FOURTH SECTION
DECISION
Application no. 9035/06
Spas Spasov KABUROV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 19 June 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 24 February 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Spas Spasov Kaburov, is a Bulgarian national who was born in 1996 and lives in Pazardzhik. He is represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The respondent Government are represented by Ms M. Dimova, of the Ministry of Justice.
A. The circumstances of the case
1. The applicant is the son of Mr Kaburov, who died on 14 June 2000. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The events of 4 November 1997
a) The applicant’s version
2. According to the applicant, in the evening of 4 November 1997 his father, Mr Kaburov, was stopped by a police officer in front of his house. The officer wanted to seize Mr Kaburov’s car on suspicion that it had been stolen.
3. Mr Kaburov refused to surrender the car, as the police officer did not present any seizure order or other relevant document. He got into the car and drove away, with the police chasing him.
4. Shortly thereafter more police cars joined the chase. The policemen signalled Mr Kaburov to stop but he failed to do so. They fired shots at his car, shooting its tyres flat. Mr Kaburov got out of the car. Allegedly, after the police officers had caught him, they beat him, punching and kicking him, as a result of which he lost consciousness.
b) The Government’s version
5. According to the Government, in the evening of 4 November 1997 a police officer, acting with the consent of the district prosecutor, went to Mr Kaburov’s home to seize his car on suspicion that it had been imported and registered with false documents. He informed Mr Kaburov that the car was being seized and requested the registration documents and the keys of the car. Mr Kaburov refused to comply with the instructions, threatened the police officer and drove away in the car. The police officer called for help and started chasing Mr Kaburov. Three patrol cars joined the chase. The policemen shot the tyres of Mr Kaburov’s car flat and stopped it. Then Mr Kaburov resisted the policemen and they had to use physical force and other means of restraint in order to arrest him, thereby causing him minor bodily harm. His car was seized.
c) Mr Kaburov’s injuries
6. After the incident the policemen called an ambulance and Mr Kaburov was taken to the hospital in Pazardzhik, where he was examined by a doctor and the wounds on his head were stitched. He discharged himself from the hospital the following morning.
7. On 5 November 1997 Mr Kaburov was examined by a forensic doctor, who found wounds on his forehead and nose, abrasions on his face and thighs and many bruises on his back. The doctor found that these injuries could have been inflicted at the time and in the way Mr Kaburov alleged and that the allegations that he had lost consciousness had to be proved by witnesses.
8. On 6 November 1997 Mr Kaburov went to the hospital in Plovdiv, where he stayed for four days, as it was established that he had broken ribs.
2. The criminal proceedings against the police officers
9. On 4 and 5 November 1997 the police took written statements from the policemen who had been involved in the chase. The policemen, Mr B., Mr G., Mr S.P., Mr T. and Mr V., stated that after Mr Kaburov’s tyres had been shot flat, he had got out of the car and had stumbled and fallen. He got up and cursed and threatened them. According to Mr B., his resistance lasted about a minute, after which he was handcuffed and put in the patrol car.
10. The road traffic policemen Mr S.B. and Mr D. stated that they had been called after Mr Kaburov’s arrest and requested to test him for alcohol. However, when they arrived, Mr Kaburov’s condition did not permit the use of a breath alcohol test, and therefore a physician took a blood sample from him.
11. On 14 November 1997 Mr Kaburov lodged a criminal complaint with the military prosecutor. He enclosed written statements from three individuals, Mr M., Mr H.P. and Mr S.T., who had allegedly observed his arrest from a nearby café. According to their statements, after Mr Kaburov’s tyres had been shot flat, he had got out of the car and was standing next to it. Two policemen had started beating him and kicking him. He had lost consciousness. Then the policemen had handcuffed him and put him into the police car.
12. On 11 May 1998 the Plovidiv regional military prosecutor refused to open criminal proceedings. He reasoned that Mr Kaburov’s car had been registered with false documents and that during the police check he had refused to comply with the policemen’s orders and had tried to escape in his car. Therefore the policemen had shot at its tyres and subsequently had used physical force against him. He further stated that it had not been proved that the policemen had abused their power.
