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P.M. v. BULGARIA - 49669/07 [2012] ECHR 109 (24 January 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/109.html
Cite as:
[2012] ECHR 109
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FOURTH
SECTION
CASE OF P.M. v. BULGARIA
(Application
no. 49669/07)
JUDGMENT
STRASBOURG
24
January 2012
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 P.M. v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 49669/07)
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 a
Bulgarian national, Ms P.M. (“the applicant”), on 25
October 2007.
The
applicant was represented by Mr V. Vasilev, a lawyer practising
in Sofia. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
3. The
applicant alleged, in particular, that the investigation into
sexual offences of which she had been a victim had been ineffective,
and that she had not had an effective
domestic remedy in this respect.
On
29 September 2010 the President of
the Fifth Section of the Court decided to give notice of the
application to the Government and to grant the applicant anonymity
(Rule 47 § 3 of the Rules of Court). It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). The
case was subsequently transferred to the Fourth Section,
following the re composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1977 and lives in Stara
Zagora.
1. The events of 29 March 1991
According
to the judgment of 30 November 2005 of the Stara Zagora District
Court, in the afternoon of 29 March 1991 the applicant, then aged
thirteen, was invited to a party at the home of Mr T.Z. There were
several young people in the apartment. After some time Mr D.I., then
aged seventeen, took the applicant to a separate room and threatened
her, after which he raped her. Then he went out and Mr T.Z., who was
twenty-one years old, entered the room. He beat the applicant and
attempted to rape her but was interrupted by his mother ringing the
doorbell. Mr T.Z. asked the applicant and the other guests to leave.
The
applicant told her parents that she had been raped, and they took her
to the doctor and informed the police.
In
a medical expert report of the same date two experts of the Stara
Zagora Military Medical Institute established that there was an
injury to the applicant’s hymen and that she had several
bruises on her head.
2. The pre-trial investigation
(a) Preliminary inquiry
On
4 April 1991 the applicant’s mother lodged a written complaint
with the police authorities against Mr T.Z. and Mr D.I.
The
police carried out an inquiry, in the course of which it took
statements from the applicant, Mr T.Z. and Mr D.I. The two suspects
gave their addresses.
(b) Opening of criminal proceedings
On
27 January 1992 the Stara Zagora district prosecutor opened criminal
proceedings against Mr T.Z. and Mr D.I.
On
9 April 1992 Mr T.Z. was charged with attempted aggravated rape and
was ordered not to leave the town pending the criminal proceedings
against him. On the same day the investigator questioned him, the
applicant and a witness.
In
a letter of 10 April 1992 the investigator requested the police to
establish the full names and addresses of four witnesses.
(c) Stay of the proceedings
On
28 April 1992 the investigator established that Mr D.I. had not
appeared before him, although he had been duly summoned, and that the
whereabouts of certain witnesses were unknown. He proposed that the
criminal proceedings be stayed. By a decree of 24 November 1992 the
district prosecutor stayed the criminal proceedings against Mr T.Z.
and Mr D.I., on the ground that the latter’s whereabouts
were unknown.
There
is no information as to whether the authorities took any steps to
find the persons concerned.
(d) Resumption of the proceedings and
further investigation
In
a report of 8 September 2000 a police officer stated that Mr D.I. had
been found. The address specified in the report was the same as the
one Mr D.I. had given in his written statement of 1991. In a
statement of 8 September 2000 Mr D.I. said that he had not
changed his place of residence and that he had never been summoned by
the investigator.
On
19 December 2000 the district prosecutor resumed the criminal
proceedings against Mr T.Z. and Mr D.I.
In
a letter of 26 February 2001 the investigator asked the district
prosecutor to extend the period of investigation by six months,
stating that the work on the case had not been completed on time
because of his involvement in other cases. On 19 March 2001 the
district prosecutor granted a two-month extension.
In
a letter of 28 June 2001 the district prosecutor instructed the
investigator to take urgent measures to complete the investigation,
informing him that the case would be subject to special monitoring.
