FOURTH SECTION

DECISION

Application no . 25776/05 Mariyka Todorova and Georgi Rusev DIMITROVI against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 17 December 2013 as a Chamber composed of:

Ineta Ziemele, President , Päivi Hirvelä, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Krzysztof Wojtyczek, Faris Vehabović, judges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 July 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Ms Mariyka Todorova Dimitrova and Mr Georgi Rusev Dimitrov, are Bulgarian nationals who were both born in 1957 and live in Plovdiv. They were represented before the Court by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv.

2 . The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.

A. The circumstances of the case

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

1. The detention and death of the applicants ’ son

4. On 5 December 2004 the applicants ’ son, Mr Mariyan Georgie v Dimitrov, at that time twenty- two years old, was arrested by two police officers who found five packets of heroin in his car. The same day he was charged with unlawful possession of narcotic drugs, and on 9 December 2004 was placed in pre-trial detention by decision of the Plovdiv Regional Court.

5. Upon his arrival at the detention facility on 6 December 2004, Mr Dimitrov was screened by the resident paramedic. No medical complaints were recorded, but Mr Dimitrov informed the paramedic that for the past six months he had been smoking heroin cigarettes and sniffing heroin. The physical examination revealed injection marks on his arms.

6. According to the findings made in the ensuing criminal and civil proceedings, o n 13 December 2004 Mr Dimitrov ’ s state of health started to worsen. He developed a strong headache and frequent diarrhoeal defecation. He was examined by the resident paramedic who found that he had fever and a sore throat. She gave him dotur (an antibiotic), paracetamol and aspirin.

7. The next day, 14 December 2004, the resident paramedic examined Mr Dimitrov again and noted that he continued to have fever, diarrhoea and a headache. It seems that later, during the evening, Mr Dimitrov started to act inadequately and talk incoherently, and lost control of his bowels.

8. O n 15 December 2004 the resident paramedic, finding that the course of treatment that she had given Mr Dimitrov did not bear results, called the detention facility ’ s medical doctor to examine Mr Dimitrov. Having examined him, the medical doctor came to the conclusion that Mr Dimitrov had an acute pyelonephritis and should be hospitalised. He therefore called an ambulance. A paramedic who came with the ambulance expressed the concern , with which the medical doctor agreed, that Mr Dimitrov might have acute meningitis , and recommended that he be urgently transferred to the infectious diseases clinic of the university hospital in Plovdiv. Mr Dimitrov was then transported to that hospital and seen by the on-duty infectologist , Dr P.V., who was informed of the supposition that he might have acute meningitis. Having physically examined Mr Dimitrov without running any tests, Dr P.V. ruled out th at hypothesis, and , finding an abscess in Mr Dimitrov ’ s right inguinal area, sent him for examination by a surgeon. The surgeon made an incision of the abscess, disinfected it and put in a drainage tube. After that Mr Dimitrov was taken back to the detention facility.

9. As on 16 December 2004 Mr Dimitrov continued to act inadequately and was still unable to control his bowels, the resident paramedic , noting that the hypothesis of acute meningitis had been ruled out by the infectologist, surmised that he might be suffering from heroin abstinence and decided to send him to a psychiatric outpatient centre. There , at about 5 p.m., he was examined by three psychiatrists. They found that Mr Dimitrov did not have fever and his pupils did not display signs of meningeal irritations, but that at the same time he was close to delirium. In the absence of visible physical causes for his mental state, they accepted that it was a case of prison psychosis. They recommended that Mr Dimitrov be seen again by a surgeon and an infectologist, with a view to his admission to a psychiatric hospital to establish the cause of his disturbed state. After that Mr Dimitrov was taken back to the detention facility.

10. The next day, 17 December 2004, the resident paramedic informed the head of the detention facility that Mr Dimitrov ’ s state of health was not improving. At 9 a.m. the head of the facility called on the investigator in charge of the criminal case against Mr Dimitrov to inform her of that. The investigator asked the three psychiatri sts who had seen Mr Dimitrov the previous day to say whether he suffered from a mental disorder , whether such disorder called for him to be released and treated in a psychiatric hospital, or whether it could be adequately treated in the detention facility. In their report, filed at about 4 p.m. the same day, the experts stated that Mr Dimitrov was in a reactive psychotic state, which required treatment in a psychiatric hospital. It could not be effectively treated inside the detention facility. His admission to the hospital had to be preceded by a consultation and an elucidation of his somatic state.

11. When leaving work in the evening of 17 December 2004, the detention facility ’ s resident paramedic alerted the guards on duty to Mr Dimitrov ’ s fragile state and instructed them to check whether he took his medicines and, in case of emergency, to call for medical help.

12. At about 9.45 a.m. on 18 December 2004 a guard saw through the cell door that Mr Dimitrov shuddered and stopped breathing. He and another guard opened the door and, together with Mr Dimitrov ’ s cellmate, tried to resuscitate him, in vain. An emergency medical team was called in. When they came about twenty minutes later, they noted that Mr Dimitrov had died.

