European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

 

CASE OF DIMITROV AND OTHERS v. BULGARIA

 

(Application no. 77938/11)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

1 July 2014

 

 

 

 

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 Dimitrov and Others v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          George Nicolaou,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Paul Mahoney,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 10 June 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 77938/11) 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, Mr Raycho Angelov Dimitrov, Ms Anita Rumenova Velyanova, Mr Raycho Dimitrov Dimitrov and Ms Adriana Georgieva Dimitrova (“the applicants”), on 5 December 2011.

2.  The applicants were represented by Mr V. Vasilev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

3.  The applicants alleged, in particular, that a relative of theirs had unjustifiably been ill-treated and killed by police officers and that there had been no effective investigation into or redress for his death.

4.  On 11 July 2012 the then President of the Fourth Section decided to grant priority to the application and to give the Government notice of it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The first applicant, Mr Raycho Angelov Dimitrov, was born in 2000 and lives in Blagoevgrad. The second applicant, Ms Anita Rumenova Velyanova, was born in 1979 and lives in Sofia. The third applicant, Mr Raycho Dimitrov Dimitrov, was born in 1948 and lives in Blagoevgrad. The fourth applicant, Ms Adriana Georgieva Dimitrova, was born in 1950 and lives in Kyustendil.

6.  The event which gave rise to their application was the death on 10 November 2005 of Mr Angel Raychov Dimitrov (alias Chorata), born in 1967 and living in Blagoevgrad, who died in the course of a police operation against him. Five police officers who took part in that operation were later investigated and tried on charges of aggravated murder. They were ultimately acquitted.

7.  The first applicant is Mr Dimitrov’s son. The second applicant was Mr Dimitrov’s de facto spouse. The third and fourth applicants are Mr Dimitrov’s parents.

A.  Circumstances surrounding Mr Dimitrov’s death

8.  At the end of October 2005, following a high-profile assassination in Sofia, the Minister of Internal Affairs ordered a nation-wide police operation whose aim was to trace and arrest persons who had committed serious offences. The Blagoevgrad police interviewed Mr Dimitrov in connection with that assassination; no link between him and the offence was established.

9.  The carrying out of the Minister’s order on the territory of the Blagoevgrad region was organised by the head of the Blagoevgrad Regional Directorate of Internal Affairs. On 10 November 2005 he ordered six police officers to take part in a police operation between 6 p.m. on that day and 2 a.m. the following day. They were told to report for instructions at 6 p.m. In another decision the head of the Directorate’s organised-crime unit, Colonel A.K., ordered an operation against Mr Dimitrov, who was suspected of distributing narcotic drugs and pimping. According to the order, the operation’s goal was to establish, document and put an end to those activities. The plan of the operation was to establish Mr Dimitrov’s whereabouts and carry out urgent investigatory steps. The written plan specified that when making arrests, the police had to proceed with caution so as to avoid any risk to the life and health of arrestees and passers-by. The applicants submit that evidence given by police officers during the ensuing proceedings showed that, although this was not mentioned in the written plan, the police were anticipating resistance on the part of Mr Dimitrov. According to the plan, the officers who were to take part in the operation were split in three groups: one to find Mr Dimitrov and check for evidence of drug trafficking in his car, another to search a hotel run by his family with a view to uncovering evidence of drug trafficking and prostitution, and a third to search Mr Dimitrov’s home, again with a view to uncovering evidence of drug trafficking. There is no information in the case file - the applicants submitted that none had been gathered in the course of the ensuing criminal proceedings - about whether the officers who were to take part in the operation were briefed about the plan or about the exact instructions given to them. The written plan said that the actual operation was to begin at 8 p.m. and that the briefing was to begin at 8 p.m. as well; the Government submitted that the briefing had taken place at about 7 p.m.

10.  The Government submitted that the identity of the person against whom the operation was directed was not revealed during the briefing with a view to preventing leaks of information before the start of the operation. The applicants retorted that since the evidence about the briefing gathered in the course of the ensuing criminal proceedings had not been conclusive, there was no room for such a categorical assertion.

11.  The officers of the first group went to Mr Dimitrov’s house and found there his de facto wife, the second applicant, and his son, the first applicant. The officers did not present a search warrant; it was later established that no such warrant had been applied for. At about 9.15 p.m. the officers were informed that Mr Dimitrov had died, and at about 9.20 p.m. they left the house, saying that they would not carry out a search there.

12.  The second group, comprising between ten and fifteen officers wearing balaclavas, went to the family’s hotel, where they apparently expected to find one kilogram of cocaine. They did not have a search warrant either. The officers entered the hotel, opening and sometimes breaking the doors of hotel rooms, and pinning Mr Dimitrov’s brother and some hotel guests to the ground. When learning that Dimitrov had died, the officers likewise stopped the search, left the hotel and went back to the police station.

13.  The third group comprised five officers: Major M.P., Captain I.I., Chief Lieutenant B.M., Chief Sergeant G.K. and Chief Sergeant Y.G. Major M.P. was the group’s leader. Their task was to find and arrest Mr Dimitrov. Major M.P., Captain I.I. and Chief Lieutenant B.M. were in plain clothes. Some of the officers wore balaclavas, and all were armed, two with Kalashnikov automatic rifles. Their car did not bear police identification marks. The group was initially supposed to include an investigator, but he decided to remain in the police station and await the unfolding of the operation there. In the course of the ensuing proceedings Major M.P. testified that the group’s task had been to carry out a search of Mr Dimitrov with a view to establishing whether he had any narcotic drugs on him.

14.  The five officers found Mr Dimitrov in his car; they apparently discovered his whereabouts at about 8.40 p.m. on the basis of a wiretap which the police had earlier put on his mobile telephone. The car was parked near a building in which Ms M.Z., Mr Dimitrov’s girlfriend, at that time sixteen years old, and her sister, Ms E.Z., at that time eighteen years old, lived in a flat on the third floor, with windows overlooking the street. Both Ms M.Z. and Ms E.Z. were at home.

15.  According to the applicants and findings of the courts, at about 8.45 p.m. Mr Dimitrov was in his car, driver-side window down, talking with Ms M.Z. on his mobile telephone and through the window of her flat. The two agreed to see each other later, and Ms M.Z. moved away from the window of her flat. At that point the five officers stopped their car. There is some uncertainty whether they stopped it in front of or behind Mr Dimitrov’s car and whether at that point Mr Dimitrov’s car was already moving. Chief Lieutenant B.M., Chief Sergeant G.K. and Chief Sergeant Y.G. took Mr Dimitrov out of his car, which remained with its headlights on. They started hitting him on the head and body. Major M.P. and Captain I.I. joined the three. With the help of the two chief sergeants, Chief Lieutenant B.M. handcuffed Mr Dimitrov behind his back, and the five officers kept on beating him. Ms M.Z. heard Mr Dimitrov shouting a number of times that he was suffocating and could not breathe, and asking his assailants what they wanted from him and why they were beating him. The officers kept silent. The beating continued about ten to fifteen minutes. Ms M.Z. and Ms E.Z. could observe what was happening through the window of their flat, and made calls to the police and the fire brigade at 8.53 p.m. and 9.01 p.m.

16.  According to the Government, whose assertions appear to be fully based on the findings of a commission appointed by the Secretary General of the Ministry of Internal Affairs to carry out an internal inquiry into the events surrounding the death of Mr Dimitrov (see paragraphs 92-95 below), Mr Dimitrov did not heed an order on the part of the officers to stop his car, and even accelerated, which made it necessary for the officers to intercept him with their car. Mr Dimitrov then got out of his car without turning the engine off and rushed towards the closest building, disregarding the officers’ shouts “Stop! Remain where you are! Police!”. Two of the officers caught up with him and grabbed his hands, trying to put handcuffs on them. Mr Dimitrov put up fierce resistance. The officers’ efforts to overcome it lasted about five to ten minutes. Mr Dimitrov was shouting “Leave me alone! Get away! Don’t touch me! Filth!” Once the officers were able to handcuff Mr Dimitrov, they put him lying on the ground and stepped back, awaiting the arrival of the on-duty investigative team. The applicants retorted that the courts which later dealt with the case had categorically established that Mr Dimitrov had not put up any resistance.

17.  As a result of Ms M.Z.’s and Ms E.Z.’s calls the police dispatched a car with two officers to the scene. The two officers, who were apparently not aware of what was going on, were met by Major M.P. and Captain I.I. at some distance from the place where Mr Dimitrov’s body lay. Major M.P. sent them away with the explanation that there was a police operation under way.

18.  Shortly after that the head of the Directorate’s organised-crime unit, Colonel A.K., arrived at the scene, bringing with him an investigator. Seeing that Mr Dimitrov was not moving, at 9.01 p.m. the Colonel called an ambulance. At about 9.25 p.m. the emergency doctor examined Mr Dimitrov’s body and found that he was dead. The Colonel then ordered the doctor to take the body away from the scene. The ambulance took it to an emergency medical centre, where the death was confirmed.

19.  The five officers remained at the scene for some time, and then went back to the police station with their car, apparently following orders by Colonel A.K. Later in the night of 10 November 2005 the scene was visited by a prosecutor from the Sofia Military Prosecutor’s Office and two military investigators, who were competent to investigate offences committed by military officers. However, they did not carry out any investigation actions.

20.  On the next day, 11 November 2005, the Blagoevgrad police gave a press conference at which they said that Mr Dimitrov had died of “cardiogenic shock”; the applicants were not given any other information on the matter. The death certificate issued by Blagoevgrad municipality on 12 November 2005 said that Mr Dimitrov had died of acute cardiogenic shock, acute cardiac and breathing insufficiency, and abrasions and blood suffusions on the head and the body. When they later recovered Mr Dimitrov’s body, the applicants, having seen the numerous injuries to it, decided not to bury him before the cause of his death could be elucidated.

21.  According to the findings made by the Sofia Military Court in the ensuing criminal proceedings against the five officers who took part in the operation, Mr Dimitrov died of traumatic injuries to his head and a rupture of his aorta, induced by intensive blows to his head and back. According to the Military Court of Appeal, which heard the case on appeal, the officers caused Mr Dimitrov’s death by pushing him against the ground, which, combined with the position in which he was, the stress induced by the continued violence against him, consisting of a number of blows, his pre-existing medical conditions and cocaine that he had taken some time before the incident, had caused him to asphyxiate. According to the Supreme Court of Cassation, Mr Dimitrov asphyxiated by accident, his death having no causal connection with the officers’ actions.

B.  The ensuing criminal proceedings

1.  The preliminary investigation

22.  The investigation was taken up by a prosecutor from the Blagoevgrad Regional Prosecutor’s Office and an investigator from the Blagoevgrad Regional Investigation Service. Between 10.45 p.m. on 10 November 2005 and 12.10 a.m. on 11 November 2005 the investigator inspected the scene. She carried out a further inspection between 12.20 p.m. and 12.40 p.m. on 11 November 2005. Mr Dimitrov’s car, which had been taken to a police station, was also inspected. The investigator also ordered an autopsy on Mr Dimitrov’s body.

23.  The same day, 11 November 2005, three medical doctors - Dr Z.K., head of the forensic medicine sector of the Military Medical Academy, who had arrived from Sofia, Dr Y.Z., head of the forensic ward of the Blagoevgrad Hospital, and Dr M.G., a doctor in the same ward, performed an autopsy on Mr Dimitrov’s body. They described in detail their visual inspection of the outside and the inside of the body. They took blood and urine samples and samples of stomach, intestine, brain, kidney and liver tissue and sent them for chemical testing. They also took samples of brain, myocardial, lung, liver, kidney, adrenal gland and spleen tissue and part of the wall of the aorta for histological testing. The experts’ conclusion was that Mr Dimitrov had a number of abrasions and bruises on the head, body and limbs; that he had well-pronounced cyanosis of the skin and of the visible mucous membrane in the upper part of his body; two small and limited haemorrhages under the pia mater; a small laceration of the aortic arch with suffusion around it and haemorrhage in the left pleural cavity; rough pulmonary adhesions; swelling of the brain and of the lungs; and heavy venous stasis in the internal organs, with dark liquid blood. The experts said that the analysis of the cause of death and the manner in which the injuries had been sustained would be made in a further report by five experts, to be drawn up after obtaining the results of the chemical and histological tests.

24.  Acting at the applicants’ request, on 17 November 2005 the Blagoevgrad Regional Prosecutor’s Office ordered a second autopsy, to be carried out by the three medical doctors who had performed the first one and two experts suggested by the applicants, Prof Dr S.R., consultant at the Forensic Medicine and Deontology Centre of the Alexandrovska University Hospital in Sofia, and Prof Dr Ts.Y., cardiac pathologist at the St Ekaterina University Hospital in Sofia.

25.  On 19 November 2005 the five experts performed a second autopsy on Mr Dimitrov’s body. They took into account the findings of the first autopsy, and described in detail their own visual inspection of the outside and inside of the body and the results of additional tests that they carried out: histological analysis of Mr Dimitrov’s brain, lungs, heart muscle, aorta, liver, kidney, adrenal gland and spleen, and chemical analysis of his blood and urine. Then they set out their conclusions, saying, inter alia, that the cause of Mr Dimitrov’s death had been a closed cerebral trauma, due to four violent blows to the head, accompanied by a commotion and contusion syndrome, which had led to a breakdown of the functions of the brain, and to a paralysis of the vital centres (cardiac and respiratory), which had been the direct cause of death. A secondary factor had been a traumatic rupture of the aorta, which had been caused by a sharp and violent blow to the back, between the third and the fourth thoracic vertebrae, and had led to a haemorrhage of about one hundred and fifty millilitres of blood in the left pleural cavity. The death had occurred fast, within minutes, but it was not possible to say exactly when. The traumatic injuries to the head and the body - except those to the face, the front of the body, the elbows and the knees - had been caused by multiple blows with a hard blunt object about three centimetres wide. The abrasions on the face, the front of the body, the elbows and the knees had been caused by a fall to the ground. The abrasions on the two wrists had been caused by handcuffs. There had also been at least eight blows, some of which possibly repetitive, to the waist, the abdomen and the body. Part of the injuries to the face and the head could have been caused while Mr Dimitrov had been upright, bending or recumbent, but it was not possible to say exactly; the blow between the vertebrae had most probably been administered while Mr Dimitrov had been upright or slightly bending. There was no medical data showing that Mr Dimitrov had fought or defended himself. He had earlier consumed a small dose of cocaine, but had not been under its influence at the time of his death. The cocaine metabolites in his urine had no connection with his death.

26.  In the following days the authorities interviewed a number of police officers and other witnesses and gathered other evidence. On 1 December 2005 Mr Dimitrov’s brother gave to the investigator the clothes worn by Mr Dimitrov at the time of his death.

27.  On 9 December 2005 the investigation was taken up by the Sofia Military Prosecutor’s Office. On 14 December 2005, without carrying out any further investigative steps, it decided to discontinue the proceedings, reasoning that the force used against Mr Dimitrov had been proportionate in the circumstances, as required under section 78 of the Ministry of Internal Affairs Act 1997 (see paragraph 97 below), and that the use of that force had not been criminal by virtue of Article 12a of the Criminal Code 1968 (see paragraph 102 below).

28.  The applicants sought judicial review of the discontinuance.

29.  In a decision of 18 January 2006, the Sofia Military Court found that the Sofia Military Prosecutor’s Office’ findings of fact were one-sided and did not flow from the available evidence. Those findings were based solely on the oral and written statements of the five officers, which appeared to have been coordinated beforehand, and failed to take into account the statements of the witnesses Ms M.Z. and Ms E.Z., whose content was quite different from those of the officers. In addition, the findings did not match the conclusions of the experts who had carried out the autopsy on Mr Dimitrov’s body and the fact that the officers had only sustained very minor injuries as a result of the incident. That evidence, together with the facts that Mr Dimitrov had been surrounded by five officers, had not been armed, and had been found dead at about two metres from his car, rather suggested that he had not put up any resistance or tried to flee. The conclusion of the Prosecutor’s Office that the officers’ actions had been in line with section 78 of the Ministry of Internal Affairs Act 1997 (see paragraph 97 below) and could be justified by reference to Article 12a of the Criminal Code 1968 (see paragraph 102 below) was therefore erroneous, especially bearing in mind that there was no indication that at the time when he had been approached by the officers Mr Dimitrov had been in the process of committing an offence. The intensity of the violence used by the officers and the extent of the injuries sustained by Mr Dimitrov rather pointed to murder with direct intent and special cruelty, at a time when the victim was in a helpless state, and perpetrated in a way that was particularly painful for the victim, contrary to Article 116 of the Criminal Code 1968 (see paragraph 100 below). In addition, the inquiries made by the prosecuting authorities were incomplete in many respects: those authorities had not interviewed any higher-ups, gathered a number of relevant documents, asked the five officers specific questions about their individual participation in the events, or subjected Mr Dimitrov’s clothes to testing. In effect, there had not been a proper investigation of the incident by a military investigator. For those reasons, the court set the discontinuance aside and referred the case back to the prosecuting authorities, giving them directions on the application of the substantive law and instructing them to carry out further investigative steps.

