Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24760/94

Assenov, Ivanova, Ivanov

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 10 July 1997)

TABLE OF CONTENTS

Page

II. ESTABLISHMENT OF THE FACTS

(paras. 17-78) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 17-70). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law and practice

(paras. 71-78). . . . . . . . . . . . . . . . . . 12

III. OPINION OF THE COMMISSION

(paras. 79-188). . . . . . . . . . . . . . . . . . . . 17

A. Complaints declared admissible

(paras. 79-80). . . . . . . . . . . . . . . . . . 17

B. Points at issue

(para. 81). . . . . . . . . . . . . . . . . . . . 17

C. As regards the applicants

(paras. 82-83). . . . . . . . . . . . . . . . . . 17

D. Complaints related to the events of September 1992

(paras. 84-120) . . . . . . . . . . . . . . . . . 18

a) As regards Article 3 of the Convention

(paras. 84-98). . . . . . . . . . . . . . . . . . 18

CONCLUSION

(para. 99). . . . . . . . . . . . . . . . . . . . 20

b) As regards Article 13 of the Convention

(paras. 100-108). . . . . . . . . . . . . . . . . 20

CONCLUSION

(para. 109) . . . . . . . . . . . . . . . . . . . 22

c) As regards Article 6 of the Convention

(paras. 110-119). . . . . . . . . . . . . . . . . 22

CONCLUSION

(para. 120) . . . . . . . . . . . . . . . . . . . 24

E. Complaints related to the events since 1995

(paras. 121-179). . . . . . . . . . . . . . . . . 24

a) As regards the lawfulness and the conditions

of detention

(paras. 121-127). . . . . . . . . . . . . . . . . 24

CONCLUSION

(paras. 128-129). . . . . . . . . . . . . . . . . 25

b) As regards the right under Article 5 para. 3 of the

Convention to be brought before an officer exercising

judicial power

(paras. 130-142). . . . . . . . . . . . . . . . . 25

CONCLUSION

(para. 143) . . . . . . . . . . . . . . . . . . . 27

c) As regards the right under Article 5 para. 3 of the

Convention to a trial within a reasonable time or to

release

(paras. 144-150) . . . . . . . . . . . . . . . . . . . 27

CONCLUSION

(para. 151) . . . . . . . . . . . . . . . . . . . . . . 28

d) As regards Article 5 para. 4 of the Convention

(paras. 152-165). . . . . . . . . . . . . . . . . 28

CONCLUSION

(para. 166) . . . . . . . . . . . . . . . . . . . 31

e) As regards the right of petition to the Commission

under Article 25 of the Convention

(paras. 167-178). . . . . . . . . . . . . . . . . 31

CONCLUSION

(para. 179) . . . . . . . . . . . . . . . . . . . 33

F. Recapitulation

(paras. 180-188). . . . . . . . . . . . . . . . . 33

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . 35

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 37

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicants are a family of Bulgarian nationals, residing in

the city of Shoumen, Bulgaria. Their complaints concern almost

exclusively Anton Assenov ("the first applicant"), born in 1978, who

is currently detained on remand. The second applicant, born in 1956

and the third applicant, born in 1952, are the first applicant's

parents. Before the Commission the applicants are represented by

Mrs. Zdravka Kalaydjieva, a lawyer practising in Sofia.

3. The application is directed against Bulgaria. The respondent

Government were represented by Mrs. Guenka Beleva, Agent of the

Government, and, subsequently, by Mrs. Ilina Taneva of the Ministry of

Foreign Affairs.

4. The case concerns complaints under Articles 3, 6, 13 and 14

deriving from an incident in September 1992 when the police allegedly

ill-treated the first applicant at the bus station in Shoumen and at

the Shoumen police station; and complaints under Article 5 paras. 1,

3 and 4, and Articles 3 and 25 concerning another group of events

related to the first applicant's detention on remand since July 1995.

B. The proceedings

5. The application was introduced on 6 September 1993 and registered

on 3 August 1994.

6. On 22 February 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's written observations were submitted on

16 May 1995, after an extension of the time-limit. The applicants

replied on 15 July 1995. On 4 July 1995 the Commission (First Chamber)

granted the applicants legal aid for the representation of their case.

The applicants submitted additional complaints by letters of

31 August and 14 September 1995 and elaborated their arguments by

letters of 10 November 1995 and 3 January 1996. The Government replied

to the additional complaints by letters of 12 and 30 October 1995.

8. On 16 January 1996 the case was transferred from the First

Chamber to the Plenary Commission, by decision of the latter. On

22 January 1996 the Commission decided to examine the applicant's

additional complaints together with the initial application and to hold

a hearing on the admissibility and merits of the application.

On 26 January 1996 the Commission examined the applicants'

request to rely on the written testimonies of witnesses submitted by

them on 10 November 1995. These are four short handwritten statements.

One of them, signed by 13 persons whose addresses are not given, states

that the third applicant (the first applicant's father) has never been

gambling. Another statement of a witness states that the third

applicant was apprehended by the police on the street on 8 March 1995

without any apparent reason.

The remaining two statements are from two persons who allege

having witnessed the scene at the bus station square on

19 September 1992 and having seen the policemen "pushing and kicking

the [first applicant] and his father and swearing at them" and

"hitting" them. These two statements are not dated, the applicants'

lawyer having explained, in November 1995, that they had been taken "at

an earlier moment". The applicants' lawyer sought to rely on the

statements provided that the respondent Government would not be

informed of the identity of their authors. If this was not possible

"under the rules of procedure and the practice of the Commission", the

lawyer requested the Commission "not to rely on [the] statements" and

stated that, such being the case, she "withdraw[s]" them.

The Commission decided not to rely on these statements under the

conditions stipulated by the applicants' representative.

The hearing was held on 27 June 1996. The Government were

represented by their Agent, Mrs. G. Beleva, and also by

Mrs. S. Margaritova of the Ministry of Justice and Lieutenant-Colonel

V. Parvanov of the Military Prosecutor's Office. The applicants were

represented by Mrs. Z. Kalaydjieva, a lawyer practising in Sofia, and

by Mr. P. Duffy, a barrister practising in the United Kingdom.

9. On 27 June 1996 the Commission declared the application

admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 10 July 1996 and they were invited to submit further

observations. The Government submitted observations on

24 September 1996 and the applicants on 23 September 1996 and on

15 October 1996.

On 19 October 1996 the Commission invited the parties to answer

additional questions on the merits of the application. The Government

submitted their answers by letters of 26 November 1996,

16 December 1996, 17 January 1997 and 17 February 1997. The applicants

sent their replies by letters of 9 November 1996, 8 January 1997 and

12 February 1997.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

H. DANELIUS

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

P. LORENZEN

E. BIELIUNAS

13. The text of this Report was adopted on 10 July 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

Events of 19 September 1992 and the ensuing proceedings

17. On 19 September 1992, while gambling at the square in the city

of Shoumen, the first applicant was apprehended by a policeman and

brought to the nearby bus station.

18. Subsequently the second and the third applicants, who were both

working at the bus station, came and asked for their son's release.

At some point more policemen arrived. They forcefully took the first

applicant and his father into a police car and brought them to the

police station. There they were detained for about two hours and then

released.

19. On 21 September 1992, the first working day following the

incident, the applicants visited a doctor. They explained to him that

the first applicant had been beaten by three policemen with a truncheon

and with the handle of a pistol and that the second applicant had been

beaten with a truncheon. The doctor examined the first applicant and

his mother and issued medical certificates.

20. The certificate concerning the first applicant stated that the

boy had a band-like haematoma about 5 cm long and 1 cm wide on the

upper outer side of his right arm, the bruise being purple-bluish in

the periphery and pale in the centre, three band-like haematomas each

about 6 cm long and 1 cm wide on the right side of his chest, another

bruise about 4 cm long on the left scapula, a haematoma of about 2 cm

in diameter on the back haired part of the head, and also five grazes

each about 5 cm long on the right chest. The certificate concerning

the second applicant stated that she had a bruise about 5 cm long on

her left thigh. The doctor concluded that the bruises could have been

inflicted as described by the applicants.

21. On 2 October 1992 the second applicant filed a complaint with the

District Directorate of Internal Affairs (Regionalna directzia na

vatresnite raboti) ("the district police") alleging that while entering

the room at the bus station, she and her husband had seen that

policemen were beating and insulting their son. The parents asked the

policemen to stop because their son was suffering from heart

disturbances. However, the policemen continued to beat the first

applicant, and also hit his parents. The second applicant further

stated that the first applicant had been beaten again in the police

station. She requested the punishment of the officers responsible for

the incident.

22. The complaint was dealt with by Colonel P., inspector at the

personnel service of the district police. On 15 October 1992 Colonel

P. heard each of the applicants and prepared written accounts of their

oral testimonies, signed by him and by the person giving the testimony.

The first applicant was heard in the presence of a pedagogue, a Mr. G.

23. According to these statements the first applicant and another

person were engaged in gambling when a plain clothes policeman

approached and took the first applicant to the nearby building of the

bus station, from where he telephoned the police. The policeman kicked

the boy. Then the boy's father came and asked for his son's release.

He shouted at his son and hit him several times with a thin ply-wood

strip to punish him. After that two policemen came. They hit the

applicants with truncheons. The father at some point tried to pull his

son and to release him. The father and the boy were handcuffed and

brought to the police station. There the policemen separated them and

started beating the boy again.

24. Colonel P. also ordered the three police officers involved and

the officer who had been on duty at the police station to submit

written explanations. They did so on 21, 22 and 26 October 1992

respectively.

25. According to these statements Sergeant B., who was not working

that day and was not wearing a uniform, was passing by the central bus

station when he saw people gambling. He apprehended the first

applicant and brought him to the bus station from where he called the

police officer on duty. Thereupon the father appeared, shouted at the

boy, and started hitting him with a ply-wood strip. The father, and

also the mother who came shortly thereafter, started also protesting

against their son's arrest and pulling the boy. When Sergeants S. and

V. arrived the father shouted, swore, and threatened the police

officers, who told him in response to shut up and to come voluntarily

to the police station. A crowd of about 15 - 20 gipsies gathered.