13. On an appeal, on 17 June 1998 the military appeals prosecutor quashed the refusal and remitted the case for further inquiry. He instructed the regional military prosecutor to question the policemen and Mr Kaburov’s wife.
14. In a letter to the military appeals prosecutor of 3 August 1998 Mr Kaburov insisted that the inquiry should not be carried out by the policemen’s superiors, because they had an interest in the outcome of the case. He again requested that eyewitnesses Mr M., Mr H.P. and Mr S.T. be questioned and enclosed written statements from two other individuals who had allegedly seen policemen shooting at Mr Kaburov’s car during the chase.
15. On 5 August 1998 the military appeals prosecutor forwarded Mr Kaburov’s letter to the regional military prosecutor. There is no information as to whether the latter responded to his requests.
16. In October 1998 the regional military prosecutor questioned Mr Kaburov’s wife and three policemen and took written statements from several other policemen. On 27 October 1999 he again refused to open criminal proceedings, reasoning, without elaborating further, that he could not reach an unequivocal conclusion that the policemen had used excessive force against Mr Kaburov.
17. In a letter to the regional military prosecutor’s office in March 2000 Mr Kaburov requested that the prosecutor working on his case be replaced. It appears that his request was dismissed.
18. On 28 April 2000 the regional military prosecutor opened an investigation into Mr Kaburov’s allegations of ill-treatment.
19. Between April and June 2000 the regional military prosecutor and the military investigator questioned at least thirteen witnesses.
20. The policeman Mr B. confirmed his earlier statement that Mr Kaburov had stumbled and fallen down while getting out of his car (see paragraph 9 above). He further stated that after Mr Kaburov had stood up, he had insulted and threatened the policemen. Then one of the officers had knocked him over and Mr B. had managed to handcuff him and put him into the car. Mr B. also stated that the purpose of calling an ambulance was to carry out an alcohol test on Mr Kaburov.
21. The policeman Mr G. stated that after Mr Kaburov’s car had been stopped, Mr Kaburov had attacked him and had shouted threats at him, after which they had grappled and fallen to the ground. Then another policeman had managed to handcuff Mr Kaburov. Other policemen had arrived and Mr Kaburov had been put into the police car.
22. Eyewitnesses Mr M. and Mr S.T. stated that one policeman had grabbed Mr Kaburov and another had hit him with his pistol. Then other policemen had kicked him. The witnesses stated that they would not be able to recognise the policemen.
23. On 14 June 2000 Mr Kaburov was killed. His widow and another individual were convicted of the murder.
24. In August 2000 the eyewitnesses Mr M. and Mr S.T. were questioned again. They confirmed their previous testimony.
25. On 28 August 2000 the military investigator suggested that the criminal proceedings be discontinued. He reasoned that it had not been established which officer had hit Mr Kaburov, and again concluded that it had not been unequivocally proved that the policemen had used excessive force against him. He further stated that after Mr Kaburov’s death it was no longer possible to hold a confrontation between him and the police officers.
26. On 18 September 2000 the regional military prosecutor terminated the criminal proceedings, giving similar reasoning.
27. On 10 October 2000 the military appeals prosecutor quashed the decision of 18 September 2000 and remitted the case with instructions for a thorough investigation.
28. On 27 November 2000 the regional military prosecutor remitted the case to the investigator.
29. On 5 March 2001 eyewitness Mr S.T. was questioned again. He stated that he had previously been addicted to drugs but had undergone successful treatment. He further stated that on 4 November 1997 Mr Kaburov had not resisted the policemen. He also stated that he was not sure if any of the policemen had hit Mr Kaburov.
30. On 26 January 2001 the investigator organised an identity parade at which eyewitnesses Mr M. and Mr H.P. could not identify any of the individuals presented as the policemen who had beaten Mr Kaburov.
