Communicated on 23 November 2016
FIFTH SECTION
Applications nos. 37801/16, 39549/16 and 40658/16
Vanya Petkova RIBCHEVA against Bulgaria;
Milena Georgieva IVANOVA-SHARKOVA against Bulgaria
and Teodora Emilova SHARKOVA against Bulgaria
all lodged on 1 July 2016
STATEMENT OF FACTS
1. The applicant in the first application (no. 37801/16), Ms Vanya Petkova Ribcheva, was born in 1949. The applicant in the second application (no. 39549/16), Ms Milena Georgieva Ivanova-Sharkova, was born in 1975. The applicant in the third application (no. 40658/16), Ms Teodora Emilova Sharkova, was born in 1999. All three applicants are Bulgarian nationals who live in Sofia. They are represented before the Court by Ms T. Petkova, a lawyer practising in Sofia.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants are the mother, widow and daughter of Mr Emil Emilov Sharkov, an officer of the Ministry of Internal Affairs’ anti-terrorist squad who was shot and killed during an operation by the squad on 14 March 2014 in the town of Lyaskovets. Mr Sharkov, born in 1974, had been serving in the squad since 1999.
4. The account of the events leading to the operation and of its planning and execution are based on the statement of facts in the indictment against Mr P.P., the man who was tried and convicted for shooting Mr Sharkov, (see paragraphs 29 and 30 below), and on the statements of the Deputy Minister of Internal Affairs and the Ministry’s Secretary General during a hearing on the operation before Parliament’s Standing Committee on Domestic Security and Public Order (see paragraph 28 below).
1. Events leading to the operation
5. Mr P.P., born in 1961, lived with his mother in a flat on the ground floor of a three-storey house in Lyaskovets.
6. In 2002 he passed an examination and was given permission to hunt, becoming a member of a local hunting club. His club membership and hunting licence expired in 2011 because he stopped paying the required fees. He did no hunting throughout the whole of that period.
7. In 2003 Mr P.P. applied for permission to acquire a firearm for hunting. Finding that he was conflict-prone and had a long-running feud with his neighbours, in the course of which he had made threats against them, the head of the Gorna Oryahovitsa police rejected the application. In February 2006 Mr P.P. renewed his application. This time it was allowed and he was granted permission to acquire a smooth-bore firearm for hunting. He then bought a smooth-bore semi-automatic shotgun and a hunting carbine. The authorities checked the place where he intended to keep the weapons and in June 2006 gave him a permit, valid for three years, to store and carry them. In 2009 Mr P.P. applied for and was granted permission to acquire another smooth-bore firearm for hunting, and bought a double-barrelled shotgun. In June 2009 his permit to store and carry firearms for hunting was renewed for three years. In 2010 he applied for and was granted permission to acquire one more firearm, and bought a hunting rifle.
8. In February 2012 officers from the Gorna Oryahovitsa police attempted to check the conditions in which Mr P.P. kept his firearms, but he did not let them in his flat. A neighbour told the officers that Mr P.P. and his mother never left the flat and just sat inside, watching passers-by through the windows. The police informed the Gorna Oryahovitsa district prosecutor’s office of the incident, and of Mr P.P.’s reclusive behaviour. Shortly after, the prosecutor’s office applied to the Gorna Oryahovitsa District Court for an order to commit Mr P.P. to a psychiatric hospital. The case was adjourned twice because he could not be summoned, and the court eventually ordered the police to bring him in by force. After several rounds of planning, the last of which involved the Ministry of Internal Affairs’ anti-terrorist squad and the ministry’s psychology institute, the police came to the view in mid-2012 that any attempt to arrest Mr P.P. would be too risky, and decided not to go ahead with the operation. The committal proceedings were accordingly discontinued.
9. In June 2012 Mr P.P. did not seek a renewal of the permit to store and carry hunting firearms, and it lapsed. The police apparently attempted to contact him about the permit, but he remained locked inside his flat, refusing all communication with them. In October 2013 the Gorna Oryahovitsa district prosecutor’s office opened criminal proceedings against him on suspicion that he had unlawfully possessed firearms since June 2012. The prosecutor’s office ordered the police to seize his firearms, but the order could not be executed as he refused to leave his flat and was armed and dangerous. Enquiries showed that he had not gone out of the flat since 2011.
