CASE OF FILIPOVI v. BULGARIA

FOURTH SECTION

CASE OF FILIPOVI v. BULGARIA

(Application no. 24867/04)

JUDGMENT

STRASBOURG

4 December 2012

FINAL

29/04/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Filipovi v. Bulgaria,

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

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 November 2012,

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

PROCEDURE

1. The case originated in an application (no. 24867/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Ms Rositsa Hristova Filipova and Mr Alberto Nikolaev Filipov (“the applicants”), on 1 July 2004.

2. The applicants were represented by Mr G. Blagoev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice.

3. The applicants alleged that their husband and father had been unjustifiably shot and killed by the police. They also alleged that the ensuing investigation into the matter had not been effective.

4. On 13 November 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

5. Following the re‑composition of Court’s sections on 1 February 2011, the application was transferred to the Fourth Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1967 and 1994 respectively and live in Sofia. They are the widow and the son of Mr Nikolay Albertov Filipov, who was shot by a police officer and died on 13 May 1999. The background to the shooting is described as follows, the details being based on the findings made by the domestic courts in the ensuing criminal proceedings against the officer.

A. The events of 13 May 1999

7. In early May 1999 the Sofia police, who had been tipped off that Mr Filipov might have been involved in three armed robberies which had taken place between March and May 1999 in Sofia and in which the robbers had stolen Mercedes minivans, decided to mount an operation in order to investigate the matter. They had received information that Mr Filipov had a country house in the village of Kalugerovo, near the town of Pravets. At about 4 p.m. on 13 May 1999 four police officers from Sofia, including chief sergeant Y., arrived at the Pravets police station. There, they were informed that Mr Filipov was probably in his house, having arrived there in his car. They were also informed that a Mercedes minivan had been spotted in the house’s yard. Five officers, using two cars, drove towards the house. There, one of the officers saw that a minivan parked in the yard matched one of those involved in one of the robberies. After discussing their further course of action, the officers split up. Two of them headed back to the Pravets police station to report on their findings, and three, including chief sergeant Y., positioned themselves on the road leading to Mr Filipov’s house, with the intention of checking the identities of the drivers of passing cars. They put on bullet‑proof vests which bore the inscription “police”.

8. According to the officers’ explanations, at about 8 p.m. Mr Filipov drove past them, heading towards Kalugerovo. They got into their car and drove after him. After the first turn, they saw that his car had stopped on the left side of the road, with the engine still turned on. They approached, stopped their car in front of Mr Filipov’s, got out, presented themselves to Mr Filipov and asked him to show his identification documents. He quickly drove off. The officers got into their car and gave chase. Chief sergeant Y. was driving, the second officer was sitting beside him, and the third was in the back seat. Chief sergeant Y. turned on the police light and the siren, and the officer in the back seat repeatedly shouted into a megaphone “Police, pull over and stop!” Mr Filipov did not heed that order. According to the findings of the Military Court of Appeal (see paragraphs 37 and 46 below), but not those of the Sofia Military Court (see paragraphs 35 and 43 below), while driving he was brandishing a small double‑barrelled handgun and was pointing it at the officers. The third officer tried to contact the station but could not, because the police car was in a radio shadow area as the road passed through mountainous terrain. At one point chief sergeant Y. took out his firearm, loaded it, and fired a warning shot in the air. Mr Filipov kept on driving without slowing down. Then the officer who was in the back seat also took out his firearm and fired several shots at Mr Filipov’s car, aiming towards the right side of the car to avoid hitting Mr Filipov. The shots caused the car to break down and start emitting black smoke. It slowed down, turned to the right, and stopped beside the road, slanting towards it. Mr Filipov jumped out of it and onto the road, with his back towards the officers. Chief sergeant Y. stopped the police car, opened the left front door, aimed at Mr Filipov, shouted “Lie down, police!” and fired at him from a distance of about ten metres. At the same time, the two other officers were getting out of the car. According to the findings of the Military Court of Appeal (see paragraphs 37 and 46 below), but not those of the Sofia Military Court (see paragraphs 35 and 43 below), at that point or moments before it Mr Filipov had twisted his upper body and had pointed his handgun at the officers. The bullet hit Mr Filipov in the lower back. He fell to the ground, and the other two officers ran to him and handcuffed him. Chief sergeant Y., after several attempts, was able to contact the police station over the radio, and asked for an ambulance to be called in. At least one of the officers remained at the scene. The ambulance arrived at about 8.30 p.m. and Mr Filipov was taken to the emergency ward of a hospital in Botevgrad, where the on‑duty doctor pronounced him dead. Five rounds of ammunition for the double‑barrelled handgun were found in his clothes.

B. The criminal proceedings against chief sergeant Y.

1. The pre‑trial investigation

9. Shortly after the incident, at 9.50 p.m. on 13 May 1999, the scene was inspected by a civilian investigator. The inspection lasted until 11.10 p.m. Photographs were taken and physical evidence – including cartridge‑cases and the double‑barrelled handgun allegedly held by Mr Filipov – was obtained. The record of the inspection says that the handgun was found at a distance of eighteen metres from the edge of the road, under a tree.

10. The next day, 14 May 1999, a military investigator opened an investigation into the incident. The three officers involved gave written explanations of what had occurred. The body of Mr Filipov was inspected in the Botevgrad hospital, and fingerprints and acetone smears from his palms were obtained.

