AS TO THE ADMISSIBILITY OF

                      Application No. 24760/94

                      by Anton ASSENOV, Fidanka IVANOVA

                      and Stefan IVANOV

                      against Bulgaria

      The European Commission of Human Rights sitting in private on

27 June 1996, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 A.S. GÖZÜBÜYÜK

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 E. BIELIUNAS

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 6 September 1993

by Anton ASSENOV, Fidanka IVANOVA and Stefan IVANOV against Bulgaria

and registered on 3 August 1994 under file No. 24760/94;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on 16 May

      1995 and the observations in reply submitted by the applicants

      on 15 July 1995;

-     the applicants' additional complaints submitted on 31 August and

      14 September 1995;

-     the supplementary observations submitted by the Government on

      12 and 30 October 1995 and by the applicants on 10 November and

      3 January 1996;

-     the Commission's decision of 22 January 1996 to join the

      procedure concerning the additional complaints to the original

      application and to hold an oral hearing;

-     the parties' oral submissions at the hearing on 27 June 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicants are a family of Bulgarian nationals, residing in

the city of Shoumen, Bulgaria.  The first applicant is born in 1978.

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.

A.    Particular circumstances of the case

      The facts of the case as submitted by the parties may be

summarised as follows.

      Events of 19 September 1992 and the ensuing proceedings

      On 19 September 1992, while gambling at the bus station square

in the city of Shoumen, the first applicant was approached by a

policeman and brought into a room at the bus station.

      Subsequently the second and the third applicants, who were both

working at the bus station, entered the room where the first applicant

was detained and asked for his 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.

      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 uniformed men with a

truncheon and with the handle of a pistol, and that the second

applicant had been beaten by two uniformed men with a truncheon.  The

doctor examined the first applicant and his mother and issued medical

certificates.

      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 doctor concluded that the

bruises could have been inflicted through hitting with a truncheon and

the handle of a pistol.

      The certificate concerning the second applicant stated that she

had a bruise about 5 cm long on her left thigh, which could have

resulted from a hit with a truncheon.

      Shortly after the incident, the second applicant filed a

complaint with the District Directorate of Internal Affairs (Regionalna

directsia na vatreshnite raboti), 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.

      In reply to the second applicant's complaints, the District

Directorate of Internal Affairs on 13 November 1992 sent a letter,

stating that after an examination, it had been established that the

third applicant had beaten his son which had prompted the interference

of two police officers and that the conduct of the police officers had

been lawful.

      On 12 December 1992 the second and third applicants filed with

the Regional Military Prosecution (Okrazhna voenna prokuratura) a

request for the criminal prosecution of the alleged offenders. In the

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

adding that the third applicant, in an attempt to placate the policeman

and prevent the danger of further injuries to his son, had proposed to

punish the first applicant himself as a father and had lightly hit him

on the buttocks with a thin ply-wood strip. It was further stated that

the policeman had taken the third applicant to another room, that

shortly thereafter two other policemen had entered the room where the

first applicant had been held and had started beating him again with

truncheons and with their fists. The applicants stated that the second

applicant had entered the room again and had tried to stop the

policemen hitting her son, but had been hit with a truncheon on her

leg. The applicants further alleged that the first applicant had been

beaten again at the entrance of the police station by the two policemen

and also by the officer on duty, who had hit the first applicant with

the handle of the toy pistol which the boy had been carrying that day.

Finally the parents asserted that the first applicant had been held for

two hours in the police station handcuffed to a radiator. They enclosed

copies of the medical certificates of 21 September 1992, stating that

the type of injuries their son had suffered could not have been

inflicted by his father.

