FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 43577/98 and 43579/98 (joined) by Anelia NACHOVA and Others against Bulgaria

The European Court of Human Rights ( First Section) , sitting on 28 February 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above applications introduced with the European Commission of Human Rights on 15 May 1998 and registered on 24 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the applications was transferred to the Court,

Having regard to the Fourth Section’s decision of 22 March 2001 to join the applications and to communicate them to the respondent Government under Rule 54 § 3 (b) of the Rules of Court,

Having regard to the Court’s decision of 1 November 2001 to change the composition of its Sections (Rule 25 § 1), the present case having been assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

The case concerns the killing on 19 July 1996 of Privates Angelov and Petkov by a member of the military police who attempted to arrest them following their escape from a military-detention facility.

All the applicants are Bulgarian nationals who qualify themselves as being of Romany origin.

Application no. 43577/98 was lodged by Ms Anelia Kunchova Nachova , who was born in 1995 and is the daughter of Private Angelov , and by her mother and Private Angelov’s partner, Ms Aksiniya Hristova , who was born in 1978. Both live in Dobrolevo (Bulgaria).

Application no. 43579/98 was lodged by Private Petkov’s parents, Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov , who were born in 1955 and 1954 respectively and live in Lom (Bulgaria).

The applicants are represented before the Court by Ms Neli Vidorova and Mr Yonko Grozev , lawyers practising in Sofia.

The respondent Government are represented by Mrs G. Samaras, Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Circumstances surrounding the death of Privates Angelov and Petkov

In 1996 privates Angelov and Petkov , both 21 years old, were performing conscription military service in the Civil Construction Forces, where they worked on construction sites.

Early in 1996 Angelov and Petkov were arrested for being absent without leave on more than one occasion. On 22 May 1996 Private Angelov was sentenced to nine months’ imprisonment and Private Petkov to five months’ imprisonment. Both of them had previous convictions for thefts.

On 15 July 1996 they escaped from a construction site outside the prison where they had been brought for work and went to the home of Private Angelov’s grandmother, Ms Tonkova , in the village of Lesura . None of the privates was armed.

Their absence was reported the following day and their names put on the list of persons wanted by the military police. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military-Police Unit.

According to witnesses, at around twelve noon on 19 July 1996 the officer on duty in the Vratsa Military-Police Unit received an anonymous telephone message that the privates were hiding in the village of Lesura . Four military policemen were immediately dispatched to locate and arrest them.

The commanding officer, Major G., issued instructions: the privates had to be located and all means and methods dictated by the circumstances were to be used to arrest them. The arresting officers were to be armed with handguns and automatic rifles and to wear bulletproof vests.

The officers immediately left for Lesura in a jeep marked “Military Police”. The two officers sitting in the front wore uniform while the others were in civilian clothes. Only Major G. wore a bulletproof vest. He was armed with a personal handgun and a 7.62 mm. calibre Kalashnikov automatic rifle bearing serial no. AE 353045. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation.

The officers were briefed orally by Major G. on their way to Lesura . Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side.

At around 1 p.m. the officers arrived in Lesura . They asked a secretary at the town hall and one of the villagers, Mr T. M., to show them Private Angelov’s grandmother’s house.

As the jeep drew up in front of the house they noticed two persons sitting in one of the rooms. Sergeant K., recognised Private Angelov , as he had previously arrested him for being absent without leave.

As soon as the jeep stopped in front of the house at between 1 p.m. and 1.30 p.m. at least some of the occupants of the jeep heard the sound of a window-pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the gate of the house, the former going to the right, west side of the house and the latter entering the house. Sergeant N. headed to the east side of the house. Sergeant S. remained with the car, together with the town-hall secretary and Mr T. M.

Sergeant N. testified that when he went to the east side of the house, he noticed the privates escaping through the window and running southwards towards the yard of a neighbour, Mr M. M. He had shouted: “Stop, military police” and pulled out his gun, but had not fired it. The privates had continued running. Sergeant N. had returned to the street before running around the house next door to reach the street opposite and intercept the privates. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I will shoot”. It was then that the shooting had started.