2. The criminal proceedings

(a) The investigation carried out by the military prosecuting authorities

13 . The same day, 18 December 2004, the Plovdiv Regional Military Prosecutor ’ s Office opened an investigation into Mr Dimitrov ’ s death. The stated purpose of the investigation was to determine whether a member of the staff of the detention facility had caused the death wilfully .

14 . At 11.40 a.m. an investigator and a forensic doctor inspected the death scene.

15 . At 8 a.m. the next day, 19 December 2004, three forensic doctors carried out an autopsy on Mr Dimitrov ’ s body. Later they carried out chemical, microbiological and histological analyses on samples taken from it. In their report, filed on 20 January 2005, they found that Mr Dimitrov had had a suppurative infection of the pia matter, with inflammatory changes inside the brain (suppurative meningoencephalitis), pus in the ventricles, haemorrhages in the walls of the ventricles, brain oedema, lung oedema and inflammation, dystrophic changes in the parenchymal organs, stagnant blood in the internal organs, moderate enlargement of the internal organs, an abscess deep in the soft tissue of the upper frontal part of the right thigh, injection marks on the skin, and a fibrosis and a full blockage of the subcutaneous veins of both arms. They did not find any traumatic injuries. They concluded that the death had been due to the paralysis of vital brain centres caused by a steep increase in the intracranial pressure resulting from the severe suppurative inflammation of the brain. Another factor had been the filling of the ventricles with pus. The brain inflammation was bacterial and had been caused by pathogenic microorganisms normally living inside the human body. The examination of the body showed that Mr Dimitrov had been a long ‑ term drug user, which had seriously compromised his immune system and had allowed the development of a severe bacterial infection. It was impossible to determine the type of microorganism responsible for the inflammation. It could have been one of those found during the microbiolog ical analysis or another, which had perished before the belated autopsy, carried out approximately twenty-four hours after the death. It could not be excluded that there was a link between the abscess in the right inguinal area and the suppurative inflammation of the meninges.

16 . On 25 and 26 January 2005 the investigator in charge of the case interviewed the guard who had been present at Mr Dimitrov ’ s death, the guard who had come to the cell immediately after that, five other guards who had been on duty in the morning of 18 December 2004, and the head of the detention facility. The statement of the head of the facility described both the events of the morning of 18 December 2004 and those of the days between Mr Dimitrov ’ s arrest and that time, whereas the statements of the guards related solely to the events of that morning.

17 . On 26 January 2005 the investigator interviewed the first applicant, asking her what she knew about her son ’ s death and whether she was aware that he had been examined by psychiatrist s and a surgeon several days before his death. On 1 February 2005 the investigator interviewed one of the psychiatrists who had examined Mr Dimitrov on 16 December 2004.

18 . On 2 February 2005 the investigator recommended that the proceedings be discontinued. He briefly described the facts and stated that their analysis showed that there was not enough evidence that any member of the detention facility staff had wilfully caused the death of Mr Dimitrov. On the contrary, there was evidence ruling out the version that his death had been due to violent or unnatural causes. The inspection of the death scene and the photographs taken had not reveal ed any visible traces of injury. The witnesses ’ statements showed that they had not done anything to cause Mr Dimitrov ’ s death directly. They had all said that Mr Dimitrov had had health problems, and the head of the detention facility had fully described the dates of his medical examinations. The expert report was categorical that the death had been the result of suppurative meningoencephalitis, possibly caused by the abscess in Mr Dimitrov ’ s inguinal area. It was als o clear that he had been a long- term drug user, which had led to a breakdown in his immune system. The psychiatric report had shown that he had suffered from inmate psychosis, making his continued stay in the detention facility impossible, but th at finding did not have a direct link with the death.

19 . On 9 February 20005 a prosecutor of the Plovdiv Regional Military Prosecutor ’ s Office decided to discontinue the proceedings. He also described the facts and repeated almost verbatim the reasons given by the investigator. However, he also opined that the members of the detention facility staff had obviously done their duty properly. I t was not in their power to release detainees on health grounds.

20 . The first applicant sought judicial review of the discontinuance . She pointed out that the autopsy report did not pinpoint the time of Mr Dimitrov ’ s death, and that all information in th at respect had been provided by the members of the detention facility staff. The autopsy had also been unable, due its belatedness, to determine the exact nature of the inflammation causing the death. The investigation had not tried to provide an answer to the question why the autopsy had been delayed for so long. The investigation had focused on the events of 18 December 2004 and had all but overlooked the events of the previous days, thus failing to gather sufficient information on whether adequate medical care had been provided to Mr Dimitrov during his time in custody. Only the examination of those issues could lead to an answer to the question whether Mr Dimitrov ’ s death had been caused negligently by persons working at the detention facility or others. However, no evidence had been gathered on th at point, whereas it was obvious that Mr Dimitrov ’ s health had seriously worsened after his arrest and particularly after 13 December 2004. The investigation had not tried to establish whether the competent officials had done everything necessary to protect his life and health. It was particularly striking that in the evening of 17 December 2004 the competent prosecutor had failed to order the transfer of Mr Dimitrov from the detention facility despite the opinion of the psychiatrists that he should be sent to a hospital.