10. Between November 2013 and February 2014 Mr P.P. wrote six letters to the headmaster of a school adjacent to his house, complaining of the pupils’ conduct and making threats against them. Towards the end of February 2014, he telephoned the local police station and made complaints in an agitated manner about pupils who were making a noise and throwing bottles and stones near his house. He threatened that he would go out on the street with a firearm and then “no one would pass by”.
11. On 12 March 2014, after receiving a fresh threatening letter from Mr P.P., the school’s headmaster restricted pupils’ access to the parts of the school and schoolyard which lay close to Mr P.P.’s house.
2. The operation of 14 March 2014
(a) Planning and preparation
12. In the meantime, in February 2014 the Gorna Oryahovitsa and Veliko Tarnovo police forces had begun to plan an operation to seize Mr P.P.’s firearms. Since such an action was likely to prompt a violent reaction from him, entailing a risk to the lives of any officers involved, Mr P.P.’s mother, and Mr P.P. himself, the police sought the help of the Ministry of Internal Affairs’ anti-terrorist squad and the ministry’s psychology institute. In late February, the Secretary General of the Ministry approved the request, and on 28 February members of the anti-terrorist squad and the psychology institute met in Sofia to plan the operation. They discussed various ways of going about it. The psychologists said that in view of Mr P.P.’s personality, any attempts to contact him beforehand would be counterproductive, and that it would be best to act swiftly and by surprise. They confirmed this in a report which they drew up after the meeting. A second meeting took place on 7 March, this time with the participation of police officers from Veliko Tarnovo and Lyaskovets, who showed their Sofia colleagues photographs and plans of the house. The idea was mooted to make a video-recording of the building, in order to detect any reinforcement of the windows which could impede entry, but no final decision on that was taken. No date was set for the operation. In the meantime, between 28 February and 7 March 2014, the anti-terrorist squad carried out exercises to prepare for the operation.
13. The threats which Mr P.P. had made on 12 March 2014 against the pupils from the nearby school (see paragraph 11 above) prompted the authorities to take action. The next day, 13 March, the Ministry’s Secretary General asked whether the anti-terrorist squad’s preparations were sufficiently advanced to carry out the operation the following day, and received a positive answer. In the afternoon the national police and the anti-terrorist squad drew up a plan for the operation. It was approved by the Secretary General, who also issued an order for the operation to proceed. Meanwhile, the Gorna Oryahovitsa district prosecutor’s office obtained a warrant to search Mr P.P.’s flat from the Gorna Oryahovitsa District Court.
14. Later that day, the anti-terrorist squad drew up a detailed plan for the operation, which was set for 6 a.m. the following morning. The squad members due to take part in it – about thirty – participated in a briefing held at 6.30 p.m. in Sofia, at which each of them was assigned a task. Decisions were also made about the equipment which would be needed. It was also decided that two psychologists from the Ministry’s psychology institute would be sent to Lyaskovets to assist in the operation if necessary.
15. In the meantime, on the afternoon of 13 March two plain-clothes officers from the Veliko Tarnovo police were sent by their superior to make a video-recording of Mr P.P.’s flat. They filmed the house from a distance and then gave the camera to a uniformed officer whom they met nearby, and he filmed the flat’s entrance from up-close. It is unclear whether the officers were spotted by Mr P.P. Once back at the police station, they sent the recording to the anti-terrorist squad, but it found that its quality was too poor to be of any help.
16. A second briefing was held in Sofia at 1 a.m. on 14 March. Final decisions were made about each officer’s task and how to coordinate the different teams. The two psychologists were not given any specific tasks.
17. A last briefing was held at 4.30 a.m. on 14 March in Veliko Tarnovo. The anti-terrorist squad discussed the operation with the Veliko Tarnovo and Gorna Oryahovitsa police forces, as well as with prosecutors from the Veliko Tarnovo and the Gorna Oryahovitsa prosecutor’s offices and the investigator in charge of the criminal case against Mr P.P. The local police were given the task of securing the outside perimeter and ensuring the presence of emergency medical and firefighting teams.