11. The investigator requested a medical expert report, which was drawn up by a forensic pathologist who performed an autopsy on Mr Filipov’s body at 5.30 p.m. the same day. In his report he determined that death had been caused by one shot going through the stomach. The entry wound was close to the vertebral column, and the channel of the wound, assuming an upright position of the victim, was from the back to the front, slightly leftward and upward. It was not possible to determine the distance from which the shot had been fired; that could be done by testing the clothes worn by Mr Filipov. When passing through the body, the bullet had, amongst other damage caused, ruptured the common iliac vein, which had caused massive internal bleeding and death. Death had not been immediate, but had been quick and inevitable. There were, in addition, some bruises on Mr Filipov’s head, body and limbs. Those had been caused while he was still alive and had not been among the factors contributing to his death. Most of them could have been the result of his falling to the ground after the shot. Those on the left foot had been caused by separate blows with blunt objects, and the marks on his wrists had been caused by handcuffs.

12. On 15 May 1999 the investigator, noting that chief sergeant Y. had shot and killed Mr Filipov, charged him with negligent homicide and interviewed him.

13. Over the next few days, investigators interviewed the three police officers and a number of other witnesses, and gathered other evidence. The officers stated, amongst other things, that at the moment when chief sergeant Y. had fired the fatal shot Mr Filipov had had his right shoulder turned toward them and had been pointing his handgun at them.

14. On 25 May 1999 the investigator in charge of the case asked an expert to determine, if possible, whether the double‑barrelled handgun allegedly held by Mr Filipov during the incident bore his fingerprints. He asked another expert to carry out ballistics tests, a third to determine the distance from which the fatal shot had been fired based on chemical residue on the clothes and hands of those involved, and a fourth to determine whether some dark spots found at the scene consisted of human blood. The experts submitted their reports on 27 May and 16, 24 and 28 June 1999. The fingerprint report indicated that the double‑barrelled handgun did not bear identifiable fingerprints. The ballistics report stated that the nine‑millimetre handguns of two of the officers, as well as the double-barrelled handgun, had been fired; that a cartridge‑case found at the scene had been ejected when a shot had been fired from one of the officers’ handguns; that the bullet found during the autopsy of Mr Filipov’s body had been fired from a nine‑millimetre gun, but that it was not possible to establish with certainty its make or model, nor whether the bullet had been part of the same cartridge as the case found at the scene; that four bullets found in Mr Filipov’s car had been fired from the other police handgun; and that the rounds of ammunition for the double‑barrelled handgun were fully functional. The third report said that the distance from which the fatal shot had been fired could not be established. The fourth report said that the spots did consist of human blood.

15. On 23 September 1999 the investigator interviewed chief sergeant Y. a second time.

16. On 30 September 1999 the investigator conducted a reconstruction of the events with a view to verifying the officers’ assertions about their positions vis‑à‑vis Mr Filipov at the time of the incident.

17. On 12 and 21 October 1999 he ordered a further physicochemical and ballistics expert report with a view to clarifying the relative positions of Mr Filipov and chief sergeant Y. at the time of the shot and the distance between them. The report was finalised on 28 December 1999.

18. On 29 October 1999 chief sergeant Y. was interviewed again.

19. On 4 February 2000 the investigator requested a further expert report as regards whether it had been possible for Mr Filipov to have sustained his injury in the manner described by the three officers. The report was finalised on 22 March 2000.

20. On 6 April 2000 the first applicant applied to join the proceedings as a civil‑party claimant. The investigator allowed her application the next day.

21. On 25 April 2000 the investigator, concluding that chief sergeant Y. had acted in self‑defence, made a proposal to the Sofia Regional Military Prosecutor’s Office that the investigation be discontinued. On 26 June 2000 that office agreed with the proposal. On 9 August 2000 the Military Appellate Prosecutor’s Office confirmed the discontinuance and, in line with the then applicable procedure (see paragraph 56 below), forwarded the case file to the Military Court of Appeal (Военноапелативен съд) for review. On 12 October 2000 that court, holding that the prosecutors’ conclusions had been based on an erroneous assessment of the evidence, quashed the discontinuance and referred the case back for further investigation.

22. The case was assigned to a new investigator, who started working on it on 12 January 2001. Over several days in January 2001 he interviewed various witnesses, including the three officers, again and, based on those interviews, on 31 January 2001 ordered a further expert report. In March 2001 he conducted further interviews of and confrontations between chief sergeant Y. and the other two officers. The expert report was finalised on 29 March 2001.

23. On 4 April 2001 the investigator allowed the first applicant, assisted by her counsel, to acquaint herself with the case file.

24. On 6 April 2001, concluding that chief sergeant Y. had acted in self‑defence, the investigator again proposed that the investigation be discontinued. On 4 May 2001 the Sofia Regional Military Prosecutor’s Office agreed to the proposal. The first applicant sought judicial review, as had become possible under a recent amendment of the rules of criminal procedure (see paragraph 57 below). After hearing the case in open court, on 8 June 2001 the Sofia Military Court (Софийски военен съд) quashed the discontinuance, holding that the prosecuting and the investigating authorities had failed to comply with the instructions given in the decision of 12 October 2000 (see paragraph 21 above). Following an appeal by the prosecuting authorities, on 1 November 2001 the Military Court of Appeal upheld the lower court’s decision, instructing the prosecuting authorities to carry out further inquiries. Following an appeal by chief sergeant Y., on 9 July 2002 the Supreme Court of Cassation upheld the lower courts’ decisions.

25. The investigator resumed his work on the case on 9 September 2002. On 8 October 2002 he again proposed that the investigation be discontinued. On 18 October 2002 the Sofia Regional Military Prosecutor’s Office disagreed and referred the case back for further investigation.

