ECtHR - Velikova v. Bulgaria , Application no.41488/98, 18 May 2000

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Country of Applicant: 
Bulgaria
Date of Decision: 
18-05-2000
Court Name: 
European Court of Human Rights (Fourth section)
Headnote: 

Applicant complained under Articles 2, 6, 13 and 14 of the Convention in relation to the death of her partner while in police custody.

Facts: 

Applicant had been living with Mr Tsonchev for about 12 years. Mr Tsonchev is a Gypsy. On 24 September 1994, Mr Tsonchev was arrested and detained at a police station on charges of cattle theft.

Testimonies of policies officers and other witness stated that Mr Tsonchev was drunk. While in custody, he was examined by a physician and a doctor named Dr Dorovski. The doctor concluded that T was too drunk to be properly examined. However, there is no written report of the medical examination submitted to the court.

The analysis of urine and blood of Mr Tsonchev revealed an alcohol content of 0.4 per thousand. This was below the legal limit in Bulgaria.

In the early hours of 25 September 1994, he died after spending around 12 hours in police custody following his arrest.

An investigation was conducted into Mr Tsonchev’s death immediately. The investigator inspected the scene, where the victim died, in the presence of a forensic expert, Dr Dorovski and three other persons. However, none of them signed the written report of the inspection. Photographs taken at the scene were also not submitted to the Court.

According to the autopsy, “the cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock… the injuries are the result of a blunt trauma”. The approximate time of death was given but no opinion about the time the injuries may have been caused. The investigator did not request the latter.

Mr Tsonchev’s uncle, aunt and cousin were questioned because he was arrested at their house. Their neighbour and the person whose cows had been stolen, were also questioned. There is no evidence to indicate that the police officers who were involved in his arrest and detention were questioned.

Similarly, there were no documents submitted to the Court confirming that an internal inquiry was conducted within the Police department on 20 October 1994 as suggested by the government.

The Applicant claimed that the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994.

On 5 December 1995, counsel for the applicant requested the Pleven Regional Prosecutor's Office to expedite the investigation.

On 28 February 1996, counsel filed a request with the Chief Public Prosecutor's Office as no response was received.

On 19 March 1996, the regional prosecutor issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order states that:

  • his death was caused by several internal haemorrhages and acute loss of blood, because of deliberate beating;
  • during the investigation, it proved impossible to determine whether Mr Tsonchev was beaten up in the Pleven police station or outside it; there are no evidence demonstrating whether it was the cattle owners or police officers who did the beating.

The applicant appealed the above decision on 20 May 1996 and the investigation was reopened on 8 July 1996. The following months after this, it became apparent that there was no investigation being carried out. On two occasions, Counsel for the Applicant had requested that the investigator, dealing with the matter, be taken off the case. This was declined. The prosecutor stated that no further investigation was possible and that it should be suspended.

Pursuant to Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator. The Applicant has exhausted all remedies under the Bulgarian law available at the time.

The Applicant submitted that there have been violations of Articles 2, 6, 13 and 14 of the Convention in relation to Mr Tsonchev’s death who she alleged had died because of injuries intentionally inflicted by the police; the ineffective investigation into his death; the lack of effective remedies and discrimination on the basis of Mr Tsonchev’s Romanian origins.

Decision & Reasoning: 

The Government Preliminary objections

The government questioned the validity of the power of attorney submitted on behalf of the Applicant and consequently the validity of the application.

The Court found that the application was valid because it was satisfied that the power of attorney was effective; it was made with the Applicant’s consent and understanding.

The remaining preliminaries were dismissed.

Article 2 of the Convention

There has been a violation of Article 2 of the Convention in respect of the death of Mr Tsonchev.

The Court finds that there is sufficient evidence on which it may be concluded beyond reasonable doubt that Mr Tsonchev died as a result of injuries inflicted while he was in the hands of the police.

The Court noted the fatal injuries had been the result of “deliberate beating” in accordance with the prosecutor's decision.