Also about 20 drivers from the bus station were around and witnessed

the scene. As the father continued his violent behaviour the police

officers subdued him forcefully, put handcuffs on him and brought him

and the first applicant to the police station. There officer S. filled

out a form for the seizure from the first applicant of the sum of

100 leva and then the arrested were released. It was not true that

they were beaten at the police station. Five days later officer S.

drew up an act for the institution of administrative proceedings for

unlawful gambling against the first applicant.

26. On 26 October 1992 Colonel P. also obtained a written explanation

from the traffic manager at the bus station. She stated that a

policeman had brought a boy and had asked her to telephone the police

for a car. She did not remember any disturbance having occurred.

27. Based on this material on 6 November 1992 Colonel P. drew up an

internal note in which he made a summary of the facts and concluded

that the boy had been beaten by his father.

28. On 13 November 1992 the district police sent a letter to the

applicants stating that the conduct of the police officers had been

lawful.

29. On 12 December 1992 the second and third applicants submitted a

request for the criminal prosecution of the alleged offenders to the

Regional Military Prosecution Office in Varna (Okrazhna voenna

prokuratura), which was competent to prosecute police officers. In the

request they again described the events of 19 September 1992, insisting

that the policemen had beaten the first applicant with truncheons and

with their fists at the bus station and again at the entrance of the

police station. Finally the parents asserted that the first applicant

had been held for two hours in the police station handcuffed to a

radiator. They also stated that the type of injuries their son had

suffered could not have been inflicted by his father.

30. On 30 December 1992 the Regional Military Prosecutor ordered an

inquiry to be handled by investigator G. at the Military Investigation

Office in Shoumen.

31. On 27 January 1993 a human rights non-governmental organisation

sent a letter to the Regional Military Prosecution Office insisting on

a speedy examination of the complaint.

32. On 8 February 1993 investigator G. wrote a letter to the director

of the police in Shoumen instructing him to hear the applicants and the

police officers and to report back. Since there had already been an

inquiry on the matter, on 15 February 1993 the district police sent the

materials regarding the inquiry to the investigator.

33. It is disputed whether investigator G. heard the applicants

personally. The Government affirm that he did, but it appears that no

trace of the hearing was left in the file.

34. On 20 March 1993 investigator G. drew up a one page internal note

summarising the facts and proposing that the opening of criminal

proceedings be refused. He stated that the allegations were not proved

and that the evidence in the case was "contradictory". On the basis

of this note on 24 March 1993 the Regional Military Prosecution Office

refused to institute criminal proceedings against the policemen

concerned. The decision stated inter alia that the first applicant's

father had been hitting his son, shouting and pulling him, which

amounted to disobedience to police orders and had caused their arrest.

The decision also stated that the evidence taken from witnesses did not

confirm the use of physical violence by the policemen against the boy.

35. On 15 April 1993 the applicants appealed against this decision

to the General Military Prosecution Office (Prokuratura na vaorazhenite

sili). They stated that it was obvious from the decision that the

only witnesses examined had been the police officers, who were in fact

the suspects; that the medical certificates had not been taken into

consideration; and that it was untrue that the applicants had disobeyed

police orders.

36. The appeal was submitted through the Regional Military

Prosecution Office, from where it was forwarded on 30 April 1993

accompanied by a letter which expressed the opinion that the complaint

should be dismissed. A copy of this letter was sent to the applicants.

37. On 21 May 1993 the General Military Prosecution Office,

apparently after an examination of the file, refused to open criminal

proceedings against the police officers on the same grounds as the

lower prosecution. The decision stated inter alia:

"A medical certificate is enclosed in the file, from which

it appears that there were haematomas on the juvenile's body,

indicating superficial bodily harm, and corresponding, in terms

of mechanism of infliction, to blows with a band-like solid

object.

The Deputy Regional Prosecutor correctly considered that

even if blows were administered on the body of the juvenile,

they occurred as a result of disobedience to police orders. The

physical force and auxiliary means employed were in accordance

with Article 24 para. 1 items 1 and 2 of the Law on the National

Police now in force."

38. Apparently as a result of additional complaints and pressure from

the Ministry of Justice to reexamine the matter, on 13 July 1993 the

General Military Prosecution Office sent a letter to the Regional

Military Prosecution Office. The letter stated that the matter had

been dealt with in breach of the instructions which required that

preliminary inquiries against policemen should include the examination

of independent witnesses. Accordingly, further investigations had to

be effected.

39. On 22 July 1993 the Regional Military Prosecution Office objected

to these instructions, but it nevertheless proceeded with the

examination of certain witnesses. These were a driver and a person

working at the bus station, who submitted written explanations on

29 and on 30 July 1993 respectively. The driver stated that he had

witnessed the disturbance on 19 September 1992 and had even helped the

policemen to subdue the first applicant's father, who had been behaving

violently. Also, he had seen the father hitting his son, but the

policemen had not beaten them. The other witness remembered vaguely

the events and could not say whether the father had hit his son or

whether the policemen had beaten them.

40. These additional investigations apparently did not conclude with

the delivery of a formal decision. Their results were not communicated

to the applicants.

41. On 20 June 1994 the applicants appealed to the Chief General

Prosecutor of Bulgaria (Glaven prokuror na Republika Bulgaria). The

appeal again explained the applicants' version of the facts. It added

that the beating of the first applicant had been accompanied by insults

referring to his gipsy ethnic origin, and that his parents had also

been called offensive names on the basis of their ethnic origin. The

applicants further asserted that there had been a lot of witnesses to

the incident as it had taken place at the city bus station, but no

effort had been made to take evidence from any of the bystanders. The

appeal also stated that there was a contradiction between the findings

of the Regional Military Prosecution Office, which found that physical

force had not been employed, and the conclusion of the General Military

Prosecution Office, which established that there had been use of

physical force, but that it had been legal. The appeal stated that

violations of Articles 3, 6 and 14 of the Convention had occurred in

the case.

42. This appeal was apparently transferred to the General Military

Prosecution Office, which on 28 June 1994 wrote a letter to the

applicants' lawyer stating that there were no grounds for annulment of

the previous decision.

Criminal proceedings against the first applicant since 1995

43. In 1994 and 1995 the prosecution authorities in Shoumen opened

several preliminary files and criminal proceedings dealing with cases

of theft and robbery. In January 1995 the first applicant was

questioned, apparently as a suspect, in the course of these

proceedings. The investigations revealed the alleged continuous

criminal activity of six persons considered to have been accomplices

in numerous thefts and robberies.

44. On 27 July 1995 the first applicant was arrested by decision of

an investigator in the framework of case No. 110/95 of the list of the

local investigation authorities. On 28 July 1995 the first applicant

was brought before the investigator, who formally charged him, decided

to detain him on remand and questioned him. Present at that moment in

the office of the investigator were also prosecutor K. and the first

applicant's lawyer. The decision of the investigator to detain the

first applicant on remand was approved the same day by prosecutor A.,

who had not been present when the first applicant was charged and

questioned.

45. The charges against the first applicant, as elaborated during the

investigation (see paras. 48 and 58), consisted of ten or more thefts

and burglaries allegedly committed between 9 January and 2 May 1995 and

six robberies committed between 10 September 1994 and 24 July 1995, the

last robbery having been committed three days before the arrest. In

addition to the first applicant, two other persons were formally

charged and one of them was also arrested. Several provisions of the

Penal Code were invoked in the accusations (see para. 76).

46. The burglaries with which the first applicant was charged

allegedly resulted in the stealing of television sets, other electrical

appliances, fur coats, and other objects worth about 300,000 leva

(about 24,000 FF at the time). The robberies, which followed one and

the same pattern, were committed allegedly as follows: when walking on

the street the boy suddenly attacked a by-passer and forcefully

wrenched from him or her a bracelet, a purse or another object. The

first applicant admitted most of the thefts and burglaries but denied

having committed the robberies.

47. On 27 July, 2 August, 7 August and 15 August 1995 the first

applicant was brought together with other suspects at identification

parades, at which four victims of robberies identified him. A lawyer

was present on all occasions.

48. On 28 August 1995 an expert appointed by the investigator

submitted a report concerning the value of the objects allegedly stolen

by the first applicant and his accomplices. On an unspecified date a

criminal case, which concerned other thefts in which the first

applicant was suspected to have been an accomplice, was joined to the

initial case No. 110/95.

49. Between the opening of the criminal proceedings at the beginning

of 1995 and until September 1995 the investigation authorities examined

about 60 witnesses and alleged victims. It appears that no other

evidence has been collected after September 1995.

50. On 11 September 1995 the first applicant submitted a petition to

the Shoumen District Court (Shoumenski raionen sad), requesting his

release. On 19 September 1995 a judge at the Court sitting in camera

dismissed the petition stating, inter alia, that the charges against

the first applicant concerned serious crimes, and that his criminal

activity had been persistent. Therefore there was a danger that the

first applicant would commit crimes if released.

51. When deciding the case, the judge apparently had before him the

first applicant's petition and the case-file of the criminal

proceedings against him. It is unclear what other material, if any,

was at the judge's disposal.

52. On an unspecified date in 1996 the first applicant challenged

again before the Shoumen District Court his detention on remand in case

No. 110/95. On 28 March 1996 the Court requested the case-file from

the District Porsecutor's Office and thereupon, noting that an appeal

had already been examined on 19 September 1995 (see above para. 50),

rejected the new petition as inadmissible.

53. The first applicant, his lawyer and his parents submitted to the

prosecution authorities numerous requests for the first applicant's

release. It appears that some of them were examined individually, and

that others were grouped and decided on several months after their

submission. In his request dated 12 October 1995 the first applicant

stated inter alia: "My criminal activity, the crimes committed by me,

were established and proved in the course of the investigations.

No further evidence has to be collected as regards me." On this

ground, and in view of the fact that he had a one year old daughter and

a newborn second child, the first applicant demanded to be released.

54. The requests submitted to the prosecution authorities, as well

as the request of 11 September 1995 to the District Court (see para. 50

above), also raised issues concerning the first applicant's health.

Thus, on 17 August, 11 and 12 September 1995 the first applicant stated

that he had a cyst on his chin and that he had suffered from a valvular

defect from birth. The parents complained that the investigating judge

would not order an examination by a cardiologist unless they presented

their son's medical records, which were unfortunately unavailable.

Also, when they visited their son in prison he appeared depressed and

complained of heart pain.