21 . After examining the application in private, on 12 March 2005 the Plovdiv Military Court dismissed it. It noted that the case file contained medical documents showing the evolution of Mr Dimitrov ’ s state of health and the measures taken in relation to that . The court went on to say that the Plovdiv Regional Military Prosecutor ’ s Office had correctly found no indication that any member of the detention facility staff had committed a publicly prosecutable offence. In so far as the application tried to impugn the lack of investigation of other officials, it had to be point ed out that the military prosecuting authorities could only investigate a limited class of persons.

(b) T he civilian investigation and the ensuing trial against Dr P.V.

22 . After that, the case file was sent to the Plovdiv Regional Prosecutor ’ s Office, which on 6 March 2006 opened an investigation into whether someone had negligently caused the death of Mr Dimitrov through the performance of a legally regulated high- risk profession, contrary to Article 123 of the Criminal Code (see paragraph 33 below).

23 . On an unspecified date the authorities ordered an expert report to be drawn up by three forensic specialists. The report concluded that, since Mr Dimitrov had suffered from suppurative meningoencephalitis, the infectologist who had examined him , Dr P.V., should have immediately placed him in a clinic for infectious diseases. The disease had been contracted either through the inguinal abscess or through the sore throat, but, in any event, Mr Dimitrov ’ s heroin use had severely weakened his immune system and had made him exceptionally prone to bacterial infections. The meningoencephalitis had caused a swelling of the brain and the squeezing of vital brain centres. The paramedic had correctly sent Mr Dimitrov for a consultation with an infectologist. That infectologist , Dr P.V., had given an incorrect diagnosis, whereas the correct approach would have been to hospitalise Mr Dimitrov forthwith. The infectologist ’ s mistake had most probably been due to the similarity between the symptoms of heroin abstinence and meningoencephalitis and to the fact that the fever could be attributed to the inguinal abscess. The psychiatrists, by recommending further consultations, had acted correctly. The prospects of those suffering from suppurative meningoencephalitis, especially individuals having immune deficiencies, were bleak. Even hospitalisation and adequate treatment could not always prevent a fatal outcome. The prognosis depended on many factors and on early detection. Therefore, it could not be determined whether the omission of the infectologist who had examined Mr Dimitrov on 15 December 2004 had a causal link with the death.

24 . On 6 December 2006 a prosecutor of the Plovdiv Regional Prosecutor ’ s Office decided to discontinue the proceedings , citing the lack of a criminal offence. He described the facts between Mr Dimitrov ’ s arrest and his death and the findings of the expert report, and concluded that Dr P.V. had given Mr Dimitrov a wrong diagnosis and had not done everything necessary to determine the nature of his disease, thus breaching her obligations in the performance of a legally regulated high ‑ risk activity – medical care. However, Article 123 of the Criminal Code 1968 (see paragraph 33 below) , as interpreted by the former Supreme Court and the doctrine , required an additional element, namely a direct causal link between the negligence and the death. Since, in view of the findings of the expert report, Dr P.V. ’ s conduct could not be categorically linked with the death, there were no grounds to bring criminal charges against her. It could not be speculated what would have happened if she had given a correct diagnosis, and charges could not be based on conjecture.

25 . The first applicant sought judicial review of the discontinuance, and on 10 January 2006 the Plovdiv Regional Court quashed it and referred the case back to the prosecuting authorities for additional investigation.

26 . On 29 August 2007 the Plovdiv Regional Prosecutor ’ s Office, having obtained further expert reports, decided to bring Dr P.V. to trial on charges of caus ing the death of Mr Dimitrov t hrough the negligent performance of a legally regulated high-risk activity , contrary to Article 123 of the Criminal Code 1968 (see paragraph 33 below). However, it went on to propose to the Plovdiv Regional Court to waive Dr P.V. ’ s criminal liability and give her an administrative punishment instead.

27 . On 20 March 2008 the Plovdiv Regional Court found Dr P.V. guilty as charged, but decided to waive her criminal liability and to give her an administrative fine of 600 Bulgarian levs (BGN).

28 . Dr P.V. appealed. In a final judgment of 22 October 2008, the Plovdiv Court of Appeal upheld the lower court ’ s judgment. It held, by reference to a number of medical expert reports obtained in the course of the proceedings, that Dr P.V. should have directed the immediate hospitalisation of Mr Dimitrov. Instead, she had ruled out the hypothesis of acute meningitis on the basis of a simple physical examination, without carrying out the requisite additional tests. According to the court, that had amounted to a serious medical error, which had had a sufficient causal link with Mr Dimitrov ’ s death. The court went on to say that the lower court had correctly decided to waive Dr P.V. ’ s criminal liability and give her an administrative fine of BGN 600 instead. That had been in line with the applicable rules of substantive criminal law and justified in view of the preponderance of mitigating circumstances. It could not be overlooked that it had been difficult to diagnose Mr Dimitrov correctly and that the recommendation of the psychiatrists on 17 December 2004 for his further examination by an infectologist had not been put into effect in due time.