26. After conducting a further interview and obtaining another expert report, on 14 December 2002 the investigator again proposed that the investigation be discontinued. On 18 December 2002 the Sofia Regional Military Prosecutor’s Office agreed to the discontinuance. The applicants sought judicial review. After hearing the case in open court, on 10 February 2003 the Sofia Military Court quashed the discontinuance. Having reviewed the procedural history of the case, it said that the prosecuting and the investigating authorities had manifestly failed to comply with the instructions given during the previous rounds of judicial review proceedings as to the further investigative steps to be taken. The prosecuting authorities and chief sergeant Y. appealed but, following a legislative amendment providing that first‑instance courts’ decisions reviewing discontinuances of pre‑trial investigations were final (see paragraph 57 in fine below), on 3 June 2003 the Military Court of Appeal terminated the appeal proceedings.

27. On 18 July 2003 chief sergeant Y. requested that the proceedings against him be discontinued under Article 239a of the Code of Criminal Procedure 1974, a provision added in June 2003 and allowing persons charged with criminal offences to request either to be brought to trial or to have the charges against them dropped if the investigation has not been completed within a certain amount of time (for more details see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, §§ 38‑41, 10 May 2011). On 25 July 2003 the court allowed his request and instructed the Sofia Regional Military Prosecutor’s Office to either bring him to trial within two months or discontinue the proceedings.

28. On 16 September 2003 the investigator interviewed chief sergeant Y. and the two other police officers, and on 19 September 2003 again proposed that the investigation be discontinued. On 2 October 2003 the Sofia Regional Military Prosecutor’s Office agreed. The applicants sought judicial review. After hearing the case in private, on 11 November 2003 the Sofia Military Court quashed the discontinuance.

29. On 18 November 2003 chief sergeant Y. made a second request under the above‑mentioned Article 239a of the Code of Criminal Procedure 1974. On 24 November 2003 the court allowed the request and instructed the Sofia Regional Military Prosecutor’s Office to either bring the sergeant to trial within two months or discontinue the proceedings.

30. On 16 January 2004 the Sofia Regional Military Prosecutor’s Office again discontinued the proceedings, giving the same reason as previously: that chief sergeant Y. had acted in self‑defence.

31. On 20 February 2004 the Sofia Military Court noted that no indictment had been filed against chief sergeant Y. within the prescribed two‑month time‑limit, and discontinued the criminal proceedings against him. However, acting pursuant to an application for judicial review against the prosecutor’s decision of 16 January 2004, on 26 February 2004 the court quashed the discontinuance and referred the case back for additional investigation. Having reviewed the procedural history of the case, it observed that the prosecuting authorities had demonstratively failed to follow the binding instructions given during the previous rounds of judicial review proceedings.

32. After some confusion as to whether the proceedings could be pursued, in November 2004 the investigator resumed his work on the case. On 18 November 2004 he charged chief sergeant Y., but on 30 November 2004 again proposed that the investigation be discontinued. However, on 8 December 2004 the prosecuting authorities submitted an indictment against the sergeant to the Sofia Military Court.

2. The judicial phase of the proceedings

33. On 28 December 2004 the judge‑rapporteur at the Sofia Military Court set the case down for trial, which took place on 27 May 2005. At the close of the trial the court decided to refer the case back to the prosecuting authorities. It noted that the indictment against chief sergeant Y. suffered from a number of omissions and discrepancies: it did not specify the evidence purportedly establishing the various elements of the alleged offence; it contained contradictory statements as to whether the chief sergeant had shot Mr Filipov in the stomach or in the back, which was essential for the legal characterisation of the offence; it contained contradictory statements as to the specific offence of which the chief sergeant was being accused; and it did not set out which sections of the Ministry of Internal Affairs Act 1997 had been breached by the chief sergeant. None of those defects had been made good during the trial, and it was therefore necessary to refer the case back to the prosecuting authorities for their rectification.

34. On 8 July 2005 the charges against chief sergeant Y. were amended, and he was accused of murder committed while exceeding the limits of self‑defence. On 4 August 2005 the investigator again proposed that the proceedings be discontinued, but on 23 August 2005 the prosecuting authorities submitted an indictment against the sergeant to the Sofia Military Court. On 29 September 2005 the judge‑rapporteur set the case down for trial. The trial took place on 14 December 2005.

35. In a judgment of the same date the Sofia Military Court acquitted chief sergeant Y. and rejected the claims for damages that the applicants had brought against him and against the police. It held that there was no indication that Mr Filipov had tried to attack the officers when the sergeant had shot at him. At the time of being shot he had had his back to them, and it was illogical for him to have attacked three officers who outnumbered and outgunned him. The assertion that he had tried to attack the officers was based exclusively on their statements, and its probative value was diminished by their obvious interest in proving that they had acted in self‑defence. The statements of the two officers who had accompanied chief sergeant Y. were contradictory and did not match the findings of the medical expert reports. They had not been confirmed by the reconstruction carried out during the investigation. The double‑barrelled handgun found at the scene had not borne Mr Filipov’s fingerprints. The statement of one of the officers to the effect that Mr Filipov had thrown it into a ditch did not match the record of the inspection of the scene, which had noted that it had been found in a lawn, eighteen metres from the place where Mr Filipov had fallen to the ground. All of that made it highly doubtful whether Mr Filipov had indeed held and pointed a handgun at the three officers. As there had been no attack, there had been no self‑defence, and therefore no exceeding the limits of self‑defence. However, the prosecution had only proffered such a charge, which left the court with no alternative but to acquit chief sergeant Y. and dismiss the civil‑party claims.

36. Both the prosecution and the applicants appealed. The Military Court of Appeal heard the appeal on 20 February 2006. It did not re‑examine witnesses.