31. On 5 February 2001 the military investigator suggested that the proceedings be terminated, finding that there was no indication of any unlawful conduct on the part of the policemen during Mr Kaburov’s arrest.
32. On 2 April 2001 the regional military prosecutor terminated the proceedings. He stated that Mr Kaburov had resisted the policemen and that therefore the use of physical force against him had been justified.
33. On 11 April 2001 the military appeals prosecutor upheld the decree of 2 April 2001 with similar reasoning.
34. In a final decision of 27 April 2001 the Military Court of Appeal upheld the decree of 11 April 2001. It reasoned that Mr Kaburov had resisted the policemen, which had prompted them to use “physical force and other means of restraint” against him, thereby inflicting wounds and bruises on his face, back and both thighs.
3. The investigation of Mr Kaburov’s actions
35. On 5 January 1998 the Pazardzhik district prosecutor opened an investigation in respect of Mr Kaburov, on suspicion that during the incident of 4 November 1997 he had insulted a police officer and threatened him with murder, and had refused to comply with the orders of police officers. During the investigation she questioned the individuals who had participated in the events of 4 November 1997. Following Mr Kaburov’s death, she terminated the proceedings on 23 August 2000. In a final decision of 5 October 2000 the Pazardzhik Regional Court upheld the termination.
4. The seizure of the car
36. During the incident of 4 November 1997 Mr Kaburov’s car was seized in connection with the alleged document fraud. It is not clear whether any proceedings were instituted against him. Eventually, on 4 October 1998 the car was returned to him, as the prosecution authorities found that its seizure was no longer necessary for the purposes of the investigation. Apparently, it turned out that the car had not been stolen.
5. The proceedings for damages against the State
37. On 25 January 2000 Mr Kaburov brought an action against the Pazardzhik District Police Directorate and the prosecution authorities under the State and Municipalities Responsibility for Damage Act. The applicant presented his version of the events of 4 November 1997 and submitted medical certificates in support of his allegations that he had been beaten by police officers. He sought 9,000 Bulgarian levs (BGN) (approximately 4,500 euros (EUR)) in damages, stemming from the suffering, anguish and anxiety that he had undergone because of the shooting and the beating. He also claimed that the seizure of the car had been unlawful as the seizure procedure had been breached, and claimed initially BGN 3,000, later increased to BGN 3,300 (approximately EUR 1,150) in pecuniary damages, stemming from the impossibility to use his car for the period of its seizure between 4 November 1997 and 4 October 1998.
38. In the course of the proceedings, on 14 June 2000 Mr Kaburov died. The applicant, then aged four and represented by his mother, intervened in the proceedings as his son.
39. In a judgment of 28 May 2005 the Pazardzhik District Court dismissed the claim. Relying on the documents gathered in the course of the criminal investigation against the police officers (see paragraphs 9-34 above) and against Mr Kaburov (see paragraph 35 above), on medical expert opinions and on witness statements, the District Court established that in the evening of 4 November 1997 a police officer had visited Mr Kaburov’s home to seize his car in connection with a police inquiry. Mr Kaburov had refused to surrender the car, had threatened to kill the police officer and had driven away. The police officer and three patrol cars had started chasing Mr Kaburov. The policemen had shot the tyres of Mr Kaburov’s car flat and had stopped it. The District Court further established:
“Kaburov’s arrest followed, [he] resisted the policemen and [they] had to use physical force and other means of restraint, whereby minor bodily harm was caused to Kaburov...”
40. The District Court noted that Mr Kaburov had wounds on the head, skin abrasions and bruises on the face, back and both thighs as well as a closed thoracic trauma. However, it found that it had not been proved that Mr Kaburov had experienced any pain or suffering as a result of those injuries. It also noted that the policemen had fired shots at his car because he had tried to escape, and concluded that the force used during his arrest had been necessary within the boundaries allowed by the relevant legislation. It further noted that the plaintiff had not proved that Mr Kaburov had been frightened by the shots.