      On 24 March 1993 the Regional Military Prosecution refused to

institute criminal proceedings against the policemen concerned. The

decision stated inter alia that it had been established that officer

X. had caught the first applicant while engaged in unlawful gambling

and had brought him to nearby premises, then had telephoned the police

station, from where officers Y. and Z. had been sent, and that in the

meantime the third applicant had entered the room where his son had

been held and had started beating him, explaining to officer X. that

he would punish his son himself, and therefore the boy should be

released. The decision further read that when officers Y. and Z. had

entered the room they had ordered the third applicant to stop hitting

his son and leave the room, but instead he had started shouting and

pulling the boy, which amounted to disobedience to police orders and

had caused the arrest of the first applicant and his father. The

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

establish the use of physical violence by the policemen against the

boy. The decision did not discuss the medical certificates.

      Against this decision the applicants filed an appeal with the

General Military Prosecution (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.

      On 21 May 1993 the General Military Prosecution refused to open

criminal proceedings against the police officers on the same grounds

as the lower prosecution.  The decision stated inter alia:

      "V prepiskata e prilozheno meditsinsko udostoverenie, ot koeto

      e vidno, che varchu tialoto na nepalnoletnia A. sa nalitse

      kravonasiadania, socheshti na leka telesna povreda, a po

      mehanisam otgovariashti da sa polucheni ot udari s tvard

      lentoviden predmet.

      Zamestnik okrazhniat prokuror pravilno e pretsenil, che dori i

      da ima naneseni udari po tialoto na nepalnoletnia, sashtite sa

      v resultat na nepodchinenie na militsionersko vziskvane.

      Uprazhnenoto fizichesko nasilie i pomoshtni sredstva sa pri

      usloviata na chl. 24 al. 1 t. 1 i 2 ot deistvuvashtia Zakon za

      natsionalnata politsia."

      [Translation]

      "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."

      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, which found that physical force

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

Prosecution, 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.

      This appeal was apparently transferred to the General Military

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

lawyer stating that there were no grounds for annulment of the previous

decision.

      In examining the applicants' consecutive petitions, the various

levels of the prosecution authorities exchanged internal instructions

and information on the case.  Upon such an instruction two witnesses

of the incident were examined and gave written depositions. One of them

confirmed that handcuffs had been used by the police. In an undated

information note the investigator at the Regional Military Prosecution

stated that the evidence in the case was "contradictory".

      The first applicant's detention since July 1995

      In January 1995 the prosecution authorities in Shoumen opened

criminal proceedings on several 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.

      On 27 July 1995 the first applicant was arrested. On 28 July 1995

he was brought before an 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 apparently was not present when the first applicant

was charged and questioned.

      The charges against the first applicant concerned ten or more

thefts allegedly committed between 9 January and 2 May 1995 and four

or more robberies committed between 10 September 1994 and 24 July 1995,

the last robbery having been committed several days before the arrest.

In addition to the first applicant, two other persons were formally

charged and one of them was also arrested.

      On an unspecified date the first applicant's lawyer challenged

his detention on remand before the Shoumen District Court (Shoumenski

raionen sad), on the basis of Section 152(5) of the Code of Criminal

Procedure (Nakazatelno protsesualen kodeks), but on 19 September 1995

the court found that the detention was lawful.

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

prosecution authorities several requests for the first applicant's

release. 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 insisted on being released.

      The requests for release also raised issues concerning the first

applicant's health.  Thus, the requests of 17 August and 12 September

1995 stated that the first applicant had a cyst on his chin and that

he suffered from a valvular defect as 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.

      In response to this request, on 15 September 1995 the District

Prosecutor (Raionen prokuror) in Shoumen ordered the first applicant's

examination by a cardiologist. The examination on 20 September 1995 did

not confirm the alleged ailment of the first applicant.

      On 13 October 1995 the District Prosecutor dismissed two requests

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

the charges against him concerned serious crimes. Also, his criminal

activity had continued after the institution of the criminal

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

was a danger that the first applicant would commit crimes if released.

As regards his alleged health problems, they were not confirmed by the

regular medical examinations. On 19 October 1995 the refusal to release

the first applicant was confirmed by the Regional Prosecutor (Okrazhen

prokuror).