(b) Execution of the plan
18. The members of the anti-terrorist squad and the two psychologists arrived in Lyaskovets at about 5.30 or 5.45 a.m. on 14 March, parking their vehicles about 250 metres from Mr P.P.’s house. The two psychologists remained near the vehicles. The assault party, which only comprised squad members, checked their equipment and approached the house, accompanied by officers from the Veliko Tarnovo and Lyaskovets police forces. The squad’s commander and another officer remained about twenty metres from the house, and the five assault teams approached it. The first team, consisting of nine officers, entered the staircase corridor and stood in front of the flat’s entrance door. The second and third teams, consisting of five officers each, positioned themselves around two balconies, and some of the officers climbed onto the balconies. Two smaller teams, consisting respectively of two and three officers, stood in front of the flat’s windows. It is unclear what kind of firearms they had with them.
19. The assault began at 6 a.m. The two smaller teams fired blanks to distract Mr P.P., while the team at the flat’s front door attempted to open it. They could not open it, as it had been barricaded from the inside. They tried to force it open, but were not able to do so. The commander then ordered the assault party to regroup, and only three officers remained in front of the flat’s front door, while the rest went to the balconies to assist the others.
20. While the first team was trying to force the front door, an officer who was standing on one of the balconies shouted “Police!” and attempted to open the balcony door. He forced it open and two other officers entered the flat’s dining room. It was dark but empty. The officers saw Mr P.P. and his mother move from the adjoining room, which was lit by an electric bulb, into a corridor. Mr P.P. was carrying a long-barrelled firearm. The officers shouted “Stop, police! Drop the weapon!” but he moved on and opened fire. One of the officers was hit in the left arm. He took cover and returned fire. Mr P.P. kept on shooting, and the two officers retreated to the balcony. The one hit in the arm was also hit in his bullet-proof vest. He was able to move out and was sent for medical treatment.
21. Meanwhile, one of the officers standing on the second balcony broke open the balcony door, which had been blocked, and another officer entered the room. The officers made a visual sweep of the room, and a third officer stepped into a corridor, holding his firearm extended in front of him. Mr P.P. shot him in the right arm. The officer dropped his firearm and threw a stun grenade towards Mr P.P. Another officer helped him withdraw. After returning to the room, the officer who had been shot started to put a dressing on his arm, while three others fired at Mr P.P. and shouted at him to surrender. Mr P.P. fired back at them from the corridor. The wounded officer was able to move back to the balcony and was also sent for medical treatment.
22. After finding out that two officers had been wounded, the commander ordered a partial disengagement, and the other officers took position on the two balconies, hiding behind the corners of walls and their shields. They continued exchanging shots with Mr P.P.
23. Mr Sharkov was among the officers positioned on the first balcony. When he learned that two officers had been wounded, he asked another officer to pass him a stronger shield, and one was fetched for him. He and two other officers knelt behind the shield, while Mr P.P. shot at them from inside the flat. Two of his shots hit the shield. One of the other officers returned fire. During a short lull Mr Sharkov and the other officer switched places. Throughout that time they shouted at Mr P.P. to come out and surrender. Mr P.P. said that he would, and the officers assured him that they would not shoot at him if he did. At that point Mr Sharkov raised his head above the shield. Mr P.P. opened fire and shot him above the left eyebrow. Mr Sharkov fell back on the balcony and his helmet twisted to one side, covering the entry wound. Two officers fired at Mr P.P. to enable the others to move Mr Sharkov’s body. An officer tried to find a pulse or a pupillary reflex, but there was none. Mr Sharkov’s body was then stripped of its protective gear, put in an ambulance, and driven to a hospital in Veliko Tarnovo. The subsequent autopsy showed that the entry wound was just above the left eyebrow, three centimetres from the end, and that the exit wound, which measured six centimetres by four, was four centimetres behind the left ear. The medical experts said that the shot had caused immediate brain death and that the ensuing terminal state had lasted another ten to fifteen minutes. It would not have been possible to resuscitate Mr Sharkov, even if he had had immediate specialist medical care.