On
5 November 2002 Mr D.I. was charged with aggravated rape and was
ordered not to leave the town pending the criminal proceedings
against him. On 14 November 2002 he was questioned before a
judge.
In
the period between 7 November and 5 December 2002 the investigator
questioned twelve witnesses, and appointed two experts to make a
psychiatric and psychological assessment of Mr T.Z., Mr D.I. and the
applicant, as well as a medical expert, who, on the basis of the
documents in the file, confirmed the conclusions of the medical
report of 29 March 1991.
The
results of the preliminary investigation were communicated to Mr T.Z.
and Mr D.I. on 4 March 2003.
On
6 March 2003 the investigator concluded the investigation and
referred the file to the district prosecutor with the recommendation
that the two accused should be put on trial.
(e) The first termination of the criminal
proceedings and their partial resumption
In
a decree of 30 September 2003 the district prosecutor terminated the
criminal proceedings in respect of Mr D.I. as time-barred. He found
that a shorter prescription period was applicable to him because he
had been under age at the time of the offence.
In
a decree of 29 March 2004 the district prosecutor terminated the
criminal proceedings in respect of Mr T.Z., finding that the charges
against him had not been proved and that it would be practically
impossible to gather any new evidence in view of the period of time
which had elapsed since the events.
Following
an appeal by the applicant, on 20 April 2004 the Stara Zagora
District Court quashed the decree of 29 March 2004 and resumed the
proceedings in respect of Mr T.Z. It found that the district
prosecutor should have ordered witness confrontations.
On
30 April 2004 the district prosecutor referred the case back to the
investigator for further examination.
In
the period from 7 to 11 June 2004 the investigator carried out four
witness confrontations.
A
second psychiatric and psychological report was submitted in respect
of the applicant on 22 June 2004. It confirmed that she had been able
to understand the events of 29 March 1991 and that she had not been
able to effectively resist the mental and physical violence against
her. It was unlikely that the applicant had testified under the
influence of her parents.
On
9 June 2004 the investigator ordered an expert examination of the
clothes allegedly worn by the applicant on the day of the incident,
as well as of other items. Several expert reports were prepared in
the period from 16 to 22 June 2004.
On
25 June 2004 the results of the preliminary investigation were
presented to Mr T.Z. On the same date the investigator concluded the
investigation and referred the file to the district prosecutor with
the recommendation that Mr T.Z. should be tried for attempted rape.
(f) The second termination of the criminal
proceedings and their resumption
On
19 July 2004 the district prosecutor once again terminated the
criminal proceedings against Mr T.Z. for lack of direct evidence.
Following
an appeal by the applicant, on 25 August 2004 the Stara Zagora
regional public prosecutor’s office upheld the decree of 19
July 2004. The applicant appealed further.
In
a decree of 21 September 2004 the Plovdiv appeals public prosecutor’s
office quashed the decrees of 25 August 2004, 19 July 2004 and 30
September 2003 (see paragraph 24 above) and referred the case back to
the district prosecutor for further investigation. The district
prosecutor was ordered to monitor the case and see to the lawful and
timely completion of the investigation within two months. The
decision further stated that the applicant’s account of the
events had been corroborated by numerous pieces of circumstantial
evidence and that the prescription period for prosecuting Mr D.I. had
not expired because there was evidence of complicity between the two
accused which affected the legal characterisation of the charges.
On
5 October 2004 the district prosecutor referred the case back to the
investigator with instructions to gather additional evidence within
thirty days. On 8 November 2004 this deadline was extended by
thirty days.
In
a letter of 3 January 2005 the district prosecutor instructed the
investigator to send him the file as soon as possible. In a note of
12 January 2005 the district prosecutor stated that he had reached an
agreement with the investigator that the file would be sent by 31
January 2005.
A
confrontation between the applicant and Mr T.Z. was carried out on
17 January 2005.
On
18 January 2005 the applicant was questioned before a judge.
On
21 January 2005 Mr D.I. and Mr T.Z. were charged with aggravated rape
and attempted aggravated rape respectively, committed in complicity,
and were ordered not to leave the town pending the criminal
proceedings. They were questioned on the same day.
