British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
DIMITROVA AND OTHERS v. BULGARIA - 44862/04 [2011] ECHR 142 (27 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/142.html
Cite as:
[2011] ECHR 142
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF DIMITROVA AND OTHERS v. BULGARIA
(Application
no. 44862/04)
JUDGMENT
STRASBOURG
27 January
2011
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 Dimitrova and
Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 44862/04) 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 four Bulgarian nationals, Ms Rayna Sedevcheva
Dimitrova, Ms Ekaterina Vaskova Gerasimova, Mr Sedefcho Petrov
Gerasimov and Mr Petar Petrov Gerasimov (“the applicants”),
on 15 December 2004.
The
applicants were initially represented by Mr M. Georgiev, a teacher.
After the communication of the application they authorised
Mr Y. Grozev and Ms N. Dobreva, lawyers practising in
Sofia, to represent them. 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 investigate
effectively the death of a relative of theirs, Mr Georgi Gerasimov,
and that they had been discriminated against because of their Roma
origin.
On
29 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 § 3 of the Convention, as worded
before 1 June 2010).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first and second applicants were born in 1956 and 1975 respectively.
The
applicants are of Roma origin. The first applicant is the mother, the
second applicant the wife, and the third and fourth applicants the
brothers of Mr Georgi Gerasimov, also of Roma origin, born in 1976.
A. The events of 30 May 2003 and Mr Gerasimov's death
In
the afternoon of 30 May 2003 Mr Gerasimov and three other persons of
Roma origin, Mr V.V., Mr I.I. and Mr M.G., were digging out coal in
an abandoned opencast coal mine in Pernik. The area was open, with
little vegetation, and accessible by a dirt road.
At
one point another man, Mr B.I., to whom Mr M.G. apparently owed
money, passed by on horseback. He asked Mr M.G. when he would pay
back the debt and the two of them entered into a short argument.
Mr Gerasimov intervened in defence of Mr M.G. After that Mr B.I.
left.
Some
time later Mr Gerasimov and his companions finished digging out the
coal and were getting ready to leave. At this moment Mr B.I.
returned, accompanied by three friends of his, Mr Z.E., Mr P.K. and
Mr N.S., in two cars. A fight flared up between the two groups. The
parties disagree as to who started it. Some time later Mr V.V., Mr
I.I. and Mr M.G. went to a nearby petrol station, where they asked
the staff to call the police, explaining that a friend of theirs had
been beaten up. When the police officers reached the scene of the
fight they found only Mr Gerasimov, lying on the ground. As he was
seriously injured, he was taken to hospital.
Later
that day the police initiated a search for Mr B.I. and Mr Z.E.,
suspecting that they had beaten up Mr Gerasimov, but could not find
them.
Mr
Gerasimov was admitted to the hospital in a coma, with a severe
cerebral contusion and four wounds to the head. He died in hospital
on 4 June 2003.
B. The investigation of Mr Gerasimov's death
A
criminal investigation was opened on 30 May 2003 by the Pernik
regional public prosecutor's office.
1. Initial investigative measures
(a) Inspections, blood analyses and expert
reports
An
inspection of the scene of the fight was carried out on 30 May 2003.
The record of the inspection stated that the site had not been
preserved. The police officers found the van which had been used by
the Mr Gerasimov and his companions abandoned at the site. The
windscreen was cracked, the side rear-view mirrors were broken and
one of the doors had marks of blows from a hard object. Traces of
blood were found near the van. Subsequent analysis showed that the
blood might have been Mr Gerasimov's. Traces of blood were also
found inside the van. Subsequent analysis showed that it might have
been Mr B.I.'s.
The
police also inspected the cars Mr B.I. and his companions had been
travelling in. Traces of blood were found in one of them. Subsequent
analysis showed that the blood might have been Mr B.I.'s.
On
31 May 2003 the police inspected Mr N.S.'s car (not one of those
which had been used the day before) and seized two bats and a knife.
On
2 June 2003 Mr B.I., Mr Z.E., Mr P.K. and Mr N.S. were examined by a
doctor, who found that Mr B.I. had a small knife wound on the lower
part of the back and several bruises on the face and body. The other
men also had bruises.
The
clothes worn by Mr B.I. on 30 May 2003 were also examined by an
expert, who found matching cuts in his T-shirt and jacket, most
likely caused by a knife.
A
post-mortem examination of Mr Gerasimov's body, carried out on 5 June
2003, concluded that the death had been caused by a severe cerebral
trauma. It found a multi-fragment fracture of the parietal bone, with
fragments of the bone depressed to 0.5 centimetres in depth on an
area measuring 6 x 3 centimetres. It also found five wounds to the
head, a wound on the right arm and two parallel stripe-like bruises
on the back, measuring 15 x 2 centimetres. There were other bruises
on the face and body. The examination concluded that the injuries had
been caused by blunt objects and could have been caused in connection
with a beating. The two bruises on the back had been caused by long
narrow objects.
(b) Examination of witnesses and of Mr
B.I.
Mr
Gerasimov's companions were questioned by an investigator on 31 May
2003. They were once again questioned before a judge on 3 June 2003.
Mr
V.V. stated that the four of them had gone in his van to dig coal.
They had had a pick but not a knife. At the time when Mr B.I. had
arrived with his friends, they had been getting ready to leave. Mr
Gerasimov had been sitting in the back part of the van, on the sacks
of coal. As soon as he had got to the site Mr Z.E. had started
hitting Mr Gerasimov's legs with a bat. At the same time Mr B.I. had
been shouting “Where do you think you are going, you, where
will you run, you damn gypsies, who is going to pay?” Mr
Gerasimov had attempted to stop Mr Z.E.'s attack. While the two of
them were wrestling, Mr B.I. approached Mr Gerasimov from behind and
hit him on the back of the head with another bat. Mr Gerasimov fell
to the ground. Thus freed, Mr Z.E. turned to Mr V.V. and hit him with
his bat, aiming for the head but missing it. Mr V.V. then ran away.