      The applicants then complained to the Chief General Prosecutor's

Office. They stated inter alia that there had been a "campaign" against

them because of their application to the Commission. On 8 December 1995

the Chief General Prosecutor's Office refused to release the first

applicant. The decision discussed in detail all arguments of the

applicants and stated inter alia: " ... the medical expert, a

cardiologist from the Regional Hospital of Shoumen, has concluded after

an examination that [the first applicant] does not suffer from any

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

counter-indications for him to stay in detention, as far as his cardio-

vascular status is concerned." The decision also stated that the

investigation against the first applicant had been completed in general

lines in September 1995.  Nevertheless, his detention was still

necessary as there was a clear danger of his committing a crime.

      The prosecutor's decision 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 months later, on 25 March 1996.

      On 22 March 1996 the preliminary investigation was completed. The

investigator found that on 10 September 1994 the first applicant had

seen in the street a woman wearing a golden necklace. He walked towards

her and, when passing by, caught her left arm, tore the necklace and

ran away. On 2 May, 18 July and 22 July 1995 the first applicant had

committed similar crimes, again stealing necklaces from strangers in

the street. The total value of the stolen property was about 20,000

leva. The investigator concluded that the first applicant had committed

four robberies which constituted a continued crime under Section 198

para. 1 of the Penal Code (Nakazatelen kodeks).

      The case was then sent to the prosecution authorities for the

preparation of an indictment.

      Other events in 1995

      On 8 March 1995 the third applicant (the first applicant's

father) and several other persons who were standing around a public

telephone at the market square in Shoumen, were approached by three

policemen, handcuffed and taken to the police station as they had

allegedly participated in unlawful gambling. At the police station the

third applicant was ordered to show the contents of his pockets and was

allegedly hit in his face by a policeman. He was released after seven

or eight hours.

      During an unspecified period of time in 1995 the family of the

applicants was allegedly often disturbed by telephone calls from people

who claimed that the first applicant had stolen certain belongings from

them and insisted on receiving them back.  Some of these persons

allegedly explained that they had obtained the telephone number from

the police.

      The applicants' home was allegedly visited on a number of

occasions and without any reason by uniformed or plain-clothes

policemen, who displayed a threatening behaviour.

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

published articles about the present case. The articles, whose titles

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

explained in brief the events of September 1992 and informed the

readers that the applicants, when interviewed by journalists, had

denied having made an application to the Commission. The applicants

recalled having signed a form which they thought was for social

payments. In two of the articles the journalists concluded that perhaps

some gipsy activists had pushed the case and had misled Amnesty

International.

B.    Relevant domestic law and practice

1.    In relation to the events of 19 September 1992

      The Code of Criminal Procedure (Nakazatelno protsesualen kodeks)

      Section 190

      "Dostatachno danni za obrazuvane na predvaritelno proizvodstvo

      sa nalitse kogato mozhe da se napravi osnovatelno predpolozhenie

      che e izvarsheno prestaplenie."

      [Translation]

      "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."

      Section 194(3)

      Under this provision when a prosecutor has refused to institute

      criminal proceedings, such proceedings can be instituted by a

      higher prosecutor upon the petition of the interested person or

      ex officio.

      Section 237(6)

      Under this provision the accused or the victim of a crime can

      appeal, within a time limit of seven days, against a decision of

      a prosecutor to terminate penal proceedings.

      The Law on State Responsibility for Damages (Zakon za

      otgovornostta na darzhavata za vredi prichineni na grazhdani)

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

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

State organ, whose officers are responsible for the damages.

      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 damages. Under

Section 49, when the damages are 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.

      The Code of Civil Procedure (Grazhdansko-protsesualen kodeks)

      Section 2

      "Sadilishtata sa dlazhni da razgledat i razreshat vsiaka podadena

      do tiah molba za zashtita i sadeistvie na lichni i imushtestveni

      prava."

      [Translation]

      "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

      "Kogato sashtestvuva opasnost, che niakoe dokazatelstvo shte se

      izgubi ili negovoto sabirane shte se zatrudni, stranata mozhe da

      iska da se sabere tova dokazatelstvo predvaritelno."