Major G. stated in his testimony:

“...I heard Sergeant N. shouting: ‘Freeze Police’...I saw the privates; they were running and then stopped in front of the fence between Ms Tonkova’s and the neighbour’s yards... I saw that they were trying to jump over the fence, so I shouted: ‘Freeze, or I will shoot’. I released the safety-catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle with my right hand facing upwards, almost perpendicular to the ground... The privates climbed over the fence and continued to run. I fired two or three times in the air and shouted: ‘Freeze’, but they continued running. I again opened automatic fire in the air and shouted: ‘Freeze, or I will shoot with live cartridges”, I warned them again, but they continued running without turning back. I fired automatically from right to left after the warning, aiming at the ground to stop them from running away. The ground [of the neighbouring yard] where [the privates were] was lower than at the point where they had crossed the first fence and by now they were jumping over the second fence between two other neighbouring yards and there was no other way to stop them. The gradient [either side of the second fence] is steeper, and [I] was standing on lower ground... That is why at first I fired to the side [of the privates]...that is why I shot at their feet in order not to inflict a deadly wound. The last time that I shot at the privates’ feet, I was 20 metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down...They were both lying on their stomachs, and both gave signs of life, one of them was crying and the other moaning ... then Sergeant S. appeared, I called him ... and gave him my automatic rifle...”

According to the statements of the three subordinate officers, the privates were lying on the ground next to the fence, with their legs pointing to the direction of the house from which they had come. One of them was lying on his back and the other on his stomach. Private Petkov was slightly closer to the fence than Private Angelov .

Sergeant S. stated that he had remained with the car and had heard Sergeant N. shouting from the east side of the house: “Freeze, police”. He had also heard Major G. shout several times: “Freeze, police”, from the west side of the house. Then Major G. had started shooting with his automatic weapon, while still continuing to shout.

Sergeant S. had entered Ms Tonkova’s yard and had gone towards Major G., whereas the secretary from the town hall and Mr T. M. had remained in the vehicle. He had seen Major G. leap over the fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen the privates lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Sergeant S. and Major G. had gone to get the jeep, while Sergeant K. had remained with the privates. Major G. had reported the event through the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded privates in the vehicle.

Sergeant K. testified that he had been at the house speaking to Mr Angelov’s grandmother and another woman. At that moment he had heard G. shouting at the privates to stop, but he had been unable to hear whether he had said anything else. He asked the women where Private Angelov had been. Since he had received no answer he had continued to search the house. In the room facing south overlooking the yard to the rear he had noticed that a window-pane had been broken. He had been about to leave the house when he had heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the privates had been wounded. Major G. had then entered the house alone. Sergeant K. had then climbed over the first fence and seen the privates, who were alive and moaning. He could not remember how, but had found himself holding the automatic rifle. He had placed it on the ground together with his holster next to the wounded men.

At that moment he had seen Sergeant N., who told him to pick the gun up from the ground. He had opened the magazine and seen that there were no cartridges in it. Only one cartridge remained in the barrel. He had put it in the magazine and had taken the gun with him. Sergeant N. had gone into the house to fetch some bed sheets. Then Major G. and Sergeant S. had appeared with the jeep. He had dispersed the crowd so that the two privates could be put in the car.

Sergeant K. and Sergeant S. accompanied the privates to Vratsa Hospital, while Major G. and Sergeant N. remained at the scene of the shooting. Some time later, on the latter’s suggestion they went to the town hall. At around 1.30 p.m., they informed the head of the Vratsa Military-Police Unit and the officers in charge at Police Departments in Krivodol and Vratsa about the incident.

Privates Petkov and Angelov died on their way to Vratsa and were pronounced dead on arrival at the hospital.