Mr
I.I. also stated that when Mr B.I. and Mr Z.E. had arrived they had
been carrying wooden bats. Mr Z.E. had attacked Mr Gerasimov and
while the two of them had been wrestling, Mr B.I. had approached and
hit Mr Gerasimov's head, holding the bat with two hands. Mr I.I. had
not seen other blows because he had run away, but before doing so he
had seen Mr P.K. and Mr N.S. also approaching Mr Gerasimov. He
and his companions had not been carrying knives and had not provoked
the others' attack.
Mr
M.G. stated that he had run away immediately after the other men had
arrived, because he had known that they were going to beat them.
Two
employees of the petrol station where Mr V.V., Mr I.I. and Mr M.G.
had pulled into after the attack were questioned on 9 and 10 July
2003. They confirmed that the men had been acting nervously and had
said that someone had been beaten up.
Mr
B.I. was questioned on 31 May 2003. He explained that when he had
first seen Mr Gerasimov, Mr V.V., Mr I.I. and Mr M.G. they had
threatened and sworn at him. Later, he and his friends had gone out
to look for a horse, owned by Mr N.S., which had got lost. When they
arrived at the place where the Roma had been, the latter had attacked
them. Mr Gerasimov had had a knife and a pick and had stabbed him in
the back. He had fallen to his knees. Someone had hit him with the
wooden handle of a tool. He had managed to grab the handle and hit Mr
Gerasimov back.
Mr
B.I. was again questioned on 2 and 3 June 2003. This time he denied
hitting Mr Gerasimov and said that he had seen someone else hit him
in the scuffle.
Mr
Z.E., Mr P.K. and Mr N.S. were questioned by the investigator on 31
May and 2 June 2003. On 3 June 2003 they were questioned before a
judge.
Mr
Z.E. stated that he and his friends had indeed gone to look for
Mr N.S.'s horse. He had been in one of the cars with Mr B.I. He
did not know why Mr B.I. had approached the Roma men, but supposed
that he had intended to ask them if they had seen the horse.
Immediately after he and Mr B.I. got out of the car the Roma men
attacked them. Mr P.K. and Mr N.S., who had been following close
behind them in the other car, came to their aid, but ran away after
the Roma men attacked them too. He and his friends had got into their
cars and driven away. In the car he realised that Mr B.I. had
been stabbed. He did not know how Mr Gerasimov had ended up fatally
injured.
Mr
P.K. said that on 30 May 2003 he had been in Mr B.I.'s house when Mr
N.S. had come and said that his horse had got lost. The three men,
together with Mr Z.E., had taken two cars and gone looking for the
horse. At one point they had approached the Roma men. Mr Z.E. and Mr
B.I. had stopped and got out of their car and had immediately been
attacked by the Roma. He and Mr N.S. got out of their car as well. He
saw someone stab Mr B.I. and was himself attacked by one of the
Roma men, who had a bat and a knife. Then he and Mr N.S. got back
into their car and drove away, while all Roma men had gathered around
Mr B.I. and Mr Z.E. Mr P.K. did not know why the others had attacked
them. He stated that none of his friends had been carrying knives or
bats.
Mr
N.S. also stated that he and his companions had been looking for his
horse. At one point he and Mr P.K. had seen the other men beating
Mr B.I. and Mr Z.E. and had went to separate them. He admitted
that they had been carrying wooden bats in the cars in case they were
attacked.
Mr
N.S.'s brother was questioned on 31 May 2003 and confirmed that on
the previous day the family's horse had got lost. In the course of
the interview the investigator asked him: “Were you there when
the gypsies stabbed [Mr B.I.] and do you know what they stabbed him
with?” Mr N.S.'s brother responded that he had not seen the
attack. Examined again on 20 June 2003, he confirmed that there
had been wooden bats in the family's car, but he did not know who had
put them there.
Mr
K.G., who worked in the area, was interviewed on 20 June 2003. He
stated that he had seen the fight from the road, while driving to a
nearby shop to buy food. He had not stopped the car but had slowed
down to watch. He estimated that the distance between him and the
fighting men had been between eighty and a hundred metres. He had
recognised Mr B.I., whom he knew, and had seen him grappling with
someone else, who had then struck him with a knife. Then all the
others gathered together and someone had a wooden bat or tool. Mr
K.G. did not see anything in Mr B.I.'s hands.
2. Arrest and detention of Mr B.I. and orders for the
arrest of Mr Z.E., Mr P.K. and Mr N.S.
Mr
B.I. was arrested on an unspecified date.
On
2 June 2003 an investigator from the Pernik Regional Investigation
Service ordered the arrests of Mr Z.E., Mr P.K. and Mr N.S., finding
that there existed reasonable grounds for suspicion that they had
acted as accessories in the attempted murder of Mr Gerasimov and
noting that they had attempted to abscond. It appears that on the
same day the three of them were briefly arrested. However, they were
never charged or investigated any further.
On
3 June 2003 Mr B.I. was charged with attempted murder committed
in an especially cruel manner and with extreme ferocity
(Article 116 of the Criminal Code, see paragraph 48 below).
On
5 June 2003 the Pernik Regional Court remanded him in pre-trial
custody. Referring to the testimony of Mr Gerasimov's companions (see
paragraphs 20-22 above), and also taking into account the fact that
the charges against Mr B.I. were serious and he had previous
convictions, it found that there existed grounds for reasonable
suspicion against him and a danger that he might abscond or reoffend.
On
11 June 2003 this decision was upheld by the Sofia Court of Appeal.
Mr
B.I. was released on bail on 25 July 2003.
3. Subsequent developments and discontinuance of the
criminal proceedings
On
10 December 2003 Mr B.I. was charged under Article 119 of the
Criminal Code (see paragraph 49 below) with causing Mr Gerasimov's
death by a disproportionate reaction to an attack. On the same day he
was questioned again. He stated that during the fight on 30 May 2003
one of the Roma men had “almost” stabbed him, the knife
only cutting through his clothes, and that, in the general scuffle
when he had tried to defend himself, he might have hit Mr Gerasimov.