      [Translation]

      "If there exists a danger that certain evidence might be lost or

      its collection might become difficult, a party [to the

      proceedings] can request the collection of this evidence in

      advance."

      Section 182

      "Sadat spira proizvodstvoto:

      ...

      *) kogato pri razglezhdaneto na edno grazhdansko delo se razkriat

      prestapni obstoiatelstva, ot ustanoviavaneto na koito zavisi

      izhodat na grazhdanskia spor."

      [Translation]

      "The court shall suspend the proceedings:

      ...

      d) whenever criminal circumstances, the determination of which

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

      in the course of the civil proceedings."

      Section 183

      "Proizvodstvoto se vazobnoviava sluzhebno ili po iskane na edna

      ot stranite sled kato badat otstraneni prechkite za dvizhenieto

      mu..."

      [Translation]

      "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

      Vliazlata v sila prisada na nakazatelnia sad e zadalzhotelna za

      grazhdanskia sad, koito razglezhda grazhdanskite posleditsi ot

      deianieto otnosno tova dali e izvarsheno deianieto, negovata

      protivopravnost i vinovnostta na deetsa."

      [Translation]

      "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 conse-

      quences of the criminal act."

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

chambers (* 12-66-****, **. 38), in so far as relevant, reads as

follows:

      "Postanovlenieto na prokuraturata, s koeto e prekrateno

      nakazatelnoto presledvane poradi tova, che obviniaemiat e scheten

      za nevinoven da e izvarshil prestapnoto deianie, ne e

      zadalzhitelno za grazhdanskia sad, koito se proiznasia po

      grazhdanskite posleditsi ot tova deianie... Grazhdanskiat sad ...

      s ogled na dokazatelstvata po grazhdanskia protses mozhe da

      prieme druga facticheska obstanovka, napr., che nepozvolenoto

      uvrezhdane e resultat na povedenieto imenno na sashtoto litse,

      nakazatelnoto presledvane sreshtu koeto e bilo prekrateno.

      Ako v grazhdanskia protses sled sabirane na dokazatelstvata se

      razkriat novi prestapni obstoiatelstva, ot ustanoviavaneto na

      koito zavisi izhodat na grazhdanskia spor, sadat e dlazhen da

      spre proizvodstvoto po deloto saglasno chl. 182 b. "d" GPK."

      [Translation]

      "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

      is examining the civil consequences of this act...  [T]he civil

      court, based on the 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."

2.    Provisions in relation to the events since 1995

      The Penal Code (Nakazatelen kodeks)

      Section 198 para. 1

      This provision, applied in conjunction with Section 63 which

      concerns persons under 18 years of age, provides that the

      punishment for robbery, which is defined as stealing with the use

      of force or threats, is up to three years' imprisonment.

      The Code of Criminal Procedure (Nakazatelno-protsesualen kodeks)

      Section 152 para. 5

      "... (5)  Na zadarzhania se osiguriava nezabavno vazmozhnost da

      obzhalva miarkata za neotklonenie pred saotvetnia sad. Sadat se

      proiznasia v tridneven srok ot podavaneto na zhalbata s

      opredelenie, koeto e okonchatelno."

      [Translation]

      "... (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."

      Section 222

      According to this provision 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.

      Sections 43, 176 - 178, 208, 219 - 220 and 235 - 237

      These provisions concern the competence of the prosecutor in

      penal proceed- ings. 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.

      An investigator disagreeing with the instructions of the

      prosecutor can submit objections to the higher prosecutor, whose

      decision is final and obligatory 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 decide

      whether 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.

COMPLAINTS

1.    The applicants allege that three policemen employed excessive and

unnecessary physical force against the first applicant, who was a 14

year old boy, that they unnecessarily detained him, that they

intentionally administered blows with truncheons on his body, that they

kept the boy for two hours on his feet, handcuffed to a radiator in a

locked room at the police station, and that the policemen repeatedly

offended the boy in public and while detained by referring to his gipsy

ethnic origin.

