CASE OF YANCHOVICHIN v. BULGARIA

FOURTH SECTION

CASE OF YANCHOVICHIN v. BULGARIA

(Application no. 78907/16)

JUDGMENT
 

STRASBOURG

16 March 2021

This judgment is final but it may be subject to editorial revision.

In the case of Yanchovichin v. Bulgaria,

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

Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 78907/16) 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 Ivaylo Georgiev Yanchovichin (“the applicant”), on 13 December 2016;

the decision to give notice to the Bulgarian Government (“the Government”);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 16 February 2021,

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

INTRODUCTION

1.  The case concerns complaints that the applicant was subjected to ill‑treatment by a police officer while in custody and that the national authorities did not conduct an effective investigation into his ensuing allegations of ill-treatment by the police. The applicant relied on Articles 3 and 13 of the Convention.

THE FACTS

2.  The applicant was born in 1987 and lives in Bansko. He was represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, lawyers practising in Plovdiv.

3.  The Government were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.alleged ill-treatment of the applicant

5.  On the evening of 29 April 2013, around 10 p.m., the district police in Bansko received a report that several streetlights in the centre of the town had been vandalised. A police patrol was dispatched to the city centre. The police officers questioned a witness, who mentioned that he had seen three young men passing by near the broken streetlights and gave a description of their clothes. The police officers started searching the city centre of Bansko. They spotted the applicant, his brother I.Y., his friend G.D. and two other people who were standing in front of a shop drinking beer. Considering that the applicant and his two companions matched the description given by the witness the police officers asked them to show their identity cards. As they did not have identity cards they were asked to accompany the police officers to the police station. They voluntarily got into the police car and were brought to the police station at 10.30 p.m. Their identity was established. They gave written statements regarding their alleged participation in the breaking of the streetlights and took part in an identification parade.

6.  According to the findings of the criminal courts, which later examined the events, once at the police station the applicant started to swear at and insult the police officers. He was then taken to a separate room by three police officers: T.V., A.Y. and S.P. His brother I.Y. and his friend G.D. remained in the corridor next to the room together with a police officer, M.M.

7.  According to testimonies given later before the courts by Officers T.V., A.Y. and S.P., the applicant continued to swear at and insult them inside the room. T.V. ordered him to stop insulting the police officers, warning him that physical force could be used against him, and started to draft a custody order in respect of the applicant for a period of twenty‑four hours. According to the police officers’ testimonies, the applicant kicked a desk towards T.V., stood up and started to wave his hands. T.V. approached the applicant and forced him onto the floor, using physical force and a restraint technique. According to the police officers’ testimonies the applicant immediately started screaming and said that his leg was broken.

8.  In his statements before the courts the applicant denied having insulted the police officers in the room. He submitted that he had been questioned by T.V., some verbal exchange between them had taken place, after which T.V. had started hitting him with his hands, brought him down to the floor and kicked him in the left knee. The applicant said that he had immediately felt a sharp pain in his left knee and started to scream for help.

9.  According to testimonies given later by the applicant’s brother I.Y. and his friend G.D., they heard the applicant screaming for help and immediately entered the room where they saw the applicant sitting on the floor with his back on the wall. The applicant asked for an ambulance to be called. The applicant’s brother immediately called their mother, E.Y. The latter arrived at the police station soon afterwards and found the applicant sitting on the floor crying. He said to her that the police officers had injured him. She took pictures of the applicant’s leg with her mobile phone. Meanwhile, an ambulance had arrived and the applicant was taken to the local hospital. The surgeon on duty examined him at 11.15 p.m. on 29 April 2013. He issued a medical certificate according to which the applicant had a dislocated left kneecap, haemarthrosis of the left knee and haematomata on the face and the left shoulder. The surgeon carried out a manual repositioning of the applicant’s dislocated left kneecap and immobilised his leg. The applicant was taken back to the police station’s car park to sign the order for his detention in custody as of 10.30 p.m. on 29 April 2013 until 1.35 a.m. on 30 April 2013. He refused and was then driven home by G.D.’s girlfriend. I.Y. and G.D. remained in custody in the police station for twenty-four hours.criminal proceedings against officer T.V.