41. The District Court held that the seizure of the car had been lawful. It also found that no damages were due, as the applicant had claimed compensation for lost rental income but had failed to prove that he would have rented out the car.
42. On appeal, the judgment was upheld in a final judgment of the Pazardzhik Regional Court of 6 January 2006.
B. Relevant domestic law
43. The applicable provisions of the Criminal Code and the State and Municipalities Responsibility for Damage Act (“the SMRDA”) concerning ill-treatment by the police are set out in the Court’s judgment in the case of Shishkovi v. Bulgaria, no. 17322/04, §§ 22-23, 25 March 2010.
Pursuant to section 6 of the SMRDA, if the alleged victim dies, their right to compensation for pecuniary damage is inherited. However, the right to compensation for non-pecuniary damage is inherited only if such an action has been brought by the alleged victim before his or her death. In the latter case the heirs may intervene in the pending proceedings in the alleged victim’s stead.
COMPLAINTS
44. The applicant complained, relying on Articles 2, 3 and 6 § 1 and 13 of the Convention, that on 4 November 1997 police officers had shot at the car of his father, Mr Kaburov, and had beaten him up, that the ensuing investigation had been ineffective, that his father had not received compensation for his suffering and anguish and that he lacked an effective remedy in that respect.
45. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the seizure of his father’s car had been unlawful, as the seizure procedure had not been complied with, and that his father had not been granted compensation for the period between 4 November 1997 and 4 October 1998, when he had been unable to use the car.
46. The applicant complained under Article 6 § 1 of the Convention that the proceedings for damages against the State had been unfair.
THE LAW
A. Alleged violation of Articles 3 and 13 of the Convention
47. The applicant complained that his father had been ill-treated by the police and that the authorities had failed to conduct an effective investigation of his complaints or provide him with compensation. He relied on Articles 2, 3, 6 § 1 and 13 of the Convention.
48. Having regard to the nature and substance of the applicant’s complaints in the present case, the Court considers that the proper legal characterisation of the complaints is under Articles 3 and 13 of the Convention.
Article 3 reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
49. The Government stated that the applicant was neither a direct nor an indirect victim of the alleged violations, and therefore did not have standing in the proceedings before the Court. There was no indication that his late father, who was the only person who could have claimed to have sustained pain and suffering as a result of the alleged violations of the Convention, had ever intended to lodge an application himself.
50. The applicant stated that the domestic legislation recognised an heir’s right to intervene in proceedings under the SMRDA in the event of the victim’s death and to claim compensation in his stead. This was why the domestic courts had allowed him to join the proceedings for damages after his father’s death on 14 June 2000. He therefore urged the Court to hold that he had standing to introduce the present application.
1. Relevant general principles
51. The Court reiterates that under Article 34 of the Convention, an applicant must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain, (dec.), no. 48335/99, 26 October 2000), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).
52. The Court normally permits the next-of-kin to pursue an application where the original applicant has died after the introduction of the application before the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII). However, the issues involved are different where the direct victim dies before bringing his or her complaint before the Court (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI). Although it has recognised the standing of the victim’s next-of-kin to submit an application where the victim had died or disappeared in circumstances which were alleged to engage the responsibility of the State (see Çakıcı v. Turkey [GC], no. 23657/94, § 92, ECHR 1999‑IV, and Bazorkina v. Russia (dec.), no. 69481/01, 15 September 2005), in cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2, the Court’s approach has been more restrictive. In a case concerning the prohibition of assisted suicide (see Sanles Sanles (dec.), cited above) the Court held that the rights under Articles 2, 3, 5, 8, 9 and 14 of the Convention were strictly personal and non-transferable, and concluded that the applicant, who was the deceased’s sister-in-law and legal heir, could not claim to be the victim of a violation on behalf of her late brother-in-law. The same conclusion was reached in respect of complaints under Articles 9 and 10 brought by the victim’s daughter (see Fairfield (dec.), cited above).