      The applicants submit that this treatment went beyond the minimum

level of severity of inhuman and degrading treatment within the meaning

of Article 3 of the Convention. They state that this was so not only

in view of the treatment itself, but also because of the particular

circumstances such as the alleged victim's age, weight and height, his

unstable state of health caused by heart problems, and his position of

inferiority and vulnerability.

2.    The applicants raise various complaints under Article 6 para. 1

of the Convention. Thus they had no access to an independent and

impartial tribunal in the determination of the question whether a

criminal act had been committed by the police officers. Moreover, in

the determination of this issue they were not allowed to take part in

the proceedings before the prosecutor or to adduce evidence.

      The applicants further complain that they had no access to court

in respect of their civil right to compensation. No determination of

this right was possible as an action for damages for conduct, which

constitutes a criminal offence, would not be examined by the courts in

cases where the prosecution refused to prosecute the perpetrators.

Moreover, the civil proceedings would have had to be suspended

immediately after their institution and the matter be referred to the

prosecution again.

3.    Under Article 13 of the Convention the applicants complain that

they had no effective remedy for the alleged violation of Article 3,

since under Bulgarian law the legal remedy available in such cases was

a request for the institution of criminal proceedings, which was dealt

with arbitrarily by the authorities. A civil action for damages was not

an effective remedy.

4.    The applicants complain that the alleged insults about the first

applicant's gipsy ethnic origin indicate racial discrimination contrary

to Article 14 in conjunction with Article 3 of the Convention. They

further claim that the prosecution handled their complaints arbitrarily

due to racial prejudice and this amounted to a violation of Article 14

in conjunction with Article 13 of the Convention.

5.    The applicants complain under Article 5 of the Convention that

the first applicant's continuing detention was unnecessary and

dangerous for his health; and that it has been unreasonably long and

extended beyond the time limits provided for under Bulgarian law. Also,

"contrary to the guarantees of Article 5 of the Convention the [first]

applicant was never brought in person before the prosecutor or the

judge acting in their capacity of judicial bodies authorised to assess

the lawfulness of the detention".  Thus, the prosecutor who refused the

first applicant's request for release on 8 December 1995 decided in

camera, without the participation of any representative of the

applicants.

      Furthermore, although the first applicant's detention had legal

grounds, it has become unnecessary and was used as a tool of pressure

against the applicants because of their application to the Commission.

Also, contrary to what was stated by the prosecution authorities in

their decisions of 13 October 1995 and 8 December 1995, the first

applicant was never seen by a doctor. Moreover, at least until 3

January 1996 he was not transferred to the specialised juvenile

penitentiary.

6.    The applicants also submit that there has been a violation of the

respondent Government's obligation under Article 25 of the Convention

not to hinder the exercise of the right to individual petition. Thus,

the events complained of which occurred in 1995 amounted to a campaign

of pressure and threats against the applicants. Moreover, the

applicants were even expressly asked orally, by a representative of the

police, to withdraw their application to the Commission.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 6 September 1993 and registered

on 3 August 1994.

      On 22 February 1995 the Commission decided to communicate the

application to the respondent Government.

      The Government's written observations were submitted on 16 May

1995. The applicants replied on 15 July 1995. On 4 July 1995 the

Commission granted the applicants legal aid.

      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.

      On 22 January 1996 the Commission decided to examine the

applicants' additional complaints together with the initial application

and to hold a hearing on the admissibility and the merits of the

application.

      The hearing took place on 27 June 1996.  The Government were

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

THE LAW

1.    The applicants complain, invoking Articles 3, 6, 13 and 14

(Art. 3, 6, 13, 14) of the Convention, that on 19 September 1992 the

first applicant was ill-treated by the police, that the prosecution

authorities refused arbitrarily the ensuing complaints against the

police officers and that a civil action for damages would not be an

effective remedy. They also complain that the first applicant's

continuing detention since 27 July 1995 involved breaches of Article

5 (Art. 5) of the Convention and that the applicants were put under

pressure to withdraw their application to the Commission.