He had not however meant to injure him badly.
In
a decision of 25 May 2004 a prosecutor from the Pernik regional
public prosecutor's office partially discontinued the criminal
proceedings against Mr B.I., dropping the initial charge under
Article 116 of the Criminal Code of attempted murder committed
in an especially cruel manner and with extreme ferocity,
brought on 3 June 2003 (see paragraph 34 above) and retaining the
charge under Article 119 of the Criminal Code of causing death by a
disproportionate reaction to an attack.
In
that decision, the prosecutor noted that there were two conflicting
versions of the events – the first one maintained by Mr
Gerasimov's companions, namely that they had been attacked without
provocation, and the second one maintained by Mr B.I. and his
companions, namely that the Roma men had attacked them with shovels
and knives immediately after their arrival at the scene. Taking into
account other evidence, namely the reports of the medical
examinations of Mr B.I. and his companions, which showed that they
had all sustained injuries (see paragraph 16 above), the report of
the examination of Mr B.I.'s T-shirt and jacket, showing matching
knife cuts (see paragraph 17 above), and the medical reports
establishing that some of the blood found at the scene of the fight
might have been Mr B.I.'s (see paragraphs 13-14 above), he
concluded that the version presented by Mr B.I. and his companions
was tenable and the other one not. He also relied on the testimony of
Mr K.G., who had stated that he had seen nothing in Mr B.I.'s hands
and had seen someone stab him (see paragraph 31 above). On the basis
of this evidence, the prosecutor concluded that there had been a
fight, in the course of which Mr B.I. had been injured and, acting in
self-defence, had hit Mr Gerasimov's head only once, with a wooden
bat.
The
parties disagreed as to whether this decision of the Pernik regional
public prosecutor's office had been served on the applicants. The
applicants alleged that they had never been formally notified of it.
The Government contested this assertion. They presented a list of the
documents contained in the investigation file, drawn up by the Pernik
regional public prosecutor's office and mentioning a receipt signed
by the second applicant when the decision was served. However, the
Government said that they could not submit the receipt itself, which
had been lost. They also presented a request by the prosecuting
authorities, addressed to the Pernik municipality, to be informed of
the names and addresses of Mr Gerasimov's lawful heirs, with a view
to serving documents on them, and the certificate containing that
information, issued by the municipality.
The
applicants submitted that they had on numerous occasions visited the
investigator in charge of the case to inquire about the
investigation's progress, but had not been provided with any
meaningful information.
On
an unspecified date Mr B.I. entered into a plea bargain with the
prosecution. He confessed to killing Mr Gerasimov in a
disproportionate reaction to an attack (Article 119 of the Criminal
Code) and accepted a suspended sentence of three years' imprisonment.
On 22 June 2004 the Pernik Regional Court approved the agreement,
finding that it “did not run counter to the law and public
morals”, and discontinued the criminal proceedings.
Apparently,
the applicants became aware of the Pernik Regional Court decision of
22 June 2004 in August 2004, from publications in the local media.
4. Attempt of the first applicant to obtain the
reopening of the criminal proceedings
On
20 June 2005 the first applicant requested the Chief Public
Prosecutor's Office to apply for the criminal proceedings to be
reopened. On 6 July 2005 she was informed that this was not possible,
as the one-year time-limit for the prosecuting authorities to make
such an application had expired on 22 June 2005, and that her request
of 20 June 2005 had not been submitted far enough in advance to allow
it to be duly examined and an application for reopening prepared.
C. Other developments
In
a letter dated 24 February 2010 the applicants' initial
representative before the Court, Mr Georgiev, informed the Court that
in October 2009 his car had been damaged by unknown persons, which
had posed a risk to his life when he had later travelled in it. On 17
February 2010 the premises of the non-governmental organisation he
heads had been entered by order of the Pernik municipality and
numerous documents, including some connected with the present
application, had been seized.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
1. Offences Mr B.I. was charged with
Article
116 § 1 (6) of the Criminal Code of 1968 provides that anyone
committing murder in an especially cruel manner
and with extreme ferocity is liable to fifteen to twenty
years' imprisonment or life imprisonment with or without a right to
parole.
Under
Article 119 of the Criminal Code, causing death by a disproportionate
reaction to an attack is punishable by up to five years'
imprisonment.
2. Racially motivated offences
The
provisions of the Criminal Code relating to racially motivated
offences have been summarised in the Court's judgment in the case of
Angelova and Iliev v. Bulgaria (no. 55523/00, §§
60-63, ECHR 2007 IX).
B. Code of Criminal Procedure
1. Discontinuance of criminal proceedings
By Article 237 § 1 of the Code of Criminal
Procedure of 1974, in force at the material time, the prosecuting
authorities could in certain circumstances discontinue criminal
proceedings. Pursuant to Article 237 § 3, victims of crimes
had to be notified of any decision to discontinue the proceedings and
could appeal against the decision to the competent district or
regional court.
Article
237 § 6 of the Code, as worded between May 2003 and April 2006,
provided that the prosecuting authorities were not to adopt any
formal decision to discontinue partially criminal proceedings in
cases where the charges against the same person and in respect of the
same facts were only being amended. That provision was in line with
an earlier interpretative decision of the General Assembly of the
Criminal Chambers of Supreme Court of Cassation (Interpretative
decision no. 2 of 7 October 2002, Тълкувателно
решение № 2 от
7 октомври
2002 г. на ВКС по т.
н. д. № 2/2002 г., ОСНК),
which said:
“A charge brought at the stage of the
investigation is intended to define a general, initial, “working”
objective of the proceedings. It can be adjusted depending on the
evidence gathered and examined in the course of the investigation. In
that sense the charge ... is unstable, varying in accordance with the
operative developments. The different wording of the charge in
respect of the same act and the adjustment of its legal qualification
prior to indictment follow the dynamics of the investigation process
and any changes in the circumstances resulting from the evidence
gathered.”