3 . The applicants ’ claim for damages against Dr P.V. and the hospital

29 . In September 2009 the applicants and Mr Dimitrov ’ s brother brought claims for damages against Dr P.V. and the hospital that had been employing her at the time of Mr Dimitrov ’ s death. Each of them sought BGN 60,000, plus interest, in respect of the pain and suffering that they had suffered as a result of that death.

30 . In a judgment of 24 June 2010, the Plovdiv Regional Court allowed the applicants ’ claims and ordered Dr P.V. and the hospital to pay each of the two applicants BGN 60,000, plus interest, in respect of the non ‑ pecuniary damage suffered by them in connection with Mr Dimitrov ’ s death. The court found that as a matter of law the final judgments of the criminal courts (see paragraphs 27 and 28 above) were binding on it in relation to the questions whether Dr P.V. ’ s conduct had taken place , whether it was unlawful, and whether Dr P.V. was guilty of it . The court rejected the arguments of Dr P.V. and the hospital that Mr Dimitrov and the applicants had contributed to his death. It held that Dr P.V. was directly and the hospital vicariously liable for that death, and that each of the two applicants had suffered pain and suffering as a result of it. The court went on to reject the claim of Mr Dimitrov ’ s brother, noting that under several binding interpretative decisions of the former Supreme Court siblings were not entitled to non-pecuniary damages in relation to a sibling ’ s death. Lastly, the court awarded each of the two applicants BGN 2,650 in counsel ’ s fees.

31 . Dr P.V. and the hospital appealed. In a judgment of 5 November 2010, the Plovdiv Court of Appeal fully upheld the lower court ’ s judgment, agreeing with all of its conclusions, and awarded the applicants an additional BGN 2,650 each in respect of their counsel ’ s fees for the proceedings on appeal. The court noted, inter alia , that the liability of Dr P.V. and of the hospital could not be diminished by reason of the fact that other medical professionals had taken part in the diagnosing and treatment of Mr Dimitrov. Even assuming that others were also partly to blame, those others were joint tortfeasors, and as a matter of law it was the applicants ’ right to decide whether to bring a claim for damages against all or only some of several joint tortfeasors. There was therefore no need to deal with evidence on the question whether the other medical professionals involved had duly discharged their duties.

32 . The hospital appealed on points of law. In a decision of 10 January 2012 ( опр. № 25 от 10 януари 2012 г. по гр. д. № 233/2011 г., ВКС, ІV г. о. ) , the Supreme Court of Cassation refused to admit the appeal for examination.

B. Relevant domestic law

1. Criminal law and procedure

33 . Article 115 of the Criminal Code 1968 makes it an offence to cause the death of another wilfully. Under Article 122 § 1 of the Code, it is an offence to cause the death of another through negligence. Article 123 § 1 of the Code makes it an offence to cause the death of another through the negligent performance of a legally regulated high-risk activity.

34 . At the relevant time offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the Code of Criminal Procedure 1974 , as in force at the relevant time). Where a case would fall within the jurisdiction of those courts, the investigation was handled by military investigators and prosecutors.

2. Civil law

35 . Section 1 (1) of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed in July 2006 the State and Municipalities Responsibility for Damage Act 1988, provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action.

36 . Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities or the courts in several situations: unlawful detention; bringing of charges, if the accused has been acquitted or the proceedings have been discontinued on certain grounds; conviction and sentencing, if the conviction has later been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration. In March 2009 the list was expanded to include the unlawful use of means of special surveillance, and in December 2012 expanded further to include deprivation of liberty in breach of Article 5 § 1 of the Convention and breaches of the rights enshrined in Article 5 §§ 2-4 of the Convention. The courts have consistently held that the liability of the investigating or prosecuting authorities or the courts may be engaged only in respect of the exhaustively listed situations under section 2 (1) ( see реш. № 617 от 21 ноември 2002 г. по в. гр. д. № 1127/2002 г., ПАС, ГО; тълк. реш. № 3 от 22 април 2005 г. по т. гр. д. № 3/2004 г., ВКС, ОСГК; реш. № 462 от 25 юли 2006 г. по гр. д. № 2220/2003 г., ВКС, III г. о.; опр. № 22 от 5 февруари 2008 г. по адм. д. № 167/2007 г., ВАС, петчл. с- в ; опр . № 6325 от 29 май 2008 г . по адм. д. № 9743/2007 г., ВАС, III о.; реш. № 11 от 2 февруари 2009 г. по гр. д. № 6244/2007 г., ВКС, III г. о.; реш. № 343 от 27 април 2009 г. по гр. д. № 5564/2007 г., ВКС, IV г. о.; реш. № 439 от 26 май 2009 г. по гр. д. № 5229/2007 г., ВКС, III г. о.; опр. № 85 от 3 ноември 2009 г. по адм. д. № 74/2009 г., ВАС, петчл. с- в ; реш . № 775 от 16 ноември 2009 г . по гр . д . № 1053/ 2008 г ., ВКС , III г . о .; реш . № 869 от 24 ноември 2009 г . по ч . гр . д . № 1576/2008 г ., ВКС , III г . о .; опр . № 103 от 22 декември 2009 г. по адм. д. № 86/2009 г., ВАС, петчл. с- в ; опр . № 6 от 18 януари 2010 г . по адм . д . № 97/2009 г ., ВАС , петчл . с - в ; опр . № 39 от 17 юни 2010 г . по адм . д . № 21/2010 г ., ВАС , петчл . с-в ; and реш . № 457 от 25 юни 2010 г . по гр. д. № 1506/2009 г., ВКС, IV г. о. ).