A
confrontation between the applicant and Mr D.I. was carried out and
two witnesses were questioned before a judge between 24 and
26 January 2005.
An
expert report concerning a tear in the jeans allegedly worn by the
applicant on the date of the incident was submitted on 31 January
2005.
The
results of the preliminary investigation were communicated to Mr D.I.
and Mr T.Z. on 2 and 3 February 2005 respectively.
On
9 February 2005 the investigator concluded the investigation and
referred the file to the district prosecutor with the recommendation
that Mr D.I. and Mr T.Z. should be tried on the charges.
3. The trial
An
indictment against the two accused was filed with the Stara Zagora
District Court on 22 February 2005.
Two
hearings scheduled for 14 April and 22 June 2005 were postponed
because one of the accused and the lawyer of the other accused had
fallen ill.
A
hearing was held on 11 July 2005. The applicant joined the
proceedings as a private prosecutor. She did not bring a civil
action.
On
12 October and 30 November 2005 the District Court held hearings. The
defendants did not plead the statute of limitations but asked the
court to pronounce a judgment.
In
a judgment of 30 November 2005 the District Court convicted Mr D.I.
of aggravated rape but relieved him from liability and punishment. It
reasoned that although Mr D.I. had not pleaded the statute of
limitations, the latter was nevertheless an absolute obstacle to his
punishment. It further convicted Mr T.Z. of attempted aggravated rape
and sentenced him to three years’ imprisonment. It found that
the long lapse of time since the rape represented a mitigating factor
which must be taken into account in determining his punishment. The
court acquitted the two accused of the complicity charges.
Upon
appeals by the applicant, the district prosecutor and Mr T.Z., on 20
October 2006 the Stara Zagora Regional Court upheld the judgment of
30 November 2005 in respect of Mr D.I. This part of the judgment was
not subject to appeal and became final.
The
Regional Court further terminated the criminal proceedings against Mr
T.Z. as time-barred, finding that the prescription period for his
prosecution had expired meanwhile.
On
18 May 2007 the applicant’s lawyer was informed of the judgment
and of the applicant’s right to appeal against the termination
of the criminal proceedings against Mr T.Z. The applicant did not
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Pursuant
to the 1974 Criminal Procedure Code, in force at the relevant time
and until 2006, as well as the constant case-law of the Supreme Court
of Cassation, the courts had to terminate criminal proceedings upon
expiry of the statutory period of limitation. Nevertheless, the
accused could request their continuation (Article 21). In such a
case, the court could find him guilty but could not punish him
(Article 303).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
The
applicant complained that the investigation into the sexual offences
of which she had been a victim had been ineffective, and that she had
not had an effective domestic remedy in this respect. She relied on
Articles 3, 8 and 13 of the Convention.
Having
regard to the nature and the substance of the applicant’s
complaints in the present case, the Court considers that the proper
legal characterisation of the complaints is the procedural limb of
Articles 3 and 8 of the Convention, which read:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 § 1
“Everyone has the right to respect for his private
... life ...”
A. Admissibility
1. Competence ratione temporis
Although
the respondent Government have not raised any objection as to the
Court’s competence ratione temporis, this issue
nevertheless calls for consideration by the Court (see Blečić
v. Croatia [GC], no. 59532/00, §§ 63 et seq., ECHR
2006 III).
The
Court has stated that the procedural obligation to carry out an
effective and prompt investigation under Article 2 has evolved into a
separate and autonomous duty capable of binding the State, even when
the substantive act took place before the critical date (see Šilih
v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). For
such a procedural obligation to come into effect, a significant
proportion of the investigating steps required by this provision will
have been or ought to have been taken after the critical date (ibid.,
§ 163). Subsequently the Court applied this principle to cases
concerning deaths at the hands of private individuals (see Lyubov
Efimenko v. Ukraine, no. 75726/01, § 63, 25 November 2010;
and Frandeş v. Romania (dec.) no. 35802/05, 17 May
2011). Furthermore, in Tuna v. Turkey (no. 22339/03, §
58, 19 January 2010) and in Stanimirović v. Serbia
(no. 26088/06, § 28, 18 October 2011, not yet final), it went on
to hold that the principles established in Šilih
applied similarly to the procedural obligation to investigate under
Article 3.