2.  The first proceedings before the Sofia Military Court

30.  Having carried out further investigative steps, the Sofia Military Prosecutor’s Office indicted the five officers of wilfully inflicting bodily damage on Mr Dimitrov and thus negligently causing his death.

31.  On 14 June 2006 the judge-rapporteur at the Sofia Military Court referred the case back to the prosecution, instructing them to comply with the directions on the application of the law given in the decision of 18 January 2005 (see paragraph 29 above).

32.  On 29 June 2006 the Sofia Military Prosecutor’s Office filed an amended indictment against the officers.

33.  On 5 September 2006 the judge-rapporteur, who this time was the president of the panel, again referred the case back to the prosecution, once more instructing them to comply with the earlier directions on the application of the law.

34.  In line with the court’s instructions, the Sofia Military Prosecutor’s Office indicted the five officers of murdering Mr Dimitrov in the course of the performance of their duties, with special cruelty, in a way which had been particularly painful for him, and while he had been in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code 1968 (see paragraph 100 below).

35.  At the start of the trial the applicants brought claims for non-pecuniary damages against the five officers and the Blagoevgrad Regional Police Directorate, whom they regarded as vicariously liable. At trial the court admitted in evidence the expert report drawn up during the preliminary investigation (see paragraph 25 above), and heard the five experts who had taken part in its preparation (see paragraph 24 above). All of them said that they fully stood by their conclusions. Their report was not contested by the parties.

36.  In a judgment of 9 November 2007, the Sofia Military Court found the five officers guilty of murder committed in connection with their duties, with special cruelty and in respect of a person who was in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code (see paragraph 100 below). It sentenced Major M.P. to nineteen years’ imprisonment and the other four officers to eighteen years’ imprisonment each. It partly allowed the applicants’ claims for non-pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Police Directorate, 80,000 Bulgarian levs (BGN), plus interest, to the first applicant and BGN 30,000, plus interest, to each of the other three applicants.

37.  The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to describe the numerous injuries suffered by Mr Dimitrov, and to conclude that he had died of traumatic injuries to his head and his aorta and that no pre-existing medical conditions had played a part in his death. It analysed in detail the expert, witness and other evidence, and expressed the view that Colonel A.K. had criminally tried to conceal the offence committed by the five officers. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It went on to set out its findings in relation to each aggravating element of the offence, concluding, inter alia, that the officers had acted with special cruelty and at a time when Mr Dimitrov had been in a helpless state because he had been handcuffed and because he had developed a commotion and contusion syndrome. However, the court did not find that Mr Dimitrov had died in a particularly painful manner. It held that the officers had acted with direct intent - they had kept on hitting Mr Dimitrov with intensity until he had died and even after that. The court also gave reasons on the quantum of the punishment that it had decided to mete out to each of the five officers. It found that there was a considerable preponderance of aggravating factors in relation to Major M.P. - he had been the group’s leader and had tried to conceal the offence - and a slight preponderance of aggravating factors in relation to the other four officers. It went on to find that Mr Dimitrov had not been in the process of committing an offence when attacked by the officers, and said that in any event in a State adhering to the rule of law the way of dealing with offenders was to bring them justice, not to kill them. Nor was there an indication that Mr Dimitrov had failed to heed an order or had tried to resist arrest. The court found that the officers’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph 102 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive.

38.  The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers’ actions. It went on to find that each of the applicants had suffered non-pecuniary damage as a result of Mr Dimitrov’s death, and determined its amount in equity.

3.  The first proceedings before the Military Court of Appeal

39.  The five officers and the Blagoevgrad Regional Directorate of Police appealed.

40.  On 19 February 2008 the Military Court of Appeal quashed the Sofia Military Court’s judgment and remitted the case. It held that the panel which had heard the case had been unlawful, because its President had earlier expressed his views on the merits of the case. He had done so by referring the case back to the prosecution on 5 September 2006 (see paragraph 33 above). The ground for the referral had been the prosecution’s failure to take heed of the instructions given in the earlier proceedings for judicial review of the discontinuance of the preliminary investigation, and in those judicial review proceedings the court had taken a stance on the merits of the case. By insisting that the prosecution comply with the instructions concerning the application of the substantive law, the presiding judge had in effect shown his agreement with that earlier reasoning and had therefore expressed his views on the merits of the case, which had made him partial.

41.  One judge dissented. In his view, the President of the Sofia Military Court’s panel had merely followed the applicable procedure and had not showed any bias.

4.  The second proceedings before the Sofia Military Court

42.  The Sofia Military Court re-tried the case, hearing a number of witnesses: relatives of Mr Dimitrov, the head of the Blagoevgrad police, General-Major B.Y., Colonel A.K. and other police officers, Ms M.Z. and Ms E.Z., and the doctor and the paramedic who had arrived at the scene after Mr Dimitrov’s death. The court also heard the five experts who had drawn up the expert report ordered during the preliminary investigation (see paragraph 24 above), and admitted in evidence documents relating to the organisation of the police operation and wiretaps.

43.  In a judgment of 2 October 2008, the Sofia Military Court convicted the five officers of murder committed in connection with their duties and with special cruelty, contrary to Article 116 § 1 (2) and (6) of the Criminal Code (see paragraph 100 below). It sentenced Major M.P. to eighteen years’ imprisonment and the other four officers to sixteen years’ imprisonment each. It partly allowed the applicants’ claims for non-pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Police Directorate, BGN 70,000, plus interest, to the first applicant and BGN 25,000, plus interest, to each of the other three applicants.

44.  The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to find that Mr Dimitrov had died as a result of traumatic injuries to his head and his aorta, and had suffered a number of other injuries as a result of the beating to which the five officers had subjected him. It found that no pre-existing medical conditions or previous use of cocaine had played a part in Mr Dimitrov’s death. He had not tried to flee or resist the officers, had not failed to heed their orders, and had not been in the middle of committing an offence requiring prompt intervention by the police. The court analysed in detail the witness, expert and others evidence, including the statements of Ms M.Z. and Ms E.Z. and of the five officers, as well as the parties’ arguments on the validity and the probative value of that evidence. The court also expressed serious concern about the actions of Colonel A.K. before, during and after the incident, and found that he had tried to conceal the actions of the five officers. It also observed that the evidence did not allow a conclusion that Mr Dimitrov had been a seasoned criminal who had rightfully incurred the wrath of the police. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It found that the officers’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph 102 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive. Their actions had amounted to aggravated murder, committed in the course of the performance of their duties and with special cruelty. However, it could not be said that the offence had been committed in respect of a person in a helpless state or in way that had been particularly painful for the victim. Nor could it be said that the officers had acted with direct intent - it was not sufficiently proved that they had a motive to kill Mr Dimitrov. They had acted with oblique intent (recklessness), being indifferent to the possibility of Mr Dimitrov dying as a result of the beating to which they had subjected him. That was evident from the fact that they had continued hitting him even after he had stopped moving because he had died. They had not tried to take any steps to avert the lethal outcome, but had on the contrary tried to conceal their act from the two officers who had been dispatched to the scene. It could not therefore be accepted that they had acted merely negligently. They had intended to arrest Mr Dimitrov in line with the plan for the police operation, but had without reason and without care for the consequences killed him by beating him to death. The underlying cause had been their low regard for the law and for Mr Dimitrov’s rights to life and bodily integrity.

45.  The court found that the officers’ clean criminal records and the good character shown in the course of their employment were mitigating circumstances. On the other hand, the fact that they had reduced Mr Dimitrov to helplessness before killing him and that their offence had been characterised by more than one aggravating factor was an aggravating circumstance. For four of the officers the mitigating circumstances outweighed the aggravating ones. However, that was not the case of Major M.P., who had been the group’s leader and had tried to cover up the offence by sending away the police patrol; he therefore merited a harsher punishment.

46.  The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers’ actions. It went on to find that each of the applicants had suffered non-pecuniary damage as a result of Mr Dimitrov’s death. It determined its amount in equity, acknowledging the applicants’ varying degrees of distress but also describing Mr Dimitrov as an “unappealing character”.

5.  The second proceedings before the Military Court of Appeal

47.  The five officers and the Blagoevgrad Regional Police Directorate appealed. So did the applicants, challenging the quantum of the officers’ sentences and of the quantum of the awards of damages.

48.  At the request of two of the officers, on 19 December 2008 the Military Court of Appeal ordered a fresh medical expert report, to be drawn up by five experts in forensic medicine, neurosurgery, cardiology and toxicology, to be chosen by the head of the Military Medical Academy. The court found that the expert report drawn up during the preliminary investigation (see paragraph 25 above) contained contradictory conclusions about the exact way in which Mr Dimitrov’s death had been caused and the position of his body at that time.

49.  The expert report became ready on 11 February 2009. It was drawn up by Dr Ts.G., head of the forensic medicine ward of the Military Medical Academy, Dr E.N., head of division at the Academy’s Pathomorphology, Autopsy and Biopsy Diagnostic Department, Dr K.K., head of the Academy’s Urgent Toxicology and Allergology Clinic, Dr D.G., head of the Academy’s Cardiology and Rheumatology Clinic, and Dr N.M., a neurosurgeon of Academy’s Neurosurgery Clinic.

50.  The experts took into account the results of the first and the second autopsies, statements given by the five officers and witnesses, and the results of fresh histological tests that they had carried out on the samples taken during the first autopsy (see paragraph 23 above). On that basis they concluded, inter alia, that the main cause of Mr Dimitrov’s death had been positional asphyxia, which had led to a mechanical blockage of his respiration as a result of the position in which he had been put. The medical findings - in particular, the cyanosis, the swelling of the internal organs, the vascular congestion, the limited petechial haemorrhages and liquid blood, and the faecal mass in the anus - were the classical symptoms of hypoxia. All witnesses’ statements showed that upon his arrest Mr Dimitrov had been put in a hog-tie position - face against the ground and hands fixed to one another behind the back - which was known to obstruct the respiratory tract and could lead to death. The medical findings - traces of handcuffs on both wrists, soil and abrasions on Mr Dimitrov’s face - albeit indirectly, also showed that he had been put in that position. The asphyxia had been aided by Mr Dimitrov’s chronic illnesses: limited flexibility of the lungs due to massive adhesions of the visceral and parietal pleurae, distended and full stomach which had in that position pressed the diaphragm, a hypertrophy of the heart due to the chronic abuse of cocaine (something shown by the fresh histological tests), moderate obesity, and a short neck. The emotional and physical stress under which Mr Dimitrov had been put, coupled with the possibility of emotional delirium resulting from the use of cocaine, could also have played a part.

51.  The experts categorically disagreed with the conclusion of the previous expert report that the death had been due to a closed cerebral trauma and a traumatic rupture of the aorta. The results of the two autopsies and the fresh histological tests excluded the possibility of cerebral trauma. So did the witness statements that Mr Dimitrov had been shouting and raving. The haemorrhages under the pia mater and the swelling of the brain were in fact well-known symptoms of hypoxia. The location of the contusions on the head and the face did not match the location of the haemorrhages under the pia mater. The numerous small haemorrhages around the blood vessels of the brain stem found during the second autopsy, which had taken place nine days after the death, had for sure been postmortal. The rupture of the aorta was also definitely postmortal, had most probably occurred during the autopsy, and had not been caused by a blow. This was indicated by the lack of additional surrounding injuries (such as massive smashing of soft tissue, broken vertebrae and ribs, or injuries to other blood vessels, the lungs or the longitudinal ligament), the manner in which the blood had extravasated into the surrounding tissues (which was consistent with postmortal bleeding, something also confirmed by the fresh histological tests), and the small amount of blood in the left pleural cavity - insignificant for a rupture of the aorta, which would normally cause profuse bleeding of more than a litter of blood. A small amount of bleeding was normally something that occurred during autopsy dissections of blood vessels.

52.  The experts went on to describe numerous traumatic injuries to Mr Dimitrov’s body. In their view, some of those - chiefly those to the front of the head, to the front of the body and to the limbs - had been caused by an impact or impacts against the ground. The injuries to the wrists had been caused by handcuffs. The other injuries to the head, the back and the waist were due to blows with hard blunt objects administered during a short period of time but not in a very violent manner - something shown by the lack of large subcutaneous haematomas, of smashed soft subcutaneous tissues, of broken bones, or of traumatised joints. It was not possible categorically to determine the exact position of Mr Dimitrov’s body at the time when he had suffered the injuries. The traumatic injuries had not directly caused his death.

53.  The applicants objected against the report’s admission into evidence, for two reasons. First, there had been no grounds to appoint experts not featuring on the official lists. Secondly, the experts had not been randomly selected by the court as required by law, but chosen by an outsider in respect of whom there were reasons to suspect that he was biased, because a medical doctor from the Military Medical Academy had helped the Blagoevgrad police present misinformation about the cause of Mr Dimitrov’s death. The applicants also requested the recusal of the judges dealing with the case, saying that their decision to order the report under such conditions was indicative of bias.

54.  The court rejected the objection and the recusal request, holding that under section 396 of the Judiciary Act 2007 (see paragraph 105 below) it was not bound to appoint experts only from among the persons featuring on the official lists. The rule in section 396(1) was not imperative. The fact that the court had not chosen the experts itself but had delegated that task to the head of the Military Medical Academy showed that it wished to maintain its impartiality by not appearing too closely involved in the experts-selection process. There was no indication that medical doctors from the Academy had tried to hide facts, and there was thus no reason to suspect bias on the part of experts from the Academy. In any event, those experts had been appointed in their personal capacity and not as representatives of the institution.

55.  The applicants also challenged the impartiality, the objectiveness and the competence of the experts who had drawn up the report, and requested an additional expert report, to be drawn up by seven experts appointed in line with section 396(1) of the Judiciary Act 2007. The court found no need to replace the experts, saying that there was no reason to doubt their competence or impartiality, but ordered them to go over the histological samples taken during the second autopsy and, based on their findings, say whether they stuck to their conclusions, and to describe, on the basis of the expert reports drawn up during the preliminary investigation, all injuries to Mr Dimitrov’s body.

56.  In their additional report, filed on 27 April 2009, the five experts said that they had been unable to find the histological samples taken during the second autopsy (see paragraph 25 above). They could not therefore draw any conclusions on their basis. The experts went on to describe a number of injuries not mentioned in their original report. In the experts’ view, all those injuries had been caused by hard blunt objects. Some could have been caused by a truncheon, others from an impact against the ground. However, those injuries had not been life-threatening.

57.  The court heard the experts and admitted other evidence.

58.  During the oral arguments the applicants reiterated their objections to the first expert report ordered by the court, and made similar objections to the additional report. They also contested the conclusions of those reports, saying that they had relied on erroneous assumptions and had failed to take into account the conclusions of the expert report prepared during the preliminary investigation, and maintained that there were no grounds to regard those fresh reports as more accurate.

59.  On 5 August 2009 the Military Court of Appeal upheld the Sofia Military Court’s judgment, agreeing with all of its findings of fact, save for those relating to the exact medical reasons for Mr Dimitrov’s death. Based chiefly on the conclusion of the fresh expert reports that it had ordered in the appellate proceedings (see paragraphs 49-52 and 56 above), the court found that Mr Dimitrov had died of asphyxia occurring as a result of the officers pressing his face against the ground after handcuffing him with hands behind his back, and keeping him in that position in spite of his cries that he was suffocating and his pleas. The particularities of his physiology and his medical conditions had also helped, but had not been decisive. There was no evidence that his death had been natural or resulting from the use of cocaine; that assertion ran counter to the conclusions of the fresh medical expert reports. The court found that those reports were more reliable than the one drawn up during the preliminary investigation (see paragraph 25 above), for several reasons. First, they had been drawn up not only by forensic experts, but also by experts in the fields of pathoanatomy, narcology, cardiology and neurology. All those experts had categorically said that the first report had been erroneous in its interpretation of the results of the histological tests and its discrepancies with objective medical findings. The conclusions of the fresh reports were more consistent with the witnesses’ evidence, and were based on categorical histological findings supported by visual materials. The previous report had not explained the sequence of the deadly injuries - how Mr Dimitrov, with his heart stopped and unconscious as a result of his cerebral trauma, had managed to stand up, receive a blow in the back that had ruptured his aorta, and shout that he was suffocating. The second report was more persuasive in its explanation that there had been no cerebral trauma and that the rupture of the aorta had been postmortal, probably occurring during the autopsy. That last point was also confirmed by the fresh histological tests. The histological samples taken in the course of the second autopsy had vanished and could not be re-tested with a view to assessing the validity of the conclusions drawn on their basis, whereas the samples taken in the course of the first autopsy and used for the fresh expert report were available for inspection and re-testing.