37. On 13 April 2006 the Military Court of Appeal upheld the acquittal, but for different reasons. It criticised the lower court for failing fully to take into account the officers’ statements concerning the events preceding the fatal shot and for rejecting them as unreliable. It noted that all three of them had stated that Mr Filipov had been brandishing a handgun during the car chase and had been pointing it at the police car. One of them had even warned the other two that Mr Filipov was armed. When the two cars had stopped, Mr Filipov had still been holding the handgun, and had thrown it away when hit by chief sergeant Y.’s bullet. During the ensuing inspection of the scene, the handgun had been found with rounds in both barrels. Five more rounds of ammunition for that gun had been found in Mr Filipov’s clothes at the hospital. The lower court had failed fully to analyse some of those points or give due weight to others. In particular, it had rejected outright the officers’ statements as self-serving, and had relied on the lack of fingerprints on the handgun to disregard its relevance to the case. All of the foregoing made it necessary for the appellate court to make different findings of fact. It accepted that during the car chase Mr Filipov had been brandishing a handgun and had been pointing it at the officers. He had continued holding the weapon after jumping out of his car, had turned towards the officers and had started running. The officers had seen that he was armed and chief sergeant Y. had shot at him from a distance of about ten metres. Before falling to the ground, Mr Filipov had managed to throw away the handgun. Most of those facts could be established from the officers’ statements, which could not be discarded as unreliable simply because the officers would be affected by the outcome of the case. In view of the lack of further eyewitnesses, other evidence was needed to cast doubt on those statements. The direction of the wound did not disprove them. It had to be borne in mind that Mr Filipov been trying to escape, had run, bent, twisted, turned back, and had brandished his handgun. It was therefore not inconceivable for him to have been facing his pursuers at one point, and then suddenly turning his back to them or bending over. The lower court’s finding that there was a discrepancy between the statement of one of the officers and the record of the inspection of the scene had been unfounded. The ground at the scene had been broken and covered with grass. While the officer and the investigator who had later drawn up the inspection record might have described the terrain differently, the fact remained that a handgun had been found eighteen metres from the road. The record said that the handgun had been found “below the right edge of the asphalt cover”, which indicated that it had been below the level of the road. It was unlikely that it had been planted there before or after the shooting, especially bearing in mind that rounds of ammunition for it had later been found in Mr Filipov’s clothes. Therefore, the lack of his fingerprints on the gun did not refute the officers’ statements. Fingers did not always leave prints on the objects that they touched. The ballistics and medical experts had arrived at matching conclusions about the distance from which Mr Filipov had been shot.

38. In those circumstances, it could be accepted that chief sergeant Y. had acted in self‑defence. Under the Supreme Court of Cassation’s case‑law, such a defence was permissible whenever there was a real and proximate risk of attack, even before it had materialised. There were a number of elements that showed that such a risk had existed. Mr Filipov had been an individual suspected of serious offences. After seeing the police, he had tried to escape in his car. During the chase he had been brandishing a handgun and had been pointing it at the officers. After jumping out of his car, he had still been holding the weapon, swinging it, and pointing it at the officers. It had thus been obvious that he might at any point have shot at them. The situation had been dynamic and had unfolded rapidly, and it was conceivable that Mr Filipov might have turned away quickly at the moment when chief sergeant Y. had fired at him, and had thus been shot in the back. The sergeant had not been bound to wait for Mr Filipov to point the gun at him again before shooting. The mere fact that a person who had just displayed aggressive behaviour was holding a weapon had been a sufficient basis to suppose that he might shoot.

39. The prosecution appealed on points of law.

40. On 22 January 2007 the Supreme Court of Cassation (Върховен касационен съд) quashed the Military Court of Appeal’s judgment (реш. № 1120 от 22 януари 2007 г. по н. д. № 635/2006 г., ВКС, І н. о.). It held that that court had erred in assessing the evidence, giving excessive weight to some of it over the remainder. In particular, it had placed undue reliance on the statements of the three officers in order to establish key facts. It was therefore necessary to refer the case back to that court with instructions to establish, in keeping with the rules of evidence, how the chase preceding the shooting had unfolded, how the officers had perceived the manner in which Mr Filipov had brandished the handgun, whether they had seen that as a threat that he might use it, what had been the exact movements of all involved after the two cars had stopped, what had been their relative positions at the time the shot was fired, what had been the exact risk to the officers, whether Mr Filipov had uttered threats and if so at what point, whether it had been possible for him to throw his handgun for eighteen metres, and what the reason for the lack of fingerprints on the handgun was.

41. On remittal, the Military Court of Appeal, in a judgment of 22 May 2007, decided to refer the case back to the prosecuting authorities, to enable them to modify the charges against chief sergeant Y.

42. On 27 June 2007 the Sofia Regional Military Prosecutor’s Office charged chief sergeant Y. with aggravated murder. On 11 September 2007 it allowed the applicants and the accused to consult the case file, and shortly after that indicted the sergeant. However, on 1 October 2007 the Sofia Military Court, noting that the indictment contained errors and that there had been no investigation of the points mentioned in the Supreme Court of Cassation’s judgment, referred the case back to the prosecuting authorities.

43. In November 2007 the prosecuting authorities conducted further interviews and obtained another expert report. Shortly after that they resubmitted the indictment. After hearing the case on 16 June 2008, in a judgment of the same date the Sofia Military Court found chief sergeant Y. guilty and sentenced him to sixteen years’ imprisonment. It also ordered him, jointly with the Sofia Police Directorate, to pay 100,000 Bulgarian levs, plus interest, to the applicants in compensation for the non‑pecuniary damage suffered by them. It made largely the same findings of fact as those in its judgment of 14 December 2005 (see paragraph 35 above). On that basis, it concluded that chief sergeant Y. had killed Mr Filipov wilfully.