24. After the shooting, a police officer carrying a shield moved into the room from the second balcony to help two other officers withdraw onto the balcony. The three hid behind a shield, exchanging fire with Mr P.P. One of them was hit in the arm, which he had extended in front of the shield to be able to fire from a better position.
25. Mr P.P. then took position in a corridor, exchanging fire with the officers standing on the balconies, who made no further attempts to enter the flat. The Ministry’s Secretary General, informed of the way in which the operation was unfolding, arrived from Sofia at about 8.30 a.m. and took charge of it. The squad also asked for backup with better equipment and firearms.
26. At about 10 a.m., after several telephone conversations with the police, Mr P.P.’s mother came out of the flat. She told the officers that Mr P.P. was wounded, that he had known that the authorities would come for him and had been waiting for them. Shortly after Mr P.P. shouted from inside the flat that he was wounded and could not move, and requested medical assistance. After some hesitation, he crawled out of the flat onto the first balcony, at which point he was arrested and taken to a hospital. Specially equipped officers then searched the flat for explosive devices.
27. In the afternoon, the police again searched the flat, seizing, among other things, the four firearms owned by Mr P.P., a revolver, and a considerable amount of ammunition for each of the firearms.
3. The parliamentary hearing in relation to the operation
28. Five days after the operation, on 19 March 2014, Parliament’s Standing Committee on Domestic Security and Public Order questioned the Deputy Minister of Internal Affairs and the Ministry’s Secretary General about the operation. The Committee asked them about the planning for the operation and the tactics used by the anti-terrorist squad. The Secretary General said that the operation had been a failure, and blamed the two Veliko Tarnovo police officers who had made the video‑recording of Mr P.P.’s house the day before the operation (see paragraph 15 above). In the Secretary’s view, that had tipped Mr P.P. off about the impending operation and had enabled him to prepare for it, in effect laying an ambush for the anti-terrorist squad.
4. The criminal proceedings against Mr P.P.
29. Mr P.P. was charged with murder and the attempted murder of police officers and the unlawful possession of firearms. In December 2014 he was indicted. The indictment contained a detailed description of the backdrop to the operation and analysed the actions of all the police authorities and officials involved in it – the Veliko Tarnovo and Gorna Oryahovitsa police forces, the Secretary General of the Ministry of Internal Affairs, the anti-terrorist squad, the national police, and the Ministry’s psychology institute – with a view to determining whether the force used against Mr P.P., in particular by the anti-terrorist squad, had been justified.
30. The trial took place over several days in 2015. On 19 November 2015 the Veliko Tarnovo Regional Court found Mr P.P. guilty of aggravated murder, attempted murder, and the unlawful possession of firearms. It gave him a whole life prison sentence, and ordered him to pay each of the three applicants 100,000 Bulgarian levs (51,129 euros), plus interest, in non-pecuniary damages (see прис. № 111 от 19.11.2015 г. по н. о. х. д. № 462/2014 г., ОС-Велико Търново).
31. Both Mr P.P. and the prosecution appealed. The appeals are pending before the Veliko Tarnovo Court of Appeal, which heard them on 5 October 2016 and reserved judgment (в. н. о. х. д. № 202/2016 г., АС-Велико Търново).
5. The internal inquiry by the Ministry of Internal Affairs
32. Shortly after the operation the Ministry of Internal Affairs carried out an internal inquiry. It appears that no official information was given to the applicants about its conduct or results.