55. On 21 August 1995 the first applicant was examined by a doctor,

who found that he was healthy. On 20 September 1995 the first

applicant was examined again, by a cardiologist from the Regional

Hospital of Shoumen, who concluded that he "does not suffer from any

cardiac disease, either congenital or acquired", and that there are "no

counter-indications against him staying in detention, as far as his

cardio-vascular status is concerned".

56. On 13 October 1995 district prosecutor I. dismissed two requests

for the first applicant's release. The refusal was confirmed on

19 October 1995 by regional prosecutor A. The applicants then

complained unsuccessfully to the Chief Public Prosecutor's Office

stating inter alia that there had been a "campaign" against them

because of their application to the Commission. In its decision of

8 December 1995 the Chief Public Prosecutor's Office dismissed the

applicants' arguments. The decision further stated that the

investigation had been completed in general lines in September 1995.

Nevertheless, the detention was still necessary as there was a clear

danger that the first applicant would resume his criminal acts. Thus,

the boy's criminal activity had continued after the institution of

criminal proceedings, only the arrest having put an end to it.

57. The decision of 8 December 1995 also stated that a prolonged

detention in the premises of the Shoumen police would be harmful to the

first applicant's "physical and mental development" and that therefore

he should be moved to the specialised Boychinovzi juvenile

penitentiary. The transfer took place three and a half months later,

on 25 March 1996.

58. On 21 March 1996 the investigator separated off, under another

case-file, No. 271/95, the accusations concerning the robberies. On

the same day the investigator ordered the first applicant's detention

on remand in case No. 271/95, questioned him and concluded the

examination of the case. On the next day, 22 March 1996, the

investigator drew up a report summarising the facts in case No. 271/95

and sent it to the prosecutor proposing that an indictment be prepared.

59. On 3 July 1996 district prosecutor I. sent case No. 271/95 back

to the investigator with instructions for an additional inquiry. On

23 August 1996 the investigator returned the case as the witness who

had to be examined had died. On 26 September 1996 district

prosecutor I. drew up an indictment in case No. 271/95 and, four days

later, submitted it to the Shoumen District Court. The Court held a

hearing in the case (which now had No. 366/96) on 6 February 1997. The

Court heard four witnesses and adjourned the hearing to 29 May 1997 as

two other witnesses had not appeared.

60. In the meantime, on 20 September 1996 the investigator completed

the preliminary inquiry in case No. 110/95. On 25 October 1996 the

case was sent to the Regional Prosecutor's Office with a proposal to

indict the first applicant. It appears that on 31 January 1997 case

No. 110/95 was again referred back for further investigation.

61. Throughout 1996 the first applicant and his parents continued to

submit requests for release to the prosecution authorities. Such

requests were submitted on 20 February, 26 April, 4 June and

12 June 1996. By decisions of 21 February and 17 June 1996 these

requests were dismissed by district prosecutor I., who found that the

danger of the applicant committing crimes if released persisted, and

that the cases would soon be sent to court for trial. Also, the

prosecution authorities had already examined the arguments of the first

applicant, which were the same as in previous petitions. On

8 October 1996 the Regional Prosecutor's Office dismissed another

request for release.

62. On 4 November 1996 a judge at the District Court in case

No. 366/96 (formerly investigation case No. 271/95), examined in camera

the first applicant's petition for release. The Court refused to

release the first applicant taking into account the seriousness and the

number of the crimes with which he had been charged and the fact that

the trial would commence soon. It appears that the first applicant

remained in detention pending the hearing in case No. 366/96 scheduled

for 29 May 1997 (see above para. 59).

Conditions of detention of the first applicant

63. Between 27 July 1995 and 25 March 1996 and again between

5 July and 24 September 1996 the first applicant was detained at the

Shoumen police station. Between 25 March and 5 July 1996 he was

detained at the Boychinovzi juvenile penitentiary.

Since September 1996 he has been detained at the Belene prison.

64. At the Shoumen police station there was no yard suitable for the

daily walks of the detainees. The first applicant and all other

detainees could go out twice per day, during the time necessary for

daily toilet.

65. There is a dispute between the parties as regards the conditions

at the Shoumen police station. The first applicant submits that he was

in a cell measuring 3/1.80 metres, which he shared at certain times

with two to four other detainees, that the cell was almost entirely

under the ground level, with very limited influx of light and fresh

air, and that he could not exercise or engage in any activity in his

cell. The Government submit that the size of the cell was

4.60/3.50 metres and that the first applicant shared it with only one

detainee.

Other events in 1995

66. On 15 May, 23 May and 8 September 1995 two daily newspapers

published articles about the present case. Two of the articles, whose

titles stated that a gipsy gambler had "put Bulgaria on trial in

Strasbourg", explained inter alia that in response to questions from

journalists the applicants had allegedly denied having made an

application to the Commission. The articles concluded that perhaps

some gipsy activists had pushed the case and had misled Amnesty

International.

67. On an unspecified date the prosecution authorities or the police

approached the applicants and asked them to declare whether they had

made an application to the Commission. On 8 September 1995 the second

and the third applicants visited a notary public and signed before him

a declaration in which they denied having made an application to the

Commission. They further stated that they remembered having signed,

in 1992 and 1993, some documents prepared by human rights associations.

However, they were not given a copy of the documents and did not know

their contents. One of the documents was in a foreign language.

68. The declaration was apparently then submitted to the prosecution

authorities. On 19 September 1995 the General Military Prosecution

Office sent a letter to the Ministry of Foreign Affairs informing them

about the declaration.

69. The applicants did not mention in this declaration that in

March 1995 they had signed before a notary public a statement of means,

prepared in Bulgarian, referring expressly to their application to the

Commission, and stating that it was done for purposes of their legal

aid request to the Commission.

70. The minutes of the first applicant's questioning after his arrest

on 28 July 1995 (see above para. 44) establish that he spoke to the

investigator about the events of 19 September 1992. Since the minutes

record only the words of the first applicant, it cannot be seen clearly

whether his statement was made in answer to questions or on his own

initiative. It transpires nevertheless that the comments about the

events of 1992 came immediately following the first applicant's

allegation that at the identification parade on 27 July 1995 one of the

witnesses had been manipulated by a policeman. In this context the boy

continued by saying:

"In 1992 ... I was beaten by policemen ... [at the bus

station]. Thereafter I obtained a medical certificate and my

father complained to the police. They did not look at it

seriously and he submitted it to the Military Prosecution

Office. They did not take it seriously either. Then my father

heard that there were some people from an international human

rights organisation [in town]. My father brought me there and

showed them how I was beaten. In fact, after my release from

the police my father brought me first to these people and then

wrote to the police and to the prosecution authorities."

B. Relevant domestic law and practice (translations and summaries)

a) in relation to the events of 19 September 1992

71. The Code of Criminal Procedure (Nakazatelno-protzesualen kodeks)

Section 190

"There shall be considered to exist sufficient evidence for

the institution of criminal proceedings where a reasonable

supposition can be made that a crime might have been committed."

Sections 192 and 194(3)

According to these provisions when a prosecutor has refused to

institute criminal proceedings, such proceedings can only be instituted

by a higher prosecutor upon the petition of the interested person or

ex officio.

72. The Law on State Responsibility for Damage (Zakon za

otgovornostta na darzhavata za vredi prichineni na grazhdani)

This law provides that a person who has suffered damage due to

unlawful acts of State organs can bring a civil action against the

State organ, whose officers are responsible for the damage.

73. The Law on Obligations and Contracts (Zakon za zadalzheniata i

dogovorite)

This law provides in its Section 45 that a person who has

suffered damages can seek redress by bringing a civil action against

the person who has, through his fault, caused the damage. Under

Section 49, when the damage has been caused in the process of an

activity mandated by another person, this person's responsibility is

also engaged. According to Section 110 the claim for damages is

extinguished with the expiry of a five year prescription period.

74. The Code of Civil Procedure (Grazhdansko-protzesualen kodeks)

Section 2

"The courts are obliged to examine, and to decide on, any

claim submitted to them for the safeguard of, or relief as

regards, personal and pecuniary rights."

Section 165

"If there exists a danger that certain evidence might be

lost or its collection might become difficult, a party [to the

proceedings] can request this evidence to be collected in

advance."

Section 182

"The court shall suspend the proceedings:

...

d) whenever criminal elements, the determination of which

is decisive for the outcome of the civil dispute, are discovered

in the course of the civil proceedings."

Section 183

"Proceedings which have been suspended shall be resumed ex

officio or upon a party's petition after the respective

obstacles have been removed ..."

Section 222

"The findings contained in a final judgment of a penal

court and concerning the issue whether the act in question has

been committed, its unlawfulness and the perpetrator's guilt,

are binding on the civil court when it examines the civil

consequences of the criminal act."

75. Decision No. 12/1966 of the plenary of the Supreme Court's civil

chambers (R 12-66-OSGK, Sb. 38), insofar as relevant, reads as follows:

"The decision of the prosecution to terminate the criminal

prosecution based on a finding that the accused is not guilty of

committing the criminal act does not bind the civil court which

examines the civil consequences of this act... [T]he civil

court, on the basis of evidence [collected] in the course of the

civil proceedings, can reach different factual findings, for

example that the tort was in fact caused by the same person, the

criminal prosecution against whom had been terminated.

If in the course of the civil proceedings, after collection

of evidence, fresh criminal circumstances are discovered, the

determination of which is decisive for the outcome of the civil

dispute, the court is obliged to suspend the proceedings in

accordance with Section 182"d" of the Code of Civil Procedure."

b) in relation to the events since 1995

76. The Penal Code (Nakazatelen kodeks)

Crime under Section 195 paras. 1(3), 1(5) and 2 in conjunction

with Section 26 para. 1 and Section 63 para. 1(3)

The offence is a continuous criminal activity of a minor

consisting of burglaries committed with accomplices and involving

breaking in locked premises, where the amount stolen is significant.

The punishment is up to three years' imprisonment.

Crime under Section 198 para. 1 in conjunction with Section 26

para. 1 and Section 63 para. 1(2)

The offence is a continuous criminal activity of a minor,

committed with accomplices, consisting of robberies, defined as

stealing with the use of force or threats. The punishment is up to

five years' imprisonment.