Private Angelov’s grandmother, Ms Tonkova , gave the following version of the events: Her grandson and Private Petkov were in her house when they had noticed a jeep approaching. She had gone outside and seen four men in black uniforms. They had all entered the yard, one of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She was in the yard, asking the man who was shooting to stop and to come inside the house. However, he had continued shooting and gone to the back of the house. Then she heard shooting in the backyard. She had followed him, but on arriving there had seen that her grandson and Private Petkov had been shot and were lying in the neighbours’ yard next to the fence overlooking the other side of the road.

A neighbour, Mr Z., who lived opposite Private Angelov’s grandmother, also gave evidence. At about 1.00 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova’s house. Then he heard somebody shouting: “Don’t run away, I am shooting with live cartridges”. Then he heard shooting. He looked in the neighbouring yard and saw Private Angelov , whom he recognised, and Private Petkov , whom he did not know, leap over the fence between Ms Tonkova’s and another neighbour’s yards. He could not see the man who was shouting as he was behind Ms Tonkova’s house. He could see all the other armed men, who were not shooting, and the jeep. Then he saw both of the Privates fall to the ground after being hit and saw the man who had shot them emerge, holding an automatic rifle. In his opinion Private Petkov was still alive, but Private Angelov died on the spot.

Immediately after the shooting, a number of people from the vicinity gathered around the bodies of the privates.

According to a neighbour, Mr M. M., all three policemen were shooting. Two of them had fired shots in the air. However, he had the impression that the one who went round the west side of the house (Major G.) was aiming at someone because his gun was not pointing skywards. He heard some fifteen to twenty shots, perhaps more. Then he saw the military policemen go to the neighbouring yard, where the privates were lying. The yard belonged to his daughter and, seeing his grandson waving, he asked Major G. to be allowed to go and collect him. Major G. had pointed his gun at him in a brutal manner and insulted him saying: “you damn Gypsies”. He had not witnessed the privates being shot or seen them afterwards.

Another neighbour, Mr K., and three other persons were shoeing a horse on the street opposite Ms Tonkova’s house when they heard shooting coming from her backyard. K. thought that some of the bullets had passed through the tops of the trees overlooking the street. He added that one of the neighbours was in the toilet in Mr M. M.’s yard at the time of the shooting.

2. The investigation into the deaths

On 19 July 1996 all the officers involved made separate reports in connection with the privates’ deaths to the Vratsa Military-Police Unit.

A criminal investigation into the deaths was opened the same day and between 4 p.m. and 4.30 p.m. the military investigator inspected the scene. In his report he described the scene, indicating the respective positions of Ms Tonkova’s house and yard and the neighbour’s yard and noting that the fence ran only along the west side of Ms Tonkova’s house. He further described the room from which the privates had escaped, and gave details concerning the cartridges that had been retrieved and the bloodstains found on the spot. A sketch map of the two yards showing the exact location of the cartridges and the bloodstains was appended to the report.

Eight spent cartridge were discovered during the inspection on the scene: one on the street a metre from the fence at the front of Ms Tonkova’s house, four in Ms Tonkova’s yard three metres from the fence separating her yard from the neighbour’s at the rear of the house, and the other three in the neighbour’s yard, there being a gap of a metre between the first and second of those three cartridges and of two metres between the second and third. The ninth cartridge was found subsequently and handed in to the military police by Mr Angelov’s uncle. There is no record of where it was found.

The bloodstains were a metre apart. One was found on the wood and the other on the ground. They were marked on the sketch map as being slightly more than nine metres from the fence between the adjoining yards. Samples of the bloodstains were taken by the investigator.

On 21 July 1996, a pathologist carried out an autopsy.

According to the autopsy report no. 139/96, the cause of Private Petkov’s death was “a wound in the chest”, the direction of the shot having been “from front to back”. The wound was described as follows:

“There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm. in the back, to the left of the infrascapular line at a distance of 123 cm. from the feet with missing tissues, jagged and torn edges turned outwards.”