37 . Section 4 of the Act provides that the State is liable for all pecuniary and non - pecuniary damage which is a direct and proximate result of the impugned decision , action or omission , irrespective of whether it has been caused through fault of the official concerned. The courts have described the latter rule as giving rise to a strict, no-fault liability of the authorities (see тълк. реш. № 3 от 22 април 2004 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК; реш. № 4266 от 10 април 2008 г. по адм. д. № 9116/2007 г., ВАС, III о.; реш. № 4730 от 21 април 2008 г. по адм. д. № 9212/2007 г., ВАС, III о.; реш. № 126 от 4 март 2009 г. по гр. д. № 1350/2008 г., ВКС, II г. о.; and р еш . № 16 от 2 февруари 2011 г. по гр. д. № 396/2010 г., ВКС , III г. о. ).

38 . Section 8(1) of the Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime ( see реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г. о. , and реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб о. ). The Supreme Court of Cassation has said ( see реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о. ) that liability under section 1 of the Act is a special case of vicarious liability under section 49 of the Obligations and Contracts Act 1951 (see paragraph 39 below) , which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. The Bulgarian courts have on occasion examined claims for damages against the authorities under section 49 (see the domestic case cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011).

39 . The general rules of the law of torts are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 . Section 45(1) provides that everyone is obliged to make good the damage which they have, through their own fault, caused to another. Section 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Whereas legal persons cannot be liable under section 45(1), as they cannot act with mens rea , they may be vicariously liable under section 49 for the tortious conduct of individuals employed by them ( see пост. № 7 от 30 декември 1959 г., ВС, Пленум ).

40 . In a judgment of 20 September 2008 ( реш. â„– 57 от 20 септември 2008 г. по гр. д. â„– 3394/2005 г., СГС, ГК, І о. ), the Sofia City Court allowed a claim against the Ministry of Justice by the father and mother of a person who, having been arrested for the possession of marihuana, had on 15 September 2001 committed suicide while in pre-trial detention, and ordered the Ministry to pay them BGN 20,000 levs, plus interest (the full amount of their claim), in damages. The court found that the claim fell to be examined under section 49 read in conjunction with section 45 of the 1951 Act. It went on to say that the Ministry of Justice was vicariously liable for the actions and omissions of the staff of the detention facility; that that staff had not duly checked the deceased ’ s cell; that under the applicable regulations it had been under a duty to do so, especially in view of that person ’ s anxiety, noted upon her admission to the detention facility; that their failure to do so had had a direct causal link with the death; and BGN 20,000 could be regarded as equitable compensation for the non ‑ pecuniary damage suffered by the claimants as a result of the death. Lastly, the court held that, in view of the order made against the Ministry of Justice, there was no need to deal with the concurrent claims against the Ministry of Internal Affairs and the General Directorate for the Enforcement of Sentences.

41 . The Ministry of Justice appealed. In a judgment of 7 December 2009 ( реш. № 1524 от 7 декември 2009 г. по гр. д. № 1709/2009 г., САС, ГК, І с-в ), the Sofia Court of Appeal upheld the lower court ’ s judgment. It gave the same reasons as the lower court, and in addition noted that it was not bound by the findings made by the prosecuting authorities in their decision to discontinue the investigation opened in connection with the death.

42 . The Ministry of Justice appealed on points of law. In a decision of 4 August 2010 ( опр. № 859 от 4 август 2010 г. по гр. д. № 360/2010 г., ВКС, III г. о. ), the Supreme Court of Cassation admitted the appeal for examination. In a judgment of 2 December 2012 ( реш. № 742 от 2 декември 2012 г. по гр. д. № 360/2010 г., ВКС, ІІІ г. о. ), the court held that the enforcement of pre-trial detention constituted administrative action within the meaning of section 1 of the 1988 Act (see paragraph 35 above), and that under the applicable regulations the authority in charge of duly enforcing pre-trial detention and liable for any damage resulting from a failure in relation to that was the Ministry of Justice. Therefore, under the rule set out in section 8(1) of the 1988 Act (see paragraph 38 above), the claim was to be examined by reference to section 1 of the Act rather than sections 45 and 49 of the 1951 Act (see paragraph 39 above). The court remanded the case to the Sofia Court of Appeal for re-examination in line with that interpretation of the law.