10.  On 30 April 2013 both the applicant and his mother submitted complaints to the head of the Razlog regional police that the applicant had been ill-treated by Officer T.V. An internal inquiry was initiated into their allegations. The inquiry ended with reports of 4 June and 18 June 2013 according to which it could not be established that any unlawful actions on the part of the police officer had taken place. The material was sent to the Razlog district prosecutor’s office. All prosecutors of that office withdrew from the examination of the case, stating that they had professional relations with Officer T.V. The material was then sent to the Blagoevgrad district prosecutor’s office.

11.  On 2 August 2013 the Blagoevgrad district prosecutor’s office opened criminal proceedings in relation to the conduct of Officer T.V. The case was assigned to an investigator of the Blagoevgrad district prosecutor’s office. On 12 August 2013 the applicant was questioned by the investigator, in the presence of a judge of the Blagoevgrad District Court. On 13 August 2013 T.V and all four police officers who had been at the police station on the night of the incident were also questioned, as well as the applicant’s brother and their friend who had accompanied them. On 27 August 2013 the investigator commissioned a medical expert report to establish the nature and cause of the applicant’s injuries. That report, dated 14 November 2013, certified that the applicant’s injuries had included a dislocated left kneecap (patella), haemarthrosis of the left knee, as well as haemotomata on the face and on the left shoulder. According to the medical expert report the dislocated left kneecap had caused him difficulties when walking for three to four months. Haemotomata on the face and the left shoulder had caused him pain and suffering. The expert suggested that in the instant case it was more probable that the applicant’s dislocated left kneecap had been caused by a direct blow to the knee.

12.  On 9 December 2013 Officer T.V. was accused of having caused medium bodily harm to the applicant while carrying out his duties, an offence under Article 131 § (2) read in conjunction with Article 129 § 2 of the Criminal Code 1968 (see paragraph 21 below).

13.  On 28 February 2014 the Blagoevgrad district prosecutor filed a bill of indictment with the Blagoevgrad District Court against T.V.

14.  The case was examined by a chamber of three judges, namely a professional judge sitting as president and two lay judges. The applicant joined the proceedings as a private prosecutor and was represented by counsel.

15.  Between 11 April 2014 and 24 June 2015 the District Court held thirteen hearings. The court heard witnesses testimony from the applicant, his brother I.Y., G.D., who had accompanied them, the applicant’s mother, and the four police officers who had been at the police station on the night of the incident, including Officers A.Y and S.P., who had been present in the room where the incident had happened. The court carried out face‑to‑face confrontations between Officers A.Y. and S.P., who were the only eyewitnesses to the incident, and the applicant. The court also questioned as a witness the doctor who had examined the applicant immediately after the incident. The latter expressed the opinion that the direction of the dislocated kneecap suggested there had been a direct blow to the applicant’s knee. The court also heard the testimony of the accused, T.V in the presence of the expert who had prepared the forensic medical expert report at the pre-trial stage. Immediately after having heard the testimony of the accused, the court heard the expert who had prepared the forensic medical expert report. Departing from his report, he expressed the opinion that the possibility that the applicant’s dislocated kneecap had been caused in the process of the application of the restraint technique by T.V. could not be excluded.

16.  In a majority judgment of 24 June 2015 the District Court acquitted T.V. Based on the testimonies given by Officers A.Y and S.P. and the opinion of the expert who had prepared the medical report, the court found that while in the room the applicant had sworn at and insulted the officers, he had kicked the desk and waved hands towards Officer T.V. The court further found that in order to prevent the applicant from carrying on, T.V. had applied to him a physical restraint technique and had forcefully brought him down to the floor. The court concluded that the applicant sustained his injuries in that process. It also found that there was no evidence that Officer T.V. had kicked the applicant in the knee. The professional judge expressed a dissenting opinion. Relying on the medical documents and the testimony of the doctor who had examined the applicant at 11.15 p.m. on 29 April 2013, he considered that the direction of the dislocated kneecap supported the applicant’s allegations and proved that there had been a direct blow to the applicant’s left knee. Therefore, the professional judge concluded that it was proven that Officer T.V. had kicked the applicant in the knee causing him medium bodily harm.

17.  The district prosecutor appealed, arguing that the court had erred in establishing the facts of the case. He submitted that the court had wrongly based its findings of fact only on the testimonies given by Officers A.Y. and S.P. and had disregarded the applicant’s statements without sufficient reasoning. The prosecutor also argued that even if it was accepted that the applicant had not been behaving properly, his behaviour could not be considered sufficiently serious to justify the force used against him by T.V. The applicant also appealed, arguing that that there was enough evidence that T.V had inflicted medium bodily harm on him.