53. In other cases concerning complaints under Articles 5, 6 or 8 the Court has been prepared to recognise victim status and standing of close relatives to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt (see Nölkenbockhoff v. Germany, no. 10300/83, § 33, 25 August 1987, and Grădinar v. Moldova, no. 7170/02, §§ 95 and 97-98, 8 April 2008) or in protecting their own reputation and that of their family (see Brudnicka and Others v. Poland, no. 54723/00, §§ 27-31, ECHR 2005‑II; Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 31-33, 21 September 2010), or where they have shown a material interest on the basis of the direct effect on their patrimonial rights (see Ressegatti v. Switzerland, no. 17671/02, §§ 23-25, 13 July 2006; Marie-Louise Loyen and Bruneel v. France, no. 55929/00, §§ 29-30, 5 July 2005; and the above-cited Nölkenbockhoff, § 33, Grădinar, § 97, and Micallef [GC], § 25). The existence of a general interest which necessitated proceeding with consideration of the complaints has also been taken into consideration (see Marie-Louise Loyen and Bruneel, § 29, Ressegatti, § 26, Micallef [GC], §§ 46 and 50, all cited above, and Biç and Others v. Turkey (dec.), no. 55955/00, §§ 22-23, 2 February 2006). The applicant’s participation in the domestic proceedings has been found to be only one of several relevant criteria (see Nölkenbockhoff, § 33, Micallef [GC], §§ 48-49, Polanco Torres and Movilla Polanco, § 31, and Grădinar, §§ 98-99, all cited above).
2. Application of these principles to the facts of the case
54. Turning to the present case, the Court notes at the outset that there is no causal link between the alleged ill-treatment of the applicant’s father in November 1997 and the latter’s death in 2000 in the circumstances mentioned in paragraph 23 above.
55. It further notes that the applicant’s father died in 2000, while the investigation of the police officers’ activities and the tort proceedings under the SMRDA were still pending. After his death the applicant replaced him in the tort proceedings (see paragraph 38 above). Therefore, a finding of ill‑treatment in respect of the applicant’s father could have resulted in an award of damages for the applicant.
56. However, the Court cannot lose sight of the strictly personal nature of the Article 3 right which was the focus of both the domestic proceedings and the present application, namely the alleged assault of an individual (now deceased) and the suffering that that entailed for him. The Court does not exclude that it may recognise standing in the context of complaints under Article 3 to applicants who complain about treatment concerning exclusively their late relative. It nevertheless considers that such applicants must show either a strong moral interest, besides the mere pecuniary interest in the outcome of the domestic proceedings, or other compelling reasons, such as an important general interest which requires their case to be examined.
57. The Court notes that the applicant did not put forward any such reasons and the domestic proceedings in which he had taken part concerned primarily the issue of compensation. While, as noted above, it would not exclude that the particular circumstances of a case (for example, an allegation of torture) might lead it to find that an Article 3 claim is transferrable to an heir on general interest grounds, no such circumstances have been made out in the instant case. Indeed, the applicant did not argue otherwise. The fact that he lodged his application many years after the end of the investigation (see paragraph 34 above) - the effectiveness of which would have been the most important, if not the only, issue of general interest in this case - also supports this finding.
58. On the contrary, the applicant has exclusively relied on the fact that the domestic law allowed him to intervene in the tort proceedings as Mr Kaburov’s heir (see paragraph 50 above). As the Court has already observed, however, the concept of “victim” under Article 34 of the Convention is an autonomous one which does not depend on the domestic rules (see paragraph 51 above).
59. For the foregoing reasons, the Court considers that this part of the application is incompatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Other complaints
60. The applicant also complained, relying on Articles 6 § 1 and Article 1 of Protocol No. 1 to the Convention in conjunction with Article 13, that the proceedings under the SMRDA had been unfair and that the seizure of his father’s car had been unlawful.
61. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.
62. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy