CASE OF VASIL HRISTOV v. BULGARIA

FOURTH SECTION

CASE OF VASIL HRISTOV v. BULGARIA

(Application no. 81260/12)

JUDGMENT

STRASBOURG

16 June 2015

FINAL

16/09/2015

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

In the case of Vasil Hristov 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 26 May 2015,

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

PROCEDURE

1. The case originated in an application (no. 81260/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Vasil Asenov Hristov (“the applicant”), on 11 December 2012.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

3. The applicant alleged that the authorities had failed for a lengthy period of time to identify and punish the perpetrators of an attack against him.

4. On 14 April 2014 his complaints under Article 3 and Article 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1946 and lives in Oryahovo.

6. On 13 June 2002 he, his son and his brother were attacked by a group of men and beaten with bats and metal rods. The applicant was left unconscious with a traumatic brain injury and broken skull and a dislocated finger. Both injuries, necessitating his hospitalisation for several days, were classed as intermediate bodily harm under Bulgarian law.

7. On the same day the police opened criminal investigation and carried out an inspection of the scene of the attack. In the next few days they interviewed the applicant and the other victims, as well as witnesses including suspected participants in the incident.

8. The applicant, his son, and his brother explained that the family had made a living out of collecting snails and had been in a dispute with K.K., who had been buying them. On 13 June 2002 the applicant and the other victims were in his son’s car, looking for K.K. to discuss the situation. They found him, accompanied by about fifteen other men in four cars. The men were carrying metal rods and bats. The applicant, who was the first to approach them, was hit by K.K. in the face. The others then proceeded to hit him until he fell to the ground. His brother was also attacked, receiving several blows and a broken arm. His son remained in the car and managed to lock the doors, but the car was heavily damaged. The attack took place at a bus station in front of onlookers.

9. A man named T.K. said that in the days preceding the attack, members of the applicant’s family had been threatening K.K. On 13 June 2002 he heard K.K. call friends he did not know. After gathering, the group left in their cars to look for the applicant and his family. When they found them, K.K. had a short exchange with the applicant and the two groups then started to fight. K.K.’s friends were carrying bats. T.K. stated that he had not participated in the fight, and had attempted to pull K.K. away. He had not seen who had started it.

10. When interviewed as a suspect on 14 June 2002, K.K. refused to explain what had happened.

11. On 14 June 2002 the police investigator appointed an expert with the task of making an assessment of the injuries sustained by the applicant. The parties did not provide the Court with a copy of that report.

12. On 24 and 25 July 2002 the investigator in charge of the case requested information from the police on any links the parties might have had with criminal groups, on T.K. and K.K., and on several other suspected participants in the attack. The information provided showed, in particular, that T.K. had various previous convictions.

13. The parties did not inform the Court of any other investigative actions taken at that stage.

14. In a decision of 2 December 2002 a prosecutor from the Oryahovo regional prosecutor’s office stayed the criminal proceedings, reasoning that some of the perpetrators of the attack had not been identified. That decision was quashed on an unspecified date by the Oryahovo District Court. It appears that K.K. was charged after this date for his participation.

15. On 21 March 2003 the prosecutor discontinued the proceedings against K.K., considering that the charges against him had not been proven. Once again this decision was quashed by the Oryahovo District Court.

16. On 31 October 2005 the prosecutor once again stayed the criminal proceedings on the grounds that the perpetrators had not been identified. Following an appeal by the applicant, that decision was quashed on 4 March 2006 by the Oryahovo District Court. It was noted, in particular, that in a letter dated 19 April 2004, not presented to the Court, the Vratsa regional prosecutor’s office had acknowledged that the investigator had not done what had been necessary to find the perpetrators, and that no action in that regard had subsequently been taken. Accordingly, there were no grounds to stay the proceedings.

17. On 9 June 2006 the investigator once again interviewed the applicant and his son. The applicant gave the names of four of the attackers, including K.K. and T.K. His son stated that one of them had had a tattoo on his right arm.

18. The parties did not inform the Court of any other action taken between then and 18 February 2009, when the case was sent by the investigator to the prosecutor with a proposal to indict K.K. and T.K. On 2 December 2009 the Oryahovo district prosecutor’s office indicted the two men, having separated the material concerning the remaining attackers, who had not been identified, into a new case file.