44. Chief sergeant Y. and the Sofia Police Directorate appealed.

45. The Military Court of Appeal heard the appeal on 29 September 2008. It did not re‑examine witnesses.

46. In a judgment of the same date the Military Court of Appeal quashed the Sofia Military Court’s judgment, acquitted chief sergeant Y., and dismissed the applicants’ claims for damages. It held that it had not been proved beyond doubt that chief sergeant Y. had not acted in self‑defence. It criticised the manner in which the lower court had analysed the evidence, finding fault chiefly with the manner in which it had assessed the truthfulness of the statements of the officers and the way that it had juxtaposed them with the forensic evidence. There was no reason to disbelieve the evidence given by the two officers who had been eyewitnesses to the shooting, because their statements had been coherent and full. Some of their statements had been given immediately after the incident, which further boosted their credibility. Their account had not been refuted, but on the contrary had been confirmed by the forensic evidence. The ballistics report showed that Mr Filipov’s handgun had been able to produce a shot. Ammunition for that handgun had been found in Mr Filipov’s clothes, and this made it unlikely that it had been planted at the scene. The medical experts had concluded that Mr Filipov could have thrown the gun for eighteen metres. Based on their observations about the channel of the wound, they had also concluded that he could have sustained it in the manner described by the officers. During a dynamic chase, he could have turned and pointed his handgun at the officers while running away. The lack of fingerprints on the gun was not conclusive and could not categorically disprove the statements of the two officers. The reconstruction of the events had yielded similar information. Based on those considerations, the court found it necessary to make fresh findings of fact. Relying on the statements of the two officers who had accompanied chief sergeant Y., the conclusions of the various expert reports, the data obtained during the reconstruction, and other written material, it found it established that Mr Filipov had been brandishing a handgun during the chase and that he had pointed it at the officers after jumping out of his car. Seeing that threat, chief sergeant Y. had shot at him. In the court’s view, that step had clearly been taken in self‑defence. In support of that conclusion, the court gave reasons that were similar to the ones it had given when first examining the case (see paragraph 38 above). It held:

“All of the above shows that [chef sergeant Y.] was faced with a real danger, caused by the fact that a handgun that was capable of firing and was loaded with usable rounds was actually and directly pointed at him; this was a sufficient precondition for self‑defence. The doctrine and the case‑law concerning the directness of the attack and the suitability of self‑defence do not require that the attack be already harming the person who is defending himself; they allow self‑defence when there is a real and proximate risk that a person’s interests will be harmed. ... It is very important to establish the moment when the attack becomes immediate, because it is at that point that the right to self-defence arises. In its case‑law the Supreme Court has many times said that to regard an attack solely as an offence and accept that it becomes immediate only when the actus reus of the offence has begun to be carried out would diminish the defence’ effectiveness. For instance, if the attacker uses a firearm or a knife, under such a view the attacked would not be able to defend himself before the firearm has been pointed or the knife has been swung from a close distance. That view is wrong and would in many cases render the defence impossible. It must therefore be accepted that an attack is immediate not only when it has already started to cause harm, but also when there is a real and immediate danger that State or public interests, or the person or the legal rights of those concerned, will be harmed. The doctrine and the courts’ case‑law say that to prevent significant injury to interests imperilled by such an attack it is always permissible to act vigorously against the attacker. This is so even if there are other ways of preventing or averting the attack. In the case at hand, the police officers could not be expected to avoid “complications” by letting the offender continue his unlawful actions unabated. It should also be borne in mind that throughout the incident the officers’ actions were lawful and carried out in line with the provisions of the then applicable Ministry of Internal Affairs Act [1997], now repealed, and that there has been no abuse of their powers.

The facts, established in line with the rules of procedure, lead to the conclusion that in the situation at hand [chief sergeant Y.]’s life and health were directly and immediately threatened, and that he was in a situation of self‑defence. The police officers were chasing a person who was clearly known to have committed serious offences – robberies. After the officers presented themselves to him, that person tried to escape with his car. During the chase he pulled out a handgun and pointed it at them. He refused to obey the officers despite several lawful invitations to do so. After his car had stopped moving, [Mr Filipov] again refused to heed the officers’ orders, and instead tried to flee by jumping out of the car and pointing his firearm at [chief sergeant Y.] and his colleagues, who were very close to him. There was a real and direct risk that [Mr Filipov] might shoot [chief sergeant Y.] and the other officers. The mere pulling out of the handgun and its pointing at the [chief sergeant] presented an immediate, proximate and undeniable threat of attack. In those circumstances, it was only natural that the [chief sergeant] should fire to protect himself and his colleagues. He assessed the situation correctly and his conduct was in line with the legal requirements.

The [court] does not agree with the prosecution’s submission that the case concerns an exceeding of the limits of self‑defence. The boundaries of self‑defence are exceeded when the defence is clearly out of proportion not only with the character but also with the dangerousness of the attack. The assessment of the lack of proportion between the attack and the defence is to be made on the basis of all the circumstances. In the instant case, there was no clearly expressed, unquestionable and patent disproportion between the attack and the defence, because the specific circumstances called for the lawful defence of protected interests. The importance and the character of the interests imperilled by the attack and those harmed by the defence were identical. The statements of the two eyewitnesses lead to the conclusion that at the time when he was shot [Mr Filipov] was posing through his conduct a real and evident risk of harming the lives or the health of [chief sergeant Y.] and his colleagues, which required them to counteract and neutralise him by shooting him. The Supreme Court has more than once had the occasion to point out the incorrectness of the view, expressed in some judgments, that the defence should not seek to touch vulnerable spots where a shot could harm the attacker’s life or health. The law does not require that because it would diminish the efficacy of the self‑defence. As already noted, what matters is whether there is a manifest disproportion between the attack and the defence, not the spot in which the attacker has been harmed. ...”

