CASE OF MULINI v. BULGARIA

FOURTH SECTION

CASE OF MULINI v. BULGARIA

(Application no. 2092/08)

JUDGMENT

STRASBOURG

20 October 2015

FINAL

20/01/2016

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

In the case of Mulini v. Bulgaria,

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

Guido Raimondi, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Faris Vehabović,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 29 September 2015,

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

PROCEDURE

1. The case originated in an application (no. 2092/08) 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, Mr Dimitar Georgiev Mulin and Mrs Anka Rangelova Mulina (“the applicants”), on 10 December 2007.

2. The applicants were represented by Mr I. Ivanov, a lawyer practising in Stara Zagora. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, from the Ministry of Justice.

3. The applicants alleged that the investigation of their son’s death had been ineffective and in breach of Articles 2 and 13 of the Convention.

4. On 26 August 2014 the complaints above were communicated to the Government and the remainder of the application was declared inadmissible (see Mulini v. Bulgaria (dec.), no. 2092/08, 26 August 2014).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1944 and 1945 respectively and live in the village of Dospey.

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

A. The death of Angel Georgiev

7. In the criminal proceedings related to Angel Georgiev’s death, the national courts established the relevant facts as follows.

8. On the evening of 25 December 1993 the applicants’ son was with friends of his in a bar in the town of Samokov. At some point an argument and a fight erupted between Angel and his friends and another group, one of whom was K.S. O.V., who was working as a security guard in the bar, attempted to separate the two groups, but was himself beaten up. The two groups went on to another bar, where there was another argument. The two groups then left.

9. O.V. gathered friends of his, who took several cars and started searching the streets for the people who had beaten him up. They found Angel Georgiev’s group, walking home. O.V. and his friend B.G. were among the first to get out of the cars. O.V. went first for Angel Georgiev’s brother, who ran away, while at the same time B.G. hit Angel Georgiev with a wooden plank. Angel fell to the ground, but managed to stand up again, and was then attacked by O.V. The two of them struggled briefly, until O.V. drew back, saying that Angel had stabbed him in the abdomen. O.V. was then taken by his friends to a hospital, and Angel ran away.

10. During that time K.S. and his friends had also been driving around the area. They heard people fighting in the distance and approached them. They saw somebody, who turned out to be Angel Georgiev, lying on the ground. First they kicked him repeatedly, but then became aware that he had been seriously wounded. They fled the scene, leaving him lying on the ground.

11. Angel Georgiev’s body was found by his brother the following morning, 26 December 1993, at the place where he had been left by K.S. and his friends, namely about 200 metres away from the scene of the struggle with O.V. Next to the body lay the pocket knife with which Angel had stabbed O.V. as found later by the investigation and the national courts.

There were shoeprints and car-tyre tracks around the body.

12. A post-mortem report showed that the applicants’ son had been lethally stabbed in the back. The blow had been administered while he had been standing, with considerable force. For some time thereafter, he had still been capable of moving and even running. He had died as a result of a hemorrhage in the chest cavity. There were other wounds and bruises on his face and head, which were unrelated to the cause of death.

B. Preliminary investigation

13. Criminal proceedings in connection with Angel Georgiev’s murder were opened on 26 December 1993.

14. The place where his body had been found was inspected on the same day.

15. In the weeks that followed many of the participants in the events were interviewed by the investigating authorities. Some of them were interviewed again in 1997, after the prosecutor supervising the case had found that the relevant circumstances had not been adequately established.

16. On 28 December 1993 and 9 February 1994 respectively, the investigator in charge of the case charged K.S. and O.V. with Angel’s murder. K.S. was remanded in custody from 28 December 1993 to 2 March 1994, and O.V. from 9 February to 8 March 1994. The two accused were questioned on numerous occasions. K.S. denied having killed Angel Georgiev. O.V. initially confessed to having stabbed the victim but then withdrew his confession, explaining that K.S. had asked him to make it. On 13 May 1996 the investigator organised a confrontation between the two accused in order to clarify their versions of the events.

17. The investigator in charge of the case commissioned several reports by medical and other experts.

18. On 24 June 1994 the applicants were presented with the evidence collected thus far and given a chance to comment on it. On several subsequent occasions they were again given an opportunity to acquaint themselves with the case file and to comment.

19. In June and December 1994, January and November 1996, and then in December 1997 the investigator in charge of the case sent the case file to the prosecution, proposing either to stay the proceedings or to indict K.S. and O.V. However, each time the supervising prosecutor remitted the case, considering that further evidence needed to be collected, or that the procedural rights of the two accused had not been respected. In particular, on 9 December 1996 the prosecutor ordered the detailed questioning of the participants in the altercation, with a view to establishing their position, actions and observations during the incident. The prosecutor also instructed the investigating authorities to identify the owner of the knife discovered in the proximity of the victim’s body and which knife had been apparently used by the victim to stab O.V. This latter instruction was subsequently repeated in another prosecutor’s ruling of 29 January 1998. In 1996 the prosecutor replaced the investigator dealing with the case.