      The Government raise a preliminary objection that the application

was an abuse of the right of petition. Thus, the allegations about

discrimination based on the boy's ethnic origin were raised for the

first time before the Commission and were only after that put before

the Chief Public Prosecutor. Also, the application repeatedly refers

to the first applicant's alleged congenital cardiac disorder but the

results of the medical examinations, conducted by a cardiologist, have

shown that he never suffered from such disease.

      The applicants reply that all complaints were made in substance

before the domestic authorities and that they have not relied on untrue

facts.

      The Commission considers that the Government's objection could

only be accepted if it were clear that the application was based on

untrue facts in a deliberate attempt to mislead the Commission.

However, this is far from clear at this stage of the proceedings.

Noting in this respect the applicants' statement, in their letter to

the Commission of 3 January 1996, that the first applicant was not

examined by a doctor while in detention, the Commission also observes

that the Government presented the results of his examinations which did

not confirm the boy's alleged cardiac disorder.  However, the

Commission need not establish whether the applicants' contentions in

this respect were untrue as the application is not "based" on them. The

Commission, therefore, considers that the application cannot be

rejected as constituting an abuse of the right of petition within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention

(No. 8317/78, Dec. 15.5.80, D.R. 20 p. 44; No. 21987/93, Dec. 19.10.94,

D.R. 79 p. 60).

2.    The applicants' complaints relating to the events of September

1992 concern the first applicant's 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.

      The Government contend that the applicants have not exhausted all

domestic remedies as required under Article 26 (Art. 26) of the

Convention. The Government maintain in particular that the appeal to

the Chief General Public Prosecutor against the refusal of the public

prosecutors to institute criminal proceedings against the police

officers concerned was submitted out of time. This was so because under

Section 237(6) of the Code of Criminal Procedure there was a seven

days' time limit to appeal before a higher prosecutor against a

decision of a lower prosecutor, whereas in the present case the

decision of May 1993 was challenged on 20 June 1994.

      The Government also state that the applicants could have brought

a civil action for damages under the Law on Obligations and Contracts

or under the Law on State Responsibility for Damages, but failed to use

this remedy. There are no obstacles for the civil courts to examine

such an action in cases where a prosecutor has refused to institute

criminal proceedings. The civil courts are bound only by a judgment of

a penal court, but not by a decision of a prosecutor. The Government

also submit that under Article 26 (Art. 26) of the Convention the civil

action for damages is a remedy to be exhausted in cases of alleged

police ill-treatment.

      The Government further maintain that the allegations relating to

the alleged police brutality are manifestly ill-founded. The short

arrest of the first applicant was necessary because the police had to

confiscate the proceeds of the unlawful gambling, which he had refused

to surrender. 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. 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 his short arrest. Also, the public

prosecutors, who are independent from the executive branch in Bulgaria,

examined carefully the applicants' complaints and established that the

bruises on the first applicant's body had been caused by his father and

not by the police. Thus, the father had admitted hitting his son,

albeit allegedly only once and slightly. 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 wood, used by the

father. Furthermore, the allegations of discrimination on the basis of

the applicants' ethnic origin are totally unfounded.

      As regards the exhaustion of domestic remedies the applicants

reply that Section 237(6) of the Code of Criminal Procedure concerns

appeals against decisions of the prosecutor to terminate criminal

proceedings. In the present case criminal proceedings were never

instituted. The applicable provision for appeals against refusals to

institute criminal proceedings is Section 194 and it contains no time

limits and no limit to the number of appeals. This is understandable,

as only the general prescription as regards the prosecution of a

criminal offence could bar a prosecutor from examining complaints for

alleged crimes.

      The applicants also contend that Article 26 (Art. 26) of the

Convention, interpreted with the necessary degree of flexibility and

applied in a manner to ensure the effective protection of human rights,

does not require them to submit a civil action for damages after having

sought the prosecution of the police officers concerned.