47. The applicants appealed on points of law.

48. On 16 March 2009 the Supreme Court of Cassation upheld the acquittal (реш. № 66 от 16 март 2009 г. по н. д. № 8/2009 г., ВКС, ІІІ н. о.). It reviewed the manner in which the Military Court of Appeal had assessed the evidence and found that it had analysed it in considerable depth and had complied with its duty to specify which items of proof had led it to make its findings of fact. The cassation court could not substitute its own findings for those of the lower court. It was only competent to verify whether the law had been properly applied to them. The court continued as follows:

“Within those parameters, the cassation court finds that the court of appeal’s conclusion that the act perpetrated by [chief sergeant Y.] was carried out in self‑defence is correct.

Article 12 of the Criminal Code permits self‑defence against any direct and immediate socially dangerous and unlawful attack against not only the personality or the lawful rights of the citizens, but also against State or public interests.

In the instant case, the fact that [Mr Filipov] had pointed at the police officers a short‑barrelled handgun that was ready to fire entailed a real and immediate risk to chief sergeant Y.’s and [his two colleagues’] lives. In view of that, the [chief sergeant] took defensive action before the harm could be realised; that is, he lawfully exercised his right to self‑defence. [Mr Filipov]’s attack was direct and immediate, giving rise to a real risk of harm to the lives or health of the officers who were chasing him. For that reason, the use of a firearm by [chief sergeant Y.] did not fall foul of the then wording of section 80(1)(1) and (1)(3) of the Ministry of Internal Affairs Act [1997] [see paragraph 50 below], which set out the circumstances in which the police could use firearms as a means of last resort: in self‑defence and in cases of a threat to use firearms.

The court of appeal analysed the evidence in depth and objectively, in line with the rules of procedure, and, based on its findings of fact, applied the substantive law correctly, by discussing and rejecting the hypothesis of an act falling under Article 12 § 2 of the Criminal Code [see paragraph 53 below]. It gave reasons why, taking into account the character and the dangerousness of the attack, it accepted that the defence had not exceeded what had been manifestly necessary to repel the real danger to the police officers’ lives. The situation, as perceived by [chief sergeant Y.], required him to take timely and adequate measures to neutralise the immediate danger to the police officers’ lives and health by harming [Mr Filipov] through the use of a firearm. For those reasons, the actions of [chief sergeant Y.] were not socially dangerous – the defence against the attacker was within the necessary limits.”

49. Throughout the proceedings the applicants were represented by counsel.

II. RELEVANT DOMESTIC LAW

A. Use of firearms by the police

50. Section 80 of the Ministry of Internal Affairs Act 1997, as in force at the material time, provided, in so far as relevant:

“(1) The police may use firearms as a means of last resort:

1. in cases of armed attack or threat to use firearms;

...

3. in self‑defence [or the defence of others];

4. after giving a warning, to arrest a person who has committed or is committing a publicly prosecutable offence, if he or she resists or tries to escape;

...

(2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force, and not put in danger the life and the health of others.”

51. The wording of section 74(1)(1), (1)(3) and (2) of the Ministry of Internal Affairs Act 2006, currently in force, repeats verbatim that of section 80(1)(1), (1)(4) and (2) of the 1997 Act.

52. On 30 May 2012 Parliament enacted a bill amending section 74 of the 2006 Act; the amendment came into force on 1 July 2012. The words “as a means of last resort” in section 74(1) were changed to “only where absolutely necessary”, and the words “to protect, as far as possible” in section 74(2) were replaced by “do everything possible to protect”. A new subsection 5 was added to section 74, providing that “[t]he police shall discontinue the use of firearms immediately after attaining its lawful aim”, as well as a new subsection 6, providing that “[i]t shall be prohibited to use firearms to arrest or prevent the escape of a person who is about to commit or has committed a non‑violent offence if that person does not pose a danger to the life or health of another”. A new section 74a was added, providing that “[t]he planning and control of the use of physical force, auxiliary means and firearms by the police ... shall include [the taking of] measures to attain the lawful aim at minimal risk to the life and health of the citizens”. 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 the Court’s case‑law.

B. Relevant provisions of the Criminal Code

53. Article 12 of the Criminal Code 1968 provides for a defence of self‑defence. Under paragraph 1 of that provision, an act committed in self‑defence and not inflicting disproportionate damage on the attacker is not criminal. Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault (paragraph 2). The use of excessive force is nevertheless not punishable if resulting from fear or bewilderment (at the relevant time paragraph 3, now paragraph 4).

54. Article 12a § 1 of the Code, added in August 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.

C. Review of the discontinuance of pre‑trial investigations

55. Under Article 237 of the Code of Criminal Procedure 1974 in its version before 2000, the discontinuance of a pre‑trial investigation could be challenged before a more senior prosecutor.

56. In January 2000 that Article was amended to provide for a system of automatic control of discontinuances: after discontinuing the investigation the prosecutor was to send the case file and his decision to the immediately superior prosecutor’s office, which could confirm, vary, or quash it and refer the case back with specific instructions (Article 237 § 4, as in force between January 2000 and May 2001). If it confirmed the decision, it was to forward the case file to the appropriate court, which had to review the matter in private. The court’s decision was final (Article 237 § 9, as in force between January 2000 and May 2001). It is decided to quash the discontinuance, its instructions on the application of the law were mandatory (Article 237 § 7, as in force between January 2000 and May 2001). No provision was made for those concerned to be notified of the discontinuance.