6. Ms Ribcheva’s attempts to trigger a criminal investigation into the way in which the operation was planned and carried out
33. About six months after the operation, in September 2014, the applicant in the first application, Ms Ribcheva (Mr Sharkov’s mother), asked the Sofia city prosecutor’s office to investigate whether the Ministry’s Secretary General and the anti-terrorist squad’s commander had committed offences in relation to the operation. She said that she was not persuaded by the internal inquiry’s findings and had reasons to think that the operation had been planned and prepared recklessly. There had been no need for it in the first place. By law, the anti-terrorist squad could only be used for certain tasks (see paragraph 44 below). The situation with Mr P.P. was not among them. He was not a terrorist but a paranoid recluse who had not previously attacked anyone. The threat that he had posed, including to the pupils in the nearby school, had been greatly exaggerated. By deploying the squad, the Secretary General had thus needlessly created a risk, broken the law, and exceeded his powers. Even if it had been necessary to involve the squad, its use had been hasty rather than properly planned. The ones at fault for that were the Secretary General and the squad’s commander. There had been no need for urgent action as Mr P.P.’s problems had been known to the authorities for some time. A number of points about the operation remained unclear, but everything suggested that the squad’s commander had gone about it irresponsibly and rashly. He had then failed to control it in a way that had avoided loss of life, making poor tactical decisions and failing to order a withdrawal when two officers had been wounded. She argued that the Secretary General and the squad’s commander should be investigated for causing Mr Sharkov’s death by negligently carrying out a dangerous regulated activity, contrary to Article 123 § 1 of the Criminal Code, and for exceeding their powers and acting in breach of their duties, and thus causing harmful consequences, contrary to Article 387 of the same Code (see paragraphs 45 and 46 below).
34. In October 2014 the Veliko Tarnovo regional prosecutor’s office informed Ms Ribcheva that the Sofia city prosecutor’s office had sent the complaint to it, and that it had added it to the case against Mr P.P.
35. In early December 2014 Ms Ribcheva was allowed to inspect the file of the criminal case against Mr P.P. and seek additional investigative steps. She reiterated her allegations against the Ministry’s Secretary General and the squad’s commander, complained that the planning and conduct of the operation had not been properly investigated, and requested an expert report on that point. The Veliko Tarnovo regional prosecutor’s office refused the request. It said that the criminal investigation had made findings about the planning and conduct of the operation on the basis of internal documents, interviews with all the police officers involved, and two reports by disciplinary panels of the Inspectorate of the Ministry of Internal Affairs. The assault party’s equipment had also been identified and subjected to examination by an expert. It had been established that Mr Sharkov’s death had not been due to a lack of equipment. It did not appear that any mistakes had been made in the planning or conduct of the operation. There was no need for any further examination by experts as the points made by Ms Ribcheva concerned compliance with the applicable rules. That was not something which could be clarified by experts. There was nothing to suggest that Mr Sharkov’s death had been the result of negligence in the carrying out of a dangerous regulated activity. Nor did the evidence suggest that the Ministry’s Secretary General or the squad’s commander had exceeded their powers or acted in breach of their duties. The “serious harmful consequences” alleged by Ms Ribcheva – Mr Sharkov’s death – had not resulted from any unlawful conduct by them.
36. In September 2015 Ms Ribcheva asked the Veliko Tarnovo regional prosecutor’s office to make a decision specifically in relation to her September 2014 complaint and say whether it would open separate criminal proceedings pursuant to it. In her view, the prosecuting authorities could not sidestep their duty to give a specific decision in relation to that complaint by adding it to the case against Mr P.P. or by deciding on the request for additional investigative steps. The rules of procedure required a specific decision whenever the prosecuting authorities wished to join two or more cases relating to different offences. That issue mattered because it was possible to appeal against such a specific decision to more senior prosecutors.
37. The Veliko Tarnovo regional prosecutor’s office replied in October 2015. It said that the complaint had been added to the case against Mr P.P. because it concerned the same events. Ms Ribcheva’s allegations of separate offences were misconceived. Mr Sharkov had not died owing to the negligent carrying out of a dangerous regulated activity, but as a result of a wilful act by Mr P.P. No offence under Article 123 § 1 of the Criminal Code could hence be made out. As for Article 387, it likewise required that the “harmful consequences” be a direct result of an alleged breach of duties or abuse of power, which was not the case, as Mr Sharkov’s death had been directly caused by Mr P.P.’s wilful act.
38. Ms Ribcheva complained of those developments to the Chief Prosecutor, but her complaint was sent to the Veliko Tarnovo appellate prosecutor’s office. In December 2015 it told her that since the September 2014 complaint had concerned offences allegedly committed in Sofia, the prosecutor’s office competent to decide on her allegations was the Sofia city prosecutor’s office. The complaint was accordingly sent to that office.