      Moreover, a civil claim for damages could not produce an

effective and timely result. In the present case the refusal to open

criminal proceedings was based on the finding that the policemen had

not beaten the first applicant. The civil court could not override this

finding, as by doing so the court would in fact hold that a crime had

been committed, which it was not competent to do. Even if the civil

court decided that it was competent to hold that the police had beaten

the boy, it would be obliged by law, before doing so, to suspend the

proceedings and again send the case to the prosecution authorities. It

is true that in a decision of December 1995, a district court in

Bulgaria awarded damages to a victim of police brutality despite the

refusal of the prosecution authorities to open criminal proceedings

(resh. ot 15.12.95 na Pazardjishkia raionen sad po gr.d. 69/94).

However, in that case the victim could not identify the responsible

police officers.

      The applicants further maintain that the first applicant never

resisted police orders and did not deny his participation in gambling.

Therefore his arrest, and especially the use of handcuffs and

truncheons, were unnecessary and disproportionate measures.

Furthermore, the police have beaten the boy because: the version of the

police was not logical as it would imply that the father was severely

beating his son in the presence of three policemen and that they did

not intervene; 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. Also, the medical certificate was issued on the first

working day following the incident, which happened on a Saturday.

      The applicants further submit that their complaints to all levels

of the prosecution hierarchy were refused arbitrarily. The prosecution

authorities took their decision on the basis of the written depositions

of the applicants and of the implicated police officers, given before

the director of the local police. Only two witnesses were examined, but

after nearly a year following the incident. Moreover, the decision of

the General Military Prosecution of 21 May 1993 implied that the

applicants' version of the facts had been found plausible because it

stated that "even if blows [had been] administered on the body of the

juvenile, they [had] occurred as a result of disobedience to police

orders". Also, in a note written by an investigator in the case it was

stated that "the evidence [had been] contradictory". Nevertheless, the

authorities concluded that there had been "lack of 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 alleged racial discrimination on the basis of the

applicants' ethnic origin the applicants maintain that the police did

use offensive language. They also refer to the findings of Amnesty

International in its last report on Bulgaria.

      The Commission recalls that under Article 26 (Art. 26) of the

Convention it "may only deal with a matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law" and that this rule dispenses States from answering

before an international body for their acts before they have had an

opportunity to put matters right through their own legal system (Eur.

Court HR, De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series

A no. 12, para. 50).

      The Commission further recalls that Article 26 (Art. 26) must be

applied in a manner corresponding to the reality of the applicant's

situation in order to guarantee him effective protection of his rights

and freedoms set forth in the Convention (see, mutatis mutandis, Eur.

Court H.R., Airey v. Ireland judgment of 9 October 1979, Series A

no. 32, p. 12, para. 23; No. 19092/91, Dec. 11.10.93, D.R. 75 pp. 207,

215).

      Based on these principles the Commission has found that in

certain circumstances a civil action for damages is a remedy to be

exhausted in respect of a complaint of ill-treatment contrary to

Article 3 (Art. 3) of the Convention and that the lodging of a criminal

complaint constitutes also an adequate remedy for the purposes of

Article 26 (Art. 26) of the Convention. On the other hand, compensation

could not be deemed to have rectified a violation in a situation where

the State had not taken reasonable measures to comply with its

obligations under Article 3 (Art. 3). Also, where there is a choice of

remedies Article 26 (Art. 26) must be applied to reflect the practical

realities of the applicant's position. The applicant must make "normal"

use of those remedies which are apparently effective and sufficient

(Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4 p. 4; No. 8462/79, X. v. the

United Kingdom, Dec. 8.7.80, D.R. 20 p. 184; Nos. 14116/88 and

14117/88, Dec. 11.5.89, D.R. 61 p. 250; No. 17128/90, Dec. 10.7.90,

D.R. 71 p. 275).

      The Commission notes that in the present case the applicants

complained of the alleged ill-treatment to the District Directorate of

Internal Affairs and to all levels of the prosecution authorities.