57. Following a further overhaul of Article 237 in May 2001, discontinuances became subject to judicial review on the application of the accused or the victim of the alleged offence. Either of them could challenge the prosecutor’s decision before the respective first‑instance court. The court could quash the decision fully or in part and refer the case back to the prosecutor with mandatory instructions (Article 237 § 3, as in force after May 2001). The court’s decision was in turn subject to appeal to the higher court (Article 344 § 1, as in force between May 2001 and June 2003). The higher court’s decision could then be appealed on points of law to the Supreme Court of Cassation (Article 349 § 5, as in force between May 2001 and June 2003). With effect from 3 June 2003 Article 237 was amended and Article 349 § 5 was repealed, following which it was no longer possible to appeal the first‑instance court’s decision.

58. Under the Code of Criminal Procedure 2005, which came into force on 29 April 2006, the prosecutor’s decision to discontinue a pre‑trial investigation is subject to judicial review by the respective first‑instance court (Article 243 § 3). The court hears the case in private and rules on the discontinuance’s well‑foundedness and lawfulness (Article 243 § 4). It may uphold the prosecutor’s decision, vary the grounds for the discontinuance, or quash the discontinuance and refer the case back to the prosecutor with mandatory instructions on the application of the law (Article 243 § 5). The court’s decision may in turn be appealed to the higher court, whose decision is final (Article 243 § 6).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

59. The applicants complained about the killing of Mr Filipov and about the effectiveness of the ensuing investigation. They relied on Article 2 of the Convention, which provides, in so far as relevant:

“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; ...”

A. The parties’ submissions

60. The Government submitted that the force used against Mr Filipov had been strictly proportionate, because the police officer who had shot him had acted in self‑defence. The shooting had taken place after a chase, during which Mr Filipov had brandished a firearm. After the police had managed to cause his car to stop, he had tried to run, and had pointed the weapon at them. The officer who had shot him had acted in the heat of the moment, had not aimed at his heart or head and had not intended to kill him. The bullet had, however, unfortunately ruptured a major blood vessel. Immediately after the shooting, the police had called an ambulance. Mr Filipov’s conduct had placed the lives of the three officers, and possibly those of bystanders, at serious risk. He had been armed and dangerous, and it had therefore been necessary to neutralise the risk that he posed.

61. The Government also submitted that the ensuing investigation had been effective. It had started immediately and the authorities had worked diligently on it. They had taken a number of investigative steps, including an autopsy and a reconstruction of the events, and had obtained a considerable amount of forensic, expert and other evidence. The applicants had been kept abreast of the relevant developments and had had the opportunity to defend their legitimate interests. The investigation had resulted in the trial of the police officer who had shot Mr Filipov, in which the applicants had taken part. In ultimately acquitting the officer, the courts had addressed all factual and legal issues arising in the case.

62. The applicants submitted that the Military Court of Appeal had wrongly quashed chief sergeant Y.’s conviction. The forensic evidence had showed that Mr Filipov had been shot in the back. In those circumstances, there could have been no self‑defence. The chief sergeant had used bullets whose use was forbidden. He had not assessed the situation correctly and had killed Mr Filipov wilfully. Mr Filipov had had no previous convictions. The criminal proceedings against the sergeant had taken about ten years to conclude.

B. The Court’s assessment

1. Admissibility

63. The Court considers that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

64. There are essentially two versions about the manner in which Mr Filipov lost his life. The first is that chief sergeant Y. shot him without justification. The second is that the officer was acting in self‑defence, because Mr Filipov was trying to shoot him or his colleagues. The Sofia Military Court initially accepted the first version (see paragraph 35 above). On appeal, the Military Court of Appeal accepted the second version (see paragraphs 37 and 38 above). Its judgment was then quashed by the Supreme Court of Cassation, which remitted the case with instructions as to how to assess the evidence (see paragraph 40 above). When it examined the case for a second time, the Sofia Military Court again adhered to the first version, and the Military Court of Appeal once more accepted the second version (see paragraphs 43 and 46 above). The Supreme Court of Cassation, having reviewed the way in which the court of appeal had assessed the evidence, upheld its judgment (see paragraph 48 above).

65. The Court observes that it is not a court of appeal from the national courts (see, among other authorities, Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004‑V (extracts), and Stoyanova‑Tsakova v. Bulgaria, no. 17967/03, § 26, 25 June 2009). It is not normally within its province to substitute its own assessment of the facts for theirs (see, among other authorities, Klaas v. Germany, 22 September 1993, § 29, Series A no. 269, and Marinov v. Bulgaria, no. 37770/03, § 80, 30 September 2010). It is true that the acquittal of a police officer by a criminal court bound by the presumption of innocence does not absolve Bulgaria from its responsibility under the Convention (see Marinov, cited above, § 80, citing Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). However, the Court does not consider that it would be appropriate for it to attempt to make its own findings of fact. 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 (see Golubeva v. Russia, no. 1062/03, § 95, 17 December 2009, citing McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). It does not therefore propose to take a stance on the varying findings of fact made by the national courts.

66. In the instant case, where the domestic proceedings resulted in the examination of the case by three levels of court, the Court must rather scrutinise whether the national authorities carried out an effective investigation into the death of Mr Filipov (see, mutatis mutandis, McKerr v. the United Kingdom, no. 28883/95, §§ 116‑21, ECHR 2001‑III). The Court must also determine whether in assessing the necessity of the force used against Mr Filipov the national courts may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 306, ECHR 2011‑... (extracts), citing Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004‑XII). The Court would emphasise in this connection that it is not a criminal court, and that in determining whether there has been a breach of Article 2 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, cited above, § 182, citing Tanlı v. Turkey, no. 26129/95, § 111, ECHR 2001‑III (extracts), and Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001‑VII (extracts)).

67. The principles governing the State’s obligation under Article 2 of the Convention to carry out an effective investigation when individuals have been killed as a result of the use of force by, inter alios, 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), and it would be superfluous to repeat them here.

