s son. They had also failed to unequivocally establish the exact timing of the stabbing, which was crucial for determining whether there had been self defence. They had not found traces of strangling on Mr I.M.’s throat, and had not tested Mr I.M.’s and the applicant’s son’s shoes and clothes with a view to determining the wearers’ relative positions at the time of the stabbing. They had failed to conduct an experiment to determine that time, and had failed to order a psychiatric expert report on the question whether Mr I.M., given his level of alcoholic intoxication, could really have experienced fear or bewilderment. Many procedural steps had been carried out by an investigator who was a friend of Mr I.M.’s son. In sum, the authorities had obviously been reluctant to examine the case in detail and assess all available evidence, thus rendering the applicant’s rights illusory.
The Court observes that 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 re integration 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 motor 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 the obligation under Article 2 to carry out an effective investigation as having evolved into a “separate and autonomous duty” (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, it would emphasise that 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)). It attracts particular stringency in situations in which an individual has died as a result of the use of force by State agents or while in the custody of the authorities, for two reasons. First, often the true circumstances of such deaths are largely confined within the knowledge of State officials or authorities (see Öneryıldız v. Turkey [GC], no. 48939/99, § 93, ECHR 2004 XII). Secondly, the investigation’s purpose in such situations is not only to allow the authorities to enforce criminal law against those who have unlawfully taken the life of another, but also to ensure the accountability of any State agents or bodies involved for deaths occurring under their responsibility (see, among other authorities, McKerr v. the United Kingdom, no. 28883/95, § 111, ECHR 2001 III), and thus ensure effective compliance with the State’s primary duty under Article 2 to refrain from the unjustified taking of life. Indeed, a lack of proper procedures for reviewing the lawfulness of the use of lethal force by the authorities would render the general legal prohibition of arbitrary killing by agents of the State ineffective in practice (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324) and undermine public confidence in the State’s monopoly on the use of force (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ...). The Court has consequently laid down in its case law certain minimum requirements which such investigations must meet; a summary of those may be found in paragraphs 321 325 of the Court’s judgment in Ramsahai and Others (cited above).
The considerations that apply in situations in which there is no suggestion that a violent or suspicious death is due to official action are related but different. Naturally, even in such situations those concerned are entitled to an independent and impartial official investigation procedure that satisfies certain minimum standards as to its effectiveness. However, the Court would point out 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 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, cited above, §§ 94 and 96).
For those reasons, the Court, while verifying whether such investigations have been objective and thorough, and whether the national authorities have taken reasonable steps to secure the evidence, does not consider it appropriate to interfere with the lines of inquiry pursued by the authorities or the findings of fact made by them, especially when they have been reviewed by a domestic court, unless they manifestly fail to take into account relevant elements or are arbitrary (see, mutatis mutandis, Drăganschi v. Romania (dec.), no. 40890/04, 29 in limine, 18 May 2010, and Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 76, 27 September 2007). Indeed, where a case has been examined by the domestic courts, it is not normally within the Court’s province to substitute its own assessment of the facts for theirs and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269).
In the instant case, the authorities took a number of investigatory steps. The weapon of the crime was impounded forthwith, and the crime scene was inspected by an investigator and a forensic technician. The next day a pathologist performed an autopsy on the body of the applicant’s son; it clearly identified the cause of death. The police interviewed four eyewitnesses on the day of the incident, and the investigators later conducted further interviews with those eyewitnesses and other witnesses. The investigators also commissioned a number of expert reports, including a medical examination of Mr I.M. and a psychiatric assessment of his state of mind at the time of the stabbing, as well as an expert report on the mechanism of the stabbing. When the applicant and his wife joined the proceedings as civil parties, their counsel was able to sit in on several witness interviews and inspect the case file. After that the applicant and his wife, assisted by their counsel, were able to challenge successfully the investigation’s discontinuance and obtain its renewal. When the investigation resumed, the new investigator carried out further interviews, with a view to clarifying the discrepancies between the earlier statements by the witnesses as to the exact timing and mechanism of the stabbing. For the same reason, the investigator ordered fresh expert reports. At the close of both the original and the renewed investigations, the investigators, having assessed the evidence, proposed to the prosecuting authorities that Mr I.M. be brought to trial.