According to Sections 23 - 25 in case of the first applicant's

conviction on all charges the maximum possible punishment is six and

a half years' imprisonment.

77. The Code of Criminal Procedure (Nakazatelno-protzesualen kodeks)

According to Section 222 the investigations must be brought to

an end within two months after they commenced. A further prolongation

of up to six months may be authorised by a Regional Prosecutor.

In exceptional cases, the Chief Public Prosecutor may prolong the

investigations up to nine months. If the period is prolonged after two

months, the Prosecutor will decide on the detention on remand.

It follows from Sections 152, 172, 201 - 203 and 377 - 378 that

an accused, including a minor, can be detained on remand by decision

of an investigator or of a prosecutor. In cases where the decision to

detain has been taken by an investigator without the prior consent of

a prosecutor it has to be approved by the prosecutor within 24 hours.

There is no legal obstacle for a prosecutor, having taken a

decision to detain an accused person on remand, or having approved the

investigator's decision, later to submit an indictment in court and to

represent the prosecution against the same accused person. In practice

this is often the case.

According to Section 378 para. 2 detention on remand shall be

applied in respect of minors only in exceptional circumstances.

Based on Sections 209 and 210 and according to the usual

practice, an arrested person is brought before an investigator who

officially informs him of the charges brought against him and proceeds

immediately with his examination. After the examination the

investigator decides whether to detain the accused, or informs him of

the prior decision taken in this respect by a prosecutor. In cases

where the decision to detain is taken by the investigator the file is

then transmitted to the supervising prosecutor who decides whether to

approve the detention on remand. In all cases the prosecutor decides

on the basis of the file, without hearing the accused.

Sections 43, 48, 86, 176 - 178, 196, 201, 208, 219 - 220 and 235

- 237 concern the competence of the prosecutor and of the investigator

in penal proceedings.

According to these provisions and to the legal theory and

practice the prosecutor has a double function in penal proceedings.

At the preliminary investigation stage he supervises the investigation

and gives mandatory instructions. Also, throughout the proceedings the

prosecutor effects a "control of lawfulness". At the judicial stage

of the proceedings he is entrusted with the task to prosecute the

accused and to represent the prosecution in court.

According to Section 86 the prosecutor and the investigator are

under an obligation to collect both incriminating and exonerating

evidence.

Section 43 provides that the prosecutor has the following

functions in penal proceedings: "to direct the preliminary

investigation"; "to participate in the judicial stage of the

proceedings as a State prosecutor"; and "to effect a supervisory

control of lawfulness at all stages of the penal proceedings ..." At

the preliminary investigation stage of the proceedings according to

Sections 176 - 178 the prosecutor is competent, inter alia: to give

mandatory instructions to the investigator; to participate in

examinations, searches or any other acts of investigation; to withdraw

a case from the competence of an investigator and to assign it to

another; to conduct himself an entire preliminary investigation or

particular acts of investigation.

According to Sections 48 para. 2 and 201 the investigator has a

certain independence from the prosecutor in respect of his working

methods and particular acts of investigation, but performs his

functions under the instructions and the supervision of the prosecutor.

An investigator disagreeing with the instructions of the

prosecutor can submit objections to the higher prosecutor, whose

decision is final and mandatory for the investigator. Section 178 read

in conjunction with Sections 219 and 220 provides that, as an exception

to this rule, the investigator is free to conclude his work on the

preliminary investigation with a proposal to terminate the proceedings

or with a proposal to prepare an indictment.

Under Sections 235 - 237 the prosecutor is competent, after

receiving the investigator's proposal, to terminate the proceedings,

to order additional investigations, or to prepare an indictment and

submit the case to the court.

Section 152 para. 5

"(5) The detained person shall be provided immediately

with a possibility to file an appeal before the competent court

against the [imposition of detention]. The court shall

pronounce itself within a time-limit of three days from the

filing of the appeal by means of a final decision."

According to the current practice the court examines the appeals

against detention on remand in camera, without the participation of the

parties. If the appeal is dismissed the court does not notify the

detained person of the decision taken.

The Supreme Court has stated that in the proceedings under

Section 152 it is not open to the courts to inquire whether there

exists sufficient evidence supporting the charges against the detainee.

The courts have to examine only the lawfulness of the detention order

which requires the courts, in cases of persons charged with crimes

punishable by less than ten years imprisonment, to establish whether

there exists a "real danger" of absconding or of repetition (Decision

of 23 May 1995) (opred. No. 24 po n.d. 268/95, I n.o., Sb. 1995,

str. 149).

In a decision of 17 September 1992 the Supreme Court found that

the imposition of detention on remand could be contested before a court

only once. A new appeal was only possible where a detained person had

been released and then again detained. In all other cases a detained

person could always request his release from the prosecution

authorities if there had been a change of circumstances (opred. No. 94

po n.ch.h.d. No. 754/92, I n.o., Sb. 1992-93 str. 173).

Periodic judicial review of the lawfulness of a detention on

remand becomes possible only when the criminal case is already in the

hands of the court. At this stage of the proceedings the court before

which the case is pending also decides whether to release or detain the

accused.

78. The Constitution and the Act on the Judiciary (Zakon za sadebnata

vlast) provide for the structure of the prosecution and of the

investigation authorities. A National Investigation Authority

(Natzionalna sledstvena sluzhba) comprising all investigators is set

up under the Act. The prosecutors of all levels are under the

authority of the Chief Public Prosecutor.

All investigators and prosecutors except the Chief Public

Prosecutor are appointed, promoted, or dismissed by the Supreme

Judicial Council (Vissh sadeben savet), an independent body part of

whose members are elected by the Parliament and the remainder by the

judiciary. Upon completion of three years on the respective position

an investigator or a prosecutor obtains tenure and can be removed only

on limited grounds such as retirement or disability. Investigators and

prosecutors enjoy immunity from suit, which can be lifted by decision

of the Supreme Judicial Council.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

79. The Commission has declared admissible the applicants' complaints

relating to the events of September 1992 and concerning the first

applicant's alleged ill-treatment by the police, the refusal of the

prosecution authorities to open criminal proceedings against the police

officers and the alleged ineffectiveness of a potential civil action

for damages; as well as the complaints related to the first applicant's

continuing detention since 27 July 1995.

80. The Commission has also decided to continue the examination of

the applicants' allegation that pressure was exercised on them to

withdraw their application to the Commission.

B. Points at issue

81. The points at issue in the present case are as follows:

In general

- whether the second and the third applicants may claim that they

have been victims of violations of their rights under the Convention;

As regards the events of September 1992

- whether there has been a violation of Article 3 (Art. 3) of the

Convention;

- whether there has been a violation of Article 13 (Art. 13) in

conjunction with Article 3 (Art. 3) of the Convention;

- whether there has been a violation of Article 6 (Art. 6) of the

Convention;

As regards the events since 1995

- whether there have been violations of Articles 3 and 5 para. 1

(Art. 3, 5-1) of the Convention in respect of the first applicant's

detention;

- whether there has been a violation of Article 5 para. 3

(Art. 5-3) of the Convention;

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention;

- whether Bulgaria complied with its obligation under Article 25

(Art. 25) of the Convention.

C. As regards the applicants

82. The Commission notes that the events complained of in the present

case concern almost exclusively the first applicant, with the exception

of the complaint concerning the alleged hindrance of the right to

petition under Article 25 (Art. 25). The second and the third

applicants have not complained expressly about other violations of

their rights under the Convention. In response to a question put in

this respect at the oral hearing, the representative of the applicants

stated that the second and the third applicants were acting in their

capacity of the first applicant's parents, as he was a minor at the

time.

83. The Commission finds, therefore, that in regard to all

complaints, except the complaint of an alleged violation of Article 25

(Art. 25), it is called upon to examine only the alleged violations of

the first applicant's rights.

D. Complaints related to the events of September 1992

a) As regards Article 3 (Art. 3) of the Convention

84. The applicants complain, invoking Articles 3 and 14 (Art. 3, 14)

of the Convention, that three police officers had unnecessarily

detained, beaten and insulted the first applicant, a 14-year old boy

at the time of the incident, on the basis of his gipsy origin.

85. The Commission considers that the above complaints, including the

alleged insults, fall to be examined under Article 3 (Art. 3) of the

Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

86. The applicants submit that the version of the facts maintained

by the police was not logical as it would appear that the father had

been severely beating his son in the presence of three policemen and

that they had not intervened; the Government referred only to some of

the bruises, no explanation having been provided for five bruises

measuring 2/0.5 cm on the right chest and a haematoma measuring 2 cm

in diameter on the back haired part of the head which corresponded to

the submissions of the boy that he had been beaten with a truncheon and

with the handle of his toy pistol; a father would never inflict such

severe injuries on his son.

87. The applicants further submit that since the boy never resisted

police orders and did not deny his participation in the gambling, his

arrest and especially the use of handcuffs were unnecessary and

inappropriate measures. Moreover, the decision of the General

Military Prosecution Office of 21 May 1993 implied that the applicants'

version of the facts had been found plausible.

88. The Government submit that the complaints under Articles 3 and

14 (Art. 3, 14) of the Convention are manifestly ill-founded. Thus,

it is not disputed that the policemen sought to confiscate from the

first applicant the money which he had gained when gambling and to fill

out the necessary forms, that the father intervened at that moment, and

that this prompted the arrest and the use of handcuffs. Therefore, the

police acted lawfully against persons opposing police orders. As the

boy and his father resisted the orders to come to the police station

for this purpose, it was necessary and lawful to use physical force.

However, this did not include beating.

89. The Government stress that the medical certificate of the first

applicant was issued two days after the incident and that therefore the

bruises on his body could not be linked directly to the events of

19 September 1992. Also, it was established by the domestic

authorities that the bruises on the first applicant's body had been

caused by his father and not by the police. Thus, the applicants

clearly stated in their submissions given shortly after the incident

that the father was hitting his son. Also, the injuries as described

in the medical certificate corresponded to the version of the police

as the bruises were pale in the centre and purple-bluish in the

periphery, which did not correspond to the round form of a truncheon,

but rather matched the form of a thin flat piece of ply-wood, used by

the father. Furthermore, the father has not been beaten, whereas, if

the police had behaved violently, he would have been logically the

object of this violence and would have been seriously affected, as he

was opposing the police orders and was physically stronger than his

son. Lastly, the allegations of discrimination on the basis of the

applicants' ethnic origin are totally unfounded.