The
General Assembly of the Criminal Chambers of Supreme Court of
Cassation went on to conclude that
“[w]here, in the course of the pre-trial
proceedings, the factual basis of the charges changes substantially
and new charges are brought against the accused, requiring a more
severe, the same or a more lenient punishment ..., the prosecutor is
to amend the charges and does not have to adopt a decision
discontinuing the criminal proceedings in respect of the initial
charges.”
2. Participation of victims
Until
May 2003 Article 60 § 1 of the Code of Criminal Procedure
entitled victims of crime to participate in all stages of the
criminal proceedings as civil parties. Civil parties were entitled to
exercise their procedural rights to the extent necessary for the
substantiation of their civil claim.
Following
an amendment to the Code of 30 May 2003, the participation of victims
as civil parties was restricted to the trial stage of the criminal
proceedings. That provision remained in force until April 2006.
3. Plea bargaining
Plea
bargaining was provided for in Articles 414ж-414и
of the Code of Criminal Procedure. The procedure was applicable in
respect of certain categories of offences.
The
prosecution and the defence could enter into a plea agreement after
the investigation had been concluded. The parties had to agree, inter
alia, whether an offence had been committed and on the type and
severity of the punishment. The prosecutor would then submit the
agreement to the competent district or regional court which would
examine it in the presence of the prosecutor, the accused and the
latter's counsel. If satisfied that the agreement did not run counter
to law or morality, the court would adopt a decision approving the
agreement and discontinuing the criminal proceedings. No appeal lay
against this decision. A plea agreement approved by a competent court
had the same binding force as a final conviction and sentence.
Prior
to May 2003 the participation of victims in plea bargaining was
obligatory and they had to consent to the plea agreement. Following
amendments to the Code in May 2003, in cases where the agreement had
been made at the pre-trial stage of the proceedings victims'
participation and consent were no longer obligatory; however, the
court examining the agreement could on its own initiative decide to
hear their representations.
On
the contrary, if a plea agreement had been reached at the trial stage
of the proceedings, all parties had to consent to it, including the
victims, if they had joined the proceedings as civil parties or
private prosecutors.
4. Other provisions
Article
192 of the Code provided that criminal proceedings concerning
publicly prosecutable offences could only be initiated by a
prosecutor or an investigator. The offences referred to in paragraphs
48-50 above are publicly prosecutable ones.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
Relying
on Articles 2 and 13 of the Convention, the applicants complained
that the authorities had failed to carry out an
effective and impartial investigation into their relative's death.
They contended that the plea agreement between the prosecuting
authorities and Mr B.I., approved by the Pernik Regional Court (see
paragraph 43 above), ran counter to the law and was not based on the
facts of the case. They also complained that Mr B.I.'s companions
were never prosecuted or punished. In their view, the evidence
gathered by the prosecuting authorities demonstrated that Mr B.I. and
his companions had killed Mr Gerasimov in an especially cruel manner
and with extreme ferocity, hitting him repeatedly with wooden bats.
The applicants also complained that they had not been given any
meaningful opportunity to participate in the investigation and the
plea bargaining, and that the first applicant had not been able to
obtain a reopening of the criminal proceedings (see paragraph 45
above).
The
Court is of the view that the complaint falls to be examined solely
under Article 2 of the Convention which, in so far as relevant,
reads:
“1. Everyone's right to life shall be
protected by law.”
A. Arguments of the parties
The
Government contended that the decision of the Pernik regional public
prosecutor's office of 25 May 2004 (see paragraphs 39-40 above) had
been served on the applicants, who had had the opportunity to appeal
against it. They had failed to do so and the present complaint was
therefore inadmissible for failure to exhaust domestic remedies.
Furthermore, the Government considered that the investigation of Mr
Gerasimov's death had been independent and thorough, and contested
the applicants' assertion that they had not been able to participate
in the proceedings.
The
applicants contested these arguments. They were of the view that the
Government bore the burden of proving that the decision of 25 May
2004 had indeed been served on the second applicant, and as they had
failed to present the receipt they were relying on (see paragraph 41
above), it followed that the document had never been served.
Furthermore, the applicants considered that the version of the events
adopted by the authorities, which had led to Mr B.I.'s lenient
punishment, namely that Mr Gerasimov and his companions had been
the first to attack and that Mr B.I. had hit Mr Gerasimov only
once, acting in self defence, had been unconvincing and was contrary
to the evidence gathered. They indicated firstly that the post-mortem
examination of Mr Gerasimov had found several wounds on his head and
numerous wounds and bruises on the body (see paragraph 18 above).
Furthermore, they noted that the authorities' version did not explain
the fact that Mr Gerasimov had been hit on the back of the head with
considerable force, given that, in the authorities' view, he had been
wrestling face to face with Mr B.I. They also pointed out that it had
been Mr Gerasimov's companions who had called the police to report
that their companion had been beaten up, whereas Mr. B.I. and his
companions had gone into hiding (see paragraphs 9-10 and 33 above).
Lastly, the applicants argued that the authorities' version of the
events did not explain why, if they were not looking for a fight, Mr
B.I. and his companions had deliberately driven to the place where
the Mr Gerasimov and his companions were. The area was open ground
and they could easily have seen the horse they alleged they had been
looking for if it had been in the area (see paragraphs 7 and 9
above).
The
applicants also argued that the investigation had been incomplete.
They noted that the knife found in Mr N.S.'s car (see paragraph 15
above) had never been examined for fingerprints and that the
prosecuting authorities had not put the veracity of Mr K.G.'s
testimony to the test (see paragraph 31 above), by carrying out an
experiment to establish whether he could have indeed seen the fight.
