Information Note on the Court’s case-law No. 103
December 2007
Nikolova and Velichkova v. Bulgaria - 7888/03
Judgment 20.12.2007 [Section V]
Article 2
Positive obligations
Article 2-1
Life
Inadequacy of criminal sentence imposed on police officers responsible for ill-treatment causing death: violation
Facts: In 1994, the local police spotted Mr Nikolov – the first applicant’s husband and the second applicant’s father – testing a home-made metal detector. Two officers, Chief Sergeants B.I. and H.T., were sent to investigate. They approached Mr Nikolov who, surprised by their sudden appearance, raised the hoe he was holding in defence. B.I. pulled the hoe out of Mr Nikolov’s hands and threw it to a safe distance. Both officers then hit Mr Nikolov over the head, overpowered and handcuffed him. He was taken to the police station where, while waiting to be questioned, he fainted. Mr Nikolov was taken to hospital where, following an unsuccessful operation to remove a blood clot, he died. A subsequent medical report concluded that the cause of death was severe cranial and cerebral trauma and internal brain haemorrhaging.
Criminal proceedings were opened into the incident and B.I. and H.T. were charged. Following a transfer of jurisdiction and the applicants’ repeated complaints, the proceedings resumed in January 1998 and the chief sergeants were brought to trial. The first-instance court convicted them of having caused the death of Mr Nikolov through intentional grievous bodily harm and sentenced them to a three-year suspended prison sentence. The applicants were awarded compensation, to be paid by the chief sergeants. On appeal the applicants complained that the chief sergeants’ sentencing was too lenient and the compensation too low. The appeal court found that the “situation [had] not call[ed] for the use of such intense physical violence” but upheld the suspended sentence. The compensation awarded to each applicant was, however, increased. The enforcement proceedings with respect to the compensation owed to the applicants were discontinued at the end of 2004 as the chief sergeants had no assets to be seized. Following a tort action brought by the applicants, the court ordered the police department to pay compensation and the amounts awarded were paid shortly after the end of those proceedings. No disciplinary measures have ever been taken against B.I. or H.T.. B.I. was promoted to unit commander but has since resigned from the police force. In 1999 H.T. was apparently still working for the police force as a guard in a commercial bank.
Law: Article 34 – Even though the applicants had received compensation for Mr Nikolov’s death, the measures taken by the authorities had failed to provide appropriate redress. The criminal proceedings against the police officers had lasted seven years, they were convicted to a minimal suspended sentence and were never disciplined for their wrongful acts. The applicants could therefore still claim to be victims for the purposes of Article 34.
Article 2 (substantive limb) – The Bulgarian courts had examined the evidence and facts of the applicants’ case and found that B.I. and H.T, acting in their official capacity, had intentionally hit Mr Nikolov and been responsible for his death. The domestic courts had also found that the incident in question had not required “such intense physical violence”. The Court therefore concluded that the death of Mr Nikolov was attributable to Bulgaria and that the force used for carrying out his arrest had not been “absolutely necessary”.
Conclusion: violation (unanimously).
Article 2 (procedural limb) – The Court considered the promptness of the criminal proceedings as a gauge for assessing the authorities’ determination to prosecute those responsible for Mr Nikolov’s death. An investigation had immediately been opened into the incident and had, at first, progressed at a good pace. However, the proceedings had then ground to a halt and had not been resumed until two-and-a-half years later and only after the applicants’ repeated complaints. The chief sergeants had finally been convicted and sentenced in 2002, more than seven years after killing Mr Nikolov. Those delays were unacceptable as the case had involved police violence and required a swift reaction from the authorities. The Court could not overlook the fact that, even though the domestic law had given the courts the possibility of sentencing the chief sergeants to a maximum of 12 years’ imprisonment, they had chosen the minimum penalty and suspended it. Indeed, at least until 1999, well after the beginning of the criminal proceedings, both officers had still been serving in the police and one of them had even been promoted. In the Court’s view, such a reaction to a serious case of deliberate police ill-treatment resulting in death could not be considered adequate. By punishing B.I. and H.T with suspended terms of imprisonment, more than seven years after Mr Nikolov was killed, and never disciplining them, Bulgaria had in effect supported the officers’ feeling that they were not responsible. The criminal proceedings against the police officers responsible for Mr Nikolov’s death had therefore been inadequate.
Conclusion: violation (unanimously).
Article 41 – EUR 7,000 for pecuniary damage and EUR 10,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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