18.  Between 9 October 2015 and 13 May 2016 the Blagoevgrad Regional Court held four hearings and commissioned a new medical expert report in order to determine the mechanism by which the applicant’s injuries could have been sustained. According to that report drawn up by two experts, the dislocation of the applicant’s kneecap could have occurred as a result of either a direct, forceful blow on the inside of the knee or indirectly by a blow to the back of the knee leading to deep knee bending, accompanied by forceful rotation of the body. The experts suggested that in the instant case it was more probable that the applicant’s injury had been caused indirectly by the police officer when he had applied a physical restraint technique because there had been no haematomata or bruises on the applicant’s left leg suggesting he had been kicked there.

19.  In a judgment of 13 June 2016 the Blagoevgrad Regional Court upheld the Blagoevgrad District Court’s judgment. It found that the mechanism by which the applicant’s injuries had been caused had been correctly established by the first-instance court. Based on the new medical expert report it concluded that the applicant’s injuries had been indirectly caused by T.V. when he had applied a physical restraint technique. It also found that the police officer had lawfully used force against the applicant, as he had insulted the police officers and tried to hit them.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

20.  The relevant provisions of domestic law in force at the time of the event concerning the use of force for restraint by police officers have been summarised in the Court’s judgments in the cases of Anzhelo Georgiev and Others v. Bulgaria (no. 51284/09, §§ 32-34, 30 September 2014) and Boris Kostadinov v. Bulgaria (no. 61701/11, §§ 30-34, 21 January 2016).

21.  The relevant provisions of domestic law concerning prosecution for police ill-treatment of individuals have been summarised in the Court’s judgments in the cases of Toteva v. Bulgaria (no. 42027/98, § 43, 19 May 2004) and Anzhelo Georgiev and Others (cited above, § 40).

22.  Individuals claiming that they have been ill-treated by police officers can seek damages under the State and Municipalities Liability for Damage Act (“the SMLDA”) of 1988. The remedy is described in more detail in the Court’s judgment in the case of Krastanov v. Bulgaria (no. 50222/99, §§ 45-46, 30 September 2004).

23.  The relevant domestic case-law on the liability of the authorities for using force in the course of arrests and search and seizure operations has been summarised in the Court’s judgment of Posevini v. Bulgaria (no. 63638/14, §§ 34-46, 19 January 2017). In particular, the following judgments were produced in the framework of the present proceedings before the Court.

In February 2013 (see реш. от 11.02.2013 г. по адм. д. № 462/2012 г., АС-Варна) the Varna Administrative Court awarded compensation to a person who had been ill-treated by the police in the course of his arrest.

In February 2013 (see реш. № 2363 от 19.02.2013г. по адм. д. № 4187/2012 г., ВАС, III о.) the Supreme Administrative Court held that when the police arrest a person and place him or her in custody they engage in “administrative action”. On that basis, it awarded compensation to a person treated roughly by the police in the course of her arrest and subsequent four-hour detention.

On 10 February 2014 the Supreme Administrative Court held that the brutal way in which the police had rushed into a person’s home, handcuffed him, even though he had not put up resistance, taken him out into the street in his underpants, woken up his wife and children, and searched the premises in an aggressive manner, had constituted “administrative action” (see реш. № 1841 от 10.02.2014г. по адм. д. № 13445/ 2012 г., ВАС, III о.). On remittal, in February 2015 the Pernik Administrative Court found, by reference to, inter alia, Article 3 of the Convention, that the actions of the police had been unlawful within the meaning of section 1(1) of the SMLDA, and awarded the claimant compensation in respect of non‑pecuniary damage (see реш. № 44 от 19.02.2015 г. по адм. д. № 127/2014 г., АС-Перник). In July 2016 the Supreme Administrative Court upheld that ruling, but increased the quantum of the awarded compensation (see реш. № 8948 от 18.07.2016г. по адм. д. № 7569/2015 г., ВАС, III о.).