39. In January 2016 Ms Ribcheva asked the Sofia city prosecutor’s office about the steps that it had taken to investigate the matters of which she had complained. Apparently in reply to that request, on 21 January 2016 the Supreme Cassation Prosecutor’s Office informed Ms Ribcheva that her September 2014 complaint had properly been referred to the Veliko Tarnovo regional prosecutor’s office and that that office had been right to add it to the case against Mr P.P. It had taken note of Ms Ribcheva’s allegations and had ordered evidence to be gathered in relation to them. It had then correctly established what offences had been committed and by whom, and had sent Mr P.P. for trial. Prosecutors were competent to decide who had committed an offence and to take steps to send him for trial; they did not have to determine separately that others had not committed the offence. Mr P.P. had been found guilty and sentenced to life imprisonment. That showed that the Veliko Tarnovo regional prosecutor’s office had accurately classified the offence and identified its author.
40. In reply, Ms Ribcheva said that her complaint did not concern the offence allegedly committed by Mr P.P., but entirely different offences. She asked whether she had to take the previous letter from the prosecuting authorities as a direct refusal to open criminal proceedings in relation to those offences. On 4 February 2016 the Supreme Cassation Prosecutor’s Office replied that its previous letter did not amount to such a refusal. It had merely informed Ms Ribcheva of the steps taken by the prosecuting authorities in relation to her September 2014 complaint. It reiterated that prosecutors were competent to decide who had committed an offence and to take steps to send him for trial, and that they did not have to determine separately that others had not committed the offence.
7. Ms Ribcheva’s attempts to trigger further inquiries by the Ministry of Internal Affairs
41. In December 2014, in response to Ms Ribcheva’s September 2014 complaint (see paragraph 33 above), the Ministry of Internal Affairs informed her that the complaint had led to an additional internal inquiry. The commission which had carried it out had found mistakes in the planning and execution of the operation against Mr P.P., but had by contrast found that the operation had been duly ordered. All the responsible officials would be disciplined.
42. In February and April 2015 Ms Ribcheva asked the Minister of Internal Affairs to re-launch the inquiry, reiterating her allegations that high-ranking officials, including the Ministry’s Secretary General, had acted negligently in relation to the operation. She also asked to be informed of the names of the officials who had been disciplined, the punishment given to each of them and the reasons for it. In September 2015 she repeated her request for information on that point, and requested copies of the reports of all the internal inquiries. In response, in November 2015 the Ministry told her that those reports contained classified information and could not be given to her. It was only possible to tell her that twelve officials had been disciplined in connection with the operation: the head of the Ministry’s regional directorate in Veliko Tarnovo; the head of the Veliko Tarnovo criminal police branch; the head of the Veliko Tarnovo anti-crime branch and an officer in that branch; a junior police inspector in Veliko Tarnovo; the anti-terrorist squad’s commander and the head of a unit in the squad; the head of the Ministry’s psychology institute and the head and two specialists of the institute’s criminal psychology unit; and the head of a unit in the Ministry’s criminal police directorate. The punishments had been dismissal, a one-year ban on the possibility of promotion, a reprimand, and a written warning. The officials’ names were protected under personal data rules and could not be released.
B. Relevant domestic law
1. Operations by the Ministry of Internal Affairs’ anti-terrorist squad
43. The anti-terrorist squad of the Ministry of Internal Affairs is directly subordinate to the Ministry’s Secretary General (section 24(2) and (3) of the Ministry of Internal Affairs Act 2006, superseded by section 44(4) of the Ministry of Internal Affairs Act 2014, in effect since July 2014). It is run by a commander (sections 37c and 37d(6)(1) of the 2006 Act, superseded by section 44(3) and (5)(1) of the 2014 Act).