60.  The Military Court of Appeal also gave reasons why it agreed with the lower court’s rulings concerning the legal characterisation of the offence, the mens rea, and the aggravating factors. In particular, it said that there was no evidence in support of the claim that Mr Dimitrov’s death had been accidental, and therefore no room for the application of Article 15 of the Criminal Code (see paragraph 103 below). The officers had been fully aware of the situation and of the fact that they had caused Mr Dimitrov to suffocate, suffer pain and die, but had pressed on with their actions.

61.  In relation to the points made by the applicants in their appeal and during the oral arguments, the court said, inter alia, that there was no reason to disturb the lower court’s findings concerning the mens rea, and that there had been no irregularities in the appointment of the five experts who had been ordered to draw up fresh expert reports in the proceedings before it. The court reiterated that the appointment had not been in breach of section 396 of the Judiciary Act (see paragraph 105 below). It also said that a failure to follow rules not featuring in the Code of Criminal Procedure could not be regarded as a material breach of the rules of procedure. It reiterated its findings concerning the alleged partiality of the experts, and went on to say that they had been competent to give an opinion on the points submitted to them, and had not impermissibly veered out of their fields of expertise. The applicants’ argument that the experts had relied on data which were not in evidence was also ill-founded. The data used by the experts did not necessarily have to coincide with the evidence admitted by the court at trial or on appeal.

6.  The first proceedings before the Supreme Court of Cassation

62.  Both the officers and the applicants appealed on points of law. In an additional brief the applicants reiterated their objections to the expert reports ordered by the Military Court of Appeal. In particular, they challenged the manner in which the experts had been appointed, the accuracy of their conclusions, and the alleged failure of the court to respond to the applicants’ numerous criticisms of those conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements made at the pre-trial stage which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov’s body, and had made unwarranted assumptions - such as those that Mr Dimitrov had used cocaine and had had heart problems.

63.  In a judgment of 20 January 2010 (реш. № 538 от 20 януари 2010 г. по н. д. № 598/2009 г., ВКС, II н. о.), a three-member panel of the Supreme Court of Cassation quashed the Military Court of Appeal’s judgment and remitted the case.

64.  The court held, inter alia, that the Military Court of Appeal had not breached section 396 of the Judiciary Act 2007 (see paragraph 105 below) when appointing the experts, and that those experts were not partial. That provision allowed the appointment of experts who did not feature on the official lists. The experts had been selected by the head of the Military Medical Academy on the basis of their special skills. There was no indication that the Academy had tried to conceal the murder or tried to devise ways of doing so, as argued by the applicants. The applicants had not objected to Dr Z.K., who was also from the Academy and had taken part in the drawing up of the first expert report, or to Prof Dr S.R., who also, in view of his advanced age, had not been fit to serve as an expert under the applicable rules. The principal rules in that domain were those of the Code of Criminal Procedure, whose foremost requirement was for the experts to be impartial and professionally competent.

65.  The applicants’ arguments that the experts had relied on data which was not in evidence and that their report was incomplete because based on less histological samples were also ill-founded. The experts were not lawyers and could not be expected to identify admissible evidence. They had used the materials in the case file, including the statements of the accused, which did not necessarily mean statements given before they had been charged. In any event, those statements were identical to those given at trial. As for the histological samples, the Military Court of Appeal had made efforts to find them with a view to making them available to the experts, to no avail. That was probably due to an oversight on the part of one of the original experts, Prof Dr S.R., which cast doubt on the accuracy of the conclusions reached in the expert report in whose preparation he had taken part.

66.  The court went on to say that the Military Court of Appeal had made a mistake in sticking fully to the Sofia Military Court’s findings of fact concerning the violence against Mr Dimitrov while at the same time accepting, on the basis of the fresh expert reports, that the cause of his death had been asphyxia rather than cerebral trauma and rupture of the aorta. It had also erred in assessing the evidence of Ms M.Z. and Ms E.Z. and juxtaposing it against the statements of the five officers. Based on the experts’ conclusions, the Military Court of Appeal should have re-assessed the evidence concerning the dynamics of the violence against Mr Dimitrov and the participation of each of the officers in it. It had not analysed in detail the officers’ statements, and had all too easily accepted that they did not match the rest of the evidence and were a defence position. The court had also omitted to discuss the rules governing the use of force by the police and the evidence concerning the officers’ task. It had also found that the asphyxia had resulted from pressing Mr Dimitrov’s body against the ground without elucidating through expert evidence the intensity and the duration of the pressure that could cause asphyxia in such circumstances and without seeking to establish whether Mr Dimitrov’s illnesses could not cause sudden cardiac death. All of that was crucial with a view to establishing the objective elements of the offence, but had remained unclear because the Military Court of Appeal had not properly analysed the evidence and had not sought to establish the truth by, inter alia, including a pulmonologist among the experts that it had appointed.

67.  However, those errors had not resulted, as argued by the officers, in a breach of their right of defence arising out of differences between the facts underlying the initial charges and those established by the court of appeal. That court’s fresh findings of fact had concerned solely the biological cause of Mr Dimitrov’s death, which meant that there had not been an impermissible modification of the factual basis of the charges.

68.  The Military Court of Appeal had also made contradictory findings, because it had accepted that the beating had not been directly related to the death while at the same time finding that the murder had been committed in an especially cruel way because of the beating. Its reasons on the mens rea were also internally inconsistent, because it had accepted oblique intent while making findings which were more consistent with direct intent. This had been a result of sticking to the reasoning of the Sofia Military Court, which had been based on a different cause of death. Lastly, the court had not given reasons in relation to the quantum of the punishment, disregarding the officers’ claim that their sentences were too harsh.

7.  The third proceedings before the Military Court of Appeal

69.  The Military Court of Appeal started re-examining the case by ordering a fresh medical expert report. The applicants asked the court to appoint only experts featuring on the official lists and to include among them a psychologist and a gastroenterologist. The court turned the requests down, saying that the five experts who had drawn up the reports that it had previously ordered (see paragraphs 49-52 and 56 above) had been duly appointed and that at that stage there was no need for a psychologist and a gastroenterologist. However, in line with the instructions of the Supreme Court of Cassation (see paragraph 66 in fine above), it ordered that the expert team should be increased to six members and include a pulmonologist, also to be chosen by the head of the Military Medical Academy. That pulmonologist was Dr D.D. of the Academy’s Pulmonology department.

70.  In their report, filed on 13 April 2010, the experts said, inter alia, that Mr Dimitrov had had a number of pre-existing medical conditions and other factors (blood from traumas obstructing the nose and mouth, and a full stomach) which had facilitated the process of asphyxia after he had been put in a harmful position. Those additional factors made it likely that less force and less time had been necessary fully to develop the process of asphyxia; it was however impossible exactly to quantify that force. The process of asphyxia in a healthy person, given a total blockage of the airways, would take several minutes, and if the person concerned was able to breathe in several times, the process would take longer. The force applied to the back would have to be more than one hundred and two kilograms. Mr Dimitrov’s pre-existing medical conditions had played a significant role in the lethal outcome. They could also be in themselves an independent cause of death. The use of cocaine, however insignificant, could also lead to sudden cardiac death.

71.  The court admitted the new report, as well as the two expert reports drawn up during the previous appellate examination of the case, in evidence. It also heard the experts and admitted other items in evidence.

72.  In view of the serious discrepancies between the conclusions of the expert report prepared during the preliminary investigation and those ordered by the Military Court of Appeal, the applicants asked the court to order an “arbitrage” expert report, to be drawn up by experts who featured on the official lists and had not already taken part in the proceedings. They pointed to previous cases in which such reports had been ordered. The prosecution backed the applicants’ request. The court turned the request down, saying that the Supreme Court of Cassation had already dealt with the discrepancies between the expert reports, holding that there were no grounds to prefer the earlier one. That court had not found it necessary to seek an “arbitrage” expert report. The latest expert report had been ordered in line with the Supreme Court of Cassation’s instructions, and its conclusions corresponded to those of the expert reports ordered during the previous appellate examination of the case.

73.  During the oral arguments the applicants reiterated their objections to the expert reports ordered by the Military Court of Appeals, challenging the manner of appointment of the experts and their methods of work and conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov’s body, had made unwarranted assumptions - for example that Mr Dimitrov had used cocaine and had had heart problems, and were mutually inconsistent in that they characterised differently the asphyxia from which Mr Dimitrov had allegedly died. However, even if the experts’ conclusions were to be taken as true, there were still grounds to accept that the five officers had murdered Mr Dimitrov.

74.  On 12 November 2010 the Military Court of Appeal upheld the five officers’ conviction and the order for damages against them, but decided to reduce their sentences to nine years’ imprisonment for Major M.P. and eight years’ imprisonment for each of the other four officers.

75.  The court began by setting out the lower court’s findings of fact and the developments relating to the fresh expert reports ordered during the previous appellate examination of the case. It went on to describe in detail the experts’ conclusions, as well as the conclusions of the additional expert report drawn up with the participation of a pulmonologist, and the explanations given by the experts at the hearing. The court fully accepted the conclusions of those reports. In respect of the reports ordered during the previous appellate examination of the case, it gave the same reasons as those that it had given previously (see paragraph 59 above). In respect of the additional report that it had ordered, the court said that that report - prepared with the participation of a pulmonologist - had refined and supplemented the experts’ conclusions in the previous appellate proceedings, and had not reached a different conclusion about the cause of Mr Dimitrov’s death. The conclusions of the experts matched the rest of the evidence, and the objections against them were ill-founded.

76.  On the basis of the expert reports, the court made fresh findings of fact. It found that the officers had handcuffed Mr Dimitrov and had pushed him to the ground. After that all of them had hit him many times on the body, back and head. Those blows had been quite intensive, and part of them had been administered with a blunt object. The beating had continued for a considerable amount of time. All of that had caused Mr Dimitrov difficulties in breathing, but the officers had continued beating him, with the result that he had been unable to change position to ease his breathing. His breathing had also been hampered by his pre-existing medical conditions and by the cocaine that he had taken some time before the incident. All of that, coupled with the stress underwent by Mr Dimitrov, had caused him to asphyxiate and die. The court upheld the rest of the lower court’s findings of fact.

77.  The court went on to discuss in detail the evidence, including the officers’ statements, which it regarded as untruthful. It found that the officers had beached sections 78 and 79 of the Ministry of Internal Affairs Act 1997 (see paragraphs 97 and 98 below) by using excessive force without any necessity to do so, because there was no evidence that Mr Dimitrov had resisted arrest. Even if the officers had initially encountered some resistance, they had continued the use of force after handcuffing Mr Dimitrov. It had to be observed in that connection that they had been well armed, trained and experienced.

78.  The court specifically rejected the claim, put forward by the officers’ defence, that Mr Dimitrov had died of natural causes. It was true that the injuries which the officers had inflicted on him had not directly caused his death. However, those injuries, coupled with the position in which the officers had forced Mr Dimitrov and his pre-existing conditions, had triggered the chain of events leading to his death. The force and violence used by the officers had been a key part of that chain, and in that sense each of them had contributed to the end result. Their objection that their actions did not have a causal link with the death was therefore unfounded. Mr Dimitrov’s pre-existing conditions could not have in themselves caused his death. If the officers had not acted as they did, Mr Dimitrov would have been alive.

79.  The court then gave reasons why, in spite of its partly fresh findings of fact, it agreed with the lower court’s rulings concerning the legal characterisation of the offence, the mens rea, and the aggravating factors.

80.  In relation to the points made by the applicants during the oral arguments, the court said, inter alia, that there had been no irregularities in the appointment of the five experts who had been ordered to draw up fresh expert reports in first appellate proceedings, or in their using materials not admitted in evidence. It noted that those arguments had been examined and rejected by the Supreme Court of Cassation in its judgment of 20 January 2010, and briefly summarised the reasons given by that court (see paragraph 65 above). The two expert reports ordered during the previous appellate examination of the case were therefore to be fully credited. So was the one ordered during the second appellate examination, for the same reasons. The reports were not mutually inconsistent but in fact supplemented each other. Nor had the experts veered out of their spheres of competence; they had based their conclusions on the histological tests.

81.  The president of the panel dissented as regards the quantum of the punishment. In his view, there were no grounds to go below the sentences meted out by the lower court, which had been based on a careful assessment of the various aggravating and mitigating circumstances. It was not to be overlooked that a term of imprisonment was the most lenient punishment that the law envisaged in respect of murder, the alternative being life imprisonment. The fact, established for the first time in the appellate proceedings, that Mr Dimitrov had medical conditions which had facilitated his death, was a mitigating circumstance, but not an exceptional one, and did not warrant opting for a punishment below the statutory minimum. It had played a minor role in the death, the major factor being the violence to which the officers had subjected Mr Dimitrov. That violence had been in breach of sections 78 and 79 of the Ministry of Internal Affairs Act 1997 (see paragraphs 97 and 98 below) and had had nothing to do with the officers’ duties.

8.  The second proceedings before the Supreme Court of Cassation

82.  The prosecution, the officers, the Blagoevgrad Regional Police Directorate and the applicants appealed on points of law.

83.  In an additional brief the applicants, among other things, reiterated their objections to the expert reports ordered by the Military Court of Appeal. In particular, they challenged the manner in which the experts had been appointed, the accuracy of their conclusions, and the alleged failure of the court to respond to the applicants’ numerous criticisms of those conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov’s body, and had made unwarranted assumptions - such as that Mr Dimitrov had used cocaine and had had heart problems. They also complained about the Military Court of Appeal’s refusal to order an “arbitrage expert report”.

84.  In a judgment of 9 June 2011 (реш. № 141 от 9 юни 2011 г. по н. д. № 54/2011 г., ВКС, I н. о.), a three-member panel of the Supreme Court of Cassation, by two votes to one, quashed the Sofia Military Court’s and the Military Court of Appeal’s judgments and acquitted the five officers. It also rejected the applicants’ claims for damages.

85.  The court started by saying that enough evidence had been gathered and the relevant facts had been sufficiently elucidated. There was therefore no bar to disposing of the case immediately. It was not permissible to determine anew the question how Mr Dimitrov had died; when the case had been before the Supreme Court of Cassation for the first time (see paragraphs 63-68 above), it had found that the point had been determined correctly. The first panel of the Military Court of Appeal had already answered the question on the basis of the fresh expert reports that it had ordered - Mr Dimitrov’s death had resulted from asphyxia, not cerebral trauma and a rupture of the aorta. That court had given reasons why it had chosen to believe the conclusions of the fresh expert reports rather than those of the initial expert report. However, there had been a critical flaw in its reasoning in relation to the actus reus. It had accepted that the five officers had administered a number of blows to Mr Dimitrov. At the same time, it had found that the blows could not have caused his death. The court had therefore overlooked the lack of a causal connection between the death and the officers’ actions, whereas only such a causal connection could serve as a basis for holding them criminally liable for the death. They were therefore to be acquitted, because their actions had not constituted the offence with which they had been charged.

86.  Moreover, there had been an irreparable breach of the rules of procedure affecting the rights of the defence, and that breach could solely be made good by acquitting the officers. The allegations in the indictment concerning the exact manner in which the officers had tried to arrest Mr Dimitrov were quite different form the Military Court of Appeal’s ultimate findings on the same point. That had amounted to an impermissible modification of the factual basis of the charges, which had not only been contrary to the rules of procedure but also in breach of Article 6 of the Convention. No efforts had been made to amend the charges, as possible under the rules of procedure, and that omission could not be allowed to prejudice the accused. The only way to rectify it at that stage was to acquit them. It was true that when hearing the case for the first time the Supreme Court of Cassation had found that there had not been an impermissible modification in the factual basis of the charges in relation to the cause of death (see paragraph 67 above). Therefore, in as much as the court had not taken a stance in relation to the factual elements of the charges, there was no bar to reviewing that point. Since the Military Court of Appeal’s findings of law had been based on findings of fact which had not featured in the indictment, it had to be concluded that the officers had been found guilty of a charge which had not been duly proffered against them. At the same time, the facts forming the basis of the initial charges against them did not constitute an offence.

87.  Even if the case were to be analysed by reference to the Military Court of Appeal’s impermissible fresh findings of fact, the officers’ actions did not constitute an offence. The officers’ act had been perpetrated in the course of an operation for the arrest of a person known to have committed an offence. The officers’ attitude to that person’s death did not point to intent, which was clear from the cause of the death. Therefore, it had to be determined whether the officers had acted negligently in relation to the death, or whether the case fell under Article 15 of the Criminal Code (see paragraph 103 above) because the death had been accidental. The elements that needed to be taken into account for that purpose were the expert reports ordered by the Military Court of Appeal, the rules governing arrest, as well as the internal police instructions on the use of handcuffs and the position in which to put handcuffed arrestees. Under those instructions, the police could use handcuffs and put arrestees face against the ground. They also had constantly to monitor the situation. A person with handcuffs on could remain in that position for a maximum of one hour without being checked for blood flow in the limbs. Therefore, police officers were entitled to put an arrestee face against the ground for not more than one hour. In the case at hand, the operation had lasted about ten minutes, and death by asphyxia could occur, as stated by the experts, in three to four minutes. Therefore, the officers had not acted negligently, because they had not been able to foresee the harmful consequences. They had been carrying out a police operation in line with the relevant rules, which could not a priori envisage death of the arrestee. In the circumstances, the officers had not been in a position to foresee the result or avert it. The events had unfolded very quickly, which had made it impossible to react, and the death had been due to a number of objective factors: chronic medical conditions; distended and full stomach; prior use of cocaine, which had exacerbated the chronic conditions and had led to overagitation; moderate obesity; and an anatomical peculiarity - shorter neck. Those factors, whose quick action, precluding any life-saving intervention, had led to the death, had been out of the officers’ control. Therefore, the case concerned an accident, within the meaning of Article 15 of the Criminal Code, for which the officers were not criminally or civilly liable.