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

24.  The applicant complained that on 29 April 2013 he had been ill‑treated in the main police station in Bansko by a police officer and as a result he had suffered bodily injuries. He also complained that the authorities had not conducted an effective investigation into the incident and that he had not had an effective remedy in that regard. The applicant relies on Articles 3 and 13 of the Convention.

25.  The Court, as master of the characterisation to be given in law to the facts of the case (see, as a recent authority, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that, in the light of its case-law (see, for instance, Nachova and Others v.  Bulgaria [GC], nos. 43577/98 and 43579/98, § 123, ECHR 2005‑VII), it is appropriate to examine the applicant’s complaints solely under Article 3 of the Convention.

26.  Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”AdmissibilityThe parties’ submissions

27.  The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. In particular, he had not introduced a civil action in the course of the criminal proceedings nor brought a claim for damages under section 1 of the SMLDA. According to the Government, such a claim was an effective remedy. They referred in particular to the examples of the Supreme Administrative Court’s judgments in which compensation had been awarded for damage sustained as a result of unlawful actions on the part of State officials. In those cases (see paragraph 23 above) the court had held that when arresting and placing a person in police detention, the police were carrying out “administrative action” within the meaning of that provision, and could therefore incur liability in relation to the use of force in violation of the relevant rules.

28.  The applicant replied, relying on the judgment Assenov and Others v. Bulgaria (28 October 1998, Reports 1998‑VIII), that an action for damages could not be regarded as an effective remedy for the protection of his right not to be ill-treated because it could only result in compensation and it could not lead to the identification and punishment of those responsible for the alleged ill-treatment. The applicant also argued that a civil claim for damages against the police officer would have been bound to fail, given that he had been acquitted of the charge of ill-treatment and the civil courts would have been bound by the criminal court’s judgment in that connection. In reply to the Government’s arguments that a claim under the SMLDA was an effective remedy, the applicant noted that, in any event, the present incident had occurred in 2013, prior to the changes in the domestic case-law concerning the liability of the authorities in respect of the use of force and therefore that case-law was not yet relevant.The Court’s assessment

29.  The Court reiterates that an applicant who has used a remedy which is apparently effective and sufficient cannot be required also to have tried other remedies that were available but probably no more likely to be successful (see, among other authorities, Assenov and Others, cited above, § 86, and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III ). The Court has already found that the remedies available within the criminal-justice system in Bulgaria are the normal avenue of redress for alleged police ill-treatment (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 57, 12 April 2007).

30.  In the case at hand, the applicant brought a complaint about the incident before the prosecution authorities, which opened criminal proceedings against a police officer and later brought him before the courts (see paragraphs 11 and 13 above). The applicant joined those proceedings as a private prosecutor along with the prosecutor on two levels of jurisdiction (see paragraph 14 above).

31.  It follows that the objection raised by the respondent Government on grounds of non-exhaustion of domestic remedies must be dismissed.

32.  The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsAlleged ill-treatment of the applicant

(a)   The parties’ submissions

33.  The applicant submitted that he had been seriously ill-treated by Officer T.V. on 29 April 2013 in the main police station in Bansko, resulting in medium bodily harm and other injuries. He also argued that as he had not behaved aggressively towards the police officers, the use of force by Officer T.V. had amounted to inhuman and degrading treatment and that Article 3 was engaged. He added that even assuming that the injuries had occurred as a result of an application of a physical restraint technique, the State remained responsible because the force used had been excessive. The applicant furthermore submitted that the national courts had not analysed whether the use of force had been absolutely necessary in the present case.

34.  The Government firstly argued that the applicant’s injuries had not been serious enough to amount to an inhuman and degrading treatment within the scope of Article 3. Furthermore, they contested the applicant’s factual allegations concerning the manner in which his injuries had been caused. They did not dispute that on 29 April 2013, at the time of the incident, the applicant had been under the control of police officers, or that the injuries he had suffered had been the result of Officer T.V.’s actions. However, the Government submitted that the applicant’s injuries had been indirectly caused by Officer T.V. when he had applied a physical restraint technique to the applicant. Alternatively, the Government submitted that the force used had not gone beyond what had been necessary to put an end to the applicant’s aggressive behaviour and had been discontinued immediately after the applicant had been subdued. Accordingly, the use of force by Officer T.V. could not be considered as ill-treatment in the instant case.

(b)   The Court’s assessment

35.  In cases involving the substantive aspect of Article 3 concerning, in particular, allegations of ill-treatment by State agents, the relevant general principles were articulated by the Grand Chamber in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015).