90. According to the Convention organs' case-law ill-treatment must

attain a certain level of severity if it is to fall within the scope

of Article 3 (Art. 3). The assessment of this minimum is, in the

nature of things, relative; it depends on all the circumstances of the

case, such as the duration of the treatment, its physical or mental

effects and, in some cases, the sex, age and state of health of the

victim (Eur. Court HR, Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25, p. 65 et seq., paras. 162 et seq.).

A fact to be taken into account may also be the resistance of the

applicant against the police.

91. In respect of a person deprived of his liberty, any recourse to

physical force which has not been made strictly necessary by his own

conduct diminishes human dignity and is in principle an infringement

of the right set forth in Article 3 (Art. 3) of the Convention. Where

the person alleges that his injuries resulted from treatment during

custody, the Government are under an obligation to provide a complete

and sufficient explanation of how the applicant's injuries were caused

(see Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995,

Series A no. 336).

92. The Commission notes, however, that the first applicant's

complaints concern ill-treatment which took place partly in public, at

the bus station in Shoumen, and which allegedly continued at the police

station. In similar cases the Commission has found that its task is

to examine whether the applicant has adduced material which might call

into question the findings of the domestic courts and add weight to his

allegations before the Commission (see Eur. Court HR, Klaas v. Germany

judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).

93. In the present case it appears undisputed that a quarrel erupted

at the bus station between the policemen and the first applicant's

father; that the father was trying to pull his son and to release him;

that he was hitting him with a ply-wood strip in an effort to show that

he would punish the boy himself; that the police officers used

handcuffs; that the first applicant and his father were then brought

to the police station; and that they were released after approximately

two hours (see paras. 17, 18, 21, 23 and 25).

94. As regards the disputed facts it does not appear possible for the

Commission to establish, more than four and a half years after the

events, which version is more credible. Thus, the explanations given

by the two witnesses in July 1993 did not bring any additional

clarification (see para. 39).

95. It is true that the evidential difficulties in question are due

exclusively to the fact that no independent and timely investigation

of the applicants' complaints was effected by the domestic authorities.

However, the Commission considers it more appropriate to examine this

issue under Article 13 (Art. 13) of the Convention (see paras. 100 -

109 below).

96. The Commission also notes that the medical certificate was issued

two days after this incident, thus making it impossible to link

directly the findings contained therein with the events complained of.

97. As regards the applicants' contention that the acts of the police

were based on racial attitudes towards gipsies, the Commission finds

that this allegation is founded solely on their uncorroborated

statement that the police officers used offensive language.

98. In these circumstances the Commission considers that it cannot

reach a conclusion of a violation of Article 3 (Art. 3).

CONCLUSION

99. The Commission concludes, by 16 votes to 1 that there has been

no violation of Article 3 (Art. 3) of the Convention.

b) As regards Article 13 (Art. 13) of the Convention

100. The applicants complain under Article 13 (Art. 13) of the

Convention that they did not have an effective remedy against the

alleged ill-treatment by the police.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

101. The applicants submit that their complaints to all levels of the

prosecution hierarchy were refused arbitrarily, on the basis of the

written depositions of the applicants and of the implicated police

officers, given before an officer of the local police. Only two

witnesses were examined, nearly a year after the incident. Also,

despite the finding that "the evidence is contradictory", the

authorities concluded that they "lack[ed] sufficient evidence to open

penal proceedings", whereas Section 190 of the Code of Criminal

Procedure only required "a reasonable supposition that a crime might

have been committed". In the circumstances of the case it had been the

duty of the authorities at least to institute criminal proceedings,

thus giving the possibility to obtain a clarification of the facts.

As regards the possibility to bring a civil action for damages, the

applicants submit that this was not an effective remedy.

102. The Government submit that the applicants' complaints were

repeatedly and carefully examined. Thus, they were first examined by

the director of the local police who, if he had found them to be

well-founded, could have taken disciplinary measures against his

subordinate police officers, or even have ordered the institution of

criminal proceedings. In view of his age at the time the first

applicant was heard in the presence of a pedagogue. Thereafter three

levels of the prosecution authorities examined the complaints. Another

two independent witnesses submitted explanations in July 1993. Also,

the prosecutors could not open criminal proceedings without sufficient

evidence because they risked engaging the State's responsibility for

damages. Thus, there were many cases where the courts have awarded

damages to persons prosecuted without sufficient evidence.

Furthermore, the authorities could not do more as the applicants never

named particular witnesses. In any event, the applicants could have

brought a civil action for damages, which was another effective remedy.

103. The Commission considers that the applicants, when they seized

the national authorities, had an arguable claim under Article 3

(Art. 3) of the Convention and that therefore Article 13 (Art. 13)

required the existence on a national level of an effective remedy in

this respect (cf. Eur. Court H.R., Plattform "Ärzte für das Leben"

judgment of 21 June 1988, Series A no. 139, p. 11 et seq., para. 27 et

seq.). The remedy must be "effective" in practice as well as in law,

in particular in the sense that its exercise must not be hindered by

the acts or omissions of the authorities of the respondent State (Eur.

Court HR, Aksoy v. Turkey judgment of 18 December 1996, para. 95).

104. The Commission first notes that apart from the appeals to all

levels of the prosecution authorities the applicants had no other

possibility to obtain the opening of criminal proceedings against the

police officers, no judicial appeal against the refusal to open such

proceedings being provided for under Bulgarian law (see para. 71).

Therefore, the Commission has to scrutinise the manner in which the

police and the prosecution authorities dealt with the complaints.

105. The Commission notes that upon the submission of the applicants'

complaints, an inquiry was conducted by an inspector in the personnel

service of the district police, where the implicated police officers

worked. Apparently he personally heard only the applicants and

collected written explanations from the police officers. He also

accepted a short written explanation of a witness, who in fact denied

having seen anything. He did not order an analysis by a forensic

doctor of the findings contained in the medical certificate, although

the details provided therein could have led to important conclusions

as regards the type of object which caused the injuries and the time

and the manner in which they were inflicted. Also, no effort was made

to identify and hear more witnesses. Furthermore, the inspector

apparently had no power to take any decision. He reported to the

director of the local police, who decided to close the inquiry on the

basis of a written note prepared by the inspector (see paras. 22 - 28).

106. The Commission further attaches importance to the fact that when

seized with the applicant's ensuing complaint, the Military

Investigation Office in Shoumen found it sufficient to instruct the

local police to collect certain evidence, instead of undertaking its

own investigation. Also, the instructions given did not require at all

the examination of independent witnesses (see paras. 30 - 32 above).

Against this background, even assuming that investigator G. heard the

applicants, which appears unlikely in view of the lack of a documentary

trace (see para. 33 above), this clearly could not be regarded as a

sufficient investigation. Furthermore, the same pattern of decisions

taken on the basis of the files, in fact prepared by the police, was

followed by the Regional Military Prosecution Office in Varna and the

General Military Prosecution Office (see paras. 34 - 37). It was not

until July 1993, ten months after the incident, and apparently due to

some outside pressure, that two witnesses submitted written

explanations. However no formal decision was taken afterwards (see

paras. 38 - 40).

107. The Commission further finds that in these particular

circumstances the requirements of Article 13 (Art. 13) would not be

satisfied by the possibility of bringing a civil action for damages.

In this case, where the investigation of the applicants' criminal

complaints was inadequate, an award of compensation could not be deemed

to have rectified the alleged violation of Article 3 (Art. 3) (cf.

Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4, p. 4; Eur. Court HR, Aksoy

v. Turkey judgment of 18 December 1996, para. 98, to be published in

Reports of Judgments and Decisions, 1996; see also the Commission's

admissibility decision in the present case, D.R. 86, p. 54).

108. In these circumstances the Commission finds that the applicants

did not have an effective remedy within the meaning of Article 13

(Art. 13).

CONCLUSION

109. The Commission concludes, unanimously, that there has been a

violation of Article 13 in conjunction with Article 3 (Art. 13+3) of

the Convention.

c) As regards Article 6 (Art. 6) of the Convention

110. The applicants complain under Article 6 (Art. 6) of the

Convention of the alleged lack of access to a court for the

determination of their civil right to damages and of the question

whether the police officers had committed a crime.

111. Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled to

a fair ... hearing ... before an independent and impartial

tribunal ..."

112. The applicants contend that the civil courts could not award

damages as by doing so they would have in fact to override the

prosecutors' findings, which they were not competent to do. In any

event, the civil courts were obliged under the law to suspend the

proceedings and again send the case to the prosecution authorities.

Thereupon, the case would be referred from one level of the prosecution

system to another and no final decision could be reached as there was

no limit on the number of appeals against a prosecutor's refusal to

open criminal proceedings.

113. The Government contend that the courts were competent to examine

a civil action for damages and, if they found that a criminal act was

involved, to suspend the procedure and seise again the prosecutor.

Therefore, the applicants did have access to the courts.

114. The Commission recalls the Convention organs' case-law according

to which the Convention is intended to guarantee not rights that are

theoretical or illusory but rights that are practical and effective.

The individual's right to access to the courts must not be hindered in

such a way or to such an extent as to impair its very essence. The

access to court may, however, be subjected to certain limitations,

which must be proportionate to a legitimate aim (Eur. Court H.R., Airey

judgment of 9 October 1979, Series A, no. 32, p. 12, para. 24;

Ashingdane judgment of 28 May 1985, Series A, no. 93, p. 24 para. 57).

115. It is a question of conduct of the proceedings, and not of access

to a tribunal, when an applicant complains that the proceedings take

a long time or that there are other difficulties due, for example, to

a temporary stay of the proceedings (Eur. Court HR, Matos e Silva, Lda.

and others v. Portugal judgment of 16 September 1996, paras. 61, 64,

to be published in Reports of Judgments and Decisions 1996).

