Communicated on 7 July 2014
FOURTH SECTION
Application no. 67258/13
Nuray Bayramali MYUMYUN
against Bulgaria
lodged on 11 October 2013
STATEMENT OF FACTS
The applicant, Mr Nuray Bayramali Myumyun, is a Bulgarian national, who was born in 1979 and lives in the village of Gorno Sahrane. He is represented before the Court by Mr Y. Grozev and Ms N. Dobreva, lawyers practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s beating
On 20 February 2012 the applicant was contacted by N.K., an officer from the local police station in Pavel Banya, and told to come to the station for a “check-up”. It transpired subsequently that several days earlier the police had received a complaint about a theft in the applicant’s village. However, no formal criminal investigation into the matter had been opened.
The applicant came to the police station around 1 p.m. He was taken to a room where there were three police officers. One of them asked the applicant whether he had anything to tell them and then hit him with a wooden bat. He continued to hit the applicant with his knee and with a rubber truncheon. One of the other officers left the room, but another one came, carrying with him an electroshock prod. The officers continued to hit and kick the applicant and also on several occasions applied electroshock to him. The beating stopped when the applicant had blood flowing from his nose. Then one of the officers drew up a written explanation on behalf of the applicant, saying that he knew nothing of the reported theft, and presented it to the applicant to sign it. The applicant was released around 5 p.m.
On 21 February 2012 he was examined by a forensic doctor, who established numerous oedemas and bruises on his face and upper body, caused by “hard blunt objects and objects with cylindrical form”.
2. Criminal proceedings
Upon a complaint by the applicant, the Kazanlak district public prosecutor’s office opened criminal proceedings. The police officers who had beaten the applicant were identified as N.K., I.K. and T.A. On an unspecified date they were charged with having caused to him a light bodily injury while performing their duties, an offence under Article 131 § 1 in conjunction with Article 130 § 2 of the Criminal Code (see “Relevant domestic law” below).
On 1 March 2013 the prosecutor in charge of the case informed the applicant that, given that the punishment for this offence provided for by law was up to one year’s imprisonment, the three accused’s criminal liability would be replaced with administrative liability, pursuant to Article 78a of the Criminal Code (see “Relevant domestic law” below).
On 28 March and 23 April 2013 the applicant made written submissions, requesting the prosecution authorities to consider bringing charges against the accused for offences under Article 282 § 1 or Article 287 of the Criminal Code, providing for more severe punishments (see “Relevant domestic law” below).
The prosecutor maintained the charges and on 29 April 2013 introduced with the Kazanlak District Court a proposal to replace the accused’s criminal liability with administrative punishments.
On 21 May 2013 the applicant submitted a written statement with the Kazanlak District Court, urging it to remit the case to the prosecution for an examination of the question whether the accused had committed an offence under Article 287 of the Criminal Code.
In a letter of the same day the judge rapporteur informed the applicant the he was not a party to the proceedings before the District Court, because in such proceedings the victim could not participate as a civil claimant or private prosecutor. The judge went on to say that in any event it was up to the prosecution authorities to define the charges. Moreover, he considered that Article 287 of the Criminal Code was inapplicable to the circumstances because the applicant had not had the required formal quality of an accused or a witness in criminal proceedings as no such proceedings had been opened.
In a judgment of 12 December 2013 the Kazanlak District Court found that N.K., I.K. and T.A. had caused a light bodily injury to the applicant in the way described above, which represented an offence under Article 131 § 1 in conjunction with Article 130 § 2 of the Criminal Code. Pursuant to Article 78a of the Code, the court replaced their criminal liability with administrative one, imposing on each of them a fine of 2,000 Bulgarian levs (the equivalent of approximately 1,025 euros).
On 25 April 2014 the above judgment was upheld by the Stara Zagora Regional Court, whose judgment was final.
3. Disciplinary proceedings
In the disciplinary proceedings which were opened against N.K., I.K. and T.A. the relevant bodies of the Ministry of the Interior concluded that they had not used force against the applicant. The decisions in that regard were taken on different dates in May 2012. Subsequently N.K. and I.K. were punished with “non-admission to competitions for a higher rank” for a period of three years for having unlawfully detained the applicant.
B. Relevant domestic law
1. Light bodily injury and offences under Articles 282 § 1 and 287 of the Criminal Code
Article 130 § 2 of the Criminal Code of 1968 makes it an offence to cause minor bodily injury to another. Under Article 131 § 1, where the injury was caused, inter alia, by police officers in the course of or in connection with the performance of their duties, the offence is considered aggravated. If the injury was without detriment to the victim’s health (“без разстройство на здравето”), the offence is punishable by up to one year’s imprisonment or probation.
Article 282 § 1 of the Code provides that an official who breaches or fails to fulfil his duties, or exceeds his power, with the aim of obtaining a benefit for himself or a third party, or of causing damage to others, is to be punished by up to five years’ imprisonment.
By Article 287 of the Code forcing an accused, a witness or an expert in civil, criminal or administrative proceedings to confess or provide information or testimony through coercion or other unlawful means is an offence punishable by three to ten years’ imprisonment.
2. Substitution of the accused’s criminal liability with administrative liability
Article 78a § 1 of the Criminal Code mandates the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from 1,000 to 5,000 levs – if the following conditions have been met: (i) the offence of which they were accused, if it is intentional, is punishable by up to three years’ imprisonment or a lesser penalty, (ii) they have not previously been convicted of a publicly prosecutable offence and their criminal liability has not previously been replaced by an administrative punishment, and (iii) any pecuniary damage caused by the criminal act has been made good.
As provided for in Article 376 §§ 3 and 4 of the Code of Criminal Procedure, the victim of an offence cannot participate as a civil claimant or private prosecutor in proceedings concerning the substitution of the accused’s criminal liability with an administrative punishment.
COMPLAINT
The applicant complains under Article 3 of the Convention that the authorities did not respond adequately to his ill-treatment, as they only imposed fines on the police officers who beat him. He considers that these punishments were manifestly disproportionate in the circumstances.
QUESTION TO THE PARTIES
Having regard to the procedural protection from inhuman or degrading treatment, was the authorities’ response to the applicant’s ill-treatment by police officers in breach of Article 3 of the Convention? In particular, were the punishments imposed on those officers adequate and proportionate in the circumstances (see Gäfgen v. Germany [GC], no. 22978/05, §§ 123-4, ECHR 2010, with further references)?
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