88.  There was no need to remit the case, for two reasons. First, it was possible to resolve all contentious issues immediately. Secondly, a remittal would run counter to the need to determine the criminal charges against the officers within a reasonable time, as required by Article 6 § 1 of the Convention.

89.  The president of the panel dissented. In his view, it was premature to finish the case in that instance. This was in principle not permissible in cases where the cassation court found a breach of the rules of procedure and made fresh findings of fact. In such circumstances, it was necessary to remit the case, so as to preserve the separation of roles between appellate and cassation courts. In any event, there had been no breach of the rules of procedure - as held by the panel of the Supreme Court of Cassation which had dealt with the case before (see paragraph 67 above). The main reason militating in favour of remitting the case, however, was the need to order an “arbitrage” expert report, as requested by the applicants, with a view to resolving the discrepancies between the expert report ordered during the preliminary investigation and those ordered by the Military Court of Appeal, which had arrived at differing conclusions about the cause of Mr Dimitrov’s death. There was nothing in the previous judgment of the Supreme Court of Cassation to preclude such a course of action. Such an expert report was the only means of resolving the differences of opinion between respected medical professionals, and the sole basis for the court to determine the validity of one or the other version. It was in addition the only means of finding out how the testing of tissue samples taken from the same individual at different times could lead to conflicting conclusions about the cause of his death. All of that showed that the refusal to order an “arbitrage” expert report, to be drawn up by at least seven experts in the fields that had given rise to controversies and who had nothing to do with the institutions from which the previous experts came, had obstructed the possibilities to find out the truth.

C.  Public statements about the case by the Minister of Internal Affairs and by the Prime Minister

90.  On 10 August 2009, shortly after the Military Court of Appeal gave its second judgment in the case (see paragraph 59 above), about a thousand persons, including police officers, held a rally in Blagoevgrad to protest against the officers’ conviction and sentences. At about the same time the Minister of Internal Affairs met with the five officers’ relatives and the head of the Blagoevgrad Regional Directorate of Internal Affairs, and gave an interview in which he said that the officers had been carrying out their duties, according to plan, but the operation had turned out badly. They had not set out to commit a murder. The Minister was certain that the higher court would “approach [the case] more in-depth” and would “analyse absolutely all facts and circumstances, so that [the case] would have a truly just resolution”. At about the same time the Prime Minister said before the media that the officers’ convictions would be overturned, and urged the Supreme Court of Cassation to take “the right decision”.

D.  Information submitted by the applicants about relatives of judges in the Supreme Court of Cassation

91.  The applicants presented three publications in the Bulgarian press according to which the son of the judge presiding the panel of the Supreme Court of Cassation that heard the case for the first time (see paragraphs 62-68 above) was employed by the Ministry of Internal Affairs.

E.  The internal inquiry by the Ministry of Internal Affairs

92.  Parallel to the criminal proceedings, on 14 November 2005 the Secretary General of the Ministry of Internal Affairs appointed a commission comprising two officers from the Ministry’s inspectorate and two experts from the Ministry’s criminal police division to conduct an inquiry into the actions of the five officers and to examine whether there existed a causal link between those actions and Mr Dimitrov’s death.

93.  In its report, filed on 21 November 2005 and immediately classified, the commission said that it had taken evidence from all persons involved in the events, officers and civilians; had spoken to Dr Z.K., one of the medical doctors who had performed an autopsy on Mr Dimitrov’s body (see paragraph 23 above); had gathered documents relating to the planning of the operation; had listened to all radio and telephone traffic of the police and of the emergency services during the events; and had obtained certified copies of some of the evidence gathered in the course of the criminal proceedings.

94.  The commission then described the planning phase of the operation, saying that Mr Dimitrov had become a target of the nation-wide operation against the “criminal contingent” on the basis of information that he was involved in drug trafficking and pimping, including of underage girls, and because he featured on the police list of “criminally active persons”. The commission went on to say that the reason for the failure of the police to apply for search warrants beforehand had been the uncertainty about the precise date of the operation, and that this had not been a problem because the rules of criminal procedure allowed ex post facto judicial approval of searches and searches incident to arrests. The five officers dispatched to intercept Mr Dimitrov had been briefed about the operation and their respective roles and duties at 7 p.m. on 10 November 2005, but had not been given prior information on Mr Dimitrov’s identity.

95.  The commission’s description of the events after 8.40 p.m. has been set out in paragraph 16 above. Its report was categorical that the five officers had not hit or kicked Mr Dimitrov, but had merely used force and handcuffs to subdue his fierce resistance to arrest. It described some traumatic injuries to Mr Dimitrov’s body, but concluded that those had no causal link with his death. On that basis, the commission concluded that, for the time being, the five officers’ actions during the operation could be regarded as lawful and correct.

96.  The commission’s report was de-classified on 12 July 2012.

II.  RELEVANT DOMESTIC LAW

A.  Use of force by the police

97.  Section 78 of the Ministry of Internal Affairs Act 1997, in force until 1 May 2006, provided, in so far as relevant:

“(1)  The police may use physical force and auxiliary means when performing their duties only if those duties cannot be carried out in a different way, in cases of:

1.  resistance or refusal to obey a lawful order;

2.  arrest of an offender who does not obey or resists a police officer;

...

5.  attacks against civilians or police officers;

...

(2)  Auxiliary means are: handcuffs; straitjackets; rubber and electroshock truncheons and devices; chemical substances approved by the Minister of Health, service animals - dogs, horses; blank cartridges, cartridges with rubber, plastic or shock bullets; devices for the forced stopping of motor vehicles; opening devices, light or sound devices with distracting effect; water-spraying and air-pressure devices; armoured vehicles and helicopters.

98.  Section 79 provided:

“(1)  Physical force and auxiliary means are to be used only after giving warning, except in cases of sudden attacks or of freeing hostages.

(2)  The use of physical force or auxiliary means shall correspond to the specific circumstances, the character of the breach of public order and the personality of the offender.

(3)  When using physical force or auxiliary means police officers must if possible protect the health of the persons against whom those are deployed, and must take all measures to safeguard their life of those persons.

(4)  The use of physical force or auxiliary means shall be discontinued immediately after they have achieved their aim.

(5)  The use of physical force or auxiliary means against clearly identifiable minors or pregnant women. This prohibition does not apply in cases of mass disorder, provided all other measures have been exhausted.”

99.  On 1 May 2006 those provisions were superseded by sections 72 and 73 of the Ministry of Internal Affairs Act 2006. Until recently, the wording of those provisions was largely identical to that of the earlier ones. However, they were amended with effect from 1 July 2012 and now section 72(1) provides that physical force and auxiliary means may be used “only if absolutely necessary”. A newly added subsection 3 of section 73 provides that “police officers shall use only the force absolutely necessary”, and a newly added subsection 7 provides that “[i]t is forbidden to use lethal force to arrest or prevent the escape of a person who has committed or is about to commit a non-violent offence if that person does not pose a risk to the life or health of another”. The provisions of the Act governing the use of firearms by the police were also amended. In the explanatory notes to the bill the Government referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and this Court’s case-law.

B.  Relevant provisions of the Criminal Code 1968

100.  Article 116 § 1 of the Criminal Code 1968 provides that an official committing murder in connection with the performance of his or her duties (point 2), of a person who is in a helpless state (point 5), and with special cruelty or in a way that is particularly painful for the victim (point 6) is liable to fifteen to twenty years’ imprisonment or life imprisonment with or without commutation.

101.  Article 12 of the Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in self-defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party. Until 1997 there were no other provisions regulating this issue. However, the courts appear to have applied Article 12 in certain cases concerning the use of force to effect an arrest.

102.  Article 12a § 1 of the Code, added in 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.

103.  Article 15 of the Code provides that the perpetrator is not guilty of an offence if he or she was not bound or able to foresee that his or her actions will lead to harmful consequences; such an act is considered accidental.

C.  The appointment of experts in criminal proceedings

104.  Article 147 of the Code of Criminal Procedure 2005 provides that the preparation of an expert report is to be assigned to experts in the relevant field of science, art or technology. Article 148 § 1 sets out the grounds on which experts can be disqualified (various circumstances indicative of bias, lack of professional credentials, etc.)

105.  Section 396(1) of the Judiciary Act 2007, as in force at the material time, provided that the authority requesting an expert report was to appoint as experts, by random selection, persons featuring on an official list of persons approved to act as such experts. An amendment that came into force in April 2011 dropped the random selection requirement. Section 396(2) provides that if necessary the authority can appoint as expert a person not featuring on the list. In a judgment of 29 May 2012 (реш. № 247 от 29 май 2012 г. по н. д. № 768/2012 г., ВКС, III н. о.), the Supreme Court of Cassation held that if a court were to appoint a person not featuring on the list, as possible under that provision, it had to say why it considered it necessary to do so: for instance the lack of experts in the relevant sphere, the specifics of the issue that needed to be elucidated, or the existence of grounds to disqualify certain experts featuring on the list. The lack of reasons on that point, coupled with the availability of experts featuring on the list, amounted to grounds to suspect bias.

D.  Powers of the Supreme Court of Cassation in the examination of appeals on points of law

106.  Under Article 348 § 1 of the Code of Criminal Procedure 2005, the grounds on which the Supreme Court of Cassation may quash a lower court’s judgment are a breach of the substantive law, a material breach of the rules of procedure, or manifest disproportionality of the sentence. Under Article 354 §§ 1-4 of the Code, the Supreme Court of Cassation court may (a) uphold the lower court’s judgment; (b) quash the lower court’s judgment and discontinue or stay the proceedings; (c) modify the lower court’s judgment; or (d) quash the lower court’s judgement fully or in part and remit the case for re-examination. In interpreting its powers under those provisions, the Supreme Court of Cassation has consistently held that it cannot make fresh findings of fact, and that its role is limited to ensuring that the lower courts have duly followed the rules concerning the admission and assessment of evidence, and that their rulings are not based on inexistent or distorted evidence or contrary to formal logic (see реш. № 1100 от 8 януари 2007 г. по н. д. № 619/2006 г., ВКС, III н. о.; реш. № 16 от 17 януари 2007 г. по н. д. № 687/2006 г., ВКС, II н. о.; реш. от 6 февруари 2007 г. по н. д. № 753/2006 г., ВКС, I н. о.; реш. № 785 от 23 януари 2008 г. по н. д. № 574/2007 г., ВКС, III н. о.; реш. № 3 от 29 януари 2008 г. по н. д. № 660/2007 г., ВКС, III н. о.; реш. № 378 от 14 октомври 2008 г. по н. д. № 370/2008 г., ВКС, III н. о.; реш. № 237 от 29 април 2009 г. по н. д. № 187/2009 г., ВКС, I н. о.; реш. № 168 от 8 май 2009 г. по н. д. № 108/2009 г., ВКС, III н. о.; реш. № 44 от 29 януари 2010 г. по н. д. № 694/2009 г., ВКС, III н. о.; реш. № 66 от 8 март 2010 г. по н. д. № 707/2009 г., ВКС, II н. о.; реш. № 97 от 27 април 2010 г. по н. д. № 6/2010 г., ВКС, III н. о.; реш. № 97 от 24 февруари 2011 г. по н. д. № 691/2010 г., ВКС, II н. о.; реш. № 630 от 20 юли 2011 г. по н. д. № 697/2010 г., ВКС, III н. о.; and реш. № 37 от 18 април 2013 г. по н. д. № 1990/2012 г., ВКС, II н. о.).

107.  On 2 September 2011 the Government laid before Parliament a Bill for the amendment of the Code of Criminal Procedure 2005. The Bill proposed, inter alia, the addition of a new paragraph 5 in Article 354 of the Code. Under that provision, when quashing for a second time an appellate court judgment, the Supreme Court of Cassation can remit the case for a ruling on the merits only to the appellate court; if the appellate court’s fresh judgment is then appealed against, the Supreme Court of Cassation has to decide the case on the merits instead of remitting it again, and in doing so has the powers of an appellate court. In the explanatory notes to the Bill the Government said that repetitive examinations of criminal cases by the Supreme Court of Cassation, which unduly protracted criminal proceedings, had become an acute problem. That court’s limited jurisdiction in respect of questions of fact often tied its hands vis-à-vis recalcitrant appellate courts. It was therefore necessary to give that court jurisdiction to rule on points of fact, something that it still lacked. With these new powers, the Supreme Court of Cassation could convict an acquitted defendant or acquit a convicted defendant. Parliament enacted the amendment on 10 November 2011. It was published in the State Gazette on 25 November 2011 and came into force on 29 November 2011.

THE LAW

I.  ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION

108.  The applicants complained that Mr Dimitrov had been unjustifiably ill-treated and killed by the police.

109.  The applicants further complained that the authorities had not investigated effectively the circumstances in which Mr Dimitrov was ill-treated and lost his life. They alleged that the investigation had not applied a standard comparable to that required under the Convention. They also drew attention to attempts to stifle the investigation and influence the ensuing judicial proceedings, as well as to a number of omissions in the initial gathering of evidence and in the conduct of the investigation and of the judicial proceedings. They also pointed out that no attempts had been made to investigate higher-ups, or to verify whether the operation for Mr Dimitrov’s arrest had been adequately planned or whether the officers who took part in it had been adequately briefed. Lastly, they alleged that in acquitting the officers the Supreme Court of Cassation had disregarded facts established by the lower courts, had not thoroughly examined whether the officers had complied with the rules governing the use of force and auxiliary means by the police, had paid no heed to the ill-treatment to which the officers had subjected Mr Dimitrov - with the result that that ill-treatment remained completely unpunished -, and had not sought to clarify whether there had been alternative ways to arrest Mr Dimitrov.

110.  The Court considers that those complaints fall to be examined under Articles 2 and 3 of the Convention, which provide as follows:

Article 2 (right to life)

“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;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

1.  The Government

111.  The Government, referring to the conclusions of the Supreme Court of Cassation in its judgment of 9 June 2011 and of the internal inquiry carried out by the Ministry of Internal Affairs, submitted that Mr Dimitrov’s death had been accidental. The injuries to his head, face and body had not been the “main factor causing his death”, which had in fact resulted from “acute cardiac and respiratory insufficiency”. There was therefore no causal link between the actions of the police and the death, or an intention on the part of the police to cause it. The police had merely sought to carry out their duties and arrest Mr Dimitrov. They had had a significant amount of operative information that he had engaged in drug trafficking, pimping, including of underage girls, dealing in stolen motor vehicles and trafficking of women. There were therefore grounds to arrest him, and reasons to suspect that he might be dangerous, armed, aggressive, under the influence of narcotic drugs, and likely to try to conceal his criminal activities and evade arrest. The police had merely tried to overcome his resistance and had used a proportionate amount of force to that end, as required under section 78(1)(2) of the Ministry of Internal Affairs Act 1997. Mr Dimitrov’s fierce resistance had made it impossible for them to arrest him without resorting to force.

112.  The Government went on to argue that the police had planned the operation in a way seeking to minimise any risk to Mr Dimitrov’s life. The written plan of the operation, about which the officers who took part in it had been briefed, specified that when making arrests, the police had to proceed with caution so as to avoid any risk to the life and health of arrestees. There were no grounds to presume that the officers arresting Mr Dimitrov would act in breach of their instructions, especially bearing in mind that they had not been made aware of the identity of the arrestee or the exact time of the operation until it had started. There was therefore no reason to presume that they had conspired to commit an offence against Mr Dimitrov. The force that they had used against him had been “absolutely necessary” within the meaning of Article 2 § 2 of the Convention. The officers had also been justified in handcuffing Mr Dimitrov behind his back and in putting him face down against the ground. It could not be overlooked that they had not resorted to using their firearms.

113.  The Government also drew attention to the July 2012 amendments to the Ministry of Internal Affairs Act 2006, which had, in their view, tightened the rules governing the use of firearms by the police.

114.  The Government further submitted that the authorities had carried out a comprehensive investigation into the alleged ill-treatment and death of Mr Dimitrov. The Ministry of Internal Affairs had conducted an internal inquiry. In addition, criminal proceedings had been opened into the incident, and the authorities and the courts had taken a number of steps, including ordering several medical expert reports and interviewing the five officers and many other witnesses, with a view to elucidating the facts. Those proceedings had been fully adequate, had been conducted with due regard to the right to life, and had encompassed not only the actions of the officers but also the planning and control of the operation. The Sofia Military Court had referred the case back for additional investigation three times. The criminal case against the five police officers had been heard twice by the Sofia Military Court, three times by the Military Court of Appeal - the third entailing the gathering of additional evidence - and twice by the Supreme Court of Cassation. The final disposition of the case had been based on a comprehensive assessment of the facts.

115.  In relation to Article 3 of the Convention, the Government submitted that Mr Dimitrov had not been subjected to inhuman or degrading treatment. The injuries to his face, head body and limbs had resulted, as evident from the medical expert reports obtained by the authorities, from steps taken to subdue his resistance. The amount of force had been lawful and fully proportionate in the circumstances; it was telling in this connection that the five officers carrying out Mr Dimitrov’s arrest had not resorted to using their firearms. As evident from the statements made by the officers in the ensuing proceedings, they had not had the intention of harming Mr Dimitrov, and had not acted negligently in that regard. They were highly trained and experienced professionals who had acted fully in line with the rules governing the use of force by the police and on the basis of concrete orders and plan. Following very complex criminal proceedings, it had been established that Mr Dimitrov’s death had been an accident.

2.  The applicants

116.  The applicants submitted that Mr Dimitrov had been killed intentionally, and had died as a result of a use of force which had not been absolutely necessary and in the course of a police operation which had not been planned with a view to minimising any risk to his life. They pointed out that he had died in the presence of no one but five police officers and in the course of a police operation involving violence on the part of all three groups of officers entrusted with carrying it out. The way in which the operation had unfolded showed that the police were not seeking to gather evidence against Mr Dimitrov but to inflict retribution on him. For instance, the group dispatched to his family’s hotel had stopped the search for narcotic drugs after learning that Mr Dimitrov had died. The applicants contended that the authorities had not given a plausible explanation of how Mr Dimitrov had lost his life. The ruling of the Supreme Court of Cassation that his death had been accidental did not correspond to the findings of the lower courts or the evidence in the case. The use of force against Mr Dimitrov had not at all been necessary. He had not been convicted, had on all previous occasions cooperated with the police, was unarmed and not physically prepared for resistance, and was not doing anything illegal at the time when he encountered the five officers. He did not put up any resistance - a fact established by all courts which had dealt with the case - and was alone against five experienced, well-armed and trained officers. His arrest should have been carried out without any force. The violence unleashed against him - especially after he was handcuffed - had therefore contravened the requirements of the Ministry of Internal Affairs Act 1997 and the terms of any briefing or order given to the officers. Indeed, the Sofia Military Court and the Military Court of Appeal had both, on four consecutive occasions, found that the officers had intentionally murdered him; their findings differed only in respect of the medical cause of death. Even if it were to be accepted that the death had occurred in the manner impermissibly established the Supreme Court of Cassation, it still engaged the respondent State’s responsibility under Article 2 of the Convention.

117.  The applicants went on to argue that the police operation against Mr Dimitrov had not been adequately planned. There was no evidence that the officers who took part in that operation had been properly briefed. Contrary to what appeared to be suggested by the written plan of the operation, it had in fact had been planned with the expectation that Mr Dimitrov would put up resistance. There were other discrepancies as well, such as the failure of the investigator to join the five officers and carry out any investigative steps, although the plan envisaged the gathering of evidence of Mr Dimitrov’s alleged criminal activities. In fact, none of the three groups of officers who took part in the operation tried to gather such evidence, contrary to the written plan. The instructions in the plan on the use of force had also been flagrantly disregarded, with the result that an unarmed person who had not put up any resistance had lost his life. Another discrepancy was the lack of any suggestion in the written plan that Mr Dimitrov might be aggressive or armed. Contrary to the expectations of the police officers, as described by the Government, there was no evidence that Mr Dimitrov was engaging in drug trafficking or pimping at the time of his arrest, or that he was armed, dangerous or under the influence of cocaine. Having reviewed the evidence, the domestic courts had found that Mr Dimitrov had not had on him any narcotic drugs.

118.  In the applicants’ view, the findings of the internal inquiry carried out by the Ministry of Internal Affairs could not be regarded as valid or unbiased. In their view, that inquiry could not supplant the investigations carried out by the prosecuting authorities and the courts, and had been simply an attempt to whitewash the actions of the five officers.

119.  The applicants also submitted that the legislative changes which had come into force in July 2012 could not remedy the situation of Mr Dimitrov.

120.  The applicants were further of the view that the criminal proceedings had fallen short of the requirements of Article 2 of the Convention, in the manner in which they had been conducted, in their scope and in the standard applied by the authorities. Attempts had been made to cover up Mr Dimitrov’s murder from the very outset. The two military investigators and the prosecutor from the Sofia Military Prosecutor’s Office who had visited the scene shortly after the events had not carried out any investigative steps. Mr Dimitrov’s relatives had been kept in the dark about his death and had not been allowed access to the body. The police had given a press conference at which they had made false statements about the case. A number of crime-scene investigative steps which could only have been taken immediately had not been properly carried out. The initial autopsy had not been sufficiently full, and the experts carrying out the second autopsy had faced obstructions. After taking over the case, the military prosecuting authorities had made an attempt unlawfully to discontinue the proceedings. When hearing the case on appeal for the first time, the Military Court of Appeal had quashed the Sofia Military Court’s judgment on spurious grounds, as demonstrated by the dissenting opinion of one of its judges. Later, a series of improper procedural steps had led to the appointment of experts who could not lawfully have been appointed, and to the admission of expert reports which had unlawfully altered the conclusion on the cause of Mr Dimitrov’s death. That had initially led to much lower punishments being imposed on the five officers convicted of his death, and eventually to their acquittal by the Supreme Court of Cassation, on the basis of impermissible fresh findings of fact.

121.  The applicants in addition pointed to the statements by successive Ministers of Internal Affairs and by the Prime Minister in support of the five officers. Another problematic aspect of the official response to Mr Dimitrov’s death had been the lack of investigation of the superiors of the five officers, who were responsible for the manner in which the operation had been launched, planned and conducted, and for the attempts to cover up Mr Dimitrov’s murder. Nor were the officers’ actions examined by reference to all rules governing police conduct in such situations: the Supreme Court of Cassation ignored many of those rules, and did not subject the officers’ actions to a comprehensive assessment, in disregard of the findings of fact made by the lower courts.

122.  In relation to Article 3 of the Convention, the applicants submitted that Mr Dimitrov had been subjected to inhuman treatment. He had not been armed or committing an offence. Contrary to what was being suggested by the Government, he had not been under the influence of narcotic drugs and had not resisted arrest. He had been alone against five experienced and trained police officers, two of whom were caring automatic rifles. The officers had been in plain clothes; some of them had worn balaclavas. In those circumstances, any force used against Mr Dimitrov could be characterised as inhuman treatment. However, he had been violently taken out of his car and beaten up for about ten minutes, both before and after being handcuffed. It was not true that all injuries to his body could be explained by efforts to subdue his resistance. Only some of the experts had subscribed to that view, while others had concluded that the injuries had been caused by blows with hard blunt objects.

123.  The applicants also submitted that although all levels of court competent to make findings of fact had concluded that Mr Dimitrov had been ill-treated by the five police officers, the Supreme Court of Cassation had acquitted those officers without examining that ill-treatment. The investigation’s effectiveness could not be gauged by reference to the number of investigative steps carried out by the authorities.

B.  The Court’s assessment

1.  Admissibility

124.  The Court finds that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

125.  The Court notes that the applicants alleged that Mr Dimitrov had been deliberately killed by the five police officers and that the Supreme Court of Cassation’s findings in relation to the causes of his death had been arbitrary. For its part, the Government, relying on those findings and on the internal inquiry carried out by the Ministry of Internal Affairs, maintained that Article 2 of the Convention is not applicable to the circumstances of the case.

126.  The Court further notes that there are essentially three versions about the way in which Mr Dimitrov lost his life. The first is that he died as a result of traumatic injuries to his head and a rupture of his aorta, induced by intensive blows to his head and back inflicted by the five police officers who carried out the operation against him - a murder committed in connection with the officers’ duties, with special cruelty and in respect of a person who was in a helpless state. The second is that the officers caused Mr Dimitrov’s death by pushing him against the ground and delivering blows to his head and body while fully aware that they were causing Mr Dimitrov to suffocate and suffer pain, but pressing on with their actions, which, combined with the position in which he was, the stress induced by the continued violence against him, his pre-existing medical conditions and cocaine that he had taken some time before the incident, caused him to asphyxiate. The third is that Mr Dimitrov asphyxiated by accident, his death having no causal connection with the officers’ actions (see paragraph 21 above). The Sofia Military Court credited the first version (see paragraph 37 and 44 above). The Military Court of Appeal subscribed to the second version on both occasions when it dealt with the substantive issues in the case (see paragraphs 59 and 76 above). The third version was endorsed by the Supreme Court of Cassation when it examined the case for a second time, and is being put forward by the Government in the present proceedings (see paragraphs 87 and 111 above).

127.  The Court observes that it is not a court of appeal from the national courts, and it is not normally within its province to substitute its own assessment of the facts for theirs (see Filipovi v. Bulgaria, no. 24867/04, § 65, 4 December 2012, with further references). In the present case the final acquittal of the five police officers by a criminal court acting in accusations for intentional murder was based on the findings of fact concerning the direct medical cause of death. The Court does not consider that it would be appropriate for it to attempt to make its own detailed findings of fact in this respect. It is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a fact-finding tribunal where this is not rendered unavoidable by the circumstances of a particular case (ibid., citing Golubeva v. Russia, no. 1062/03, § 95, 17 December 2009, and McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).

128.  However, the conclusions of a criminal court bound by the presumption of innocence do not absolve Bulgaria from its responsibility under the Convention (ibid., citing Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336).

129.  The Court would emphasise in this connection that it is not a criminal court either, and that in determining whether there has been a breach of Article 2 of the Convention it is not assessing the criminal responsibility of those directly or indirectly concerned (see McCann and Others v. the United Kingdom, 27 September 1995, § 173, Series A no. 324), because that responsibility is distinct from international law responsibility under the Convention, which is based on its own provisions which are to be interpreted and applied on the basis of the objectives of the Convention and in the light of the relevant principles of international law (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 182, ECHR 2011 (extracts). citing Tanlı v. Turkey, no. 26129/95, § 111, ECHR 2001-III (extracts), and Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001-VII (extracts)).

130.  The same applies in relation to Article 3 of the Convention (see E. and Others v. the United Kingdom, no. 33218/96, § 91, 26 November 2002).

131.  Regardless of which of the three versions about Mr Dimitrov’s death is accepted as true, it is not disputed that when he died he was entirely under the control of five police officers who were conducting an operation against him (see, mutatis mutandis, Ribitsch, cited above, § 34). The Court further notes that the use of force against Mr Dimitrov and the numerous injuries sustained by him (see paragraphs 23, 25, 52 and 56 above) were not in themselves contested in the domestic proceedings. With the exception of two eyewitnesses, Ms M.Z. and Ms E.Z., whose vantage point did not allow them to gain a precise picture of the events, those officers appear to have been the only direct eyewitnesses to Mr Dimitrov’s death (see paragraph 15 above). The Court therefore considers that the case falls to be examined under Article 2 of the Convention, irrespective of the fact that the exact cause of Mr Dimitrov’s death and the direct causal link between the force used against him and his death are disputed. Furthermore, the responsibility of the State under Article 2 is not confined to cases in which there exists significant evidence that the use of force by State agents has, or could have, directly caused the death of a person. It may also be engaged where those agents, when conducting an operation, fail to take all feasible precautions in the choice of means and methods with a view to avoiding or at least minimising incidental loss of life (see Ergi v. Turkey, 28 July 1998, §§ 77-79, Reports of Judgments and Decisions 1998-IV; Saoud v. France, no. 9375/02, §§ 88-90, 9 October 2007; and Dimov and Others v. Bulgaria, no. 30086/05, § 72, 6 November 2012).

132.  There arises, moreover, no serious doubt that Mr Dimitrov was subjected to ill-treatment by the five officers, and that the circumstances of the case therefore also engage Article 3 of the Convention. The Sofia Military Court and the Military Court of Appeal specifically found that Mr Dimitrov had been beaten and kicked by those officers with considerable force for about ten to fifteen minutes, and that the force used by the officers against Mr Dimitrov had not been rendered necessary by his resisting arrest (see paragraphs 15, 37, 44, 59 and 76 above). The Military Court of Appeal went on to say that the officers’ resorting to such force had been in breach of sections 78 and 79 of the Ministry of Internal Affairs Act 1997, which governed the use of force by the police at the relevant time (see paragraphs 77, 97 and 98 above). Those findings were not disturbed by the Supreme Court of Cassation (see paragraph 85 above). Moreover, the expert reports obtained in the course of the proceedings were agreed, in spite of some discrepancies, that Mr Dimitrov had sustained a number of injuries to his head and body which were due to blows with hard blunt objects (see paragraphs 23, 25, 52 and 56 above). While their causal link with Mr Dimitrov’s death was contested, some of those injuries were characterised by the medical experts as capable of causing death and were in any event serious enough to trigger the application of Article 3 of the Convention, which prohibits in absolute terms torture or inhuman or degrading treatment or punishment and, according to the Court’s case-law, proscribes the authorities from using excessive force to carry out an arrest (see Ivan Vasilev v. Bulgaria, no. 48130/99, §§ 62 and 63, 12 April 2007, with further references). Indeed, the Government did not contest the fact of those injuries or the use of force against Mr Dimitrov, and it appears that when acquitting the officers on the charges of murder, the Supreme Court of Cassation gave little if any reasoning on that point.

133.  The Court must therefore determine whether the injuries were the result of force strictly necessary to subdue Mr Dimitrov (see Georgi Dimitrov v. Bulgaria, no. 31365/02, §§ 56-57, 15 January 2009, with further references). The burden to show this is on the Government (see Altay v. Turkey, no. 22279/93, § 54, 22 May 2001; Rashid v. Bulgaria, no. 47905/99, § 46, 18 January 2007; Lewandowski and Lewandowska v. Poland, no. 15562/02, § 65, 13 January 2009; and Lenev v. Bulgaria, no. 41452/07, § 113, 4 December 2012). They asserted that Mr Dimitrov had put up fierce resistance. However, that assertion does not match the findings of the Sofia Military Court and the Military Court of Appeal, which specifically established that the physical force used by the five police officers against Mr Dimitrov had not been rendered necessary by his resisting arrest; the latter court also found that the officers’ resorting to such force had been in breach of sections 78 and 79 of the Ministry of Internal Affairs Act 1997, which governed the use of force by the police at the relevant time (see paragraphs 15, 37, 44, 59, 77, 97 and 98 above). Focusing only on the actions of the officers necessary for Mr Dimitrov’s immobilisation, the Supreme Court of Cassation did not overrule them on that point. In those circumstances, the Court cannot but conclude that the ill-treatment to which Mr Dimitrov was subjected was not the result of force strictly necessary to subdue him (contrast Bekirski v. Bulgaria, no. 71420/01, §§ 134-36, 2 September 2010).

134.  Article 3, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation, as with one under Article 2, should be capable of leading to the identification and punishment of those responsible. For an investigation to be effective in practice it is a prerequisite that the State has enacted criminal-law provisions penalising practices that are contrary to Article 3 (see Gäfgen v. Germany [GC], no. 22978/05, § 117, ECHR 2010, with further references). In addition, Article 3 of the Convention requires the State to make an award of compensation those concerned, where appropriate, or at least to give them the possibility of seeking and obtaining compensation for the damage that they sustained as a result of ill-treatment (ibid., § 118).

135.  The general principles governing the State’s obligation to carry out an effective investigation when individuals have been killed as a result of the use of force by, among others, agents of the State are well-settled in the Court’s case-law. They have recently been set out in detail in paragraphs 298-306 of the Grand Chamber’s judgment in the case of Giuliani and Gaggio (cited above). The general principles governing the concomitant obligation to carry out an effective investigation into allegations that an individual has suffered treatment infringing Article 3 of the Convention at the hands of the police or other agents of the State are likewise well-settled, and have recently been set out in detail in paragraphs 182-85 of the Grand Chamber’s judgment in the case of El-Masri v. “the former Yugoslav Republic of Macedonia” ([GC], no. 39630/09, ECHR 2012). In the present case, the Court would above all reiterate the fundamental character of Articles 2 and 3 of the Convention, and emphasise that the purpose of the investigation required under those Articles, read in conjunction with Article 1 of the Convention, in cases of use of force is to give proper effect to the deterrent effect of the judicial system in place and to ensure an adequate response to acts that may have breached those Articles, by leading to a determination of whether the force used was justified in the circumstances, and identifying and - if appropriate - punishing those responsible. That is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see Giuliani and Gaggio, cited above, §§ 298 and 306).