20. Once the preliminary investigation was completed in 1999, the prosecutor indicted K.S. and O.V. and they were brought before a court.

C. Court proceedings

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

22. In a judgment of 5 June 2000 the Sofia Regional Court found 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. On the grounds, among others, that the victim’s blood had been found on O.V.’s clothes, it concluded that O.V. had stabbed him in the back during the short struggle between the two of them. Moreover, B.G. had seen a knife in O.V.’s hands at an earlier point, and it had not been shown that any of the other participants in the fight had had a knife.

23. The Regional Court considered that there was no evidence that K.S. had in any way caused Angel Georgiev’s death, and accordingly acquitted him.

24. O.V. lodged an appeal against that judgment. The decision to acquit K.S. entered into force, as it had not been challenged by the prosecution or the applicants.

25. On 30 April 2002 the Sofia Court of Appeal quashed the lower court’s judgment, finding that O.V.’s conviction had been impermissibly based on assumptions. It acquitted him and disallowed the applicants’ civil claim, noting, in particular, that it had not been established that when he had attacked Angel Georgiev, O.V. had been in possession of the knife which had allegedly been seen earlier. It was also significant that the knife used to stab Angel Georgiev had never been found. In addition, none of the eyewitnesses to O.V.’s struggle with Angel Georgiev had seen him stab the victim. As O.V. had himself been stabbed by Angel, the struggle between the two of them had been brief. O.V. had then left the scene and had been taken to hospital. It was thus possible that the applicants’ son had been stabbed by someone else after O.V.’s departure, or even before that, as the post-mortem and other medical reports showed that after having been fatally stabbed, Angel had still been capable of moving and participating in the fight. The victim’s blood had also been discovered on K.S.’s clothes, and it might have been discovered on the clothes of other participants in the fight, had they been seized and inspected during the initial investigation. Accordingly, there could be different plausible versions of the facts preceding Angel Georgiev’s death, which meant that O.V.’s guilt had not been proved beyond reasonable doubt.

26. Following an appeal by the prosecution, on 6 February 2003 the Supreme Court of Cassation quashed the above-mentioned judgment and remitted the case, finding that the lower court had not duly taken into account the incriminating evidence, in particular the presence of the victim’s blood on the accused’s clothes.

27. In a judgment of 8 April 2003 the Sofia Court of Appeal once again acquitted O.V. and dismissed the applicants’ civil claim. It again found that it had not been established beyond reasonable doubt that the accused had fatally stabbed the applicants’ son. It pointed out that it had not been shown that during the struggle with Angel, O.V. had had a knife, as none of the eyewitnesses had seen him brandish, pick up or use one. If he had had a knife at that time, it was unclear what had happened to it after the stabbing. As to the blood on O.V.’s clothes, it could be explained by the fact that B.G. had already hit Angel in the face with a wooden plank, which had provoked bleeding. One of the other participants in the fight could have stabbed the applicants’ son. It was significant in that regard that when K.S. and his friends arrived at the scene, the fight was still going on. Lastly, the Court of Appeal noted that the prosecution had also faced difficulties in establishing who had stabbed the applicants’ son, and had thus indicted two persons, O.V. and K.S., leaving to the courts the “choice” as to which of the two was guilty.

28. The applicants and the prosecution appealed against the above‑mentioned judgment. On 18 March 2004 the Supreme Court of Cassation quashed it and remitted the case. It found this time that there had been breaches of the procedural rules.

29. In a judgment of 7 April 2005 the Sofia Court of Appeal acquitted O.V. once again and dismissed the applicants’ civil claim. It found that there was no conclusive evidence that the accused had committed the offence.

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

31. In a judgment of 18 May 2006 the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It considered again that the Court of Appeal had not sufficiently accounted for the fact that there had been traces of the victim’s blood on the accused’s clothes and that B.G. had stated that before the fight he had seen the accused holding a knife.

32. In a judgment of 11 January 2007 the Sofia Court of Appeal acquitted 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 apparently already been bleeding when he had exchanged blows with O.V., because B.G. had already hit him with a plank, which could explain why O.V.’s clothes were smeared with the victim’s blood. In addition, none of the witnesses had seen O.V. stab the victim and the knife used for the murder had never been found; moreover, B.G.’s statement that he had seen O.V. holding a knife was not convincing, as it contradicted his other statements. 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 anyone else had had a knife, the clothes of the other people involved in the fight had not been examined, and the investigating 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. Lastly, it appeared that even at the stage of the preliminary investigation it had been difficult to establish who had dealt the fatal blow to Angel Georgiev; that is why the prosecution had indicted two persons, even though it had been clear that the young man had died as a result of a single stab in the back.