All of that shows that the authorities did not remain passive and took a number of steps to establish the circumstances in which the applicant’s son had lost his life. The applicant’s criticisms rather concern their refusal to carry out specific measures which he had requested and the manner in which they assessed the available evidence and established the facts. While such disagreements are understandable, they do not suffice to show that the investigation suffered from shortcomings that undermined its ability to establish the circumstances in which the applicant’s son lost his life. Firstly, the authorities have a certain discretion in deciding what investigative measures should be carried out. Their refusals to take specific steps requested by those concerned do not as a rule call into question the effectiveness of the investigation as a whole (see, mutatis mutandis, Al Fayed, cited above, §§ 81 82, and contrast Pereira Henriques, cited above, § 62, where the refusal of the prosecuting authorities to order an expert report undermined the investigation’s ability to establish essential facts). Secondly, the main circumstances of the case were ascertained by the authorities very quickly. It became clear from the outset that the person who had killed the applicant’s son was Mr I.M. The only truly contentious issue was whether he was entitled to rely on the defences under Article 12 § 1 (self defence) or § 3 (at present § 4) (use of excessive force out of fear or bewilderment) of the Criminal Code. The authorities were faced with two conflicting versions on that point. The first was that Mr I.M. had stabbed the applicant’s son while being strangled by him to the point of choking. The second was that the stabbing had taken place under circumstances in which Mr I.M. could not have genuinely feared for his life. The bulk of the above mentioned investigatory steps were taken with the aim of making it clear which of those versions was more plausible. While the authorities could probably have done more to explore that point more fully, it cannot be said that they failed to take reasonable steps to elucidate it (see, mutatis mutandis, Molie v. Romania (dec.), no. 13754/02, § 56, 1 September 2009). It is also true that the available evidence could have been assessed in a variety of ways, as demonstrated by the difference of opinion between the investigators and the prosecutors dealing with the case and by the differing legal characterisations of Mr I.M.’s act given during the course of the proceedings. However, the Court is not persuaded that the findings on which the prosecuting authorities based their ultimate decision to discontinue the proceedings manifestly failed to take into account relevant elements or were arbitrary, especially in view of the contradictory witness evidence and the experts’ inability to give a definitive conclusion as to the exact mechanism of the stabbing. The Court attaches particular importance to the fact that the applicant was able to challenge those findings before the Plovdiv Regional Court, whose fully reasoned decision was given after adversarial proceedings in which the applicant, assisted by his counsel, was able to put forward all his arguments (see Bône v. France (dec.), no. 69869/01, 1 March 2005).
As regards the applicant’s allegations of investigatorial bias, the Court would make two observations. First, the applicant has not produced any proof to corroborate that allegation. Secondly, even assuming that the investigator who was in charge of the case from 23 April 1996 until February 1997 was indeed biased in favour of Mr I.M. on account of being an acquaintance of his son, it cannot be overlooked that he was later replaced and that the second and the third investigator dealing with the case carried out further investigative steps, including interviews of the eyewitnesses and fresh expert reports. After finishing their work on the case, both of those investigators proposed to the prosecuting authorities to put Mr I.M. on trial. However, on both occasions the prosecuting authorities disagreed and instead decided to discontinue the proceedings. In those circumstances, the Court is not persuaded that that investigator’s alleged partiality compromised the effectiveness of the investigation as a whole.
As to the question whether the investigation was prompt and conducted with reasonable expedition, the Court observes that the first investigative steps were taken immediately after the incident and that the official investigation was instituted the next day. There were no lengthy gaps between that time and the discontinuance of the proceedings in July 1997. The processing of the numerous ensuing appeals and cross appeals was also reasonably prompt. The Chief Prosecutor’s decision of 14 July 1998 ended the proceedings, and the subsequent period of about one year, until the investigation was renewed in June 1999, cannot be taken into account (see, mutatis mutandis, I.J.L. and Others v. the United Kingdom, nos. 29522/95, 30056/96 and 30574/96, §§ 129 and 130, ECHR 2000 IX). After the renewal, the new investigator immediately started working on the case. There was only one unexplained delay of about nineteen months, between August 1999 and March 2001, during which the Chief Prosecutor was examining Mr I.M.’s appeal against the investigation’s renewal. However, that delay did not prevent the authorities from establishing the facts. After that the investigator was able to finalise her work on the case and to propose that Mr I.M. be put on trial, a proposal which the prosecuting authorities turned down not because of a lack of evidence, but because they assessed the available evidence differently and on that basis found that there was no need to bring Mr I.M. to trial (see, mutatis mutandis, Demirevi v. Bulgaria, no. 27918/02, § 35, 28 May 2009, and contrast, mutatis mutandis, Angelova and Iliev, §§ 101 03, and Beganović, §§ 83 85, both cited above).
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government submitted that civil party claims in criminal proceedings were as a rule subsidiary. They could be accepted for examination but could not cause the criminal case to be adjourned, and were not determined if the criminal proceedings were discontinued. The possibility for civil claimants to take part in the criminal proceedings was a possibility created to facilitate the exercise of their rights, but they could also always lodge their claim with the civil courts. There was no indication that the applicant had done so.