68. The investigation in the instant case started immediately after the incident. The scene was inspected a few hours later, and an autopsy on Mr Filipov’s body was performed the next day. The police officer who had shot Mr Filipov was charged the day after that. During the following months the investigating authorities worked diligently on the case. They promptly interviewed all three police officers involved in the incident and various other witnesses, carried out further interviews, gathered other evidence, obtained a number of expert reports, and conducted both a reconstruction of the events and confrontations between the officers (see paragraphs 9‑20 above).

69. However, after that, between October 2000 and September 2005, the case was beset by delays. They were chiefly due to the investigating and prosecuting authorities’ persistent failure to comply with the instructions given by the courts during the proceedings in which those courts reviewed their decisions to discontinue the investigation, and to the prosecuting authorities’ ensuing failure to submit a properly drafted indictment against chief sergeant Y. Another cause was the fact that at least one round of judicial review proceedings was – as possible at the time – litigated all the way to the Supreme Court of Cassation (see paragraphs 22‑34 above).

70. Those delays were for the most part attributable to the conduct of the prosecuting and the investigating authorities. Those authorities manifestly and demonstratively, to borrow the words of the Sofia Military Court, failed to heed the courts’ instructions following the referral of the case for additional investigation (see paragraphs 26 and 31 above). This is particularly worrying because it was capable of stripping the system of judicial review of discontinuances of pre‑trial investigations of its effectiveness. In a recent case concerning the investigation of ill‑treatment by private persons, the Court expressed serious concerns about such practices (see Biser Kostov v. Bulgaria, no. 32662/06, §§ 82‑83, 10 January 2012). Those concerns apply all the more to the investigation of police misconduct. The resulting delay almost caused the charges against chief sergeant Y. to be dropped under Article 239a of the Code of Criminal Procedure 1974 (see paragraphs 27, 29, 31 and 32 above), a development which would have in itself been capable of putting the proceedings at variance with the respondent State’s procedural obligations under Article 2 (see, mutatis mutandis, Biser Kostov, cited above, § 85). In those circumstances, the time taken to complete the criminal proceedings against the police officer who shot and killed Mr Filipov cannot be regarded as compatible with the State’s obligation under Article 2 of the Convention to ensure that investigations into deaths resulting from the use of force by State agents are carried out with reasonable expedition.

71. It is true that the delays outlined above did not lead to the loss of evidence or other irremediable defects, and did not prevent the courts from later subjecting the case to examination. As can be seen from the reasons given, all levels of court were able to review the evidence and make findings as to the course of the events leading up to the killing. They attempted to reconcile the conflicting versions and gave reasons for their decisions to, respectively, convict and acquit chief sergeant Y. (see paragraphs 35, 37, 38, 40, 43, 46 and 48 above). Moreover, in acquitting the chief sergeant the Military Court of Appeal explained why it considered that he had not exceeded the limits of self‑defence (see paragraphs 38 and 46 above), and the Supreme Court of Cassation also gave reasons on that point (see paragraph 48 above).

72. However, it cannot be overlooked that the domestic proceedings appear to have focused solely on the last moments of the stand‑off between Mr Filipov and the three officers chasing him. The Court, for its part, is of the view that in assessing the necessity of the force used against Mr Filipov, the national authorities should have taken into consideration the entire chain of events leading to that stand‑off. It should be noted in this connection that the police apparently mounted the operation against Mr Filipov pursuant to information that he might have been involved in three armed robberies (see paragraph 7 above). However, the Court is struck by the apparent lack of clarity as to the exact object sought to be attained by the three officers who positioned themselves on the road leading to Mr Filipov’s house, the apparent lack of instructions as to how they were to react when coming into contact with Mr Filipov – in particular, instructions emphasising their responsibility to refrain from using disproportionate force in the event of an armed engagement (see Vlaevi v. Bulgaria, nos. 272/05 and 890/05, § 79, 2 September 2010) –, and the apparent lack of backup arrangements in case their encounter with Mr Filipov did not turn out smoothly. The fact that the officers put on bullet‑proof vests shows that they were alive to the possibility of a violent encounter (see paragraph 7 in fine above). It cannot therefore be said that the police were caught in a situation in which they had to react without any prior preparation (contrast Makaratzis v. Greece [GC], no. 50385/99, § 69, ECHR 2004‑XI). It is true that the events evolved rapidly after the officers spotted Mr Filipov in his car and tried to approach him (see paragraph 8 above). However, it cannot be overlooked that when chasing Mr Filipov the officers resorted to using their firearms and fired repeatedly at his car, which, considering the high speed at which that car and the police car that was chasing it were moving, could hardly be regarded as posing no risk to life (see, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 64, 23 February 2006). It is in addition not fully clear whether the officers gave due consideration to other ways of stopping Mr Filipov. It does not appear that those elements featured prominently in the analysis carried out by the domestic authorities. A perusal of the judgments of the Military Court of Appeal and the Supreme Court of Cassation (see paragraphs 46 and 48 above), which had to deal with the case on the basis of the charges laid down by the prosecuting authorities, shows that in assessing the necessity of the force used against Mr Filipov those courts focused their attention on the last moments of the chase, and analysed the need for that force almost entirely in the context of the moment of engagement. The criminal proceedings against chief sergeant Y. cannot therefore be regarded as discharging the State’s procedural obligations under Article 2 of the Convention (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 114, ECHR 2005‑VII). The investigation required under that provision should be broad enough to permit the authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all surrounding circumstances, including such matters as the planning and control of the operation in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see Al‑Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 163, ECHR 2011‑...). The Court has not been made aware of any other proceedings scrutinising the incident in which Mr Filipov lost his life.

73. There has therefore been a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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.”

75. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no reason to make any award under Article 41 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 of the Convention.

Done in English, and notified in writing on 4 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
Deputy RegistrarPresident

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