European Court of Human Rights

 

 

 

FOURTH SECTION

DECISION

Application no. 2092/08
Dimitar Georgiev MULIN and Anka Rangelova MULINA
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 26 August 2014 as a Chamber composed of:

          Ineta Ziemele, President,
          George Nicolaou,
          Ledi Bianku,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Paul Mahoney,
          Faris Vehabović, judges,

and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 10 December 2007,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Dimitar Georgiev Mulin and Ms Anka Rangelova Mulina, are Bulgarian nationals, who were born in 1944 and 1945 respectively and live in the village of Dospey. They are represented before the Court by Mr I. Ivanov, a lawyer practising in Stara Zagora.

The circumstances of the case

The applicants are the parents of Mr Angel Georgiev, who died on 26 December 1993, aged 23.

1.  The death of Mr Georgiev

In the night of 26 December 1993 in a field near the town of Samokov the applicant’s son was involved in a gang fight. During the fight he was stabbed in the back. His body was found on the next morning by his brother. The knife used for the stabbing was never found.

The subsequent post mortem showed that Mr Georgiev’s death had been due to bleeding in the chest cavity.

2.  Preliminary investigation

Criminal proceedings in connection with Mr Georgiev’s murder were opened on 26 December 1993. On 28 December 1993 and on 9 February 1994 respectively the prosecution brought charges against two of those involved in the fight - Mr K.S. and Mr O.V. Between 9 February and 8 March 1994 Mr O.V. was detained on remand.

The preliminary investigation continued until 1999. On several occasions the Samokov Investigative Service sent the case file to the prosecution, but each time the case was remitted with instructions to collect further evidence, most notably with the aim to establish the role played by each of the participants in the fight.

On an unspecified date in 1999 the prosecutor indicted Mr K.S. and Mr O.V.

3.  Court proceedings

At a court hearing on 9 June 1999 the applicants joined the proceedings as private prosecutors and civil claimants.

In a judgment of 5 June 2000 the Sofia Regional Court found Mr O.V. guilty of murdering the applicants’ son, sentenced him to thirteen and a half years’ imprisonment and ordered him to pay damages to the applicants. The court acquitted Mr K.S.

Mr O.V. lodged an appeal against this judgement. In respect of Mr K.S. it entered into force.

On 30 April 2002 the Sofia Court of Appeal quashed the lower court’s judgment, acquitted Mr O.V. and rejected the applicants’ civil claim, finding that there was no conclusive evidence that could link the accused to the commission of the offence. It noted, in particular, that it had not been established that in the moment when he got involved in a fight with Mr Georgiev Mr O.V. had had a knife; moreover, as he had himself been stabbed by Mr Georgiev, he had left the place early and the fight had continued; it was thus possible that Mr Georgiev had been stabbed by someone else after Mr O.V.’s departure, or even before that, as the medical expert reports had shown that after having been fatally stabbed the applicant’s son had still been for some time capable of moving and participating in the fight.

Upon an appeal by the prosecution, in a judgment of 6 February 2003 the Supreme Court of Cassation quashed the Court of Appeal’s judgment and remitted the case, finding that the lower court had not duly taken into account all relevant evidence and that its reasoning had been contradictory.

In a judgment of 8 April 2003 the Sofia Court of Appeal once again acquitted Mr O.V. and dismissed the applicants’ civil claim. It again found that it was not established beyond reasonable doubt that it had been the accused who had fatally stabbed Mr Georgiev and that it could have been someone else of the participants in the fight. It considered that the Regional Court’s sentence had impermissibly been based on assumptions as to the role played by Mr O.V.

The applicants and the prosecution appealed on points of law. The applicants considered that the accused’s guilt had been sufficiently proven.

In a judgment of 18 March 2004 the Supreme Court of Cassation quashed the Court of Appeal’s judgment and remitted the case. It found that there had been breaches of the procedural rules because one of the judges who had previously examined the case had also been member of the panel which had examined the case the second time around and, in addition, the judgment had been signed by another judge who, according to the transcripts of the proceedings, had not participated in them.

In a judgment of 7 April 2005 the Sofia Court of Appeal acquitted once again Mr O.V. and dismissed the applicants’ civil claim. It found that there was no conclusive evidence that the accused had committed the offence. It noted that what was proved was that Mr O.V. had been involved in a fight with the applicants’ son and had been stabbed; it had not however been established that he had had a knife and had stabbed his adversary in return.

The applicants and the prosecution lodged appeals on points of law.

In a judgment of 18 May 2006 the Supreme Court of Cassation quashed the lower court’s judgment and remitted once again the case. It considered that during the second examination of the case by the Sofia Court of Appeal the latter had not followed the instructions given by the Supreme Court of Cassation at the first remittal, namely that all available evidence be examined. In particular, it found that the Court of Appeal had not discussed the fact that there had been traces of the victim’s blood on the accused’s shirt and that in his testimony one of the witnesses had stated that before arriving at the field where the fight took place he had seen the accused carrying a knife.

In a judgment of 11 January 2007 the Sofia Court of Appeal acquitted Mr O.V., finding that in view of the evidence collected more than one conclusion could be drawn as to who had fatally stabbed the applicants’ son. The Court of Appeal noted that the victim had already been bleeding when he had exchanged blows with Mr O.V., which could explain why Mr O.V.’s shirt was smeared with the victim’s blood. In addition, none of the witnesses had seen Mr O.V. stab the victim and the knife used for the murder had never been found. It was thus possible that someone else had stabbed the applicants’ son; no definite conclusion could be drawn in that regard since during the preliminary investigation it had not been established whether another person had had a knife, the clothes of the other people involved in the fight had not been examined, and the investigative authorities had not carried out a more extensive search of the area where the fight had taken place in order to locate the knife which had caused the lethal wound. Finally, it appeared that even at the stage of the preliminary investigation it had been difficult to establish who had given the fatal blow to Mr Georgiev; that is why the prosecution had indicted two persons even though it had been clear that Mr Georgiev had died as a result of a single blow in the back.

The applicants and the prosecution lodged appeals on points of law against this judgment.

In a final judgment of 28 June 2007 the Supreme Court of Cassation upheld it, endorsing the Court of Appeal’s reasoning.

COMPLAINTS

1.  The applicants complain under Article 2 and Article 13 of the Convention that the authorities failed to investigate effectively their son’s death and discover his murderer.

2.  The applicants further complain under Article 6 § 1 of the Convention about the length of the criminal proceedings.

THE LAW

1.  The applicants complained, in the first place, of the alleged ineffectiveness of the investigation of their son’s death, under Article 2 and Article 13 of the Convention.

Article 2, insofar as relevant, provides:

“1.  Everyone’s right to life shall be protected by law...”

Article 13 reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.

2.  The applicants also complained under Article 6 § 1 of the Convention that the criminal proceedings in which they had participated as civil claimants had been excessively lengthy.

Article 6 § 1, insofar as relevant, reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court recalls that in its decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, 18 June 2013) it found that the remedies for unreasonable length of proceedings introduced in 2012 in Bulgarian law, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, allowing the award of compensation, could be regarded as effective. It found further that the remedies were available to applicants who, similarly to the present case, had lodged their applications with the Court before the remedies’ introduction. There is nothing in the present case to suggest that those remedies would not be able to provide the applicants adequate redress.

It follows from the above that the present complaint must be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

For these reasons, the Court by a majority

Decides to adjourn the examination of the applicants’ complaints under Article 2 and Article 13 of the Convention;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos                                                           Ineta Ziemele
         Registrar                                                                            President