44. By regulation 150q(1) of the regulations for the application of the 2006 Act, the squad could be used to respond to terrorist acts, to protect strategic or other particularly important facilities, or to prevent or halt the commission of serious criminal offences. In carrying out its tasks, the squad could (a) prevent or halt terrorist acts; (b) arrest or neutralise particularly dangerous offenders who put up or were likely to put up armed resistance; (c) free hostages; (d) protect units of the Ministry of Internal Affairs or other authorities; (e) take part in operations by the Ministry’s central or regional directorates; (f) locate, identify and neutralise explosive devices; and (g) analyse explosive devices (regulation 150q(3)). It could only be deployed for such operations by a written order from the Ministry’s Secretary General (regulation 150q(4)). In urgent cases, an oral order was enough, but a written order had to be issued within twenty-four hours (regulation 150q(5)).
2. Offences of which Ms Ribcheva accused the Ministry’s Secretary General and the anti-terrorist squad’s commander
45. Article 123 § 1 of the Criminal Code of 1968 – a special type of negligent homicide – makes it an offence to cause death by negligently carrying out a dangerous regulated activity.
46. Article 387 § 1 of the same Code, which by Article 371, as in force at the relevant time, applied not only to servicemen in the armed forces but also to officials at the Ministry of Internal Affairs, makes it an offence for officials wilfully to act in abuse of office, exceed their powers or act in breach of their duties, but only if that gives rise to harmful consequences. If the harmful consequences are serious, the offence is aggravated (Article 387 § 2).
3. Liability of the authorities
47. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants committed in the course of or in connection with administrative action.
48. The general law of torts is set out in sections 45 to 54 of the Obligations and Contracts Act 1951. By section 45(1), everyone is obliged to make good any damage which he or she has, through his or her fault, caused to another. By section 49, a person who has entrusted someone else with work is liable for the damage caused by the person in the course of or in connection with that work. Legal entities cannot be held liable under section 45(1), but can be vicariously liable under section 49 for the tortious conduct of individuals whom they employ (see пост. № 7 от 30 декември 1959 г., ВС, Пл.). Liability under those provisions is premised on the wrongfulness of the impugned conduct (see реш. № 567 от 24.11.1997 г. по гр. д. № 775/1996 г., ВС, петчл. с-в).
49. The Supreme Court of Cassation has held that Ministry of Internal Affairs officers injured while carrying out their duties can claim damages from the Ministry or its departments under section 49 of the 1951 Act rather than section 1(1) of the 1988 Act, and has allowed such claims (see реш. № 669 от 07.10.2009 г. по гр. д. № 1284/2008 г., ВКС, III г. о.; опр. № 827 от 23.06.2011 г. по гр. д. № 361/2011 г., ВКС, III г. о.; and реш. № 200 от 16.06.2014 г. по гр. д. № 7353/2013 г., ВКС, IV г. о.).
4. Indemnities payable to the families of officers of the Ministry of Internal Affairs who have died in the line of duty
50. By section 255(2) of the Ministry of Internal Affairs Act 2006, the surviving spouses, children and parents of Ministry officers who had died in the course of or in connection with the carrying out of their duties were entitled, each, to a one-off indemnity amounting to twelve monthly salaries of the dead officer. By section 255(4), they were also entitled to the officer’s end-of-service payment. That payment amounted to one monthly salary for each year of service, up to a maximum of twenty (section 252(1)). Both payments were tax-free (section 256(2)).
51. In July 2014 those provisions were superseded, respectively, by sections 238(2) and (4), 234(1) and 239(2) of the Ministry of Internal Affairs Act 2014, which are almost identical.
52. The 2006 and 2014 Acts do not say whether the family members of officers who have died in the line of duty can claim compensation over and above those amounts. By contrast, section 233 of the Defence and Armed Forces Act 2009, which contains analogous provisions, provides, in subsection 5, that the family members of servicemen who have died in the line of duty may in addition seek compensation by way of a regular claim for damages, in which case the courts must reduce the award by the amount of indemnity paid by the Ministry of Defence. The absence of an express statutory provision has, however, not prevented the courts from awarding damages to officers of the Ministry of Internal Affairs who have been injured, and who, by section 255(1) of the 2006 Act and section 238(1) of the 2014 Act, were and are entitled to a similar one-off indemnity (see paragraph 49 above).