As regards Private Angelov , the report found that the cause of death had been “a gunshot wound, which [had] injured a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated:

“There is a round wound on the left of the buttocks at a distance of 90 cm from the feet... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm... There is an oval wound of 2.1 cm. with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.”

The report concluded that the injuries had been caused by an automatic rifle fired from a distance. There was no reference to the times of the deaths.

On 22, 23 and 24 July 1996 Major G., Sergeants N., K. and S., neighbours Mr M. M., and K., the secretary from the town hall and Private Angelov’s uncle were questioned by the investigator. Private Petkov’s mother was also questioned subsequently.

On 1 August 1996 Major G.’s automatic rifle, one of the cartridges found in the magazine and the nine spent cartridges found on the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable.

On 20 September 1996 a forensic examination of the bloodstains found on the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the privates’ blood groups.

A report by a forensic expert dated 29 August 1996 found alcohol content of 0.55 per thousand in Private Petkov’s blood and 0.75 per thousand in Private Angelov’s blood (under Bulgarian law driving with alcohol content of more than 0.5 per thousand is an administrative offence).

On 20 January and on 13 February 1997 Mr T.M., Ms Hristova , Private Angelov’s partner (one of the applicants), and his brother were questioned. On 26 March 1997 Private Angelov’s grandmother and a neighbour, Z., were questioned.

On 11 February 1997 the privates’ families were given access to the investigation file, but the investigator refused their request to have the witnesses re-examined on the ground that, although the witnesses testimonies had not been signed by the investigator responsible, it was possible under the relevant law for them to be signed at a later stage of the proceedings.

On 31 March 1997 the investigator completed the preliminary investigation. In his report he accepted, inter alia , Major G.’s explanation that both privates were lying on their stomachs, despite the other officers’ evidence that one of the privates was lying on his stomach and the other on his back. They had both been shot from a distance. It was clear from the ballistic report that Major G. had been the only one to use his weapon.

The investigator noted that the privates had escaped from a military ‑ detention facility, where they had been serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He only fired at them when he saw that they were continuing to run away and might escape. He had not sought to injure any vital organs. Therefore, the investigator concluded that G. had acted in accordance with Regulation 45 of the Military-Police Regulations [see the relevant domestic law] and made a recommendation to the Pleven Regional Prosecution Office that the investigation should be closed as it had not been established that Major G. had committed an offence.

On 8 April 1997 the Pleven Military Prosecutor accepted the investigator’s recommendation and closed the preliminary investigation into the privates’ deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military-Police Regulations. He had warned the privates several times, fired shots in the air and fired at them only when they had not surrendered, as there was a danger that they might escape. He had sought to avoid inflicting deadly injury. No other citizens had been hurt.

The decree of the prosecutor mentioned that Privates Angelov and Petkov had been from an ethnic minority, a euphemism mostly used to designate someone belonging to the Gypsy minority.

By an order of 11 June 1997 the prosecutor of the Armed Forces Prosecutor’s Offices dismissed the applicants’ subsequent appeal on the ground that the privates had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations.

On 19 November 1997 the prosecutor from the Investigation Review Department in the Armed Forces Prosecutor’s Office dismissed a further appeal on grounds similar to those relied on in the decisions of the other public prosecutors.

B. Relevant domestic law

1. Article 28 of the Constitution

“Everyone shall have the right to life. Taking of human life shall be punishable as one of the most serious crimes.”

2. Code of Criminal Procedure

Article 192 provides that proceedings concerning publicly prosecuted crimes can only be initiated by a prosecutor or an investigator, upon a complaint or ex officio . According to Article 237 § 6, as worded until 1 January 2000, the victim had a right of appeal to a higher ranking prosecutor against a decision to terminate pending criminal proceedings. The victim had no other possibility to challenge a refusal to prosecute.

When military courts have jurisdiction to hear a case, as for example when it concerns military policemen, the responsibility for conducting the investigation and prosecuting lies with the military. Article 398, as worded at the material time, provided that an appeal lay to the Military Public Prosecutor against decisions of the military investigator.

Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case-file and take copies of relevant documents, to adduce evidence, to raise objections, to make applications and to appeal against the decisions of the courts and the investigating and prosecuting authorities.

3. Unpublished Regulations on the Military Police, issued by the Ministry of Defence on 21 December 1994

Section 45 provided as follows:

“(1) The military police officers can use firearms ... under the following circumstances:...

2. to arrest a person serving in the army who has committed or is about to commit a publicly prosecuted offence and who does not surrender after being warned ...

(2) The use of force shall be preceded by an oral warning and a shot in the air ...

(3) When using firearms military police officers are under an obligation, as far as possible, to protect the life of the person against whom they use force and to assist the wounded...

(5) Whenever firearms have been used, a report shall be prepared describing the circumstances which provoked the use of firearms, [the report] shall be transmitted to the superiors.”

4. Regulations of 6 December 2000 on the use of force by military police, as amended in 2001

According to sections 2, 4(1) and 21, force and firearms can only be used as a last resort, where the aims pursued cannot be achieved in another manner. The nature of the offence committed by the person against whom force and firearms are used and the person of the offender are factors to be taken into consideration. The regulations have been published in the State Gazette.

COMPLAINTS

1. The applicants complain of three separate violations of Article 2 of the Convention.

They submit that Bulgarian law and practice regulating the use of lethal force by the military police are incompatible with the requirement that such force be used only when absolutely necessary and thus violate the general obligation under Article 2 § 1 to protect life by law.

The applicants further complain under Article 2 § 2 of the Convention in respect of the killing of Privates Angelov and Petkov .

They also allege that the investigation into the deaths of Privates Angelov and Petkov was biased and ineffective.

2. The applicants submit that in breach of Article 13 of the Convention the authorities failed to carry out a thorough investigation and that Bulgarian law provides no effective remedy against the inaction of the prosecuting authorities.

3. The applicants also allege a violation of Article 14 taken together with Articles 2 and 13 of the Convention.

They submit that popular prejudice against Romanies in Bulgaria is widespread and has frequently manifested itself in acts of racially motivated violence against them, to which the authorities react by inadequate investigations that in practical terms amount to impunity. The applicants state that this phenomenon has been documented by human-rights monitoring organisations and has been acknowledged by the Bulgarian Government. They refer to the Fourteenth Periodic Report of States parties due in 1996 (Addendum-Republic of Bulgaria), of 26 June 1996, issued by the United Nations Committee on the Elimination of Racial Discrimination; to the Reports of 25 January and 24 December 1996 (E/CN.4/1996/4 and E/CN.4/1997/60) by Mr Bacre Waly Ndiaye , Special Rapporteur on Extrajudicial , Summary or Arbitrary Executions Commissioned by the United Nations Commission on Human Rights; to the Report of the European Committee for the Prevention of Torture of 6 March 1997; and to reports of non-governmental organisations.

In the instant case, the victims’ ethnic origin was known to the officers who tried to apprehend them. Two of the officers had on previous occasions arrested Private Angelov , and were certainly aware of his ethnic origin. Upon arriving in Lesura they took a person from that background to show them the Romany neighbourhood where Private Angelov’s grandmother lived. Moreover, the explanation for the fact that Major G. had fired an automatic rifle at random in a densely populated suburb was that he was in the Romany part of the village. His attitude towards the Romany community was expressed through the words he had used to one of the witnesses, Mr M.M. In the applicants’ view based on their personal experience with law enforcement and investigative authorities in Bulgaria, the victims’ ethnic origin was a decisive factor in their deaths.

THE LAW

The applications concern the killing by military police of Privates Angelov and Petkov on 19 July 1996. The applicants invoke Articles 2, 13 and 14 of the Convention.

The Court notes that the time-limit for the submission of the Government’s observations was twice extended upon their request and expired on 25 November 2001. However, the Government did not submit any observations within that time-limit.

The Court considers, in the light of the material in the case, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the applications admissible, without prejudicing the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President