Communicated on 24 September 2015
FOURTH SECTION
Application no. 3524/14
Niya Ivanova SARBYANOVA-PASHALIYSKA
and Mariya Ivanova PASHALIYSKA
against Bulgaria
lodged on 30 December 2013
STATEMENT OF FACTS
The applicants, Ms Niya Ivanova Sarbyanova-Pashaliyska and Ms Mariya Ivanova Pashaliyska, are Bulgarian nationals, who were born in 1960 and 1999 respectively and live in Sofia. They were the wife and daughter of Mr Ivan Mirchev Pashaliysky.
The two applicants are represented before the Court by Mr S. Terziyski, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
Mr Ivan Mirchev Pashaliysky was killed on 2 June 2000 in an office situated in hotel “Hemus” in Sofia. He died as a result of a severe trauma to his brain, chest, torso and limbs, which led to irreversible damage to several of his vital organs. The trauma was caused by a number of blows inflicted with fists and kicks, and with different objects.
On the day of the incident, a private security guard was called to the office premises where Mr Pashaliysky was found dead, in order to check on a brawl reportedly happening there. When an individual, S. V., opened the office entrance door following a knock on it by the security guard, the latter briefly saw Mr Pashaliysky lying helplessly on the floor, blood traces over his face. S.V. was holding a long oval-shaped object. Having been told by S.V. that there was no problem the security guard left.
It would appear that earlier that day, using the telephone of the office in question, S.V. had called Ch.M., a friend and business partner of Mr Pashaliysky, threatening to kill them both if Ch.M. failed to deliver to S.V. an undisclosed sum of money without delay.
2. Criminal proceedings against the perpetrator
(a) Pre-trial stage
The incident was reported to the police by an investigator who had been tipped off earlier the same day. The police arrested S.V. that night. Traces of the crime having been discovered on S.V.’s hands and clothes, an investigator charged him on 3 June 2000 as a suspect of committing murder. On 5 June 2000 a prosecutor indicted him for the murder of Ivan Mirchev Pashaliysky committed three days earlier in the office in hotel “Hemus”.
A prosecutor from the Sofia City Prosecution Office found on 20 April 2001 that there were reasons for modifying the indictment by applying a law providing for a heavier penalty. She also found that not all pieces of evidence had been collected. In particular, no DNA expertise had been carried out of the material found under the victim’s nails; several key witnesses had not been questioned about the reasons for their presence at the office where the victim was killed on the day that had happened and about the reason for the return of one of them there in the evening of the same day; no confrontation had been carried out between two of those witnesses despite of divergences in their statements; no information had been collected about the state in which the police officers had found the accused at the time of his arrest. Because of the above deficiencies in the investigation the prosecutor returned the case for further investigative measures, giving specific instructions about it.
Another prosecutor from the Sofia City Prosecution Office found on 17 July 2002 that the instructions given on 20 April 2001 about the investigative steps which needed to be carried out had not been complied with. Consequently, she returned the case on the same day for further investigation.
A year later, on 18 July 2003 the same prosecutor from the same office again found that not all instructions given a year earlier had been complied with and that this was an obstacle to sending the case to court. On the same day the prosecutor again returned the case for further investigative measures, listing those explicitly.
On 2 October 2003 another prosecutor from the same office returned yet again the case for further investigative steps, giving a two-month deadline for it.
(b) Trial stage
The case file was sent to the Sofia City Court on an unspecified date in late 2003. Both applicants were constituted as private prosecutors and the second applicant also as a civil claimant seeking non-pecuniary damages.
At the start of the trial the defendant’s lawyer unsuccessfully sought that the case be returned for further investigation, claiming that the indictment had been defective because it did not contain a clear description of the incriminated offence. A number of hearings took place as part of the trial. Many of them were postponed as a result of witnesses or experts failing to appear. The proceedings before the first-instance court, Sofia City Court, ended on 11 June 2007 when the court sentenced S.V. to fifteen years imprisonment and to having to pay damages to the applicants.
Both S.V. and the applicants appealed. S.V. claimed in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been and that the court’s conclusions were full of inconsistencies in respect of fundamental facts, for example as regards the location of the victim and of the aggressor at the time of the infliction of the blows and kicks. Also, S.V. submitted that material evidence, such as DNA material, had been collected in breach of procedure and should have been therefore inadmissible. Most importantly, S.V. claimed that the indictment was entirely silent about the manner in which he was considered to have killed the victim, there being no description of the factual circumstances related to the killing. Referring to interpretative decision No. 2 of 2002 of the Supreme Court of Cassation, he claimed that these procedural flaws were fundamental and that because of that the court should have, of its own initiative, returned the case to the investigation stage for redressing them.