In
the present case, while the sexual offences against the applicant
were committed in 1991, before the entry into force of the Convention
in respect of Bulgaria on 7 September 1992, most of the procedural
steps were taken after that date (see paragraphs 9-51 above).
In
view of the above, the Court finds that the alleged procedural
violation of Article 3 falls within the Court’s temporal
jurisdiction and that it is therefore competent to examine this part
of the application. It is true that the applicant also relied on
Article 8 in the present case and that in the case of M.C. v.
Bulgaria (no. 39272/98, ECHR 2003 XII) the Court referred to
both Article 3 and Article 8, finding that there was an obligation on
States to enact criminal-law provisions effectively punishing rape
and to apply them in practice through effective investigation (see §§
148-153 of that judgment). Noting that in the present case the
applicant’s complaints are limited to the effectiveness of the
investigation and that Article 3 provides sufficient legal basis for
the State’s duty to conduct an investigation into serious
offences against an individual’s physical integrity, the Court
considers that it is not necessary in the particular circumstances of
the instant case to decide whether its temporal jurisdiction also
extends, in situations like the present one, to issues under Article
8. Therefore it will confine itself to determining whether the events
that occurred after the entry into force of the Convention in respect
of Bulgaria disclosed a breach of Article 3 under its procedural limb
(see Tuna, cited above, § 63).
2. Exhaustion of domestic remedies and conclusion on
admissibility
The
Court notes that the applicant did not appeal against the decision of
the Regional Court of 20 October 2006 to terminate the criminal
proceedings against Mr T.Z. as time-barred (see paragraph 51 above).
Nevertheless, in view of the clear-cut domestic legislation and
case-law on the statutory period of limitation (see paragraph 52
above), it does not appear that a cassation appeal by the applicant
would have offered any prospect of a different outcome. The Court
therefore considers that the complaint under Article 3 cannot be
dismissed for failure to exhaust domestic remedies.
It
further notes that the complaint under Article 3 is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant stated that although she had been a victim of a serious
sexual assault at the young age of thirteen, the authorities had
unduly delayed the gathering of evidence for more than ten years,
thus preventing the establishment of the truth and the punishment of
the offenders. She complained, in effect, that there had been no
effective official investigation of the offences, affecting her
personal integrity, of which she had been a victim.
The
Government stated that they would leave it to the Court to decide
whether Article 3 had been violated. They acknowledged that during
the pre-trial stage the proceedings had been suspended for a
considerable period of time. Nevertheless, they argued that the
authorities had conducted a thorough and careful investigation and
that no delays had occurred during the trial.
2. The Court’s assessment
The
relevant principles concerning the State’s obligation inherent
in Article 3 of the Convention to investigate cases of ill-treatment,
and in particular sexual abuse, committed by private individuals, are
set out in M.C., cited above, §§ 148-153.
As
regards the Convention requirements relating to the effectiveness of
an investigation, the Court has held that it should in principle be
capable of leading to the establishment of the facts of the case and
to the identification and punishment of those responsible. This is
not an obligation of result, but one of means. The authorities must
have taken the reasonable steps available to them to secure the
evidence concerning the incident, such as witness testimony and
forensic evidence, and a requirement of promptness and reasonable
expedition is implicit in this context (see Denis
Vasilyev v. Russia, no. 32704/04, §
100, 17 December 2009, with further references). The promptness of
the authorities’ reaction to the complaints is an important
factor (see Labita v. Italy [GC], no. 26772/95, §§
133 et seq., ECHR 2000-IV). Consideration has been given in the
Court’s judgments to matters such as the opening of
investigations, delays in identifying witnesses or taking statements
(see Mătăsaru
and Saviţchi v. Moldova, no. 38281/08,
§§ 88 and 93, 2 November 2010), the length of time
taken for the initial investigation (see Indelicato v. Italy,
no. 31143/96, § 37, 18 October 2001), and unjustified
protraction of the criminal proceedings resulting in the expiry of
the statute of limitations (see Angelova and Iliev v. Bulgaria,
no. 55523/00, §§ 101-103, 26 July 2007).