136.  In the instant case, the domestic proceedings led to the repeated examination of the criminal charges against the five police officers in fully adversarial proceedings by three levels of court. The Court must scrutinise whether these proceedings were carried out for the purposes of Articles 2 and 3 of the Convention and met their requirements for an effective investigation.

137.  The Court starts by noting that the internal inquiry carried out by the Ministry of Internal Affairs (see paragraphs 16 and 92-96 above) did not fulfil the above obligations. Firstly, that inquiry was carried out by four officers of the Ministry of Internal Affairs, whose independence from those implicated in the events is open to doubt (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 167 and 171-74, ECHR 2011). Secondly, the inquiry was purely internal, and its final report for a number of years remained classified, with the results that the applicants were not informed of it and that it was not subjected to any form of scrutiny by persons outside the Ministry of Internal Affairs. In those circumstances, it is difficult to accept that that inquiry was attended by a sufficient degree of public scrutiny and involved the next-of-kin of the deceased victim to the extent necessary to safeguard their legitimate interests, as required under Articles 2 and 3 of the Convention (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001-III, and El-Masri, cited above, § 184). Lastly, there is no indication that the inquiry, whose conclusions on various points were different from those of the ensuing criminal proceedings, was in any form revived following those criminal proceedings.

138.  It remains to be established whether the criminal proceedings against the five officers duly discharged the above obligations.

139.  It is true that the initial stages of the criminal investigation appear to have suffered from some of the flaws identified by the applicants: the scene was not properly preserved; the persons implicated in the events were allowed to remain at the scene for a significant amount of time, entailing a risk of spoliation or contamination of evidence; the initial evidence-gathering process was unduly delayed; the first autopsy was not complete, and a proper autopsy was only made possible because the applicants, having seen the numerous injuries to Mr Dimitrov’s body, decided not to bury him before the cause of his death could be elucidated; a rushed attempt was made to discontinue the investigation (see paragraphs 18, 19, 22, 23, 24 and 27 above). It is also true that doubts may arise about the accuracy of the expert reports drawn up during the appellate examination of the case, on account of, among other things, the manner in which the experts who drew them up were appointed; the fact that those experts, unlike the initial ones, could not examine Mr Dimitrov’s body and were able to test only the histological samples taken during the first autopsy but not the ones taken during the second autopsy; and the experts’ initial failure to describe all injuries to Mr Dimitrov’s body (see paragraphs 48, 53-56, 61 and 105 above).

140.  That said, it cannot be overlooked that none of those matters prevented the Sofia Military Court and the Military Court of Appeal from making detailed findings of fact and on their basis convicting the officers of aggravated murder and awarding the applicants damages in relation to that (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). Where, as here, suspects are convicted and sentenced for their participation in the ill-treatment and death under investigation, it cannot ordinarily be claimed that the procedure has not proved capable of meeting the State’s procedural obligations under Article 2 or Article 3 of the Convention (see Avşar, cited above, § 403 in fine).

141.  In this case, however, the Supreme Court of Cassation, having arrived at different conclusions about the cause of Mr Dimitrov’s death, ultimately overturned the convictions, fully acquitted the officers of the charges of murder and rejected the applicants’ claims for damages. It is not this Court’s task to determine whether that court’s judgment was correct in terms of Bulgarian law. The Court must however examine whether the manner in which the Supreme Court of Cassation applied that law in the case under consideration gave rise to a breach of the applicants’ right under Article 2 and Article 3 of the Convention to an effective procedural response to Mr Dimitrov’s ill-treatment and death (see, mutatis mutandis, Ivan Vasilev, cited above, § 77).

142.  In this connection, it should be pointed out that the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts; the proceedings as a whole must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts (see Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004-XII; Türkmen v. Turkey, no. 43124/98, § 51, 19 December 2006; Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 57 (e), 20 December 2007; Mojsiejew v. Poland, no. 11818/02, § 53 (d), 24 March 2009; and Enukidze and Girgvliani v. Georgia, no. 25091/07, § 242, 26 April 2011). The Court’s task therefore consists in reviewing whether and to what extent the national courts may be deemed to have submitted the case to the careful scrutiny required by Article 2, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined (see Giuliani and Gaggio, cited above, § 306).

143.  The same principles apply in relation to Article 3 of the Convention (see Okkalı v. Turkey, no. 52067/99, §§ 65-66, ECHR 2006-XII (extracts)).

144.  The Court notes in relation to that that the Supreme Court of Cassation decided, contrary to its normal role in the Bulgarian judicial system and its established case-law (see paragraphs 106 and 107 above), to make fresh findings of fact on the direct causal link, or lack thereof, between the officers’ actions and Mr Dimitrov’s death. Those findings were, moreover, not based on new evidence - that court held, over the dissent of the president of the panel, that it was not necessary to order the “arbitrage” expert report requested by the applicants (see paragraphs 85, 88 and 89 above) - but on a different interpretation of the evidence which had already been gathered and analysed in detail by the lower courts. As already noted, it is not this Court’s role to call into question the findings of fact made by the Supreme Court of Cassation and, more specifically, to determine whether that court’s conclusion that Mr Dimitrov’s death was accidental was correct.

145.  However, the Court cannot overlook that in its reasoning the Supreme Court of Cassation did not deal in any detail with the question - amply canvassed in the courts below - that the five officers had subjected Mr Dimitrov to serious ill-treatment. Limiting its findings to the acts potentially related to its fresh findings on the medical cause of Mr Dimitrov’s death, it glossed over the question of the use of excessive force. In this regard the decision accepted that in putting Mr Dimitrov down to the ground the officers had acted in line with the rules and failed to analyse in any detail the treatment sustained by Mr Dimitrov or its necessity and compliance with the rules governing use of force. Apparently considering this use of force inconsequential, that court concluded that the officers’ actions had had no part whatsoever to play in Mr Dimitrov’s death and did not constitute any criminal offence or tort (see paragraph 87 above). Thus, it appears that the Supreme Court of Cassation not only left open the question of the necessity and proportionality of the uncontested use of force, but also declared the officers’ conduct lawful in so far as it had not resulted in death. As a result of that approach, all efforts to investigate and hold the officers accountable for their involvement in Mr Dimitrov’s ill-treatment and death were set at naught. The numerous injuries suffered by Mr Dimitrov - described in detail in the expert reports obtained in the earlier course of the proceedings (see paragraphs 25 and 52 above) and forming the basis for the conclusions of the lower courts that the officers had intensely beaten up Mr Dimitrov and had therefore acted with special cruelty (see paragraphs 44, 60, 76 and 79 above) - were apparently regarded by the Supreme Court of Cassation as completely inconsequential. Nor does that court appear to have paid any heed to the facts - likewise established by the lower courts - that Mr Dimitrov was shouting that he was suffocating (see paragraph 15 above), something clearly connected with the duty under Article 2 of the Convention to protect life, and that one of the officers, major M.P., turned back a police patrol car in order to prevent the two officers in it from becoming witnesses to the events (see paragraphs 17, 37, 44 and 45 above).

146.  In sum, the Court does not consider that the criminal proceedings carried out by the authorities in the end clarified all circumstances relating to the responsibility of the State officials concerned or were intended to secure their full accountability for their role in Mr Dimitrov’s ill-treatment and death and the effective implementation of the domestic-law provisions guaranteeing respect for the right to life and the right not to be subjected to inhuman and degrading treatment (see, mutatis mutandis, Öneryıldız, cited above, § 117). The Court notes with particular concern that the conclusion of the Supreme Court of Cassation that the five police officers had not committed any breach of the law encompassed, without distinction, all of those officers’ actions at the time of the incident.

147.  A further issue is the apparent lack of investigation of the broader picture, including the manner in which the operation against Mr Dimitrov was planned and controlled. That appears to have been chiefly due to the narrow focus of the criminal proceedings against the officers, whose scope was restricted to their criminal responsibility for Mr Dimitrov’s murder. There may be circumstances where issues arise that have not, or cannot, be addressed in criminal proceedings. In those cases, Article 2 of the Convention may require wider examination. Such issues may include the planning and control of the operation in question (see Al-Skeini and Others, cited above, § 163); attempts on the part of higher-ranking officials to conceal evidence and an alleged shoot-to-kill policy (see McKerr, cited above, § 136); or an alleged involvement of the security forces in an abduction and killing that was part of a larger pattern of officially sanctioned violence (see Avşar, cited above, § 406). The list is, of course, not exhaustive.

148.  In the instant case, serious concerns arose about whether the police had properly planned and carried out the operation against Mr Dimitrov, about the exact aim of that operation, and about whether the tactics of the police had entailed an excessive use of force, whether deliberately or as an inevitable by-product. Serious concerns arose also in relation to the alleged efforts to cover up the incident, illustrated in particular by the attempt - noted twice by the Sofia Military Court (see paragraphs 37 and 44 above) - of Colonel A.K. to conceal incriminating evidence against the officers, as well as by the reaction of the Ministry of Internal Affairs, which in a hastily convened press conference attributed Mr Dimitrov’s death to natural causes without awaiting a full expert examination of that question (see paragraph 24 in limine above). Those concerns were not fully answered by the criminal proceedings. In those circumstances, Article 2 of the Convention required a procedure whereby those elements could be examined and doubts confirmed, or laid to rest (see, mutatis mutandis, McKerr, cited above, § 137).

149.  It is not for this Court to spell out in detail what procedures the authorities should adopt in providing for the proper examination of the circumstances of ill-treatment and death in the hands of State agents. Nor can it be said that there should be one unified procedure satisfying all requirements. The Court notes, however, that this is not the first case against Bulgaria in which it finds that the procedural response to a death at the hands of the police has failed to meet the Convention standards (see Velikova v. Bulgaria, no. 41488/98, §§ 77-84, ECHR 2000-VI; Anguelova v. Bulgaria, no. 38361/97, §§ 141-46, ECHR 2002-IV; Ognyanova and Choban v. Bulgaria, no. 46317/99, §§ 108-16, 23 February 2006; Karandja v. Bulgaria, no. 69180/01, §§ 64-68, 7 October 2010; Dimov and Others v. Bulgaria, no. 30086/05, §§ 83-85, 6 November 2012; and Filipovi, cited above, §§ 64-73) It should be emphasised that appropriate procedures for ensuring the accountability of agents of the State are indispensable in maintaining public confidence and meeting the legitimate concerns that might arise from the use of force. A lack of such procedures will only add fuel to fears of sinister motivations, as is illustrated by, for example, the applicants’ submissions concerning the alleged intention of the police physically to liquidate Mr Dimitrov (see, mutatis mutandis, McKerr, cited above, §§ 159-60).

150.  The Court notes with satisfaction the information provided by the Government concerning the 2012 legislative amendments enacted with a view to bringing the statutory provisions governing the use of force by the police fully in line with the Court’s case-law (see paragraph 99 above). However, those amendments did not concern the effectiveness of investigations and were clearly not applicable to the case at hand, in which the relevant events took place in 2005, many years before the enactment of those amendments. The Court’s task in these proceedings is not to consider national law in the abstract, but to assess the actual circumstances of the applicants’ case (see, mutatis mutandis, Nikolova v. Bulgaria [GC], no. 31195/96, § 52, ECHR 1999-II).

151.  The Court concludes that there have been breaches of both Article 2 and Article 3 of the Convention.

II.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

A.  Alleged bias of the Supreme Court of Cassation judges

152.  The applicants complained under Article 6 § 1 of the Convention that some of the judges who had taken part in the examination of the criminal case against the five police officers - in particular the president of the panel of the Supreme Court of Cassation that heard the case in 2010 - had been biased because relatives of theirs were reportedly employed by the Ministry of Internal Affairs, and because the Minister of Internal Affairs and the Prime Minister had sought to influence the outcome of the proceedings.

153.  Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”

1.  The parties’ submissions

154.  The Government submitted that the allegations of undue pressure on the part of the executive on the judges hearing the criminal case against the five police officers - especially the judges of the Supreme Court of Cassation - were devoid of any substance. By Constitution, the judiciary was fully independent, and there was no evidence that pressure had been brought to bear on the courts dealing with the case. It was true that the case had spawned intense public interest. In view of that, the courts had allowed a representative of the Bulgarian Helsinki Committee to attend the trial, and most hearings had taken place in public. Upon the assignment of the case to a judicial formation in the Supreme Court of Cassation, all judges who could be regarded as having a direct or an indirect interest in its outcome had been excluded from sitting in it.

155.  The applicants submitted that there existed reasonable grounds to suspect that the judges of the Supreme Court of Cassation who had dealt with the case were not impartial and independent. Both the Prime Minister and the Minister of Internal Affairs had tried to exert pressure in favour of the officers. Moreover, publications in the press clearly showed that the son of president of the first panel of the Supreme Court of Cassation which heard the case was employed by the Ministry of Internal Affairs. The combination of those factors was clearly liable to give rise to misgivings about the independence and impartiality of the Supreme Court of Cassation judges. At a minimum, any judge who had relatives employed by that Ministry should have revealed that fact to the parties and given them an opportunity to request his or her recusal. Under Bulgarian law, there was no mechanism allowing the parties to check for such dependencies with a view to seeking the recusal of the judges concerned. The exclusion of some judges in the Supreme Court of Cassation from sitting in the case did not constitute a sufficient safeguard in that respect because it had been done in secret and on the basis of criteria not known in advance by the parties.

2.  The Court’s assessment

156.  The Court finds the 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.

157.  On the merits, the Court starts by noting that Article 6 § 1 does not guarantee the right to have third parties prosecuted or sentenced for a criminal offence (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). However, since the applicants brought civil claims against the five officers and the police (see paragraph 35 above), that provision was applicable, under its civil limb, to the entirety of the proceedings (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 62, ECHR 2002-I, and Perez, cited above, §§ 70 and 71).

158.  Turning to the specific allegations made by the applicants, the Court notes that according to its established case-law, impartiality denotes the absence of bias. It can be gauged under a subjective approach, that is trying to ascertain the personal conviction or interest of a judge in a particular case, and an objective approach, that is determining whether that judge offered sufficient guarantees to exclude any legitimate doubt in that respect and whether, quite apart from the judge’s personal conduct, there existed ascertainable facts which could cast doubt on the court’s impartiality. The litigants’ standpoint is important but not decisive; what is decisive is whether any misgivings in that respect can be regarded as objectively justified (see, among many other authorities, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, §§ 93-96, ECHR 2009). Even appearances may be of a certain importance in that context, because what is at stake is the confidence which the courts in a democratic society must inspire in the public and in the parties to the proceedings (see, among other authorities, Academy Trading Ltd and Others v. Greece, no. 30342/96, § 45, 4 April 2000, and Kinský v. the Czech Republic, no. 42856/06, § 87, 9 February 2012).

159.  Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Kyprianou, § 119, and Micallef, § 94, both cited above). In the present case, the applicants have not adduced such proof. The facts that some of the judges hearing the case ruled against them on some points or decided to proceed in a certain manner do not constitute such proof (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII; Bracci v. Italy, no. 36822/02, § 52 in limine, 13 October 2005; Previti v. Italy (dec.), no. 45291/06, § 258 in limine, 8 December 2009; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). Nor does the public campaign, joined by the Prime Minister and the Minister of Internal Affairs, in support of the five officers (see paragraph 90 above). It cannot be overlooked that the panels of the Military Court of Appeal and the Supreme Court of Cassation which heard the case against the officers were entirely composed of professional judges, who, on account of their training and experience, were less likely than a jury or lay judges to be influenced by external pressures (see, mutatis mutandis, Priebke v. Italy (dec.), no. 48799/99, 5 April 2001; Akay v. Turkey (dec.), no. 34501/97, 19 February 2002; Craxi v. Italy (no. 1), no. 34896/97, § 104, 5 December 2002; and Mircea v. Romania, no. 41250/02, § 75, 29 March 2007). It should be noted in this connection that in spite of that campaign, which apparently continued throughout the criminal proceedings against the officers, both the Sofia Military Court and the Military Court of Appeal convicted them and gave them harsh sentences (see, mutatis mutandis, Papon v. France (dec.), no. 54210/00, ECHR 2001-XII).

160.  As regards the objective test, it should first be noted that the concepts of independence and objective impartiality are closely linked, and are particularly difficult to dissociate, where - as in the present case - the arguments advanced by the applicants to contest both are based on the same facts (see Agrokompleks v. Ukraine, no. 23465/03, § 128, 6 October 2011, with further references). The Court will therefore examine both issues together.

161.  It observes that the fact that the son of the President of the first panel of the Supreme Court of Cassation which heard the case was employed by the Ministry of Internal Affairs does not provide sufficient grounds for calling into question the impartiality of that judge (see, mutatis mutandis, Academy Trading Ltd and Others, cited above, § 46 in fine). Moreover, the Ministry itself was not a defendant in the proceedings - the applicants’ civil claims were directed against the five police officers and the Blagoevgrad Regional Police Directorate (see paragraph 35 above). It should also be borne in mind that that panel’s ruling did not finally dispose of the case (see Mosteanu and Others v. Romania, no. 33176/96, § 41, 26 November 2002).