Under Section 194(3) of the Code of Criminal Procedure there were no

specific time limits applicable to such complaints and they were in

fact examined on the merits. It follows that the applicants made full

use of the possibility to seek the institution of criminal proceedings

against the police officers, thus putting their complaints in the hands

of the authorities which were competent to pursue the matter.

      The Commission further finds that in this situation the

applicants, after having submitted criminal complaints to all levels

of the prosecution authorities, were not required to embark on another

attempt to obtain redress by bringing a civil action for damages. The

present case has to be distinguished from situations where the

authorities, in the course of proceedings opened for this purpose, have

carefully examined the allegations of ill-treatment. Also, the

Commission finds that the applicants raised before the domestic

authorities the substance of all their complaints.

      This part of the application cannot, therefore, be declared

inadmissible for non-exhaustion of domestic remedies within the meaning

of Article 26 (Art. 26) of the Convention.

      Having examined the applicants' above complaints as a whole, the

Commission finds that they raise serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. This part of the application cannot,

therefore, be regarded as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds

for declaring it inadmissible have been established.

3.    As regards the complaints concerning the events in 1995 and 1996

the applicants complain that the first applicant's continuing detention

since 27 July 1995 involved breaches of Article 5 (Art. 5) of the

Convention and that the applicants were put under pressure to withdraw

their application to the Commission.

      The Government first submit that the requirements of Article 26

(Art. 26) of the Convention are not complied with because the penal

proceedings against the first applicant are still pending. The

Government also maintain that the first applicant was arrested on

genuine charges of theft and robbery, which were investigated in the

course of the proceedings against him. These investigations revealed

that the first applicant had committed numerous thefts and robberies.

He had never had an employment, his persistent criminal activities

having become a main source of income.

      The Government further submit that the lawfulness of the first

applicant's detention was reviewed by a court and also by several

levels of the prosecution authorities, which meets the requirements of

Article 5 (Art. 5) of the Convention. The length of the first

applicant's detention is in conformity with paragraph 3 of this

provision and with Bulgarian law. Thus, the preliminary investigation

against him was completed in March 1996 and the case has been sent for

trial. Also, all allegations about pressure on the applicants to

withdraw their application were untrue.

      The applicants reply that the first applicant has committed very

few and minor thefts, to which he confessed. Nevertheless he has been

detained on remand for 11 months in appalling conditions, which was

unnecessary and could be explained only as a reaction to the fact that

the applicants complained to the Commission.

      The applicants maintain that the prosecutors who examined their

petitions for the release of the first applicant were not independent

because the prosecution authorities under Bulgarian law actively

participate in the preliminary investigation against the accused. Also,

the court which reviewed the lawfulness of the first applicant's

detention examined the case in camera, without the participation of the

detained or his lawyer.

      The Commission first notes that the applicants' complaints

concern the conformity of the first applicant's detention with the

requirements of Article 5 (Art. 5) of the Convention and that the

remedies directed against the alleged violations, requests for release

to the prosecution authorities and an appeal before the District Court

under Section 152(5) of the Code of Criminal Procedure, have been

employed by the applicants. The very fact that the penal proceedings

against the first applicant are still pending does not concern in any

way the complaints under Article 5 (Art. 5) of the Convention.

Therefore, the Government's objection under Article 26 (Art. 26) of the

Convention must fail.

      Furthermore, having examined the complaints related to the events

since July 1995, the Commission finds that they raise serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This part of the

application cannot, therefore, be regarded as manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,

and no other grounds for declaring it inadmissible have been

established.

      Also, since it has been claimed that the applicants were put

under pressure to withdraw their application, the Commission considers

that in the ensuing proceedings it has the task to examine further the

allegations made in this respect.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case;

      DECIDES to continue the examination of the applicants'

      allegations of an interference with their right of petition

      to the Commission.

Secretary to the Commission       President of the Commission

      (H.C. KRÜGER)                      (S. TRECHSEL)