The applicant submitted that the investigator’s decision of 6 June 2001 to revoke the earlier decision to allow the application by the applicant and his wife to join the proceedings as civil parties had been unlawful and unjustified, and had been intended to hinder the applicant and his wife in exercising their procedural rights. It had come at a time when the five year limitation period for bringing a tort claim in relation with the death of the applicant’s son had already lapsed. The applicant further submitted that his situation was comparable to the one obtaining in Anagnostopoulos v. Greece (no. 54589/00, 3 April 2003).
The Court does not consider that the revocation, in June 2001, of the investigator’s earlier decision to grant the applicant’s application to join the criminal proceedings as a civil party raises a problem under Article 6 § 1, because shortly after that the applicant was able to re lodge that application. The salient issue rather appears to be whether the investigation’s eventual discontinuance prevented him from obtaining a judicial determination of his tort claim against Mr I.M. Several observations need to be made on that point.
First, the discontinuance of criminal proceedings prior to trial inevitably results in the non-examination of any civil party claim made during their pre trial investigation phase, simply because the case as a whole is never heard by a court. To hold that this in itself poses a problem under the access to court provision of Article 6 § 1 would mean to require all criminal investigations to result in trials, which would be inconsistent with the Court’s position that the right of access to a court in criminal matters may be limited through a decision not to charge or prosecute, or a decision to discontinue a prosecution (see Deweer v. Belgium, judgment of 27 February 1980, § 49 in limine, Series A no. 35; Withey v. the United Kingdom (dec.), no. 59493/00, ECHR 2003 X; Soini and Others v. Finland, no. 36404/97, §§ 67 69, 17 January 2006; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 81, 22 May 2008), and with its established case law that Article 6 § 1 does not guarantee the right to have others prosecuted or sentenced for a criminal offence (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 I).
It is true that an access to court issue may arise where a civil party claim is not determined as a result of the termination, due to the expiry of the relevant limitation period, of criminal proceedings which have reached the trial phase (see Anagnostopoulos, cited above, §§ 31 32; Gousis v. Greece, no. 8863/03, § 35, 29 March 2007; Atanasova v. Bulgaria, no. 72001/01, §§ 35 47, 2 October 2008; Dinchev v. Bulgaria, no. 23057/03, §§ 40 52, 22 January 2009; Tonchev v. Bulgaria, no. 18527/02, § 50 53, 19 November 2009; and Boris Stojanovski v. “the former Yugoslav Republic of Macedonia”, no. 41916/06, §§ 56 57, 6 May 2010). However, the situation in the present case – where the proceedings were discontinued, before trial, not because of the operation of a time bar but because the prosecuting authorities were of the view that the impugned act did not amount to a criminal offence – appears more akin to that in Assenov and Others, where the Court found, on substantially similar facts, that Article 6 § 1 had not been breached (see Assenov and Others v. Bulgaria, 28 October 1998, § 107 13, Reports 1998 VIII). Even though the applicant’s civil party claim was not examined as a result of the investigation’s discontinuance, there is nothing to indicate that he could not have brought a separate civil claim against Mr I.M. The court examining such a claim would not have been bound by the prosecutor’s findings (see Assenov and Others, cited above, §§ 61, 62 and 112). Even if in practice it were to make similar findings, that would in itself not have raised an issue under Article 6 § 1, because this provision does not guarantee a litigant a favourable outcome (see Andronicou and Constantinou v. Cyprus, 9 October 1997, § 201, Reports 1997 VI). However, it should also be noted in that connection that the investigation’s ultimate conclusion – that Mr I.M. had killed the applicant’s son by using excessive force out of fear – made Mr I.M. exempt from criminal punishment but did not discharge him from civil liability (see Relevant domestic law above). It can only be surmised how the national courts would have approached the question whether the applicant’s civil party claim brought in April 1997 had stopped the running of the tort limitation period, especially in view of the uncertainty reigning in that domain until the Supreme Court of Cassation’s interpretative decision of 5 April 2006 (see Relevant domestic law above and, mutatis mutandis, Ilievi v. Bulgaria, no. 7254/02, § 53 in fine, 28 May 2009). It cannot therefore be maintained that a separate civil claim would have been bound to fail.
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Government submitted that the case had a number of times been sent to various instances for determination of appeals by the parties. That had inevitably increased the duration of the proceedings.
The applicant pointed out that the overall length of the proceedings had been more than seven years. In his view, that delay had been due to the conduct of the authorities. There had been numerous periods of unjustified inactivity, and it had taken two years to determine his legal challenges against the first discontinuance.
The Court already examined the length of the investigation under Article 2. It also dealt, under Article 6 § 1, with the effect which the investigation’s unfolding had on the possibility for the applicant to obtain a judicial determination of his tort claim against Mr I.M. It therefore considers that the present complaint does not call for separate examination (see, mutatis mutandis, Šilih, cited above, § 216).
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President