36.  The Court reiterates that where an individual, when taken into police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Toteva, cited above, § 50; Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241‑A; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).

37.  In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64‑65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Bouyid, cited above, § 82). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; Bouyid, cited above, § 83).

38.  The Court also pointed out that, although it recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this was not rendered unavoidable by the circumstances of a particular case, it had to apply a “particularly thorough scrutiny” where allegations were made under Article 3 of the Convention, even if certain domestic proceedings and investigations had already taken place. In other words, in such a context the Court is prepared to conduct a thorough examination of the findings of the national courts. In examining them it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (Bouyid, cited above, § 85, with further references).

39.  In relation to detainees, the Court has emphasised that individuals in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006-XV (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX). In respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (Bouyid, cited above, § 88 and §§ 100-01).

40.  Turning to the circumstances of the instant case, the Court observes, and it is not disputed by the parties, that the applicant was in good health when he was brought to the Bansko police station at 10.30 p.m on 29 April 2013 (see paragraph 9 above). One hour and fifteen minutes later, he had to be transported by ambulance to the local hospital, where it was established he had a dislocated left kneecap, haemarthrosis of the left knee and haemotomata on his face and left shoulder (see paragraph 9 above). His injuries were confirmed by the domestic authorities in the subsequent criminal proceedings.

41.  The Court considers, especially taking account of the medical expert report, that the injuries which the applicant had sustained, had caused him serious physical pain and suffering. According to the medical expert report the dislocated kneecap was classified as medium bodily harm. Moreover, that particular injury had lasting consequences for his health as it made it difficult for the applicant to walk for three to four months (see paragraph 11 above). Thus, the degree of bodily harm indicates that the applicant’s injuries were sufficiently serious to amount to inhuman and degrading treatment within the scope of Article 3 (see, for example, Assenov and Others, cited above, § 95, and Afanasyev v. Ukraine, no. 38722/02, § 61, 5 April 2005).

42.  It is not disputed by the parties that the intervention against the applicant was committed by Officer T.V. in the performance of his duties. The Court has previously recognised that a form of constraint applied by police officers may be justified where individuals under police control offer physical resistance or present a risk of violent behaviour (see Klaas, cited above, § 30, and Sarigiannis v. Italy, no. 14569/05, § 61, 5 April 2011). Thus, the Court considers that the burden rests on the Government to demonstrate by convincing arguments that the use of force was rendered strictly necessary by the applicant’s own behaviour.

43.  In the instant case, according to the domestic courts’ findings, the applicant’s actions in the room were described as swearing, insulting, kicking the desk and waving hands towards Officer T.V (see paragraph 16 and 19 above). The Government in its observations noted that the applicant kicked the desk and waved his hands towards T.V., which was considered to be a physical attack by the latter. The Court notes that it is questionable whether the applicant’s actions as described by the domestic courts could be considered as a real and imminent physical attack on the police officer which prompted the use of a special physical restraint technique for subduing a person.

44.  In this connection, the Court considers that, even accepting that the applicant was not calm and did insult the police officers, there is no evidence that he was a particular danger to them. He had not demonstrated previously violent behaviour towards the police officers. His initial conduct was cooperative and he did not physically resist being taken to the police station. The material in the case file indicates that he voluntarily accompanied the police officers and was not handcuffed on his way to and inside the police station. It is also of importance that he was not suspected of having committed a violent offence. He also complied with their orders to write his statements regarding his suspected participation in the breaking of the streetlights and to take part in an identification parade (see paragraph 5 above).

45.  Furthermore, the applicant’s conduct in the room as established by the domestic courts did not appear to be of such a character as to justify recourse to such a considerable physical force that, judging by the number and seriousness of the injuries, must have been employed by Officer T.V. The Court observes, in particular, that the applicant voluntarily entered the room with three police officers. He was outnumbered and was clearly inferior to them in terms of physical strength. In that regard, the Court reiterates that Article 3 of the Convention establishes, as does Article 2, a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure a high level of competence in their professional conduct so that no one is subjected to treatment that runs contrary to that provision (see Bouyid, cited above, § 108). The Court also observes that section 72 of the Ministry of Interior Act, as applicable at the time, allowed the use of force only where absolutely necessary (see paragraph 20 above).