The applicants also stated that the authorities were wrong not to
have obtained a more detailed report from Mr Gerasimov's
post-mortem examination and not to have taken other steps to
establish the circumstances, such as, for example, examining the
footprints at the site of the fight, which could have revealed the
movements of the participants in the fight.
The
applicants considered that as a result of the above the investigation
of Mr Gerasimov's death had been ineffective, in that it had been
incapable of leading to the identification of those responsible and
to punishing them accordingly.
B. The Court's assessment
1. Admissibility
(a) Victim status of the applicants
The
Court notes that the prosecuting authorities carried out an
investigation into Mr Gerasimov's death, which identified Mr B.I. as
the person responsible for that death and resulted in his conviction
and sentence (see paragraphs 12-44 above). A question may therefore
arise as to whether the applicants have ceased to be victims of the
alleged violation of Article 2 of the Convention.
Under
the subsidiarity principle, it falls first to the national
authorities to redress any alleged violation of the Convention. A
decision or measure favourable to the applicant is not in principle
sufficient to deprive him of his status as a “victim”
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention. The applicant's ability to claim to be a victim will
depend on the redress which the domestic remedy has given him (see
Scordino v. Italy (no. 1) [GC], no. 36813/97, §§
178-80, ECHR 2006 V, and Nikolova and Velichkova v. Bulgaria,
no. 7888/03, § 49, 20 December 2007).
The
Court observes that by convicting and sentencing Mr B.I. the domestic
authorities acknowledged that Mr Gerasimov's life had been taken
unlawfully, as a result of a criminal offence. The Court is ready to
assume that this represented sufficient acknowledgement on the part
of the authorities that there had been a violation of Mr Gerasimov's
right to life. It must therefore assess whether Mr B.I.'s conviction
and sentence provided the applicants with appropriate and sufficient
redress, that is, whether the investigation that led to this outcome
was effective (see Nikolova and Velichkova, cited above, §
56). However, this question is closely linked to the merits of the
present complaint. The Court thus considers it appropriate to join
the question of the applicants' victim status to the merits of the
complaint (see Özcan and Others v. Turkey,
no. 18893/05, § 55, 20 April 2010).
(b) Exhaustion of domestic remedies
The
Court notes further that the Government raised an objection for
non-exhaustion of domestic remedies, based on the applicants' failure
to appeal against the decision of the Pernik regional public
prosecutor's office of 25 May 2004 (see paragraph 61 above).
The
Court observes that pursuant to Article 237 § 3 of the Code of
Criminal Procedure, as in force at the relevant time, victims of
crimes could appeal against any decision to discontinue criminal
proceedings (see paragraph 50 above). However, Article 237 § 6
of the Code provided that the prosecutor in charge was not required
to adopt any formal decision to discontinue criminal proceedings in
part in cases where the charges against the same person and in
respect of the same facts were only being amended. This corresponded
to an earlier interpretative decision of the Supreme Court of
Cassation (see paragraph 51 above). It appears that the situation in
the present case, where the initial charges against Mr B.I., of
murder committed in an especially cruel manner and with extreme
ferocity were substituted with new charges, of causing death by a
disproportionate reaction to an attack, fell under Article 237 §
6 of the Code of Criminal Procedure. Nevertheless, the prosecutor
adopted the decision to discontinue in part the proceedings to which
the Government referred. While it is not for the Court to interpret
national legislation and assess the legal effect of that decision, it
notes that domestic law did not require it, viewing the charges as an
unstable element, dependent on the course of the investigation, and
their amendment as a mere adjustment and not a formal stage of the
investigation (see paragraph 51 above). In view of that, and also
noting that the Government have not presented any evidence which
could persuade it to consider otherwise, the Court has serious doubts
as to whether the domestic courts would have indeed admitted for
examination an appeal by the applicants against the decision of 25
May 2004.
Moreover,
the Court is of the view that the Government have failed to establish
satisfactorily that the applicants had indeed been aware of that
decision. The Government failed to present the receipt on which they
relied (see paragraph 41 above) and which could have established with
certainty that the decision at issue had been served on the second
applicant. The additional documents relied on by the Government,
namely a list of the documents in the case file drawn up by the
Pernik regional public prosecutor's office, a letter addressed to the
municipal authorities and a certificate of Mr Gerasimov's heirs
(ibid.), are not sufficient to satisfy the Court that the applicants
were indeed aware of the decision at issue, given their repeated
denial of this fact (ibid., see also paragraph 62 above).
Furthermore,
the applicants' complaint under Article 2 of the Convention does not
concern solely the issue which could have been remedied through such
an appeal, namely the legal characterisation of the offence committed
by Mr B.I., but also other issues, such as the authorities' failure
to investigate the alleged participation of Mr B.I.'s companions,
Mr Z.E., Mr P.K. and Mr N.S. (see paragraph 59 above). The Court
does not see how the remedy referred to by the Government could have
addressed the latter issue.
In
conclusion, the Court considers that the remedy at issue would not
have provided the applicants with any adequate redress for their
grievances. Their failure to employ it cannot therefore lead to the
application being rejected for non-exhaustion of domestic remedies.
(c) Conclusion on the complaint's
admissibility
Lastly,
the Court considers that the present complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention, or inadmissible on any other grounds. It must therefore
be declared admissible.
2. Merits
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, cited above, §§ 91 105; 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)).
Even
in situations in which there is no suggestion that a violent or
suspicious death is due to official action, the authorities are under
the obligation to carry out an independent and impartial official
investigation that satisfies certain minimum standards as to its
effectiveness. 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. 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).
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,
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).
At
all events, there must be a sufficient element of public scrutiny of
the investigation or its results to secure accountability in
practice, maintain public confidence in the authorities' adherence to
the rule of law and prevent any appearance of collusion in or
tolerance of unlawful acts (see Kolevi, cited above, §
194). The next of kin of the victim must be involved in the procedure
to the extent necessary to safeguard their legitimate interests (see
Marinova v. Bulgaria, no. 29972/02, § 39, 10 June 2010).