43 . In a judgment of 5 April 2011 ( реш. № 556 от 5 април 2011 г. по гр. д. № 976/2010 г., САС, ГК ), the Sofia Court of Appeal examined the claim by reference to section 1 of the 1988 Act (see paragraph 35 above), adding that that provision was a special case of vicarious liability under section 49 of the 1951 Act (see paragraph 39 above). It found that, save for the ruling on the legal characterisation of the claim, the judgment of the Sofia City Court (see paragraph 40 above) was to be fully upheld.

44 . The Ministry of Justice appealed on points of law. In a decision of 14 March 2012 ( опр. № 396 от 14 март 2012 г. по гр. д. № 1337/2011 г., ВКС, III г. о. ), the Supreme Court of Cassation refused to admit the appeal for examination.

COMPLAINTS

45 . The applicants complain ed under Article 2 of the Convention that the failure of the authorities to provide their son, Mr Dimitrov , with timely and adequate medical care in custody had led to his death , and that the authorities had not investigated effectively that death.

46 . T he applicants in addition complain ed under Article 13 of the Convention that they had not ha d an effective remed y in respect of Mr Dimitrov ’ s death .

THE LAW

A. Preliminary point

B . Complaints under Article 2 of the Convention

48. In respect of their complaints that the authorities did not provide Mr Dimitrov with timely and adequate medical care and thus contributed to his death, and that they did not carry out an effective investigation into that death, the applicants relied on Article 2 of the Convention, which provides , in so far as relevant:

“1. Everyone ’ s right to life shall be protected by law. ... ”

1. The parties ’ submissions

(a) The Government

49 . The Government submitted that the applicants had failed to exhaust domestic remedies because they had not tried to bring a claim under section 2 of the 1988 Act or section 49 of the 1951 Act. A claim under the 1988 Act, which was based on the strict liability of the authorities, was an effective remedy and would have enabled the applicants to obtain adequate compensation for the death of their son. The same was true of a claim under section 49 of the 1951 Act, as demonstrated by the judgments of the Sofia City Court and the Sofia Court of Appeal summarised in paragraph s 40 and 41 above. It was also noteworthy in that connection that the applicants had brought a claim under sections 45 and 49 of the 1951 Act against Dr P.V. and hospi tal that had been employing her at the time.

50 . The Government went on to argue that the authorities had done all they could to save Mr Dimitrov ’ s life. The Government described in detail the sequence of events during the period between 6 and 18 December 2004, and submitted that the authorities had carried out all required medical examinations, had kept Mr Dimitrov ’ s state of health under constant monitoring, and had provided him with medical care. In spite of all that, Mr Dimitrov had died. However, it had to be borne in mind that the medical condition which had caused his death had developed very rapidly – something that was liable to hinder the work of anyone trying to safeguard Mr Dimitrov ’ s health and life. The experts were categorical that the cause of Mr Dimitrov ’ s death had been meningoencephalitis, which, although having symptoms which resembled those of heroin abstinence and prison psychosis, had called for immediate hospitalisation. However, the infectologist, Dr P.V., had rejected that diagnosis without carrying out the required tests and solely on the basis of a clinical examination of Mr Dimitrov. Her liability had been examined in the civil proceedings brought by the applicants against her. The officers working at the detention facility had carried out their duty and done all they could to save Mr Dimitrov ’ s life; it had not been open to them to release a detainee based on their own assessment of his or her state of health.

51 . Lastly, the Government submitted that the authorities had carried out an effective investigation into Mr Dimitrov ’ s death. The investigation had started immediately, and the authorities had taken all required immediate investigative steps: they had inspected the scene and had ordered a medical expert report. In the following days they had interviewed a number of witnesses: officers working at the detention facility, including its head, and medical staff. An autopsy had been performed on Mr Dimitrov ’ s body the day after his death, and then a medical expert report had been drawn up by three experts. The evidence gathered in the course of that investigation had enabled the military prosecuting authorities to establish the circumstances unfolding at the time before Mr Dimitrov ’ s death, to clarify its cause with certainty, to conclude that no one had used force against Mr Dimitrov or wilfully killed him, and accordingly to discontinue the proceedings with regard to potential suspects within their competence. The ensuing investigation by the civilian prosecuting authorities into whether anyone had caused Mr Dimitrov ’ s death through the negligent performance of a legally regulated high-risk activity, while initially concluding that Dr P.V. ’ s omission had not directly caused the death, had later, following a referral by the Plovdiv Regional Court, led to the charging of Dr P.V. and her indictment. The investigation could not therefore be regarded as ineffective.