46.  The Court notes that none of the available evidence indicates that the applicant’s behaviour could have endangered the police officers’ physical integrity or lives to such an extent as to justify the immediate application of a physical restraint technique which obviously could cause serious pain and, indeed, caused an injury entailing difficulties for the applicant to walk during three to four months. Having regard to the number and the serious nature of the injuries sustained by the applicant (see paragraphs 11 and 41 above), the Court finds that neither the domestic courts nor the Government have furnished convincing or credible arguments which would provide a basis for concluding that recourse to the degree of force used by Officer T.V. against the applicant had been made strictly necessary by the latter’s conduct (see Anzhelo Georgiev and Others, cited above § 77, and Rehbock, cited above, § 76).

47.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant has been subjected to inhuman and degrading treatment for which the Government must bear responsibility.

48.  There has therefore been a violation of Article 3 of the Convention under its substantive limb.Alleged ineffectivess of the investigation

(a)   The parties’ submissions

49.  The applicant complained that the Bulgarian authorities had not carried out an effective investigation into his allegations of ill-treatment by Officer T.V. on 29 April 2013 in the main police station in Bansko. He argued that the conclusions of the domestic courts concerning the mechanism by which the applicant had sustained the impugned injuries had not corresponded to the actual evidence. He alleged that neither the District Court nor the Regional Court had analysed whether the use of physical force by Officer T.V had been absolutely necessary within the meaning of section 72 of the Ministry of Interior Act, as applicable at the relevant time, and whether it had been proportionate to the specific situation. For the applicant, the Government had not provided a complete and satisfactory explanation of all of his injuries.

50.  The Government argued that the Bulgarian prosecution authorities had conducted a timely and thorough official investigation. They submitted that a short time after the incident the investigator in charge had questioned all the witnesses and ordered a medical expert report to establish the nature and causes of the applicant’s injuries. The Government furthermore submitted that criminal proceedings had been conducted against the police officer, who had been acquitted in the course of court proceedings at two instances. They furthermore argued that the domestic courts had heard and duly analysed all evidence, had established the mechanism by which the applicant’s injuries had occurred and had found that the police officer’s actions had been in line with domestic law. Therefore, according to the Government, the investigation into the applicant’s allegations of ill‑treatment had been full, objective and thorough.

(b)   The Court’s assessment

51.  The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, 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 an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see Assenov and Others, cited above, § 102; regarding the further requirements for an investigation to be effective, see Bouyid, cited above, §§ 118 and 120-23). The investigation must also be effective in the sense that it should be capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Fanziyeva v. Russia, no. 41675/08, § 70, 18 June 2015, and Balajevs v. Latvia, no. 8347/07, § 101, 28 April 2016).

52.  On the basis of the evidence adduced in the present case, the Court has found that the respondent State is liable under Article 3 for the inhuman and degrading treatment suffered by the applicant (see paragraph 48 above). His claim in this regard was arguable and he was therefore entitled to an effective investigation (see, mutatis mutandis, Ivan Vasilev, cited above, § 76).

53.  In the Court’s opinion, the issue is not so much whether there was an investigation, since the parties did not dispute that the criminal proceedings had been conducted by the authorities, but whether it was “effective” according to the standards stemming from this Court’s case-law in this domain.

54.  In the present case, although the police started an internal inquiry after the complaints about the incident had been lodged by the applicant and his mother, the official criminal proceedings were opened only three months later (see paragraphs 10 and 11 above). Therefore, it could be questioned whether the investigation was promptly opened. Nevertheless, the Court notes that the prosecution authorities took all reasonable steps to secure the relevant evidence: they gathered detailed statements from the applicant and eyewitnesses, and commissioned a forensic expert report concerning the cause and scope of the injuries. Officer T.V was accused and brought before the court ten months after the incident (see paragraphs 12-13 above).

55.  The police officer was acquitted by the domestic courts at two instances. Based on the testimonies of the two police officers, who were the only eyewitnesses, corroborated by the medical expert reports they had found that Officer T.V. had used a physical restraint technique against the applicant. The courts explained that that restraint technique had been used in response to the applicant’s insults and because he had tried to attack a police officer. The court concluded that the applicant had sustained the impugned injuries in that process (see paragraphs 16 and 19 above).