116. The Commission notes that the Law on Obligations and Contracts

and the Law on State Responsibility for Damage provide for an action

for damages to the civil courts. Also, it follows from Section 222 of

the Civil Procedure Code that civil courts are not bound by findings

contained in decisions of the prosecuting authorities (see paras. 73

- 75). Therefore, had the applicants brought an action for damages,

the civil courts would have examined, on the basis of the evidence

before them and without there being a need to establish criminal

responsibility, whether the first applicant had suffered damage in the

hands of the police. The Commission refers to a decision of the

Pazardjik District Court of 15 December 1995 in case No. 69/1994, where

a victim of police brutality was awarded damages despite the refusal

of the prosecuting authorities to open criminal proceedings.

117. As regards the alleged inevitable suspension of the proceedings,

the Commission notes that according to the practice of the Supreme

Court (see para. 75) this would occur only if the civil courts discover

fresh "criminal elements", such as facts of which the prosecution

authorities were not aware previously. In any event, if there is a

danger that certain evidence might later become unavailable, the

applicants could request that it be secured in advance according to

Section 165 of the Civil Procedure Code (see para. 74).

118. Therefore, the Commission does not find that the hypothetical

temporary suspension of the civil proceedings in the particular

circumstances of the present case could in itself constitute such a

serious prejudice as to impair the very essence of the applicants'

right of access to a court.

119. Insofar as the applicants complain under Article 6 (Art. 6) of

the Convention of the manner in which the prosecution authorities had

dealt with their petitions for the institution of criminal proceedings,

the Commission finds that these proceedings concerned neither the

determination of the applicants' civil rights, nor of a criminal charge

against them and, therefore, fall outside the scope of Article 6

(Art. 6) of the Convention (No. 7116/75, Dec. 4.10.76, D.R. 7, p. 91).

CONCLUSION

120. The Commission concludes, unanimously, that there has been no

violation of Article 6 (Art. 6) of the Convention.

E. Complaints related to the events since 1995

a) As regards the alleged unlawfulness and the conditions of the

first applicant's continuing detention

121. The first applicant complains that his continued detention was

unlawful, unnecessary and dangerous to his health. Thus, Section 222

of the Code of Criminal Procedure requires a special permission of the

Chief Public Prosecutor for preliminary investigation lasting more than

nine months, but such permission was not given. Furthermore, the

first applicant was detained in inhuman conditions at the Shoumen

police station and in very bad conditions in the other places of

detention. The first applicant initially invoked Article 5 (Art. 5)

of the Convention and later relied also on Article 3 (Art. 3).

122. The Government dispute the information provided by the first

applicant about the size of his cell and the number of persons held in

the cell (see para. 65), and also submit that he was detained in

conditions which were the same for all detainees. The Government admit

that Bulgarian prisons are not in a very good state, compared to those

in some other European countries, but affirm that this is inevitable

in the current grave economic crisis in the country and that the

conditions are far from being inhuman or degrading. Moreover, the

health of the first applicant has been closely monitored.

123. As regards the alleged unlawfulness of the first applicant's

detention, the Commission notes that the time-limits under Section 222

of the Code of Criminal Procedure concern the length of the preliminary

investigation and not the length of the detention on remand (see

para. 77 above). Insofar as Section 222 also requires confirmation of

the detention on remand upon the prolongation of the preliminary

investigation, the Commission notes that the applicant's detention on

remand was confirmed by the District Court on 19 September 1995 (see

para. 50 above), then by the prosecution authorities by decisions of

13 October 1995, 19 October 1995, 8 December 1995, 21 February 1996,

17 June 1996, 26 September 1996 and 8 October 1996 (see above

paras. 56, 59 and 61). Thereafter his detention on remand was

confirmed again by the District Court (see para. 62). In these

circumstances it does not appear that the applicant's detention has

been unlawful under Bulgarian law. Also, it appears undisputed that

the first applicant's detention fell under Article 5 para. 1(c)

(Art. 5-1-c) of the Convention.

124. The Commission further considers that the first applicant's

allegations concerning the conditions of his detention should be

examined in the light of Article 3 (Art. 3) of the Convention.

125. When dealing with a complaint about conditions of detention the

Commission has to examine all circumstances, such as sanitary

conditions, possibility for recreation, medical treatment and

supervision, the applicant's state of health, and allegations regarding

matters such as overcrowding. For the conditions of detention to

amount to inhuman treatment within the meaning of Article 3 (Art. 3)

of the Convention they have to attain a certain level of severity

(B. v. the United Kingdom, Comm. Report 7 October 1981, D.R. 32, p. 5).

126. The Commission notes that the first applicant initially spent

eight months at the Shoumen police station and that he was then again

detained there for about two months (see para. 63). In between these

periods and afterwards he was in other penitentiaries which provided

apparently far better conditions. The Commission also notes that the

first applicant's health was monitored through prompt medical

examinations and that his contention that he suffered from a cardiac

disease was not confirmed (see para. 55).

127. In these circumstances, based on an overall assessment of the

facts in the present case the Commission considers that the minimum

level of severity required under Article 3 (Art. 3) of the Convention

has not been attained.

CONCLUSIONS

128. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 1 (Art. 5-1) of the Convention as regards

the alleged unlawfulness of the first applicant's detention.

129. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention as regards the

conditions of the first applicant's detention.

b) As regards the first applicant's right under Article 5 para. 3

(Art. 5-3) of the Convention to be brought promptly before a judge or

other officer exercising judicial power

130. Article 5 para. 3 (Art. 5-3) of the Convention reads as follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial. Release may be

conditioned by guarantees to appear for trial."

131. The first applicant contends that upon his arrest he was brought

before an investigator who did not have power to order his release and

was not independent. Prosecutor K. who was present at this hearing did

not have such power either. Only prosecutor A., the supervising

prosecutor, could order his release. But the first applicant was never

brought before him or before any of his superiors who later decided on

the applications for release. Furthermore, prosecutor A. and his

superiors were not sufficiently independent because they were a party

to the criminal proceedings.

132. The Government state that the persons who had effective power to

order the first applicant's detention on remand were only the

prosecutors, as the investigator's decision to detain could be valid

only for up to 24 hours and was subject to the approval of a

prosecutor. As regards prosecutor K. the Government submit that she

was present when the first applicant was brought before the

investigator in view of the fact that the case concerned a minor. The

Government further maintain that prosecutors K. and A. were from the

same service and that, in view thereof, the requirements of Article 5

para. 3 (Art. 5-3) were fulfilled despite the fact that the approval

of the first applicant's detention was given by prosecutor A., not by

prosecutor K.

133. Furthermore, the Government state that the prosecution

authorities in Bulgaria are an independent part of the judicial branch,

there being no link between them and the Ministry of Justice, as is the

case in many other European countries. The Government refer on this

point to the Constitution and the Act on the Judiciary (see para. 78).

Lastly, the Government stress that the provisions of Bulgarian law as

regards detention on remand were carefully scrutinised when Bulgaria

was preparing to join the Convention system in 1992.

134. The Commission recalls that the role of the officer referred to

in Article 5 para. 3 (Art. 5-3) of the Convention is to review the

circumstances militating for and against detention and to decide, by

reference to legal criteria, whether there are reasons to justify

detention and to order release if there are no such reasons. The

officer must be able to take a legally binding decision, the fact that

his recommendations are followed by the decision making authority not

being sufficient (Eur. Court HR, Schiesser v. Switzerland judgment of

1979, Series A no. 34, p. 13, para. 31; Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 75, para. 199).

135. The Commission further recalls that a judicial officer who orders

the detention may carry out other duties, but that his impartiality is

capable of appearing open to doubt if he is entitled to intervene in

the subsequent criminal proceedings as a representative of the

prosecuting authority. Where under the domestic law detention on remand

is confirmed by a prosecutor and it is possible in law that he be

entrusted with the task of conducting the prosecution, the prosecutor

cannot be considered an "officer authorised by law to exercise judicial

power" within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention. What is material in this respect is the objective

appearance, and not the question whether the prosecutor who confirmed

the detention in the particular case actually conducted the prosecution

later (Eur. Court HR, Huber v. Switzerland judgment of 23 October 1990,

Series A no. 188, p. 18, para. 43; Brincat v. Italy judgment of

26 November 1992, Series A no. 249-A, p. 12, paras. 20, 21).

136. The Commission notes at the outset that the first applicant was

not brought before prosecutor A. and that prosecutor K. was apparently

not involved directly in the decision whether to detain the first

applicant on remand or to release him (see para. 44). Furthermore, the

prosecutors, who according to the relevant law and practice later could

represent the prosecution in court (see para. 77), cannot be considered

"officer[s] exercising judicial power" within the meaning of Article 5

para. 3 (Art. 5-3) of the Convention.

137. There is no dispute between the parties that the first applicant

was brought "promptly" before the investigator in his case. It remains

to be examined, therefore, whether the investigator was an "officer

authorised by law to exercise judicial power".

138. The Commission notes that under Bulgarian law an investigator

apparently lacks effective power to decide freely on issues of

detention on remand as his decision is subject to the prosecutor's

approval (see paras. 77 and 132).

139. Moreover, the prosecutor is competent to order detention on

remand himself and, as it would follow from the relevant law, to

instruct the investigator to detain an accused.

140. The Commission further notes that under Bulgarian law, although

institutionally independent, the investigators practically have little

freedom of decision. Thus the prosecutor can give them mandatory

instructions on every question concerning the conduct of the

investigation. This dependence goes as far as to allow a prosecutor

to order which acts of investigation must be effected and at any time

to withdraw a case from the investigator and to entrust it to another

investigator, or to withhold it and conduct the investigation himself

(see para. 77).

141. In these circumstances there is inevitably a strong objective

appearance that the investigator has no independence from the

prosecuting authorities, which are bound to become the adverse party

in the criminal proceedings and, consequently, that the investigator

would not be impartial when deciding whether to detain an accused on

remand.

142. The Commission considers, therefore, that the first applicant was

not brought before an "officer exercising judicial power" within the

meaning of Article 5 para. 3 (Art. 5-3) of the Convention.

CONCLUSION

143. The Commission concludes, unanimously, that there has been a

violation of the first applicant's right under Article 5 para. 3

(Art. 5-3) of the Convention to be brought before a judge or other

officer authorised by law to exercise judicial power.

c) As regards the right of the first applicant under Article 5

para. 3 (Art. 5-3) of the Convention to a trial within a reasonable

time or to release pending trial

144. The first applicant submits that after September 1995 almost

nothing has been done in the investigation against him. At the same

time his requests for release have been routinely refused without

sufficient grounds. He also submits that his age should have been

taken into account in this respect.