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

34. In a final judgment of 28 June 2007 the Supreme Court of Cassation upheld the lower court’s judgment, endorsing its reasoning.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

35. The applicants complained that the investigation of their son’s death had been ineffective. They relied on Articles 2 and 13 of the Convention. The Court is of the view that it suffices to examine the complaint under Article 2, which, in so far as relevant, reads as follows:

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

A. Arguments of the parties

36. The Government disputed the complaint. They argued that the authorities’ actions in the case had been adequate, and that the procedural requirements of Article 2 of the Convention had been complied with. It was important that the authorities’ obligation to investigate was an obligation of means, not of result. Thus, the fact that the criminal proceedings related to Angel Georgiev’s death had not led to the identification and punishment of those responsible did not mean that there had been a breach of Article 2.

37. The Government pointed out in addition that the investigation of the death of the applicants’ son had started immediately after the discovery of his body. The investigation had been independent, the applicants had been able to participate in the trial of K.S. and O.V., and the national courts’ judgments acquitting them had been well reasoned.

38. The applicants reiterated their complaint. They contended that the investigation of their son’s death had not been sufficiently thorough. In particular, the investigating authorities had failed to establish whether any of the participants in the events of 25-26 December 1993, apart from O.V., had had a knife, had failed to conduct searches in order to locate the knife which had been used to stab their son, and had failed to examine the clothes of the remaining participants in the fight for traces of blood. As a result, the investigating authorities had failed to identify their son’s murderer. In addition, the preliminary investigation had been too lengthy. Lastly, the applicants argued that they had not been given an opportunity to participate effectively in the investigation.

B. The Court’s assessment

1. Admissibility

39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

40. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention” requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see, among other authorities, Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005‑VII; McCann and Others v. the United Kingdom, 27 September 1995, §§ 161-63, Series A no. 324).

41. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law‑enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V, and Angelova and Iliev v. Bulgaria, no. 55523/00, § 94, 26 July 2007). In order to be “effective”, as this expression is to be understood in the context of Article 2 of the Convention, an investigation must be adequate. That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015).

42. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue (see Jaloud [GC], and Nachova and Others [GC], both cited above).

43. A requirement of promptness and reasonable expedition is implicit in this context. In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests (see Mustafa Tunç and Fecire Tunç, cited above, § 178-79).

(b) Application of the above principles to the case at hand

44. Turning to the circumstances of the present case, the Court observes that the investigating authorities opened criminal proceedings on the day Angel Georgiev’s body was discovered (see paragraph 13 above), and collected numerous pieces of evidence in the course of the preliminary investigation (see paragraphs 15-17 above). At the end of that investigation they indicted K.S. and O.V., who were however acquitted by the courts, as their guilt had not been sufficiently established (see paragraphs 22‑34 above).

45. The applicants did not dispute K.S.’s and O.V.’s acquittal; nor did they complain of the outcome of the court proceedings. Rather, they argued that the investigation was flawed and that the outcome meant that their son’s murderer had in effect never been identified (see paragraph 38 above). The Government, while not denying that fact, considered that the investigation had nevertheless been adequate (see paragraph 36 above).

46. The Court notes that although the investigating authorities collected numerous pieces of evidence during the investigation, they appear to have failed to take some evident steps to secure further evidence which could have permitted them to identify the person who had committed the murder. In particular, as noted by the supervising prosecutor in 1996 and 1998 (see paragraph 19 above), they failed to question in a timely manner the persons present at the incident with a view to collecting information about their impressions, observations, position and actions during the fight, and did not establish who owned the knife found next to the victim’s body. Further, as noted subsequently by the domestic courts (see paragraphs 25 and 32 above) the investigating authorities failed to seize and inspect for traces of blood the clothes of all the participants in the events of 25-26 December 1993, failed to establish whether any of them had had a knife, and failed to carry out an extensive search for the knife used to kill the applicants’ son. As also highlighted by the domestic courts, those deficiencies rendered it impossible to reach a conclusion as to who had stabbed the young man. Lastly, as also observed in the domestic decisions (see paragraphs 27 and 32 above), the lack of conclusive evidence was also evident from the prosecution’s decision to indict both K.S. and O.V., even though it was clear that Angel Georgiev had been killed with one lethal stab, and to leave the courts to decide which of the two was guilty.

47. The Court reiterates that in order to meet the requirements of Article 2 of the Convention, any investigation must be effective and adequate, which means that it has to be capable of leading to the establishment of the relevant facts and the identification of those responsible (see paragraph 41 above). The considerations in the paragraph above show that this requirement was not met in the present case, which may suffice for the Court to conclude that the investigation in the case was not in compliance with the requirements of Article 2 of the Convention.