C. Relevant Council of Europe materials
53. Parliamentary Assembly Recommendation 1742 (2006) on the human rights of members of the armed forces says, in point 10.1.1., that members of the armed forces must enjoy the right to life, bearing in mind, however, the inherent dangers of the military profession.
54. Committee of Ministers Recommendation CM/Rec (2010) 4 on the human rights of members of the armed forces says:
“6. Members of the armed forces should not be exposed to situations where their lives would be avoidably put at risk without a clear and legitimate military purpose or in circumstances where the threat to life has been disregarded.
7. There should be an independent and effective inquiry into any suspicious death or alleged violation of the right to life of a member of the armed forces.”
55. The explanatory memorandum to the latter recommendation clarifies points 6 and 7 in the following way:
“The enjoyment of human rights by members of the armed forces can, to a certain extent, be affected by the special characteristics of military life. One of the main characteristics of the armed forces which differentiates it from other sorts of employment is that it is based on military discipline. The ultimate aim of military discipline is to enable operational effectiveness of the armed forces. It is characterised by compliance with rules of conduct, military regulations and orders from superiors. Therefore, military discipline seeks to coordinate the conduct and actions of members of the armed forces and to establish a framework for relations between them which should secure order.
...
Members of the armed forces, despite running a particular risk of death during certain dangerous operations, should not be exposed to situations where their lives would be put at avoidable risk without a clear and legitimate military purpose. Therefore, military authorities are under an obligation to take reasonable measures to ensure that military training, planning of operations and the equipment used does not unnecessarily endanger servicepersons’ lives. ... The degree of danger faced by the servicepersons concerned and the means available to the military authorities in order to combat it are of course elements which may be taken into account when taking these measures.”
COMPLAINTS
56. The applicants complain under Article 2 of the Convention that the authorities only brought criminal proceedings against Mr P.P. and did not separately carry out an effective investigation into the way in which the authorities had planned and carried out the operation against him, confining their reaction to internal inquiries in which the applicants could not take part and whose results were kept secret.
57. The applicants complain under the same Article that the authorities did not do enough to prevent the risk to Mr Sharkov’s life; that they had granted Mr P.P. permission to store and carry firearms, and had then renewed it, without properly checking whether he was mentally fit, thus allowing him to accumulate a considerable arsenal; that they did not properly plan and carry out the operation for his arrest; and that they did not provide the officers who took part in it with suitable ballistic helmets and shields.
58. Lastly, the applicants complain under Article 13 of the Convention that they did not have an effective remedy in respect of their grievances under Article 2 because the requests for a separate investigation went unheeded and because the officials whom they believed responsible for the operation’s failure were not duly punished.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted domestic remedies with respect to their complaint under Article 2 of the Convention that the authorities did not do enough to prevent Mr Sharkov’s death? In particular, was a tort claim under section 49 of the Obligations and Contracts Act 1951 an effective remedy in that respect? The Government are requested to provide case-law examples.
2. Did the authorities have an obligation under Article 2 of the Convention to protect Mr Sharkov’s life from Mr P.P.? If so, what were this obligation’s scope and content, in particular in view of Mr Sharkov’s capacity as an officer of the Ministry of Internal Affairs’ anti-terrorist squad, and the applicants’ allegations that (a) Mr P.P. had been allowed to accumulate a firearms arsenal; (b) Mr Sharkov was not equipped with a proper ballistic helmet and shield; and (c) the operation was not properly planned and coordinated? Did the authorities comply with this obligation?
3. Did the authorities have an obligation under Article 2 of the Convention to carry out an effective investigation into the way in which the operation in which Mr Sharkov lost his life was planned and carried out, in particular in view of the alleged negligence in the chain of command? If so, did they comply with this obligation? More specifically, were those points sufficiently dealt with in the criminal proceedings against Mr P.P., and did the inquiries by the Ministry of Internal Affairs meet the requirements of Article 2 of the Convention? The Government are requested to provide the entire case files of those inquiries.
4. Did the applicants have an effective remedy in respect of their complaints under Article 2 of the Convention, as required by Article 13?
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