162.  On the other hand, the Court considers that the public statements made by the Prime Minister and by the Minister of Internal Affairs in August 2009 (see paragraph 90 above) and the participation of public figures in organised campaigns convey the impression that they were both trying to direct the courts as to the manner in which the case should be decided, and thus did not show the respect that needs to accorded to judicial office. The Court has already had the occasion to condemn in the strongest terms attempts by non-judicial authorities to intervene in court proceedings (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002-VII, and Agrotehservis v. Ukraine (dec.), no. 62608/00, 19 October 2004).

163.  However, it cannot be overlooked that this did not prevent the Military Court of Appeal from upholding in November 2010 the officers’ convictions or from giving them considerable sentences, which in the view of its presiding judge should have been even harsher (see paragraphs 74 and 81 above and contrast, mutatis mutandis, Kinský, cited above, § 94). Bearing in mind the differing views expressed by the various judges, including the members of the panel of the Supreme Court of Cassation that finally disposed of the case over the dissent of its president (see paragraphs 84-89 above), the Court does not consider that the pressure brought to bear on the judges gave rise to objectively justified misgivings about their impartiality or independence vis-à-vis the executive and the parties to the proceedings.

164.  There has therefore been no breach of Article 6 § 1 of the Convention under this head.

B.  The alleged unfairness of the proceedings

165.  The applicants complained under Article 6 § 1 of the Convention that when hearing the case for a second time the Supreme Court of Cassation, departing from its normal role, had made fresh findings of fact while at the same time refusing to re-examine the cause of Mr Dimitrov’s death, had not gathered the requisite evidence - the “arbitrage” expert report requested by the applicants - without explaining why it did not consider that necessary, and had relied on the fresh expert reports which the Military Court of Appeal had ordered and admitted in evidence in breach of the rules of procedure and which had been drawn up by possibly biased experts.

166.  The applicants complained under the same provision that in their judgments the Military Court of Appeal and the Supreme Court of Cassation had not duly addressed a number of crucial arguments that they had raised.

1.  The parties’ submissions

167.  The Government submitted that the Supreme Court of Cassation’s judgment which brought the proceedings to end had not been arbitrary. The main reason given by that court for acquitting the officers had been the irremediable breach of their right under Article 6 § 3 of the Convention to be informed of the nature of the accusation against them flowing from the differences between the Military Court of Appeal’s findings on the cause of Mr Dimitrov’s death and cause of death set forth in the indictment. In that court’s view, which was fully consistent with this Court’s case-law, the only way of making that breach good was to acquit the officers. That court had in addition found that the officers’ actions could not be regarded as having a causal link with Mr Dimitrov’s death, which was an essential prerequisite for criminal liability for homicide, and that Mr Dimitrov’s death had been accidental, within the meaning of Article 15 of the Criminal Code 1968. The court had explained why it considered it unnecessary to remit the case to the lower court or order an “arbitrage” expert report. A considerable number of expert reports had already been obtained. The reports ordered by the Military Court of Appeal had pointed out the errors in the earlier ones, and their conclusions they had been sufficient to enable the Supreme Court of Cassation finally to dispose of the case.

168.  The applicants submitted that the Supreme Court of Cassation’s judgment had been arbitrary. To start with, it had made fresh findings of fact, contrary to the rules of procedure and its established case-law. Those findings, whose purpose had been to exonerate the five officers, differed considerably from those made by the lower courts and were based on the idea that the officers’ actions had nothing to do with Mr Dimitrov’s death. At the same time, the court had ruled that it was barred from making fresh findings on the medical cause of Mr Dimitrov’s death, and had disregarded its earlier ruling that the different cause of death accepted by the Military Court of Appeal had not amounted to a modification of factual basis of the charges against the officers. Moreover, the court had based its findings of fact on unlawfully admitted evidence: the experts appointed by the Military Court of Appeal had been biased and selected in breach of the rules of procedure. Like the Military Court of Appeal before it, the court had also failed to address a number of crucial arguments raised by the applicants: (a) arguments concerning the material on which the experts had relied to form their conclusions; (b) arguments concerning the accuracy of the experts’ conclusions and their alleged failure to analyse properly certain injuries to Mr Dimitrov’s body; (c) arguments concerning the experts’ lack of professional competence in certain areas; and (d) arguments concerning certain allegedly unwarranted assumptions made by the experts. Lastly, the court had decided the case without gathering the requisite evidence, in particular the “arbitrage” expert report requested by the applicants, which was the only means of resolving the discrepancies between the two versions on the exact medical cause of Mr Dimitrov’s death. It had not given any reasons for its refusal to order such a report. Indeed, those points had been made by the president of the court’s panel in his dissent.

2.  The Court’s assessment

169.  The text of Article 6 § 1 of the Convention has, in so far as relevant, been set out in paragraph 153 above.

170.  The Court finds the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

171.  However, the Court notes that, when examining the respondent State’s compliance with Articles 2 and 3 of the Convention, it dealt with the various procedural aspects of the case and explored the manner in which the national courts dealt with it. In those circumstances, it does not consider that it must analyse that point also by reference to the requirements of Article 6 § 1 of the Convention (see, mutatis mutandis, Kaya v. Turkey, 19 February 1998, § 105, Reports 1998-I; Sabuktekin v. Turkey, no. 27243/95, § 108, ECHR 2002-II (extracts); and Ivan Vasilev, cited above, § 73).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

172.  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

173.  The applicants claimed 100,000 euros (EUR) each in respect of the non-pecuniary damage stemming from the ill-treatment and death of Mr Dimitrov and the ineffectiveness of the ensuing criminal proceedings. Referring to the Court’s case-law, they argued that these had caused them great suffering and frustration.

174.  The Government submitted that the claims were exorbitant.

175.  The Court considers that the applicants must have suffered considerably as a result of the violations of their rights under Articles 2 and 3 of the Convention found in the present case. Ruling in equity, as required under Article 41 of the Convention, the Court awards them jointly EUR 50,000 under this head. To this amount is to be added any tax that may be chargeable.

B.  Costs and expenses

176.  The applicants claimed various costs and expenses referable to both the domestic and the Strasbourg proceedings. Their claims, as well as the Government’s comments on them, are set out in detail below.

177.  In order for costs and expenses to be recoverable under Article 41 (former Article 50) of the Convention, it has to be established that they were actually incurred, were necessarily incurred and were reasonable as to quantum (see, among many other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), 18 October 1982, § 17, Series A no. 54). The costs incurred by the applicants have to be scrutinised for compliance with these criteria.

1.  For the domestic proceedings

178.  The applicants sought, under the head of pecuniary damage, reimbursement of the counsel’s fees that they had incurred in connection with the criminal proceedings against the five police officers. Their claims broke down as follows. The second applicant claimed 4,600 Bulgarian levs (BGN) incurred in fees for her own legal representation in those proceedings, as well as BGN 3,600 incurred in fees for the legal representation of her underage son, the first applicant, in them. The third and the fourth applicants each claimed BGN 9,900 that they had incurred in fees for their legal representation in the same proceedings. In support of their claims the applicants submitted retainers between them and the law firm in which their counsel, Mr V. Vasilev, is a partner, as well as invoices and payment documents issued by that firm.

179.  The Government submitted that the counsel’s fees incurred by the applicants for the criminal proceedings against the officers were not directly connected with the alleged breaches of the Convention. In addition, the retainers had been concluded between the applicants and a law firm, whereas there were no documents showing that that firm had instructed one of its lawyers to act on the applicants’ behalf in the criminal proceedings, or that the applicants had exercised their right under the relevant legislation to choose the counsel who would handle the case. There was no evidence that the law firm had paid taxes on the fees paid by the applicants, or that specific counsel had charged or been paid fees.

180.  The Court considers it appropriate to distinguish at the outset between damage caused by a breach of the Convention and costs incurred by an applicant to prevent that breach or to obtain redress therefor (see Neumeister v. Austria (Article 50), 7 May 1974, § 43, Series A no. 17; The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 16, Series A no. 38; and Le Compte, Van Leuven and De Meyere, cited above, § 14). The applicants’ claim clearly falls under the heading of costs, not pecuniary damage resulting from a breach of the Convention.

181.  That said, applicants are entitled to an award in respect of the costs and expenses incurred by them at domestic level to prevent the breach found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere, cited above, § 17). In the instant case, the purpose of the proceedings before the Bulgarian criminal courts was precisely to obtain redress for the substantive breaches of Articles 2 and 3 of the Convention, and those proceedings were a necessary precondition to refer the matter to the Court (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12; Airey v. Ireland, 9 October 1979, § 18, Series A no. 32; and The Sunday Times, cited above, § 18). Accordingly, the costs incurred in the course of those proceedings are recoverable under Article 41 of the Convention.

182.  The Court finds no reason to believe that the applicants did not in fact pay the amounts charged in fees; they submitted invoices and payment documents showing that they made those payments. The question whether the law firm to which those payments were made in turn paid taxes on them is irrelevant in the present proceedings. Nor does the Court have reason to doubt that the fees paid by the applicants were in return for legal services in connection with the criminal proceedings against the five police officers. As evident from the documents in the case file, the applicants were represented by Mr V. Vasilev, who is a partner in the law firm retained by the applicants, throughout those proceedings.

183.  With regard to the question whether the above fees were reasonable as to quantum, the Court notes that this was not contested by the Government. However, it cannot be overlooked that the four applicants were represented by the same counsel in the criminal proceedings against the officers. Given that the applicants’ submissions in those proceedings were to a large extent overlapping, a certain reduction appears appropriate (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 80 (b), Series A no. 216; Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32377/96, § 37, 27 September 1999; Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 149 in fine, 9 June 2005; Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 269, 15 March 2007; and Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 125, 25 November 2010).

184.  In those circumstances, the Court awards BGN 5,000 to the second applicant, BGN 6,000 to the third applicant and BGN 6,000 to the fourth applicant.

2.  For the Strasbourg proceedings

185.  The applicants sought reimbursement of EUR 6,600 incurred for one hundred and ten hours of work by their legal representative, Mr V. Vasilev, on the Strasbourg proceedings, billed at EUR 60 per hour, which broke down as follows: ten hours for researching the case and interviewing the applicants; twenty-five hours for drawing up the initial letter to the Court; fifty hours for drawing up the application; five hours for additional correspondence with the Court; and twenty hours for drawing up observations and claims for just satisfaction. The applicants submitted that they had already paid BGN 6,000, plus BGN 1,200 in value added tax, and that the remainder was still outstanding. Accordingly, they requested that the first BGN 6,000, plus BGN 1,200, of any award made by the Court under this head be made payable directly to them, and the remainder to the law firm in which their legal representative was a partner.

186.  In support of their claim the applicants submitted two retainers executed between them and Mr V. Vasilev on 28 November 2011 and 31 January 2012. The first retainer specified, in clause 1, that the total fee charged to the applicants would be calculated at the close of the proceedings before the Court, on the basis of the number of hours spent by Mr V. Vasilev on the case and at the hourly rate of EUR 60. The first retainer also specified, in clause 4, that the applicants agreed to pay up front BGN 6,000, plus value added tax, and, in clause 5, that any money awarded by way of just satisfaction above that sum would be payable directly to Mr V. Vasilev. The second retainer specified, in clause 2.1, that the applicants agreed to pay Mr V. Vasilev BGN 6,000 for his work on the proceedings before the Court.

187.  The applicants also sought to recover BGN 130 spent on postage, BGN 688 spent on the translation of their observations and claims into English, and BGN 200 spent on photocopying and office supplies. They requested that any award made in respect of the translation expenses be made payable directly to their legal representative, Mr V. Vasilev. In support of the claim they submitted postal receipts and a contract for translation services between Mr V. Vasilev and a translation agency.

188.  The Government submitted that the claim in respect of counsel’s fees did not correspond to the terms of the retainer between the applicants and Mr V. Vasilev, which stipulated that the applicants would pay only BGN 6,000. They also submitted that the claim was exorbitant and out of line with the domestic standards and rules on counsel’s fees. Lastly, the Government submitted that the retainer had been executed on 31 January 2012 and that the applicants could not therefore claim costs incurred before that date.

189.  As regards the first point made by the Government, the Court notes that the first retainer between the applicants and Mr V. Vasilev makes it clear that the applicants undertook to pay him a sum that would be determined on the basis of the number of hours that he would work on the case, and that the sum of BGN 6,000 that the applicants paid up front was merely a part of the total amount of fees due under the retainer. There is nothing in the second retainer that could be read as invalidating that agreement. Nor can the Court agree with the Government that fees incurred before the date of execution of the second retainer are not recoverable. It cannot be inferred from the terms of the retainer that it laid down temporal limits on the legal services performed by Mr V. Vasilev, or that the fees that it fixed could only be incurred after its execution. The Court therefore concludes that the costs claimed by the applicants in respect of counsel’s fees can be regarded as actually incurred.

190.  With regard to the questions whether those costs were necessarily incurred and reasonable as to quantum, the Court notes that it is settled case-law that when considering a claim for just satisfaction it is not bound by domestic scales or standards (see, among other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 99, Series A no. 94; Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 47, Series A no. 330-B; Öneryıldız, cited above, § 175; and Mileva and Others, cited above, § 125 in limine). In the present case, the hourly rate charged by the applicants’ legal representative is comparable to those charged in recent cases against Bulgaria involving similar issues (see, for instance, Bekirski, § 198, and Dimov and Others, § 109, both cited above). It can thus be regarded as reasonable. However, the Court finds that the number of hours for which he charged appears excessively high, especially when it is taken into account that he was already familiar with the case and that the submissions that he made to the domestic courts and to this Court were to an extent overlapping. Considering this, and making its assessment on an equitable basis, the Court awards the applicants EUR 5,000, plus any tax that may be chargeable to them. EUR 3,681.30 (the equivalent of BGN 7,200) of the resulting sum is to be paid to the applicants themselves, and the remainder to the law firm in which their legal representative, Mr V. Vasilev, is a partner.

191.  As for the claim for other expenses, the Court observes that the applicants have provided supporting documents only for the sums that they paid for translation services (BGN 688) and postage (BGN 130). In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court awards the applicants those sums, plus any tax that may be chargeable to them. The sum in respect of translation expenses is to be paid to the law firm in which the applicants’ legal representative, Mr V. Vasilev, is a partner, and the sum in respect of postage is to be paid to the applicants themselves.

C.  Default interest

192.  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

1.  Declares unanimously the application admissible;

 

2.  Holds by six votes to one that there have been violations of Article 2 and Article 3 of the Convention;

 

3.  Holds unanimously that there has been no violation of Article 6 § 1 of the Convention in relation to the impartiality and the independence of the courts which heard the case against the five officers accused of Mr Dimitrov’s murder;

 

4.  Holds unanimously that there is no need to examine separately the complaints under Article 6 § 1 of the Convention concerning the alleged unfairness of the proceedings against the five officers accused of Mr Dimitrov’s murder;

 

5.  Holds unanimously

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i)  jointly to all applicants, EUR 50,000 (fifty thousand euros), to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  BGN 5,000 (five thousand Bulgarian levs) to the second applicant, BGN 6,000 (six thousand Bulgarian levs) to the third applicant and BGN 6,000 (six thousand Bulgarian levs) to the fourth applicant, plus any tax that may be chargeable to them, in respect of the costs and expenses incurred for the domestic proceedings;

(iii)  EUR 5,000 (five thousand euros), to be converted into Bulgarian levs at the rate applicable at the date of settlement, and BGN 818 (eight hundred and eighteen Bulgarian levs), plus any tax that may be chargeable to the applicants, in respect of the costs and expenses incurred for the Strasbourg proceedings; EUR 3,681.30 (three thousand six hundred and eighty-one euros and thirty cents), to be converted into Bulgarian levs at the rate applicable at the date of settlement, and BGN 130 (one hundred and thirty Bulgarian levs) of the resulting sums are to be paid directly to the applicants, and the remainder to the law firm in which their legal representative, Mr V. Vasilev, is a partner;

(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;

 

6.  Dismisses unanimously the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 1 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos                                                           Ineta Ziemele
       Registrar                                                                              President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Mahoney is annexed to this judgment.

I.Z.
F.E.P.