Applying
the principles above to the case at hand, the Court notes that
the authorities opened an investigation into Mr Gerasimov's death on
the day he was fatally injured (see paragraph 12 above). In the
framework of that investigation they examined witnesses, commissioned
expert reports and gathered other evidence (see paragraphs 13-31 and
38 above). However, the Court has serious doubts as to whether the
investigation was thorough and met even the minimum standards of
effectiveness described above (see paragraphs 75-76).
The
Court notes that the relevant domestic authorities, namely the Pernik
regional public prosecutor's office, which carried out the
investigation and entered into a plea agreement with Mr B.I., and the
Pernik Regional Court, which approved that agreement, concluded that
Mr B.I. was solely responsible for the death of Mr Gerasimov, whom he
had killed when reacting disproportionately to an attack, with one
blow to the head. The Court is struck by the fact that in reaching
that conclusion the authorities manifestly failed to take into
account important evidence collected during the investigation. The
Court refers, first of all, to the results of Mr Gerasimov's
post-mortem, which found a multi-fragment fracture of the skull,
numerous wounds on the head and wounds and bruises on the body (see
paragraph 18 above). Mr Gerasimov's hospital report of 31 May 2003
also indicated that he had four wounds to the head (see paragraph 11
above). For the Court, these findings alone, indicative of repeated
blows and not of a single one, as accepted by the authorities, would
have been sufficient to refute their version of the events.
Furthermore, Mr Gerasimov's post-mortem found a multi-fragment
fracture with a depression of the parietal bone (see paragraph 18
above), which might indicate that he had been hit in the back of the
head with considerable force. These elements, indicative of a
possible deliberate attack, square poorly with the authorities'
conclusion that Mr B.I. had acted in self-defence.
In
accepting that Mr Gerasimov and his companions had been the ones to
start the fight and that, therefore, Mr B.I. had acted in
self-defence, the authorities disregarded another important
circumstance, namely that after the fight it was Mr Gerasimov's
companions who alerted the police (see paragraph 9 above). When they
reached a petrol station and asked the staff to call the police, they
were nervous and said that he had been beaten up (see paragraph 23
above). At the same time Mr B.I. and his companions went into hiding
(see paragraphs 10 and 33 above). Although they alleged later that
they had been attacked, they never reported the attack to the police
and did not request that it be investigated. These elements could
have been indicative of the two groups' attitude to the events, but
again the authorities seemed to have disregarded them.
The
authorities' version of the events also failed to explain why Mr B.I.
and his companions deliberately drove to the place where Mr Gerasimov
and his companions were. If Mr B.I. had indeed, as Mr Z.E. supposed
(see paragraph 27 above), intended to ask if they had seen Mr N.S.'s
horse, still it is not clear why it was necessary for the four of
them to leave the main road and drive along a dirt road to reach the
place where the others were working. In adopting the version disputed
by the applicants, the authorities failed to take into account other
relevant facts established during the investigation, namely, that Mr
N.S. had admitted that the group had been carrying wooden bats, that
two bats and a knife had been found in his car (see paragraph 16
above), and that, furthermore, it was the van used by Mr Gerasimov
and his companions which had been seriously damaged (see paragraph 13
above). Although this evidence could be seen as disproving the
authorities' conclusions, they disregarded it completely.
Furthermore, they never sought to explain how Mr Gerasimov had
suffered numerous wounds and bruises or why there had been blood in
the van used by him and his companions, which was not his but could
have been Mr B.I.'s (see paragraph 13 above).
For
these considerations the Court is of the view that the authorities
failed to carry out a thorough, objective and impartial analysis of
the relevant evidence gathered during the investigation of Mr
Gerasimov's death. Therefore, the investigation itself could not have
been thorough and objective. This in principle would have been
sufficient to justify a conclusion that there was a breach of Article
2 of the Convention. Nevertheless, the Court considers it necessary
to indicate other deficiencies in the investigation.
It
notes that it has not been informed of any investigative steps aimed
at establishing the possible involvement in Mr Gerasimov's death of
Mr B.I.'s companions, Mr Z.E., Mr P.K. and Mr N.S. While, as has
already been mentioned (see paragraph 76 above), it is not for it to
interfere with the lines of inquiry pursued by the investigators, the
Court notes that there were strong indications that the three of them
might have also been implicated, which the authorities manifestly
failed to account for. There were, in the first place, the
testimonies of Mr V.V. and Mr I.I., who explained that Mr Z.E.
had been the first to attack Mr Gerasimov with a wooden bat. Mr I.I.
stated in addition that before running away he had seen Mr P.K. and
Mr N.S. also approach Mr Gerasimov (see paragraphs 20-21 above). In
the second place, it is noteworthy that Mr Z.E., Mr P.K. and Mr N.S.
attempted to abscond after Mr Gerasimov had been beaten up (see
paragraphs 10 and 33 above). They were even briefly arrested (see
paragraph 33 above). However, notwithstanding the existence of
evidence indicating that the three of them could have been involved
and their own suspicious behaviour, and the investigator's initial
assessment that there existed a reasonable suspicion that they could
have acted as accessories in Mr Gerasimov's beating up, which led to
their arrests, they were never investigated (ibid.).
The
Court sees other reasons to doubt the comprehensiveness of the
investigation. It notes that in its decision to drop the initial
charges against Mr B.I. the Pernik regional public prosecutor's
office relied on the testimony of Mr K.G. The latter had been an
eyewitness to the fight and had testified that he had recognised Mr
B.I. and seen him grappling with someone else, who had then delivered
a blow with a knife (see paragraphs 31 and 40 above). However, the
prosecuting authorities did nothing to verify this key testimony,
regardless of the fact that its credibility could appear doubtful,
given that he had observed the fight from a considerable distance
while driving (see paragraph 31 above). Moreover, although the
prosecuting authorities found a knife (see paragraph 15 above), they
did not take fingerprints from it, did not verify whether it had been
the one Mr B.I. had been stabbed with and did not attempt to explain
how it had ended up in Mr N.S.'s car. In the Court's view these
were obvious and available investigative steps which could have shed
light on the circumstances of Mr Gerasimov's death.