On 18 July 2008 the Sofia Appellate Court found that the indictment did not contain a description of how the accused killed the victim. The court referred to the interpretative decision mentioned above and concluded that this was a fundamental procedural defect which did not allow the defendant to exercise adequately and effectively his rights. The court found that this defect could be remedied by the prosecution; it quashed the first instance court sentence and returned the case to the pre-trial stage for redressing the procedural flaw in question.
On 16 August 2008 the prosecution indicted S.V. anew for the murder of Mr. Pashaliysky and the first instance court, the Sofia City Court, opened a fresh case against him. The first three scheduled hearings were postponed for unknown reasons. On 11 February 2009 the court accepted the civil claim of the second applicant but refused to constitute both applicants as private prosecution parties. That refusal was quashed on an unspecified date by the Sofia Appellate Court upon the applicants’ appeal. The witnesses were then questioned again as part of the trial so that the applicants could exercise their rights as private prosecutors.
Sixteen hearings took place thereafter, following which the presiding judge was elected President of the Supreme Administrative Court. As a result the trial stage began anew. A new presiding judge was appointed, yet no further hearing was scheduled for about a year. The applicants complained about it to the Inspectorate under the Supreme Judicial Council, asking that disciplinary sanctions be imposed on the responsible judge. The Inspectorate replied on 21 February 2012, acknowledging that the criminal proceedings in the case had lasted eleven years and recognising that this was incompatible with the standard of reasonable length of proceedings. It held nonetheless that the judge could not be disciplinary sanctioned, given that the other cases that judge heard had not exceeded the acceptable duration of length of proceedings.
On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew again. The Code of Criminal Procedure does not provide for a possibility to challenge in court the termination of the criminal proceedings on this ground.
On 9 December 2013 the proceedings before the first instance court, the Sofia City Court, ended the court finding S. V. guilty of murder and sentencing him to thirteen year’s imprisonment. The sentence is not final.
B. Relevant domestic law
1. Offences against life and duty to investigate death
Article 115 of the 1968 Criminal Code (the 1968 Code) provides that murder is punishable by ten to twenty years’ imprisonment.
According to Article 124 § 1 of the 1968 Code, where death occurs as a result of wilfully inflicted grievous bodily harm, the punishment is three to twelve years’ imprisonment. Those offences are publicly prosecutable.
Article 192 §§ 1 and 2 of the 1974 Code of Criminal Procedure (the 1974 Code), as in force at the material time, provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator. The prosecutor or the investigator had to open an investigation whenever he or she received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP). If the information given to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP, as in force at the material time).
A prosecutor could terminate an investigation when, among other things, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2) of the 1974 Code). At the material time the prosecutor’s decision was subject to appeal before a higher prosecutor (Article 181 of the 1974 Code). In 2001 the 1974 Code was amended to provide for judicial review of a prosecutor’s decision to terminate the proceedings.
A prosecutor’s decision to suspend the investigation was subject to judicial review by two levels of court (Article 239 §§ 7 and 8 of the 1974 CCP).
2. Indictment
According to Article 235 § 2 of the 1974 Code and Article 246 § 2 of the new Criminal Procedural Code (the 2006 Code), the act of indictment has to specify, among other things, the crime of which the indicted individual is accused, as well as its place, time and manner of commission. In a 2002 interpretative decision (Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК) the Supreme Court of Cassation held that failure to specify in the indictment the exact manner in which the murder was committed represents grounds for returning the case to the earlier procedural stage only if it concerns an element of the corpus delicti of the offence.
3. Permanence of the court hearing a criminal case
Article 257 of the 1974 Code provided that the case must be heard by the same composition of the bench from the beginning till the end of the trial hearings. In case a member of the bench had to discontinue his or her participation, the hearing had to start anew. The content of this provision was reproduced in Article 258 of the new 2006 Code.
4. Rights of the next of kin
The victim’s heirs could take part in the criminal proceedings against the perpetrator as a civil party (граждански ищец) or a private prosecutor (частен обвинител). Once they were constituted in one of those two capacities they had the right to access the documents in the file and to receive copies of those, as well as to present evidence and to ask that specific investigative measures be carried out or to object to measures which they consider impinging on their rights (Articles 52 and 60 of the 1974 Code and Articles 76 and 84 of the 2006 CCP).
COMPLAINTS
The applicants complain under Article 2 of the Convention about the excessively long investigation carried out into their relative’s murder. They also complain under Article 13 in conjunction with Article 2 about the lack of an effective domestic remedy.
QUESTIONS TO THE PARTIES
1. Having regard to the procedural protection of the right to life (for the applicable principles, see for example Seidova and Others v. Bulgaria, no. 310/04, §§ 48-52, 18 November 2010), was the investigation by the domestic authorities into the death of the applicants’ husband and father in breach of Article 2 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy in that regard, as required by Article 13 of the Convention?
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