145. The Government state that the first applicant was accused of

numerous thefts and robberies, some of which involved physical

violence, and that the investigation revealed his continuous and

persistent criminal activity. Therefore, the authorities' finding that

there was a danger of his committing crimes if released was well

founded. Also, in the framework of separate investigations new

information kept appearing about the first applicant's involvement in

other crimes, which necessitated additional work. Moreover, the

applicant's requests for release led to delays as the case-file had to

be transmitted to the competent prosecutor. The Government finally

submit that in an effort to speed up the proceedings, the investigator

split the case and prepared for trial the accusations on which the

investigation had been concluded.

146. The Commission recalls the Convention organs' case-law according

to which the question whether a period of pre-trial detention can be

considered "reasonable" within the meaning of Article 5 para. 3

(Art. 5-3) must be assessed in each case according to its special

features. It falls in the first place to the national judicial

authorities to examine all the circumstances arguing for and against

the existence of a genuine requirement of a public interest justifying

continued detention. Such circumstances may be, for example, the

existence of a danger of absconding, of collusion, or of repetition of

offences. It is essentially on the basis of the reasons given in the

domestic decisions and of the true facts stated by the applicant in his

appeals that the Convention organs must examine the complaint under

Article 5 para. 3 (Art. 5-3) of the Convention (Eur. Court HR,

W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A,

pp. 15-19, paras. 30-42).

147. The Commission notes that the accusations against the first

applicant concerned numerous crimes. Also, the finding of the

authorities that there was a danger of repetition may appear plausible.

Nevertheless, it has to be noted that the alleged violent crimes did

not involve the use of arms, but concerned burglaries and street

robberies punishable jointly with up to six and a half years'

imprisonment (see paras. 45 - 47 and 76).

148. Furthermore, under Section 378 para. 2 of the Code of Criminal

Procedure minors are to be detained on remand only in exceptional

circumstances (see above para. 77). The first applicant was arrested

on 28 July 1995 at the age of seventeen (see para. 44) and is

apparently still detained on remand, the parties not having indicated

any new circumstances since February 1997 (see paras. 61 and 62). It

appears, therefore, that he has been been detained on remand for more

than 23 months.

149. The Commission attaches special importance to the fact that

between September 1995 and September 1996 the preliminary investigation

had become practically dormant (see paras. 49, 56 and 58 - 60). During

this one year the applicant was questioned only once, on 21 March 1996,

and no other evidence appears to has been examined. The Government

have not provided any plausible explanation about these delays in the

conduct of the criminal proceedings, their only contention as regards

the particular period of time having been that the file of the case had

to be transmitted from one prosecutor to another in order to deal with

the requests for release.

150. In the light of these facts the Commission finds that the

"reasonable time" requirement of Article 5 para. 3 (Art. 5-3) of the

Convention has been exceeded.

CONCLUSION

151. The Commission concludes, unanimously, that there has been a

violation of the first applicant's right under Article 5 para. 3

(Art. 5-3) of the Convention to "a trial within a reasonable time or

to release pending trial".

d) As regards Article 5 para. 4 (Art. 5-4) of the Convention

152. Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:

"4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful."

153. The first applicant complains that the court which reviewed the

lawfulness of his detention examined the case in camera, without his

or his lawyer's participation, and that under Bulgarian law a

periodical judicial review of the lawfulness of pre-trial detention was

not possible. A hearing in the judicial appeal proceedings was

indispensable especially in view of the fact that an arrested person

is not brought before a judge or an officer exercising judicial power

within the meaning of Article 5 para. 3 (Art. 5-3). As a result of

the cumulated breaches of Article 5 paras. 3 (Art. 5-3) and 4 many

months passed before the first applicant had a personal contact with

a judicial authority. In the applicants' view this situation is in

flagrant violation of the principles enshrined in Article 5 (Art. 5).

Furthermore, the necessity of a periodic judicial review is made

stronger by the fact that the prosecutors examined the petitions for

release without hearing the detained and routinely confirmed the

findings of the lower prosecutors, without even hesitating to mention

in their decisions, with irritation, that the detainee and his family

keep submitting requests for release. Moreover, some requests were not

even answered to, and others were collected and examined jointly

several months after their submission.

154. The Government state that the judicial appeal proceedings against

pre-trial detention should not be examined in isolation, but in

conjunction with the possibility to submit unlimited requests for

release to all levels of the prosecution authorities. In the first

applicant's case the prosecutors examined carefully his requests and

delivered reasoned decisions in which they addressed all relevant

arguments. Also, under Bulgarian law the investigator before whom a

detained person is brought and the prosecutor are independent organs

with judicial functions. The prosecutor is in the best position to

assess all factors as he is handling the criminal case and is well

acquainted with all details. The role of the court when examining an

appeal against detention is to provide an additional safeguard. Thus,

the court is required to decide speedily, within five days, and its

competence is limited to issues of lawfulness, "the merits" of the

dispute being within the competence of the prosecutor. In these

circumstances a hearing was not necessary in the proceedings regarding

the appeal against detention before the Shoumen District Court.

155. The Government further submit that a judicial appeal was possible

only once, because further involvement of the court would infringe the

independence of the prosecution authorities and would lead to endless

stays in the criminal proceedings when the file would have to be

transmitted to the court time and again. Also, the possibility to

appeal to a court against detention was introduced in Bulgarian law in

1990 precisely in order to bring the legislation in line with the

Convention. Furthermore, in the case of Lukanov v. Bulgaria

(Application No. 21915/93) the Commission examined whether this

procedure was in conformity with Article 5 para. 4 (Art. 5-4) of the

Convention. Moreover, this provision does not require a hearing and

a periodical judicial review.

156. The Commission recalls that by virtue of paragraph 4 of Article 5

(Art. 5-4), arrested or detained persons are entitled to a review

bearing upon the procedural and substantive conditions which are

essential for the "lawfulness", in the sense of the Convention, of

their deprivation of liberty. This means that the competent court has

to examine not only compliance with the procedural requirements set out

in domestic law, but also the reasonableness of the suspicion grounding

the arrest and the legitimacy of the purpose pursued by the arrest and

the ensuing detention (Eur. Court HR, Brogan v. the United Kingdom

judgment of 29 November 1988, Series A no. 145-B).

157. According to the Convention organs' case-law under Article 5

para. 4 (Art. 5-4) of the Convention a court examining an appeal

against detention must provide guarantees of a judicial procedure.

When determining whether proceedings provide adequate guarantees,

regard must be had to the particular circumstances (Eur. Court HR, De

Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A

no. 12). Thus, the proceedings must be adversarial and must always

ensure the "equality of arms" between the parties, the prosecutor and

the detained (Sanchez-Reisse v. Switzerland judgment of

21 October 1986, Series A no. 107; Toth v. Austria judgment of

12 December 1991, Series A no. 224; Kampanis v. Greece judgment of

13 July 1995, Series A no. 318-B). In certain cases, such as for

example the detention of a minor detained under Article 5 para. 1(d)

(Art. 5-1-d) of the Convention, a hearing before the court is necessary

(Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129).

It must be borne in mind that the possibility for a detainee "to be

heard either in person or, where necessary, through some form of

representation" features in certain instances among the "fundamental

guarantees of procedure applied in matters of deprivation of liberty"

(Sanchez-Reisse, loc.cit.).

158. Furthermore, under Article 5 para. 4 (Art. 5-4) a detained person

must be able to take proceedings at reasonable intervals before a court

to challenge the lawfulness of his detention where the nature of the

deprivation of liberty under consideration would require it (Eur.

Court HR, Winterwerp v. the Netherlands judgment of 23 October 1979,

Series A no. 33). Such may be the case of a minor detained under

Article 5 para. 1(d) (Art. 5-1-d) of the Convention or of an accused

who was refused release on bail (Bouamar, loc. cit.; Bezicheri v. Italy

judgment of 25 October 1989, Series A no. 164).

159. The Commission notes at the outset that in the case of Lukanov

v. Bulgaria it did not deal with the issue under Article 5 para. 4

(Art. 5-4) of the Convention (raised under Article 6 (Art. 6) by the

applicant there), as the complaint concerned proceedings which fell

outside its competence ratione temporis (No. 21915/93, Dec. 12.1.1995,

D.R. 80, p. 108).

160. In the present case in September 1995 the Shoumen District Court

examined the first applicant's appeal in camera, without the

participation of any of the parties (see paras. 50 and 51). It appears

that in practice the court, after having received the appeal, requests

the file of the criminal case directly from the prosecutor and then

examines the case (see para. 52).

161. The Commission considers that there were factors which militated

in favour of the holding of a hearing with the participation of the

detainee. Thus, the first applicant was still a minor at the time and

the grounds relied upon by the prosecutors as justifying the detention

concerned, inter alia, his personality (see paras. 56, 57 and 61).

162. Furthermore, the Commission notes that according to the Supreme

Court's practice (Decision of 23 May 1995, see para. 77 in fine), and

as confirmed by the Government (see para. 154), the District Court did

not have power to examine whether the accusations against the first

applicant were supported by sufficient evidence. Although the

existence of such evidence was not disputed, the fact still remains

that the District Court did not have full power to review the

lawfulness of the first applicant's detention.

163. In these circumstances the Commission considers that the

proceedings of September 1995 before the Shoumen District Court did not

provide the fundamental guarantees appropriate in matters of

deprivation of liberty, as required by Article 5 para. 4 (Art. 5-4) of

the Convention.

164. The Commission further notes that in accordance with the practice

of the Supreme Court (see para. 77 in fine), a second judicial appeal

against detention becomes possible only when the case is sent for

trial, regardless of the length of the pre-trial detention or of the

existence of any special circumstances. In the first applicant's case

a second judicial appeal became possible nearly 14 months following the

decision of the Shoumen District Court of 19 September 1995 (see paras.

50, 52 and 62). Moreover, the Court's decision of 4 November 1996 on

the second appeal was again taken in camera, without the judge having

heard the first applicant. The first personal contact of the applicant

with an impartial judicial authority competent to review the lawfulness

of his detention appears to have been on 6 February 1997, about

19 months following his arrest (see para. 59 above).