Also,
the prosecuting authorities did not seek to explain the
inconsistencies in the testimonies of Mr B.I., who admitted initially
to having hit Mr Gerasimov, several days later denied this, and
during his last examination on 10 December 2003 acknowledged that he
“might have” done it (see paragraphs 24-25 and 38 above).
Furthermore, he stated initially that he had been stabbed by Mr
Gerasimov, but later on explained that someone had “almost”
stabbed him, the knife only cutting through his clothes (see
paragraphs 24 and 38 above).
The
Court considers that it is not its task here to substitute the
domestic authorities' assessment of the facts of the case with its
own and determine whether or not Mr B.I. had been attacked by Mr
Gerasimov and his friends, had acted in self-defence and was solely
responsible for Mr Gerasimov's death. Nor is it the Court's task
to determine whether it was appropriate to conclude the investigation
with a plea bargain and whether Mr B.I.'s punishment thus agreed upon
was adequate. The Court has to ensure that a State's obligation to
protect the rights of those under its jurisdiction is adequately
discharged. To that end, it has to assess whether the investigation
of Mr Gerasimov's death was effective in the light of the principles
set out in paragraphs 75-77 above. As discussed in the preceding
paragraphs, the Court is not satisfied that the authorities carried
out a thorough and objective investigation, as required under Article
2 of the Convention, because they failed to take available
investigative measures and manifestly disregarded important evidence.
Moreover,
the Court considers that the applicants, as the next of kin of Mr
Gerasimov, could not participate effectively in the investigation
into their relative's death, as also required under Article 2 of the
Convention (see paragraph 77 above). It already found that the
hypothetical possibility for them to appeal against the Pernik
regional public prosecutor's office's decision of 25 May 2004 did not
amount to an effective remedy within the meaning of Article 35 §
1 of the Convention (see paragraphs 69-70 above). Accordingly, it
does not consider that such an appeal would have given the applicants
any meaningful opportunity to participate in the proceedings.
Nor
does the Court consider that the applicants were given any other
opportunity to participate and express their views. They could not
request to be designated civil parties, because domestic law at the
time did not provide for such a possibility, the case never having
reached the trial stage (see paragraph 53 above). Moreover, they did
not participate in the procedure whereby the Pernik Regional Court
approved the plea agreement between Mr B.I. and the prosecution,
because the domestic court did not invite them to make submissions,
as it was authorised to do (see paragraph 56 above). In fact, the
applicants' views were never sought and never taken into account by
the domestic authorities. The applicants were not even formally
informed of the outcome of the investigation and only found out about
it later through publications in the media (see paragraph 44 above).
To
sum up, the Court considers that the investigation of Mr Gerasimov's
death was not thorough, nor was it objective. Moreover, the
applicants were not given any meaningful opportunity to participate
in it. Therefore, the investigation into Mr Gerasimov's death carried
out by the national authorities fell short of the requirements of
Article 2 of the Convention (see paragraphs 75-77 above).
On
the basis of these considerations, the Court concludes that there has
been a violation of that provision.
Given
its conclusion that the investigation into Mr Gerasimov's death was
ineffective, the Court finds also that it did not provide the
applicants with adequate and sufficient redress and that they can
still claim to be victims of the violation of Article 2, an issue
which the Court decided to join to the merits of the present
complaint (see paragraph 67 above).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicants also complained that their relative had been killed
because of his Roma origin and that, moreover, that origin and their
own Roma origin had been the reason for the authorities' failure to
investigate his death effectively. The applicants relied on Article
14 of the Convention, which reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Without
putting forward any specific arguments, the Government contested the
applicants' allegations.
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
not inadmissible on any other grounds. It must therefore be declared
admissible.
The
Court reiterates that discrimination is treating differently, without
an objective and reasonable justification, persons in relevantly
similar situations. Racial violence is a particular affront to human
dignity and, in view of its perilous consequences, requires from the
authorities special vigilance and a vigorous reaction. It is for this
reason that the authorities must use all available means to combat
racism and racist violence, thereby reinforcing democracy's vision of
a society in which diversity is not perceived as a threat but as a
source of enrichment (see Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 145, ECHR 2005 VII).
Furthermore, when investigating violent incidents, States have the
duty to take all reasonable steps to unmask any racist motive and to
establish whether ethnic hatred or prejudice may have played a role
in the events (ibid., § 160). However, while the authorities'
duty to investigate the existence of a possible link between racist
attitudes and an act of violence may be seen as implicit in their
responsibilities under Article 14 taken in conjunction with Article 2
to secure the enjoyment of the right to life without discrimination,
it is also an aspect of their procedural obligations arising under
Article 2 alone. Owing to the interplay of the two Articles, issues
such as those in the present case may fall to be examined under one
of the them only, with no separate issue arising under the other, or
may require examination under both. This is a question to be decided
in each case on its facts and depending on the nature of the
allegations made (ibid., § 161).
Faced
with the applicants' complaints under Article 14 of the Convention,
the Court's task is to establish first of all whether the prosecuting
authorities failed to investigate any possible racist motives in
connection with Mr Gerasimov's death. After that the Court must
examine whether in carrying out an investigation into that death the
authorities were prejudiced owing to Mr Gerasimov's and the
applicants' Roma ethnic origin.