48. In addition, the Court observes that the preliminary investigation in the case started in 1993, and that the trial of K.S. and O.V., resulting in their acquittal, ended in 2007. While the Court will not discuss here the duration of the judicial proceedings, as the applicants’ complaint in that regard has been examined separately and declared inadmissible (see Mulini (dec.), cited above), it cannot but note at this stage that fourteen years after Angel Georgiev’s murder the perpetrator of the crime had still not been discovered. Significant delays appear to have accumulated at the pre-trial stage of the proceedings, which lasted for more than five years, from 1993 to an unspecified date in 1999 (see paragraphs 13-20 above). Some delay was inevitable as the case was complex and numerous witnesses needed to be examined and further evidence collected; however, delays which cannot be considered justified were also caused by the numerous attempts of the investigator in charge of the case to have the proceedings stayed or the case referred to the prosecution with a proposal to indict K.S. and O.V., even though the investigation had not been duly completed (see paragraph 19 above). That state of affairs apparently led to the investigator dealing with the case being replaced by the prosecutor in 1996 (ibid.).

49. As already indicated (see paragraph 43 above), the effectiveness of an investigation implies a requirement of promptness. The considerations in the preceding paragraph show that that requirement was not met.

50. Lastly, the Court does not accept the applicants’ argument (see paragraph 38 above in fine) that the investigation of their son’s death was deficient also because they had allegedly not been allowed to participate effectively in it. The Court notes that on several occasions, the first of them in June 1994, the applicants were presented with the evidence collected by the investigating authorities and given an opportunity to comment on it (see paragraph 18 above). After 1999 they were also allowed to participate in the judicial proceedings as private prosecutors and civil claimants (see paragraph 21 above).

51. Nonetheless, the Court has already concluded that the investigation of Angel Georgiev’s death was not adequate, and that it was not carried out promptly. The Court therefore finds that the Bulgarian authorities failed to meet their procedural obligation under Article 2 of the Convention, as set out in more detail in paragraphs 40-43 above.

52. The Court also refers to its recent finding that the large number of cases in which it has found violations of the procedural aspect of Articles 2 and 3 of the Convention revealed a systemic problem with the effectiveness of criminal investigations in Bulgaria. On that basis the Court urged the Government, in co-operation with the Committee of Ministers of the Council of Europe, to identify appropriate general measures to prevent future similar violations (see S.Z. v. Bulgaria, no. 29263/12, §§ 54-58, 3 March 2015).

53. In view of the considerations above, the Court concludes that there has been a violation of Article 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

54. 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

55. In respect of pecuniary damage, the applicants claimed, in the first place, 2,060 euros (EUR) for the expenses incurred in relation to their son’s funeral and other rituals related to it. They also claimed, jointly for the two of them, EUR 10,000 in compensation for the loss of financial support from their son.

56. The applicants claimed EUR 30,000 each in respect of non‑pecuniary damage.

57. The Government argued that there was no causal link between the alleged violation of the applicants’ rights and their claim for pecuniary damage. As to the claim for non-pecuniary damage, they considered it exaggerated.

58. As regards the claims for pecuniary damage, the Court notes that a private individual, and not the Government, was responsible for the death of the applicants’ son. Thus, although there could be a direct link between his death and the damage claimed, the Government were not responsible for that individual’s actions and cannot therefore be held liable to compensate the applicants for the pecuniary damage suffered as a result (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 125, 26 July 2007).

59. The Court considers, on the other hand, that the applicants must have suffered non-pecuniary damage as a result of the State’s failure to investigate their son’s death effectively. Deciding on an equitable basis, the Court considers it appropriate to award each of the applicants EUR 8,000 under this head, or EUR 16,000 in total.

B. Costs and expenses

60. For costs and expenses, the applicants claimed, in the first place, EUR 3,400 for thirty-four hours of legal work, at a rate of EUR 100 an hour, by their representative before the Court, Mr Ivanov. In support of that claim they presented a time-sheet. They also claimed EUR 215 for postage, translation and other expenses. In support they presented invoices showing that they had paid 368 Bulgarian levs (BGN), the equivalent of approximately EUR 189, for translation, and BGN 15.50, the equivalent of EUR 8, for postage. The applicants requested that any amount awarded for costs and expenses be transferred directly into Mr Ivanov’s bank account.

61. The Government contested the claims as excessive.

62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

63. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award EUR 2,000 for the legal work performed by the applicants’ representative. As to the remaining costs, the Courts awards them to the extent that they have been proven, namely in the amount of EUR 197. As requested by the applicants, these amounts are to be transferred directly into the bank account of their representative.

C. Default interest

64. 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 the application admissible;

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

3. Holds

(a) that the respondent State is to pay the applicants jointly, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,197 (two thousand one hundred and ninety-seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be transferred directly into the bank account of the applicants’ legal representative;

(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;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 20 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosGuido Raimondi
RegistrarPresident

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