19. On 20 April 2012 the Oryahovo District Court convicted the two accused of causing bodily harm to the applicant, and ordered them to pay 10,000 Bulgarian levs (BGN) in compensation for non-pecuniary damage. The parties did not provide a copy of that judgment’s reasoning.

20. Following an appeal, the District Court’s judgment was quashed on 9 October 2012 by the Vratsa Regional Court, which remitted the case to the prosecution. It considered that the proceedings had been flawed by a number of procedural breaches at the pre-trial and trial stages. In particular, the prosecutor had failed to accurately describe in the indictment the relevant factual circumstances and roles played by each of the accused, seeing that there had been other unidentified participants in the attack. In addition, the District Court had not examined some discrepancies in the evidence collected, and its reasoning had not been thorough and consistent.

21. Following the judgment above, the Oryahovo district prosecutor’s office reintegrated the material concerning the unidentified attackers into the original case file. Considering that the case could only properly be examined once all of the perpetrators had been identified and accused, in a decision of 3 December 2012 the prosecutor in charge once again ordered a stay of the criminal proceedings. He instructed the head of the local police directorate to continue the search for the remaining perpetrators.

22. The applicant appealed against this decision, but it was upheld on 18 December 2012 by the Oryahovo District Court.

23. Following inquiries by the prosecution, in letters of 8 April and 25 June 2013 and 24 March 2014 the local police directorate stated that none of the persons searched for had been identified.

II. RELEVANT DOMESTIC LAW

24. Under Bulgarian law (Articles 80 § 1 (3) and 81 § 3 of the Criminal Code), the limitation period for prosecuting the offence of causing intermediate bodily harm is ten years. Each act of criminal prosecution carried out by the competent authorities in relation to an alleged offender interrupts the limitation period and restarts the running of time. Such interruptions notwithstanding, he or she can no longer be prosecuted if more than fifteen years have elapsed since commission of the offence.

25. Under Article 24 § 1 of the Code of Criminal Procedure, the prosecution authorities and the courts are obliged to discontinue ex officio any criminal proceedings where, inter alia, the relevant limitation period has lapsed.

26. Persons who have suffered damage as a result of a publicly prosecutable offence have the choice of bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending criminal investigation against the tortfeasor, or of making a civil claim in the context of the criminal proceedings instituted by the prosecution authorities.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

27. The applicant, relying on Articles 5, 6 and 13 of the Convention, complained that the authorities had failed, for a lengthy period of time, to identify, convict and punish the perpetrators of the attack against him. He considered that this had been done with the aim of having the relevant limitation periods expire, thus rendering the prosecution impossible and preventing him from obtaining appropriate civil redress.

28. The Court is of the view that the complaints above are most appropriately examined under Article 3 the Convention, which reads as follows:

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

29. The Government raised an objection for non-exhaustion of domestic remedies, based on the fact that the criminal proceedings related to the attack against the applicant were still pending.

30. They also pointed out that the investigation of the attack had started promptly and had been carried out by independent bodies. They considered that it had been effective and in compliance with the requirements of Article 3, especially seeing that it had led to the identification and conviction of two of the attackers. They noted that the investigative bodies “were apparently searching” for the remaining attackers.

31. In addition, the Government pointed out that the applicant had been allowed to bring a civil claim against the two identified attackers within the framework of the criminal proceedings, and that the Oryahovo District Court had awarded him BGN 10,000 in damages. The Government also noted that the applicant could have chosen to bring a tort action against K.K. and T.K. outside the context of the criminal proceedings.

32. The applicant did not make any submissions in response to those of the Government.

A. Admissibility

33. The Court takes note of the Government’s objection for non-exhaustion of domestic remedies (see paragraph 29 above), based on the fact that the criminal proceedings related to the attack against the applicant are still officially pending.

34. Considered in those terms, the Government’s objection is closely linked to the substance of the applicant’s complaint, and it is therefore appropriate to join it to the merits.