165. In the particular circumstances of the case the Commission finds

that Article 5 para. 4 (Art. 5-4) of the Convention required that the

first applicant be afforded the possibility of a judicial review at

reasonable intervals of time, and that this was not complied with.

CONCLUSION

166. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

e) As regards the right of petition to the Commission under

Article 25 (Art. 25) of the Convention

167. The applicants complain that there has been a breach of the

respondent Government's obligation not to hinder their right of

petition to the Commission, within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention.

168. Article 25 (Art. 25) of the Convention, insofar as relevant,

provides as follows.

"1. The Commission may receive petitions ... from any

person ... claiming to be the victim of a violation ... of the

... Convention, provided that the High Contracting Party against

which the complaint has been lodged has declared that it

recognises the competence of the Commission to receive such

petitions. Those of the High Contracting Parties who have made

such a declaration undertake not to hinder in any way the

effective exercise of this right.

..."

169. The applicants submit that in 1995 they were often disturbed by

visits of uniformed or plain-clothes policemen. Some of these visits

may have been related to the investigation against the first applicant.

However, the policemen allegedly displayed a threatening behaviour.

Also, the third applicant was allegedly arrested and detained for

several hours on 8 March 1995 on invented grounds, the policemen having

only explained that he had participated in gambling. Furthermore, the

press published hostile materials about the applicants and their case

before the Commission.

170. The applicants further contend that after the first applicant's

arrest in July 1995 he was questioned about their application to the

Commission and that later they were asked by the police to withdraw

their application. They felt in an extremely vulnerable position

because their son was detained. They were led to believe that their

son would stay in detention until they withdrew their application.

171. The Government explain that following the publications in the

press which stated that the applicants had never submitted an

application to the Commission (see para. 66), it was necessary to

verify whether this was true. For this reason the applicants were

asked by the prosecution authorities to state whether they had brought

an application.

172. The Commission recalls that the obligation in Article 25 para. 1

(Art. 25-1) in fine not to interfere with the right of the individual

effectively to present and pursue his complaint with the Commission

confers upon an applicant a right of a procedural nature - which can

be asserted in Convention proceedings - distinguishable from the

substantive rights set out in Section I of the Convention or its

Protocols (Eur. Court HR, Cruz Varas and Others v. Sweden judgment of

20 March 1991, Series A no. 201, p. 36, para. 99).

173. The Commission further recalls that it is of the utmost

importance for the effective operation of the system of individual

petition instituted by Article 25 (Art. 25) of the Convention that

applicants or potential applicants are not subjected to any form of

pressure from the authorities to withdraw or modify their complaints

(Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996,

para. 105, to be published in Judgments and Decisions 1996; mutatis

mutandis Campbell v. the United Kingdom judgment of 25 March 1992,

Series A no. 233, p. 22, paras. 61-64)

174. An interference with the right of individual petition guaranteed

under Article 25 (Art. 25) of the Convention may arise, inter alia, as

a result of indirect pressure on applicants from State authorities. In

particular, approaches by domestic authorities to applicants to

question them about their applications in circumstances which may be

construed as attempts to discourage or penalise the pursuit of

complaints may lead to a finding that a Contracting State has failed

to comply with its obligations under Article 25 para. 1 (art. 25-1) of

the Convention. In this context, the Commission has had regard to the

difficult and vulnerable situation of applicants, who are making

complaints against officers of the State and the absence of their legal

representatives at official interviews (see Aydin v. Turkey,

No. 23178/94, Comm. Rep. 7.3.96, p. 41, para. 213, pending before the

Court).

175. As regards the allegation that the first applicant, when

questioned on 28 July 1995 following his arrest, was asked about the

application to the Commission, the Commission considers that it cannot

be established whether questions were put in this respect or whether

the first applicant raised the topic himself (see para. 70).

Furthermore, it should be noted that his lawyer was present (see

para. 44).

176. The Commission notes, however, that the second and the third

applicants were approached by the authorities and were asked to declare

whether they had submitted an application to the Commission. It

appears that this was done by representatives of the prosecution

authorities or of the police and, moreover, at a time when the first

applicant, their son, was detained on remand in Shoumen and was,

therefore, in the hands of the local prosecutors. In response to the

authorities' request the applicants signed before a notary public an

apparently false declaration denying that they had seised the

Commission (see paras. 67 - 69).

177. The Commission does not consider that in order to verify whether

the present application was genuine the authorities needed to ask the

applicants to declare so. The Government had at their disposal copies

of the applicants' letters to the Commission and of the application

form, which were signed by the applicants themselves. Furthermore, the

Government had received the applicants' declarations of means submitted

for purposes of their legal aid application to the Commission, where

their signatures were put before a notary public in March 1995 (see

para. 69). Moreover, in the particular circumstances, in the absence

of the applicants' legal representative, it was inappropriate for the

prosecution authorities and the police to be involved.

178. While it is true that the applicants did not eventually withdraw

their application, the Commission considers important the very fact

that following the request of the authorities the applicants found it

necessary to visit a notary public and to make an apparently false

declaration, stating that they had never seised the Commission.

Moreover, they submitted this declaration to the prosecution

authorities. The only plausible explanation of these facts is that the

declaration was intended to placate the prosecutors and that the

applicants felt under pressure because of their application to the

Commission.

CONCLUSION

179. The Commission concludes, unanimously, that Bulgaria did not

comply with its obligation under Article 25 (Art. 25) of the Convention

not to hinder in any way the free exercise of the applicants' right of

individual petition to the Commission.

F. Recapitulation

a) As regards the events of September 1992

180. The Commission concludes, by 16 votes to 1, that there has been

no violation of Article 3 (Art. 3) of the Convention (see above

para. 99).

181. The Commission concludes, unanimously, that there has been a

violation of Article 13 in conjunction with Article 3 (Art. 13+3) of

the Convention (see above para. 109).

182. The Commission concludes, unanimously, that there has been no

violation of Article 6 (Art. 6) of the Convention (see above

para. 120).

b) As regards the events since 1995

183. The Commission concludes, unanimously, that there has been no

violation of Article 5 para. 1 (Art. 5-1) of the Convention as regards

the alleged unlawfulness of the first applicant's detention (see above

para. 128).

184. The Commission concludes, unanimously, that there has been no

violation of Article 3 (Art. 3) of the Convention as regards the

conditions of the first applicant's detention (see above para. 129).

185. The Commission concludes, unanimously, that there has been a

violation of the first applicant's right under Article 5 para. 3

(Art. 5-3) of the Convention to be brought before a judge or other

officer authorised by law to exercise judicial power (see above

para. 143).

186. The Commission concludes, unanimously, that there has been a

violation of the first applicant's right under Article 5 para. 3

(Art. 5-3) of the Convention to "a trial within a reasonable time or

to a release pending trial" (see above para. 151).

187. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention (see above

para. 166).

188. The Commission concludes, unanimously, that Bulgaria did not

comply with its obligation under Article 25 (Art. 25) of the Convention

not to hinder in any way the free exercise of the applicants' right of

individual petition to the Commission (see above para. 179).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

With regret, I have been unable to join the conclusion of the

majority concerning Article 3.

At paragraphs 105 and 106 of the Report the Commission sets forth

a number of considerations, with which I agree, leading to the

conclusion that the investigation of the applicants' criminal

complaints of mistreatment by the police was so inadequate as to mean

that there was no effective remedy for the purpose of Article 13.

The complaint under Article 3 is that the first applicant had

been beaten by three policemen with a truncheon and with the handle of

a pistol. There was medical evidence of considerable bruising on the

arm, chest and head and of the infliction of blows " with a band-like

solid object". It was undisputed that this applicant's father had hit

him several times with a thin plywood strip. The three policemen

allege that the injuries were caused by the father's actions in their

presence, but there is no information as to why they failed to

intervene to prevent such injuries. The General Military Prosecution

Officer's decision of 21 May 1993 was to the effect that "even if blows

were administered on the body of the juvenile, they occurred as a

result of disobedience to police orders". This left open the

possibility that the injuries were the result of blows by truncheons

or pistol-handles.

The Report's statement at para. 94 that it does not appear

possible to establish which version is more credible is questionable,

in the light of the Convention procedures for fact-finding where a

complaint has been brought within the six months' time limit provided

by Article 26 (cf. Aydin v. Turkey, 23178/94, Comm. Rep. 13.4.96).

Its statement at para. 95 to the effect that the issue of the

absence of an adequately independent and timely investigation of the

applicants' complaints is more appropriately examined under Article 13

seems to leave open the possibility of there being a requirement under

Article 3 that there be an effective official investigation in

circumstances where significant injuries have been inflicted on a

juvenile by or in the presence of police officers.

In its Judgment in the case of McCann and others v. the United

Kingdom (Series A no. 324, para. 161), the Court stated that the

obligation to protect the right to life under Article 2, read in

conjunction with the State's general duty under Article 1 to "secure

to everyone within their jurisdiction the rights and freedoms defined

in [the] Convention" requires by implication that there should be some

form of effective official investigation when individuals have been

killed as a result of the use of force by, inter alios, agents of the

State.

Article 3, like Article 2, sets out one of the most fundamental

guaranties of the Convention. It contains no qualifying clause

(cf. Chahal v. United Kingdom, judgment of 15.11.96) and unlike most

other rights guaranteed by the Convention it cannot be derogated from

under Article 15 even in time of emergency. In my opinion, the

above-quoted principle in the McCann case is equally applicable to

circumstances where significant injury has been caused to an individual

at a time when he or she was in custody after apprehension by the

police. This principle is particularly important where the individual

is doubly vulnerable, by reason not only of age but of association with

a disadvantaged and probably unpopular minority within the community.

Having regard to the defects in the investigation set out at

paragraphs 105 and 106 of the Report, I have come to the conclusion

that the investigation cannot be regarded as meeting the test of

effectiveness set out in the McCann judgment within the context of

Article 2.

For these reasons, the leaving open of a procedural aspect to the

guarantee in Articles 3 and 14, and the limitation of the issue to

Article 13, does not appear to be an adequate answer to the serious

allegations in the present case. Accordingly, I have voted for a

finding of violation of Article 3.

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ASSENOV AND OTHERS v. BULGARIA

ASSENOV AND OTHERS v. BULGARIA