56.  The Court notes that the salient question is whether the domestic courts have carried out an assessment of whether the application of physical force was strictly necessary in the particular circumstances (see Bouyid, cited above, § 88; Anzhelo Georgiev and Others, cited above, § 72). Those courts clearly established that the applicant had suffered several injuries and that these had been the result of force used by Officer T.V. However, the Court observes that they did not embark on an assessment of the proportionality of the force used against the applicant. In particular, they did not endeavour to analyse the degree of force used and whether it had been made necessary in the circumstances by the applicant’s conduct.

57.  In that regard, the Court notes that the domestic courts found that Officer T.V. had forced the applicant onto the floor using “a physical restraint technique”. Furthermore, they considered that the applicant could have sustained his injuries in that process, which in their view corresponded to the police officers’ version of events (see paragraph 16 and 19 above). At the same time, neither the District court nor the Regional court analysed whether the police officer’s actions had been compatible with section 72 of the Ministry of Interior Act as in force at the time of the event, in particular whether the use of force had been absolutely necessary in the circumstances. Such an assessment was even more important given that the prosecutor’s appeal against T.V.’s acquittal especially stressed that the force used by T.V. had not corresponded to the applicant’s alleged misconduct (see paragraph 17 above). This approach was fully inconsistent with the standards stemming from the Court’s case‑law in this domain (see, mutatis mutandis, Ivan Vasilev, cited above, § 77, and Balajevs, cited above, §§ 106‑08).

58.  The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the alleged ill-treatment was not effective.

59.  There has therefore been a violation of Article 3 of the Convention under its procedural limb.APPLICATION OF ARTICLE 41 OF THE CONVENTION

60.  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.”Damage

61.  The applicant claimed 15,000 euros (EUR) in respect of the non-pecuniary damage that he had suffered as a result of the breaches of the substantive and procedural limbs of Article 3 of the Convention. The applicant asked the Court to take account of the specificities of the present case, the intensity of his suffering and the various aspects in which his rights under Article 3 had been violated.

62.  The Government submitted that the claim was unjustified and that the finding of a violation would be sufficient just satisfaction for the applicant. In any event, the Government submitted that the claim was exaggerated and excessive.

63.  The Court finds that the applicant must have endured physical and mental suffering as a result of the inhuman and degrading treatment to which he was subjected by the police in the course of his detention. To this should be added the mental suffering caused by the ensuing lack of an effective investigation. Ruling in equity, as required under Article 41 of the Convention, the Court allows the applicant’s claim in full and awards him EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.Costs and expenses

64.  The applicant also claimed reimbursement of EUR 1,200 incurred in fees for his legal representation before the Court, as well as of EUR 214.74 for translation fees, EUR 7.97 for postage stamps and EUR 10 for office supplies used by his representatives. In support of those claims, the applicant submitted a fee agreement between him and his legal representatives, an invoice, a contract for translation services and postal receipts. The applicant requested that any award made under this head, apart from the EUR 1,200 already paid by him, be transferred directly to the law firm in which his legal representatives, Mr M. Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, are partners.

65.  The Government submitted that the applicant’s claims were not supported by the relevant documents.

66.   Regard being had to the documents submitted by the applicant (see paragraph 64 above) and to its case-law, the Court considers it reasonable to award the sum of EUR 1,432.71 covering costs for the proceedings before the Court, plus any tax that may be chargeable to the applicant. EUR 1,200 of this sum is to be paid to the applicant, and the remainder – EUR 232.71, plus any tax that may be chargeable to the applicant – to the law firm in which his legal representatives are partners.Default interest

67.  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, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention as regards the applicant’s ill-treatment by the police;Holds that there has been a violation of Article 3 of the Convention as regards the lack of an effective investigation;Holds

(a)  that the respondent State is to pay the applicant the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,432.71 (one thousand four hundred and thirty-two euros and seventy-one cents) in respect of costs and expenses; EUR 1,200 (one thousand two hundred euros) of this sum is to be paid directly to the applicant and the remainder, EUR 232.71 (two hundred and thirty-two euros and seventy-one cents), plus any tax that may be chargeable to the applicant, to the law firm in which his legal representatives, Mr M. Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, are partners;

(b)  that 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;

Done in English, and notified in writing on 16 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Tim Eicke
Deputy RegistrarPresident

 

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