It is acknowledged that Mr Tsonchev had consumed a certain quantity of alcohol prior to his arrest in the company of others but he could walk, verbally communicated with the police officers and other persons at the time of his arrest. He did not complain of any injuries and there were no reported injuries such as those found by the autopsy.

The Court also found that there has been a violation of the respondent State's obligation under Article 2 of the Convention to conduct an effective investigation into the death of Mr Tsonchev

The Court observed that there were obvious means to obtain evidence about the time at which Mr Tsonchev's injuries occurred and further important evidence about the circumstances surrounding his arrest, his state of health and, consequently, about the perpetrators of the grave crime committed against him.

The Court considered the authorities unexplained failure to undertake indispensable and obvious investigative steps is to be treated with particular vigilance.

The investigation remained dormant, nothing having been done since December 1994 to uncover the truth about the death of Mr Tsonchev. The applicant's numerous complaints of the authorities' inactivity were to no avail.

No plausible explanation for the reasons of the authorities' failure to collect key evidence was ever provided by the Government.

Article 6 and 13 of the Convention

The Respondent State has failed to comply with its obligation to carry out an effective investigation into the death of Mr Tsonchev. This undermined the effectiveness of any other remedies which might have existed. The Applicant’s complaint under Article 6 of the Convention was considered under Article 1. The latter “guarantees the availability at the national level of a domestic remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order”.

The Court held that “a violation of Article 2 cannot be remedied exclusively through an award of damages. Given the fundamental importance of the right to protection of life, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation likely to lead to those responsible being identified and punished, and in which the complainant has effective access to the investigation proceedings”.

Article 14 of the Convention

According to the Court there had been no violation of Article 14. The standard of proof required under the Convention is “proof beyond reasonable doubt”. The material before the Court does not enable it to conclude beyond reasonable doubt that Mr Tsonchev's death and the lack of a meaningful investigation into it were motivated by racial prejudice. 

Outcome: 
The Court held that Articles 2, 13 and 14 of the convention has been breached. There was no violation of Article 14.
 
Applicant was awarded Pecuniary and non-pecuniary damages, as well as cost and expenses. 
 
Observations/Comments: 

This case summary was written by Petula Southgate-Smith, student at BPP University. 

 
Case Law Cited: 

ECtHR - T.P. and K.M. v. the United Kingdom [GC], no. 28945/95

ECtHR - P.G. and J.H. v. the United Kingdom, no. 44787/98

ECtHR - Ireland v the United Kingdom, 18 January 1978, Series A no. 25

ECtHR - Güleç v. Turkey, 54/1997/838/1044, 27 July 1998

ECtHR - Yaşa v. Turkey, no. 22495/93, 2 September 1998

Tanrikulu v Turkey, No. 23763/94, 08 July 1999

ECtHR - Kaya v. Turkey, Application no. 22535/93

ECtHR - Selmouni v. France [GC], Application No. 25803/94

ECtHR - Çakici v. Turkey [GC], Application No. 23657/94
Other sources cited: 

Special Rapporteur on Torture to the United Nations Commission on Human Rights (UN Document E/CN.4/1997/7 of 10 January 1997

Annual report of the United Nations' Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (UN Document VELIKOVA E/CN.4/1999/15 of 15 January 1999

14th Periodic Report of States Parties (Addendum – Republic of Bulgaria) of 26 June 1996 by the United Nations Committee on the Elimination of Racial Discrimination;

The report on Extrajudicial, Summary or Arbitrary Executions, commissioned by the United Nations Commission on Human Rights, 25 January and 24 December 1996 (E/CN.4/1996/4 and E/CN.4/1997/60) by Mr Bacre Waly Ndiaye, Special Rapporteur

The report of the European Committee for the Prevention of Torture of 6 March 1997

Authentic Language: 
English
State Party: 
Bulgaria
National / Other Legislative Provisions: 
Bulgaria - Code of Criminal Procedure
Article 192
Article 237
Article 239
Bulgaria - Code of Civil Procedure
Article 1
Article 151