35. The Court notes further 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.

B. Merits

1. General principles

36. Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and V.C. v. Slovakia, no. 18968/07, § 100, ECHR 2011 (extracts)). If it is to fall within the scope of Article 3, any ill-treatment must attain a minimum level of severity.

37. As a general rule, actions contrary to Article 3 will not engage the State’s responsibility if they have not been committed by its agents (see, among other authorities, Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 65, 27 September 2007). Still, the States’ obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined therein, taken together with Article 3, requires them to take measures designed to ensure that individuals are not subjected to torture or inhuman or degrading treatment, including in the hands of private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998‑VI). Where such ill-treatment nevertheless occurs, Article 3 of the Convention obliges the authorities to carry out an effective investigation (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007).

38. The States’ procedural obligation under Article 3 means, in particular, an obligation for them to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the alleged ill-treatment (see Đurđević v. Croatia, no. 52442/09, § 62, ECHR 2011 (extracts)). In addition, any such investigation should be prompt (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others, cited above, § 97, and Amadayev v. Russia, no. 18114/06, § 70, 3 July 2014). In that latter regard, consideration has been given in the Court’s judgments to matters such as the time taken to open investigations, the length of time taken for the initial investigation, and unjustified protraction of the criminal proceedings resulting in the expiry of the limitation period (see W. v. Slovenia, no. 24125/06, § 64, 23 January 2014).

2. Application to the present case

39. Turning to the circumstances of the present case, the Court notes that as a result of the attack on 13 June 2002 the applicant suffered a traumatic brain injury and broken skull, which left him unconscious. In addition, he had his finger dislocated. These injuries necessitated his hospitalisation for several days (see paragraph 6 above). For the Court, this ill-treatment reached the minimum level of severity under Article 3 of the Convention and accordingly triggered that provision’s protection (see, for example, Mrozowski v. Poland, no. 9258/04, § 28, 12 May 2009).

40. The Court observes, next, that the prosecution authorities identified two of the participants of the attack against the applicant, and have not found the others. Even though, as concerns these unidentified attackers, the criminal proceedings are apparently still officially pending – the Court has not been informed of any decision to discontinue them – the Court has serious doubts as to the chances of prosecuting and bringing these attackers before the courts at the current stage, should any of them be identified by the police. The injuries suffered by the applicant were classed under domestic law as intermediate bodily harm (see paragraph 6 above), and the limitation period for prosecuting such an offence is ten years (see paragraph 24 above). As the remaining attackers have not been identified, no act of criminal prosecution has ever been carried out against them by the prosecution authorities capable of interrupting the running of that period. It therefore appears that the limitation period in respect of the unidentified attackers expired in June 2012, the attack against the applicant dating back to June 2002. Even though, as noted, the Court has not been informed of any decision of the prosecution authorities to formally discontinue the criminal proceedings on the grounds of extinctive prescription, they are obliged to do so (see paragraph 25 above). Accordingly, for the Court currently there no longer appears to be any realistic prospect of prosecuting those attackers, even if they were to be identified.

41. On the basis of the documents presented by the parties, the Court is prepared to accept that this state of affairs was imputable to the State authorities. In the early stages of the investigation, even though the prosecution authorities questioned numerous witnesses, they do not appear to have attempted to identify and interview any of the eyewitnesses to the attack of whom the applicant and the other victims had spoken (see paragraph 8 above in fine), who could have described the attackers. Moreover, even though the applicant and the other victims had seen their attackers, no attempt was made to organise, for instance, an identity parade. As to the subsequent stages of the procedure, the Court finds particularly important the Oryahovo District Court’s findings in its decision of 4 March 2006, based in part on an admission in that respect by the prosecution authorities, that the investigator in charge of the case had not ensured that the necessary had been done to find the unidentified attackers (see paragraph 16 above). Lastly, as concerns the period of time after 2006, even though the Government stated that the investigative authorities “were apparently searching” for the unidentified attackers (see paragraph 30 above), the Court has not been presented with a single document or piece of information demonstrating their efforts in that regard. In particular, the Government have not shown that the police did anything to verify the information on the unidentified attackers given by the applicant and his son when they were interviewed in June 2006 (see paragraph 17 above).