 




PARTLY DISSENTING OPINION OF JUDGE MAHONEY

1.  There are undoubtedly several unfortunate features to this case, not least the fact that, after the five police officers who had arrested the applicant’s relative had been convicted of murder, albeit on different grounds, on four successive occasions by the trial court (the Sofia Military Court) and by the Military Court of Appeal, the Supreme Court of Cassation entered a verdict of acquittal in respect of all the accused. The dismay of the applicants at such an outcome must be evident. More disquieting are the actions of some police officers in, so the national courts held, attempting to hamper immediate and effective investigation of the incident (see paragraphs 17-19, 37 and 44 of the judgment in the present case - “the judgment”), as well as the public statements made by the Prime Minister and the Minister of Internal Affairs apparently calling for a verdict of acquittal (paragraph 90 of the judgment). Nonetheless, not without some hesitation, given that the facts of the present case involve the death of a person during an arrest operation by the police (always a situation calling for the most careful of scrutinies), I have not been able to join my colleagues in finding a violation of Articles 2 and 3. In brief, when scrutinised carefully in relation to the actual facts of the case, the criticisms directed by my colleagues against the examination of the circumstances attending the arrest and ensuing death of the applicants’ relative, Mr Angel Raychov Dimitrov (alias Chorata), by the Bulgarian authorities, in particular the Supreme Court of Cassation, do not in my view disclose shortcomings attaining the seriousness required to give rise to a violation of the procedural aspect of either Article 2 or Article 3 of the Convention.

2.  It is apparent from the judgment (see paragraph 140, for example) that, had the proceedings stopped with the last of the decisions by the Military Court of Appeal, there would have been no issue under Article 2 or Article 3 of the Convention. What the text focuses on as the main source of violation is the judgment delivered at the very end of the story by the Supreme Court of Cassation (see paragraph 141 of the judgment). Where the criminal justice system has apparently functioned normally with a police investigation, a prosecution, a trial, appeals and re-trials, with an evolving development in the state of the evidence, in particular expert medical evidence, it is not in principle for this Court to substitute its own conclusion on the case for that of the final national court, by for example expressing a preference for earlier or lower-court decisions based on different medical evidence. Yet that is what would appear to be what the majority of my colleagues have done in the present case. Unfortunately, I am not able to share their view that there are compelling reasons for so doing. Since the judgment is lengthy and the conclusion of violation is based on a myriad of details, the following explanation of my disagreement is also somewhat lengthy and detailed.

3.  The first criticism levelled against the Supreme Court of Cassation is that “[it] decided, contrary to its normal role in the Bulgarian judicial system and its established case-law..., to make fresh findings of fact on the direct causal link, or lack thereof, between the officers’ actions and Mr Dimitrov’s death” (paragraph 144 of the judgment). However, I read the summary of the Supreme Court of Cassation’s judgment given in the judgment as making clear (at paragraph 85) that that Court did no such thing as “making fresh findings of fact”:

“The court started by saying that enough evidence had been gathered and the relevant facts had been sufficiently elucidated. ... It was not permissible to determine anew the question how Mr Dimitrov had died; when the case had been before the Supreme Court of Cassation for the first time..., it had found that the point had been determined correctly. The first panel of the Military Court of Appeal had already answered the question on the basis of the fresh expert reports that it had ordered... . That court [the appeal court] had given reasons why it had chosen to believe the conclusions of the fresh expert reports rather than those of the initial expert report.”

There is no “fresh finding of fact” here, merely the statement that the Supreme Court of Cassation is basing itself on the facts as found by the lower court, namely the Military Court of Appeal. The Supreme Court of Cassation then proceeded to analyse these previously established facts in terms of the legal test of causation under Bulgarian law. The judgment is therefore presumably suggesting that such legal analysis by the Supreme Court of Cassation was “contrary to its normal role in the Bulgarian judicial system”. Even supposing that it is appropriate for this Court to be addressing such admonitions to a superior national court as to the latter’s observance of its own national law, this is something different. As to the powers of the Supreme Court of Cassation, it is to be noted that the Court was indeed competent to modify the lower court’s judgment (see paragraph 106 of the judgment).

4.  The first fresh medical report ordered by the Military Court of Appeal in December 2008 from five experts in varied medical disciplines (see paragraph 48 of the judgment), which was adverted to by the Supreme Court of Cassation in the above-cited extract, found that the earlier medical report on which the courts had relied (see paragraphs 24-25 of the judgment) was defective on medical grounds as regards establishing the cause of death. According to the summary given in the judgment (paragraphs 50-51):

“The experts ... concluded, inter alia, that the main cause of Mr Dimitrov’s death had been positional asphyxia ... as a result of the position in which he had been put ... The asphyxia had been aided by Mr Dimitrov’s chronic illnesses: limited flexibility of the lungs due to massive adhesions of the visceral and parietal pleurae, distended and full stomach which had in that position pressed the diaphragm, a hypertrophy of the heart due to the chronic abuse of cocaine (something shown by the fresh histological tests), moderate obesity, and a short neck. The emotional and physical stress under which Mr Dimitrov had been put, coupled with the possibility of emotional delirium resulting from the use of cocaine, could also have played a part.

The experts categorically disagreed with the conclusion of the previous expert report that the death had been due to a closed cerebral trauma and a traumatic rupture of the aorta.”

As regards the blows to the victim’s body, the report is described in the judgment (at paragraph 52) as reading:

“The experts went on to describe numerous traumatic injuries to Mr Dimitrov’s body. In their view, some of those - chiefly those to the front of the head, to the front of the body and to the limbs - had been caused by an impact or impacts against the ground. The injuries to the wrists had been caused by handcuffs. The other injuries to the head, the back and the waist were due to blows with hard blunt objects administered during a short period of time but not in a very violent manner - something shown by the lack of large subcutaneous haematomas, of smashed soft subcutaneous tissues, of broken bones, or of traumatised joints. It was not possible categorically to determine the exact position of Mr Dimitrov’s body at the time when he had suffered the injuries. The traumatic injuries had not directly caused his death.”

Thus, the objective medical evidence as established by this report is that Mr Dimitrov had not been the victim of a violent beating up: the truncheon blows to his body had been “administered during a short period of time but not in a very violent manner”. In a second report dating from April 2009, “the experts went on to describe a number of injuries not mentioned in their original report. In the experts’ view, all those injuries had been caused by hard blunt objects. Some could have been caused by a truncheon, others from an impact against the ground. However, those injuries had not been life-threatening” (paragraph 56 of the judgment). In a third expert medical report filed in April 2010, it was added that, while the force to be applied to the back of a normally healthy person in the face-downward arrest position on the ground in order to develop the process of asphyxia would have to have been more than 102 kilograms, Mr Dimitrov’s pre-existing medical conditions and other factors had facilitated and accelerated the process of asphyxiation in his case (see paragraph 70 of the judgment).

All told, these three fresh medical reports, which superseded the earlier “erroneous” medical report relied on by the trial court in order to arrive at its findings, do not seem to provide any clear medical evidence of serious, violent and protracted ill-treatment by the five police officers when effecting the arrest.

5.  Regarding the expert medical evidence as to the cause of death and the level of violence of the blows administered to Mr Dimitrov, paragraph 139 of the judgment opines that “doubts may arise about the accuracy of the expert reports drawn up during the appellate examination of the case, on account of, among other things, the manner in which the experts who drew them up were appointed”.

Firstly, it is to be noted that the competent national courts did not express any such doubts about “the accuracy” of the reports in question. On the contrary, the Military Court of Appeal “found that those reports [the first two supplementary reports] were more reliable than the one drawn up during the preliminary investigation... for several reasons”, which it proceeded to explain convincingly in some detail (see paragraph 59 of the judgment). The Supreme Court of Cassation likewise rejected the applicants’ arguments challenging the reliability and completeness of these two reports and held that there were no grounds to prefer the earlier one (see paragraphs 62 and 65 of the judgment). In the third set of proceedings before it, the Military Court of Appeal again fully accepted the conclusions of the supplementary medical reports (now numbering three) and declared the applicants’ objections to them to be ill-founded (see paragraph 75 of the judgment). The applicants’ reiterated objections were not upheld by the Supreme Court of Cassation (see paragraphs 83 and 85 of the judgment). It is difficult to understand how this Court should have more expertise in the medical domain than the superior Bulgarian courts, so as to be able to overturn the latter’s conclusions as regards “the accuracy” of the three medical reports in question.

As to the mode of appointment of the experts in question, the national courts (the Military Court of Appeal and the Supreme Court of Cassation) consistently and specifically ruled, in answer to the applicants’ reiterated objections on this point (see paragraphs 53, 62, 73 and 83 of the judgment), that, as a matter of Bulgarian law, there had been no illegality or irregularity (see paragraphs 54, 64, 69, 80). Here again, it is difficult to understand how this - international - Court should be a more authoritative interpreter of Bulgarian legislation than the superior Bulgarian courts.

6.  The judgment suggests (at paragraphs 144 and 145) that the analytical approach taken by the Supreme Court of Cassation had the result that the issue of the possible use of excessive force by the arresting police officers was not at all addressed in the final national judicial decision relating to the circumstances of the applicant’s arrest and ensuing death - this presumably being an issue going to compliance with the procedural requirements of Article 3. This reading of the Supreme Court of Cassation’s final judgment in the case is, however, difficult to reconcile with the content of the judgment itself.

The Supreme Court of Cassation, after ruling on the main and crucial issue of causation in relation to the charge of murder (see paragraph 85 of the judgment), also examined, on the basis of the Military Court of Appeal’s findings of fact, whether or not “the [police] officers’ actions ... constitute[d] an offence” and whether or not “the officers had acted negligently in relation to the death” (see paragraph 87 of the judgment). Such an examination can only have been by reference to the manner in which the arrest was carried out, including the level of violent force used by the arresting officers. The elements taken into account by the Supreme Court of Cassation in this connection were the expert medical reports (as to their conclusions on the violence of the blows administered, see paragraph 4 of the present dissenting opinion above), the rules governing arrest (the statutory provisions at the time specified in substance that no excessive force or violence was to be used - see paragraphs 97-99 of the judgment) and the internal police instructions on the use of handcuffs, notably as to the position in which to put handcuffed arrestees (namely, as in the present case, face against the ground with hands cuffed behind the back). The Supreme Court of Cassation held that the established medical and other facts disclosed that the police officers had been carrying out a police operation of arrest in conformity with the applicable rules and regulations and “had not acted negligently”.

While the reasoning of the Supreme Court of Cassation in this regard is not explicit on the issue of the use of force, to my mind it is not possible either to assert, as the judgment does (at paragraph 145), that the Supreme Court of Cassation limited its conclusions to the acts potentially related to the retained medical cause of Mr Dimitrov’s death; or to be as categorical as the judgment is in affirming that the Supreme Court of Cassation “failed to analyse in any detail the treatment sustained by Mr Dimitrov or its necessity and compliance with the rules governing the use of force” (paragraph 145 of the judgment).

7.  To sum up on this point: as I understand it, the majority of the Supreme Court of Cassation relied on the established medical evidence set out in the latest three medical reports (the accuracy and regularity of which had been upheld both by the Military Court of Appeal in two successive sets of proceedings and by itself), in order to hold as follows:

-  firstly, it recalled the findings of fact of the Military Court of Appeal, based on the objective medical conclusions set out in the medical evidence, that the cause of death was (a) asphyxiation, not linked to the blows administered by blunt instruments such as truncheons, and (b) more specifically, the putting of the deceased face-downwards on the ground, with his hands cuffed behind his back;

-  it noted that, as laid down in the relevant rules and regulations, this latter treatment constituted an accepted and normally non-dangerous practice regarding the position in which to put persons immediately on arrest;

-  it then recalled the further medical conclusion that this standard arrest-position had, however, because of the freak circumstances of the deceased’s own personal medical condition and state of health at the time, unforeseeably led to death by asphyxiation: “[the police officers] had been carrying out a police operation in line with the relevant rules, which could not a priori envisage death of the arrestee. In the circumstances, the officers had not been in a position to foresee the result or avert it. The events had unfolded very quickly, which had made it impossible to react, and the death had been due to a number of objective factors: chronic medical conditions; distended and full stomach; prior use of cocaine, which had exacerbated the chronic conditions and had led to overagitation; moderate obesity; and an anatomical peculiarity - shorter neck. ... Therefore, the case concerned an accident ... for which the officers were not criminally or civilly liable” (paragraph 87 of the judgment).

In other words, the Supreme Court of Cassation held that, unfortunately, an unforeseeable fatal accident had occurred during the course of an arrest which had been carried out in accordance with “the relevant rules”, including those governing the use physical force during an arrest.

8.  There is perhaps a natural hesitation on the part of many to accept a thesis of unavoidable accident in the context of a resisted arrest of one man carried out by no less than five police officers. However, I do not find either in the assessment of the factual, objective evidence, notably medical, by the Supreme Court of Cassation or in the latter’s legal reasoning any indices of irrationality, unreasonableness, arbitrariness or flagrant non-observance of rules of national law. Nor do I discern any failure to observe the procedural requirements of Articles 2 and/or 3 (the judgment seems to run the requirements of the two Articles together in this respect) by reason of insufficiently addressing the relevant considerations of the case going either to the right to life of the deceased person (that is to say, the circumstances that led to and caused his death when being arrested) or to his right not to be subjected to inhuman and degrading treatment (that is to say, the other circumstances attending the arrest which did not have any causal link with his death but concerned the manner in which the arrest was effected, including in particular the level of physical force and violence used by the arresting police officers). If the judgment of the Supreme Court of Cassation is read carefully, it cannot be said that the circumstances of the arrest, regarding not only the cause of death as such but also the manner of effecting the arrest in its non-lethal aspects, remained unclarified or unaddressed as a result of that Court’s procedural treatment of the case. This is not to say that the judgment of the Supreme Court of Cassation is above criticism or that the dissenting opinion of the President of the three-judge panel on the Supreme Court of Cassation, which is mentioned with apparent approval in the judgment (see, for example, paragraphs 144 and 163), lacks merit in terms of its differing reading of the requirements of Bulgarian criminal procedural law. The point is merely that, to my mind, the seriousness of procedural shortcomings capable of giving rise to a violation of the procedural aspect of Articles 2 and 3 of the Convention is simply not present on the facts of the case as far as the treatment of the case by the Supreme Court of Cassation is concerned.

9.  The present case is not one of absence of investigation or absence of prosecution of those public agents responsible for the death. The Court should therefore be circumspect before jumping to conclusions of violation of Articles 2 and 3. Although the initial stages of the investigation are characterised by the judgment as having suffered from flaws (see paragraph 139), this did not prevent the arresting police officers from being prosecuted and, at the level of the trial court and the first appellate court, of being convicted of murder. Articles 2 and 3 do not demand perfect or ideal investigations and prosecutions, and it will doubtless almost always be possible, with the benefit of hindsight, to identify some flaws or ways in which things could have been done more efficiently. In the present case, full trials and re-trials were conducted; and copious medical evidence was obtained. The ultimate outcome, and some of the procedural steps taken along the way, were not as the applicants would have wished; but that, without more, is insufficient to ground a finding of violation of Articles 2 and 3 of the Convention.

10.  The judgment also relies on “serious concerns” about the planning and supervision of the arrest operation as a contributing factor for justifying its finding of violation of Articles 2 and 3 (see paragraphs 146-47). These “serious concerns”, however, on closer examination turn out to be based on rather weak argumentation. Common sense alone tells one that it is difficult to talk of a lack of proper planning or supervision in relation to an operation where five police officers carry out a ten-minute operation in a public street to arrest a suspect “in line with the relevant rules [governing arrest]” (to use the words of the Supreme Court of Cassation), without any recourse to firearms or vehicle-pursuit and where death of the arrestee has accidentally and unpredictably resulted from resort to the accepted, normally non-dangerous position for holding persons immediately on arrest. As the judgment of that Court makes crystal clear, no amount of prior planning or supervision during the arrest operation could have prevented the unforeseeable, freak accident that led to the death of the applicants’ relative. The facts of the present case are in no way to be compared with those in the cases cited in the judgment as relevant authorities (namely Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011 - which concerned the alleged killing of Iraqi nationals by members of the British armed forces in Iraq; McKerr v. the United Kingdom, no. 28883/95, ECHR 2001-III - where the police killed three suspected terrorists by firing over 100 rounds into the car in which the latter were travelling; and Avşar v. Turkey, no. 25657/94, ECHR 2001-VII - where the applicant’s brother was abducted and murdered by village guards).

11.  To conclude, there are indeed regrettable aspects of the present case calling for criticism - notably, as said at the outset, the initial efforts of certain police officers to hamper the investigations and the public declarations made by two governmental ministers with the apparent intention of exerting pressure on the appeal courts in favour of an acquittal of the police officers. Nonetheless, on their own these two factors are not sufficient to entail a violation of the procedural aspect of Articles 2 and 3, given the overall way in which the investigation and the prosecution were in fact pursued. And in concentrating in the way that it does on the procedural treatment of the case by the Supreme Court of Cassation, the majority of the chamber has, I believe, strayed overly into the territory of interpretation of national law, which is a matter for the Bulgarian courts themselves, not this Court. In my opinion, such shortcomings in its procedural treatment of the case as can be put at the door of the Supreme Court of Cassation do not entail the seriousness required to give rise to a violation of the procedural requirements of Articles 2 and 3.

12.  I, however, respect that the judgment of the Court has been to find a violation of Articles 2 and 3, and I have found it appropriate to join my colleagues in the vote to award the applicants just satisfaction under Article 41 of the Convention.