(b) The applicants

52 . The applicants submitted that the Government had not backed up their assertion that it was possible to seek damages under section 2 of the 1988 Act in relation to deaths in custody with any examples. That provision only covered a limited number of situations, and death in custody was not one of them. Nor was it possible to bring a claim against the prosecuting and investigating authorities under section 49 of the 1951 Act. The judgments cited by the Government had been against the Ministry of Justice, not against the prosecuting and investigating authorities, and were moreover not final and an isolated precedent. In addition, it was possible to seek damages under section 49 only in respect of unlawful actions or omissions, whereas the Plovdiv Military Prosecutor ’ s Office had not found that any officials bore criminal liability in relation to Mr Dimitrov ’ s death. It was true that Dr P.V. and the hospital that was employing her had been ordered to pay damages to the applicants. However, in as much as Mr Dimitrov ’ s death had been caused jointly by Dr P.V. and the investigating and prosecuting authorities, that award of damages had remedied the applicants ’ grievance only in part. Moreover, the courts had refused to award damages to Mr Dimitrov ’ s brother. Lastly, in a number of cases against Bulgaria the Court had held that an award of damages was not sufficient to remedy a breach of Articles 2 or 3 of the Convention.

53. The applicants went on to argue that the conduct of the officials in charge of the detention facility where Mr Dimitrov had been kept and of the supervising prosecutor had contributed to Mr Dimitrov ’ s death. The applicants described in detail the events between Mr Dimitrov ’ s arrest and his death, alleging that the health care provided to him during that period had been grossly inadequate and that the officials in charge of the detention facility and the supervising prosecutor had not reacted in a timely manner to an obvious medical emergency.

54. Lastly, the applicants submitted that the authorities had not carried out an effective investigation into Mr Dimitrov ’ s death. Even though that death had been due to the irresponsible conduct of both Dr P.V. and the officials in charge of the detention facility, the prosecuting authorities had brought criminal charges only against Dr P.V. Moreover, Mr Dimitrov ’ s body had been given to the forensic experts for autopsy more than twenty ‑ four hours after his death. Probably as a result of that, the autopsy had not been able to establish the exact time of his death and the exact nature of the infection which had caused it. The prosecuting authorities had then not done enough to determine the exact cause of death, and had not sought to establish why the supervising prosecutor had delayed the authorisation for Mr Dimitrov to be taken out of the detention facility and transferred to a hospital.

2. The Court ’ s assessment

55. The Court starts by noting that the Government ’ s objection of non ‑ exhaustion of domestic remedies is closely bound up with the substance of the applicants ’ complaint concerning the procedural response of the authorities to death of their son, Mr Dimitrov (see, mutatis mutandis , Nencheva and Others , cited above , § 98). The Court will therefore deal with it after examining the applicants ’ complaint concerning that procedural response, which it considers it must address first (see Koseva v. Bulgaria (dec.), no. 6414/02 , 22 June 2010 ).

58. In the instant case, Mr Dimitrov ’ s death took place in the custody of the authorities and in circumstances that could engage their responsibility. It therefore called for an official investigation. Indeed, such an investigation was carried out, first by the military prosecuting authorities and then by the civilian prosecuting authorities (see paragraphs 13 - 26 above).

59. The investigation by the military prosecuting authorities started promptly and was concluded very rapidly , less than two months after it had been opened (see paragraphs 13 - 19 above) . It found, and that has not been disputed by the applicants, that Mr Dimitrov ’ s death had not been caused wilfully or as a result of the use of force. Although the expert report obtained in the course of that investigation was not able to establish the exact type of microorganism which had caused the brain inflammation leading to Mr Dimitrov ’ s death, the experts were able to identify the cause of his death – suppurative meningoencephalitis , possibly caused by the abscess in his right inguinal area (see paragraph 15 above).

60 . A fter the end of that investigation, the civilian prosecuting authorities opened a separate investigation into whether anyone had caused Mr Dimitrov ’ s death through professional negligence. That second investigation ultimately came to the conclusion that responsibility for Mr Dimitrov ’ s death lay with Dr P.V., who had failed to diagnose him properly and to direct his immediate hospitalisation. Dr P.V. was put on trial on that charge, found guilty, and given an administrative punishment (see paragraphs 22 - 28 above). After that the applicants brought a claim for damages against her and the hospital that was employing her in the civil courts, and each obtained an award of damages in the amount of BGN 60,000 (30,677 . 51 euros), plus interest – the full amount that they sought (see paragraphs 29 - 32 above). By means of those procedures the State discharged its obligations under Article 2 of the Convention to carry out an investigation into Mr Dimitrov ’ s death, to offer a plausible explanation of that death and of the medical treatment provided to him before the death , and to enable the applicants to obtain appropriate redress. As noted above, where death has not been caused wilfully, under the Court ’ s case-law a civil remedy in the form of an award of damages amounts to sufficient redress ( see also Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51 , ECHR 2002 - I ), and the sum awarded to the applicants can hardly be regarded as inadequate. The fact that Mr Dimitrov ’ s brother was not awarded anything in those proceedings does not detract from that conclusion .