Applying
these principles to the present case, the Court notes that on 7
September 1992, the date of entry into force of the Convention in
respect of Bulgaria, the investigation was dormant, no significant
investigative measures having been carried out on the ground that the
address of one of the suspects, Mr D.I., was unknown. It is highly
significant, however, that when Mr D.I. was eventually “found”
eight years later, it turned out that he had never changed his
address (see paragraph 16 above). Apparently no attempts were made to
establish his whereabouts during this considerable period. No
consideration was given to the possibility of separating the cases
against Mr T.Z. and Mr D.I. and proceeding with the case in respect
of the former. In the Court’s view, the authorities’
inaction verges on arbitrariness, having regard, in particular, to
the gravity of the facts and the applicant’s age at the
relevant time. As a result, a number of urgent investigative
measures, such as the commissioning of an expert examination of the
applicant’s clothes and interviewing witnesses, were taken only
many years after the rape (see paragraphs 21 and 30 above). It is to
be noted furthermore that two decisions to discontinue the criminal
proceedings were issued, only to be subsequently set aside by the
supervising prosecutors (see paragraphs 24-34 above).
In
view of the exceptionally slow pace of the proceedings, it is not
surprising that the prosecution eventually became time-barred. The
domestic courts discontinued the proceedings against one of the
defendants, Mr T.Z., and although they convicted the other one, Mr
D.I., they did not punish him because of the statute of limitations
(see paragraphs 48-50 above). Thus, although the facts of the case
and the identity of the offenders were established, albeit many years
after the rape, the investigation can hardly be regarded as having
been effective and capable of leading to the proper punishment of
those responsible.
It
follows that there has been a violation of the respondent State’s
procedural obligations under Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
The
applicant complained that the length of the
criminal proceedings against her aggressors had been excessive and
that she had not had an effective domestic remedy in this respect.
She relied on Articles 6 §
1 and 13 of the Convention, which provide, in so far as
relevant:
Article 6 §
1
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The Court notes that the applicant did not join the
criminal proceedings against her aggressors as a civil party (see
paragraph 46 above) and that therefore the proceedings at issue did
not concern the determination of her civil rights within the meaning
of Article 6 (see Perez v. France [GC], no. 47287/99, §
70, ECHR 2004 I). The Court further notes that the applicant’s
grievances concerning the protracted investigation have already been
examined under Article 3 as an aspect of its effectiveness (see
paragraphs 65-67 above).
It follows that Article 6 § 1 does not apply, and
the complaints under Article 6 and, as a consequence under Article
13, are therefore incompatible ratione materiae
with the provisions of the Convention and should be rejected
pursuant to Article 35 §§ 3 and 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage suffered as a result of the violations of her rights under the
Convention, stating, in particular, that the prolonged and
ineffective investigation of the sexual offences against her had
aroused in her feelings of injustice, helplessness and frustration.
The
Government contested this claim.
The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the breaches of her rights found in the case.
Taking into account all the circumstances of the case, and
deciding on an equitable basis, the Court awards her EUR 15,000 under
this head.
B. Costs and expenses
The
applicant sought EUR 3,000 for fifty hours of legal work by her
lawyer in the proceedings before the Court, at an hourly rate of EUR
60. In support of this claim she presented a contract and a time
sheet. She further claimed 500 Bulgarian levs for postage,
translation, and office expenses but did not present any invoices or
receipts in support of her claim.
The
Government considered that the claims were excessive.
77. 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 information in its possession and the above criteria, and
taking into account the applicant’s failure to provide all
necessary documents, such as invoices and receipts for postage or
office expenses, the Court finds it reasonable to award the sum of
EUR 3,000 to the applicant, plus any tax that may be chargeable
to her.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 3 of the
Convention concerning the alleged ineffective investigation of the
sexual offences against the applicant admissible and the
complaints under Articles 6 and 13 inadmissible;
2. Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
Holds
(a) that
the respondent State is to pay the applicant,
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 at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki Registrar President