As
to the first limb of the complaint, the Court notes that Mr V.V.
stated in his testimony that in rushing towards him and his
companions Mr B.I. had uttered the words “you damn
gypsies” (see paragraph 20 above). However, the Court does not
consider it necessary to decide whether this was sufficient to alert
the authorities to possible racist overtones in connection with Mr
Gerasimov's death and, accordingly, trigger their procedural
obligations under Article 14. The Court notes that the authorities
concluded that Mr Gerasimov had been fatally injured as a result of a
disproportionate reaction to his own attack on Mr B.I. and his
companions and that it found above that this version of the events,
which apparently did not presuppose any racist motive on the part of
Mr B.I., was adopted after an investigation which fell short of the
requirements of Article 2 by reason of not being, inter alia,
thorough and objective (see paragraphs 78-89 above). In those
circumstances, the Court does not consider that the authorities'
alleged failure to investigate possible racist overtones in
connection with Mr Gerasimov's death raises a separate issue under
Article 14 (see, mutatis mutandis, Osman v. Bulgaria,
no. 43233/98, §§ 89-91, 16 February 2006).
Turning
to the second limb of the complaint, the Court notes that during an
examination of a witness on 31 May 2003 the investigator in charge of
the case referred to Mr Gerasimov and his companions as “gypsies”
(see paragraph 30 above). However, the Court is not convinced that,
given the context in which this word was uttered, this is sufficient
to reveal any racial prejudice that could have motivated the conduct
of the investigation. Nor is the Court aware of any other
discriminatory remarks made by the authorities during the
investigation and relating to the applicants' or Mr Gerasimov's Roma
ethnic origin (contrast Moldovan v. Romania (no. 2), nos.
41138/98 and 64320/01, § 139, ECHR 2005 VII (extracts), and
Paraskeva Todorova v. Bulgaria,
no. 37193/07, §§ 38-40, 25 March 2010).
Therefore, the Court does not find it established that the
authorities' failure to conduct an effective investigation into
Mr Gerasimov's death was motivated by racial prejudice.
Accordingly,
the Court concludes that there has been no violation of Article 14 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
Lastly,
the Court notes that on 24 February 2010 the applicants' initial
representative informed the Court that his car had been damaged by
unknown persons, which had posed a risk to his life, and that the
premises of the non-governmental organisation he heads had been
entered and searched by the authorities, who had seized documents
related to the present application (see paragraph 46 above).
However,
these allegations are unsubstantiated. Moreover, no link has been
established between the damage to the applicants' representative's
car and the present application to the Court. As to the search of his
organisation's offices and the seizure of documents, it has not been
shown that these actions were indeed intended to exercise any
pressure in connection with the present application.
Therefore,
the Court considers that no issue arises as to
any alleged hindrance in the applicants' right to individual petition
requiring examination under Article 34 of the Convention.
IV. 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
1. Pecuniary damage
The
first applicant claimed 18,000 euros (EUR) in respect of pecuniary
damage. She argued that as a result of the death of her son she had
lost the financial support he had been providing to her. The
remaining applicants did not claim pecuniary damage.
The
Government contested the first applicant's claim.
The
Court reiterates that there must be a causal link between the
pecuniary damage claimed by an applicant and the violation of the
Convention and that this may, in the appropriate case, include
compensation in respect of loss of earnings. The Court notes that in
the present case private individuals, and not the Government, were
responsible for the death of the first applicant's son. Thus, the
Government cannot be held liable to compensate the first applicant
for the pecuniary damage she might have suffered as a result (see,
among others, Angelova and Iliev, cited above, § 125).
Accordingly, the Court rejects the first applicant's claim for
compensation for pecuniary damage.
2. Non-pecuniary damage
The
first and second applicants claimed EUR 15,000 for each of them in
respect of non-pecuniary damage. The third and fourth applicants
claimed EUR 5,000 for each of them. The applicants pointed out that
they had suffered emotional pain and anguish as a result of the
authorities' failure to investigate effectively the death of their
son, husband and brother.
The
Government considered these claims to be excessive.
The
Court notes that it found that the authorities had breached Article 2
of the Convention (see paragraph 89 above) and considers that as a
result the applicants must have suffered serious pain and
frustration. Ruling in equity, it awards EUR 10,000 to each of the
first and second applicants, Ms Rayna Sedevcheva Dimitrova and Ms
Ekaterina Vaskova Gerasimova, Mr Georgi Gerasimov's mother and wife,
and EUR 5,000 to each of the third and fourth applicants, Mr Sedefcho
Petrov Gerasimov and Mr Petar Petrov Gerasimov, Mr Georgi Gerasimov's
brothers.
B. Costs and expenses
The
applicants claimed EUR 925 for the costs and expenses incurred before
the communication of the present application. They claimed another
EUR 1,840 for 23 hours of legal work, at a rate of 80 euros an hour,
by their representatives after the communication, Mr Grozev and
Ms Dobreva. They requested that the sum of EUR 1,840 be
transferred directly into Mr Grozev's bank account.
In
support of the above claims they presented the relevant contracts for
legal representation and receipts.
The
Government considered these claims to be excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the circumstances of the case and the fact that it found no violation
in respect of the applicants' complaint under Article 14 of the
Convention, the Court awards EUR 2,500 for costs and expenses, EUR
1,840 of which is to be transferred directly into Mr Grozev's
bank account.
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
Decides to join to the merits the question of
the applicants' victim status;
Declares the complaints under Articles 2 and 14
of the Convention admissible and that there is
no need to examine further any alleged hindrance in the applicants'
right to individual petition;
Holds that there has been a violation of Article
2 of the Convention and, accordingly, that the applicants may claim
to be victims of that violation;
Holds that there has been no violation of
Article 14 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
10,000 (ten thousand euros) to each of the first and second
applicants, Ms Rayna Sedevcheva Dimitrova and Ms Ekaterina Vaskova
Gerasimova, and EUR 5,000 (five thousand euros) to each of the third
and fourth applicants, Mr Sedefcho Petrov Gerasimov and Mr Petar
Petrov Gerasimov, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(ii) jointly
to the four applicants, EUR 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of
costs and expenses, EUR 1,840 (one thousand eight hundred and forty
euros) of which to be transferred directly into Mr Grozev's bank
account;
(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'
claims for just satisfaction.
Done in English, and notified in writing on 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