61. It is true that neither of the two criminal investigations appears to have specifically dealt with the question whether any officials had acted negligently in relation to Mr Dimitrov ’ s death. However, in the circumstances of the present case that cannot be regarded as amounting to a significant shortcoming. The two investigations carried out by the prosecuting authorities shed enough light on the facts surrounding Mr Dimitrov ’ s death. As just noted, under the Court ’ s case-law the investigation into a custodial death needs to be capable of leading to the identification and prosecution of those responsible only if there are reasons to suspect that that death has been caused intentionally, which is not the case. Since Mr Dimitrov died of a naturally occurring illness , a procedure capable of leading to appropriate civil redress was sufficient (contrast Nencheva and Others , cited above, § 125, where , in view of the exceptional gravity of the situation, in which fifteen children had died in a nursing home over a period of about three months, and of the fact that steps had not been effectively taken to ascertain the exact circumstances and the identity of those potentially responsible, the Court found that a civil procedure was not sufficient ).

62. The question, therefore, is whether such a procedure was available to the applicants. The Court considers that it was. It should be noted in that connection that the two criminal investigations allowed the applicants to acquaint themselves with the evidence concerning Mr Dimitrov ’ s death and the full sequence of events between his arrest and his death. Had the y sought to pursue the matter further and – in addition to the judgments establishing the liability of Dr P.V. – have a court ruling in relation to any responsibility that might lay with the authorities in charge of their son ’ s well-being in custody, it was open to them to bring a claim for damages against those authorities (see, mutatis mutandis , Stoyanovi , cited above , § 67) . There is no reason to find that in such proceedings the applicants would not have been able to establish the responsibility of the authorities and obtain redress (ibid.). In particular, the conclusion of the military prosecuting authorities that no officials bore criminal liability in relation to Mr Dimitrov ’ s death would not have prevented the civil courts from inquiring whether any such officials had acted or failed to act unlawfully, because under Bulgarian law a civil court is not bound by the findings that the prosecuting authorities make when discontinuing a criminal investigation (see paragraph 41 above, as well as Assenov and Others v. Bulgaria , 28 October 1998, § 112, Reports of Judgments and Decisions 1998 - VIII , and Anna Todorova v. Bulgaria , no. 23302/03, § § 64-68 and 82 , 24 May 2011 ). The example cited by the Government, in which the parents of a person who had committed suicide in pre-trial detention were able successfully to prosecute a claim for damages against the authorities in spite of the discontinuance of the related criminal investigation (see paragraphs 40 - 44 above), shows that the Bulgarian courts consider themselves competent of independently dealing with claims for damages concerning deaths in custody that are not the result of the use of force. The fact that such proceedings have to be brought under section 1(1) of the 1988 Act rather than section 2(1) of that Act or section 49 of the 1951 Act does not render them ineffective as a vehicle for establishing the relevant facts and affording adequate redress. T he choice of means for ensuring the positive obligations under Article 2 of the Convention is in principle a matter that falls within the Contracting State ’ s margin of appreciation (see Ciechońska v. Poland , no. 19776/04, § 65 , 14 June 2011 ). It should even be noted that in the case of claims under section 1(1) of the 1988 Act, it is not necessary for the claimant to establish fault on the part of the relevant authorities because their liability under that provision is strict (see paragraph 37 above), which is more than is required under Article 2 of the Convention (see Mastromatteo v. Italy [GC], no. 37703/97, § 95 , ECHR 2002 - VIII ).

63. There is no indication that the applicants have tried to have recourse to such proceedings (see Pearson , cited above, § 77, as well as, mutatis mutandis , Mastromatteo , cited above, § 95 in fine , and Furdík v. Slovakia (dec.), no. 42994/05 , 2 December 2008 ).

64. The foregoing considerations are sufficient to enable the Court to conclude that there has not been a failure to comply with any procedural obligation under Article 2 of the Convention in relation to the death of Mr Dimitrov.

65. As regards the substantive limb of Article 2, the Court finds that, in as much as the applicants claim that the error of judgment on the part of Dr P.V. directly engaged the liability of the State, they can no longer be regarded as victims within the meaning of Article 34 of the Convention (see, mutatis mutandis , Kołaczyk a nd Kwiatkowski v. Poland (dec.), no. 34215/11 , §§ 41-44, 22 October 2013 ). In as much as the applicants claim that the civil remedy against Dr P.V. and the hospital did not fully remedy their grievance under Article 2, and that the authorities responsible for Mr Dimitrov ’ s well-being in custody also bore blame for that death, they have not exhausted the available domestic remedies, as required under Article 35 § 1 of the Convention.

66. It follows that this part of the application must be rejected in accordance with Article 34 and Article 35 §§ 1, 3 (a) and 4 of the Convention.

C . Complaint under Article 13 of the Convention

67. In respect of their complaint that they did not have an effective remedy in respect of the death of their son , the applicants relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

68. The Government did not make separate submissions in relation to that complaint.

69. The applicants submitted that the lack of an effective investigation into Mr Dimitrov ’ s death had deprived them of an effective remedy in respect of that death.

71. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President