42. Accordingly, the Court cannot but conclude that the State authorities did not make a reasonable effort to identify all the participants in the attack against the applicant, and thus brought about a situation where the criminal prosecution of some of them effectively became time-barred. The authorities have not therefore carried out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the applicant’s ill-treatment, as required by Article 3 of the Convention (see paragraph 38 above).

43. As concerns K.K. and T.K., even though their criminal prosecution is, at least in theory, still possible, the Court notes that the criminal proceedings against them have already lasted almost thirteen years, having started in 2002, and are currently pending at the pre-trial stage. Both for reasons of this excessively lengthy period of time and for the reasons outlined below, the Court is not convinced that the authorities made a reasonable effort to prosecute the two men in a prompt manner.

44. It observes that even though in the first few days after 13 June 2002, when the applicant was attacked, K.K. was identified by the victims and T.K. as one of the attackers (see paragraphs 8-9 above), he was only charged at a much later date, after December 2002 (see paragraphs 14‑15 above). As for T.K., it appears that he was charged on an unspecified date after the Oryahovo District Court’s decision of March 2006. The two men were indicted and brought before the courts in December 2009 (see paragraphs 16-18 above). The Government have not provided any explanation for these substantial delays.

45. After K.K. and T.K. were brought to court in 2009, they were convicted on 20 April 2012 by the Oryahovo District Court. However, in October 2012 the convictions were quashed by the Vratsa Regional Court, after which the case was remitted to the prosecution authorities and has ever since remained dormant pending the identification of the remaining attackers (see paragraphs 19-23 above). The Court is doubtful as to whether the case’s remittal by the Regional Court, in particular on the ground that some of the attackers had not been identified, was justified in the circumstances, seeing that by October 2012 when its judgment was given the remaining attackers’ prosecution has already became time-barred (see paragraph 40 above). This, coupled with the lack of any efforts on the part of the authorities after 2012 to find the remaining attackers (see paragraph 41 above in fine), apparently led to a complete standstill in the proceedings against K.K. and T.K.

46. Accordingly, the Court finds that the criminal proceedings against T.K. and K.K. have been excessively delayed through the authorities’ fault. It is thus clear that the State has not complied with its procedural obligation to carry out, inter alia, a prompt investigation into the attack on the applicant, as required under Article 3 of the Convention.

47. The Court also notes that the delays in the criminal proceedings led to a situation where the applicant’s civil claim against K.K. and T.K. has remained unexamined, even though it was in principle accepted for examination in the criminal proceedings and allowed by the first-instance court (see paragraph 19 above). As concerns civil redress, the Court does not accept the Government’s argument (see paragraph 31 above) that the applicant should have brought a separate claim for damages in the civil courts. The Court observes that the applicant has already chosen to bring his claim in the context of the criminal proceedings against K.K. and T.K. and cannot be blamed for this choice (contrast, for instance, Dimitar Shopov v. Bulgaria, no. 17253/07, § 58, 16 April 2013, where the applicant had not brought a civil claim in the framework of the criminal proceedings). Particularly in view of the fact that under national law such a separate claim could not have been reviewed by the civil courts before the end of the criminal proceedings which are currently pending (see paragraph 26 above), the significant delays in the investigation have deprived the applicant of any effective possibility of seeking civil redress.

48. As to the Government’s objection for non-exhaustion of domestic remedies, which was joined to the merits (see paragraph 34 above), the Court dismisses it, observing that it found the situation in the case problematic regardless of the fact that the criminal proceedings related to the attack against the applicant were still pending, in particular because in respect of the unidentified attackers the criminal prosecution has nevertheless become time-barred, and in respect of K.K. and T.K. the proceedings have already lasted for a lengthy period of time.

49. Finally, 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 reveals 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).

50. In view of the foregoing considerations, the Court concludes that the respondent State has not fulfilled its positive obligations under Article 3 of the Convention.

51. Accordingly, there has been a breach of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. 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.”

53. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join to the merits the question of the exhaustion of domestic remedies;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 3 of the Convention, and accordingly dismisses the Government’s preliminary objection based on non-exhaustion of domestic remedies.

Done in English, and notified in writing on 16 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosGuido Raimondi
RegistrarPresident

 

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