FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16077/05 by Lyuben Stoyanov KEMEROV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 22 June 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , Ganna Yudkivska , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 17 March 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lyuben Stoyanov Kemerov , is a Bulgarian national who was born in 1945 and lives in Plovdiv . He is represented before the Court by Mr M. Ekimdjiev , a lawyer practising in Plovdiv .

A. The circumstances of the case

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

1. The events of 31 March 1996

On 31 March 1996 the applicant, who had consumed alcohol, listened to loud music in his flat, disturbing his neighbours. A t about 3.30 a.m., a neighbour asked him to cease the disturb ance . The applicant apparently lowered the sound only for a while. As the disturbance continued, between 4.15 a.m. and 6 a.m. the neighbour made several calls to the police seeking assistance.

Police officers P . and M . were dispatched to the address. From their statements it appears that they made two visits, the second one being at about 6 a.m.

At about 6 a.m. , having heard loud music emanating from the applicant ' s apartment, the police officers rang the doorbell and shouted “Police! Open the door!”. In reply, the applicant required to see their identity documents and a warrant authorising their entry into his apartment. The police officers insisted to be let in. According to the applicant, they started hitting the door. Fearing that they might break in, the applicant eventually opened.

According to the applicant, upon entering the police officers battered him violently.

According to the police officers , the applicant threatened the m with a knife which necessitated the use of physical force against him.

The police officers eventually handcuffed the applicant and took him to the police station. His name was entered in the detained persons ' register, with a note that he had “assaulted the patrol with a knife and resisted [orders]”.

He was released an hour and a half later, at about 7.30 a.m. on 31 March 1996 .

Later on 31 March 1996 the applicant had X-ray photographs of his body taken which confirmed that he did not have fractures.

Police officers P. and M. drew up reports on offences punishable in summary administrative proceedings ( акт за административно нарушение ), dated 31 March 1996 and duly registered in the police reports register . According to the reports, a knife had been seized from the applicant at about 6 a.m. that day and the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed violation s of the relevant regulations.

According to the applicant, he never received copies of the above mentioned reports. In his view, it was possible that some of the documents allegedly documenting an assault with a knife might have been created later and backdated.

On 2 April 1996 the applicant was examined by a forensic medical doctor who found numerous contusions, haematomas and scars on the applicant ' s head, chest, abdomen area and on his limbs. There were at least ten bruises on the applicant ' s head, two on his back, more on his arms and legs. The medical certificate stated, inter alia , that all injuries had been inflicted by a blunt object. It was possible that they were inflicted in the manner and at the time indicated by the applicant.

The applicant was eventually fined by the municipal authorities for causing a night disturbance.

2. The investigation into the applicant ' s complaints

On 6 April 1996 the applicant submitted a complaint to the Regional Military Prosecutor ' s Office ( окръжна военна прокуратура ) stating that he had been ill-treated by police officers. He enclosed a medical certificate. A preliminary inquiry was opened.

On 4 July 1996 a prosecutor instructed local p olice in Plovdiv to investigate the complaints.

On 22 July 1996 police officers P . and M . submitted written statements to their superior. They maintained that the applicant had assaulted them with a kitchen knife. Sergeant P . stated that he had hit the applicant several times in his chest and then used a special technique to retrieve the knife as the applicant had been trying to stab him in his right hand.

On 23 July 1996 the p olice reported to the prosecutor, summarising the police officers ' version of the facts. He added that in the absence of witnesses, it was not possible to draw up reports on offences punishable in summary administrative proceedings under the Hooliganism Act.

It appears that the prosecutor did not undertake any other steps in the following months.

On 24 February 1997 the applicant complained of the delay to the higher prosecut or.

On 17 April 1997 the applicant ' s lawyer requested the examination of three witnesses – the applicant ' s brother who had taken him from the police station upon his release and two of his neighbours.

O n 15 May 1997 the applicant and the witnesses were heard by a police officer and given the opportunity to submit written statements. One of the applicant ' s neighbours stated that in the early morning of 31 March 1996 he had heard someone shouting for help and had seen, at the opened door of the applicant ' s apartment, a man delivering blows to someone inside. He had then seen the applicant being escorted by two men into a police car. Another witness gave evidence from which it transpired that the applicant ' s front door had not been forced by the police, as initially maintained by him.

On 11 June 1998 the applicant ' s lawyer complained of the delay in the inquiry.

On 15 July 1998 the competent prosecutor at the Regional Military Prosecutor ' s Office terminated the inquiry and refused to institute criminal proceedings against the police officers. He summarised the facts as presented by the police officers involved and then stated the blows administered on the applicant during the incident were justified under the relevant provisions which allow ed the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order.

A copy of the decision was sent to the applicant. The accompanying letter advised the applicant that he had the right to appeal to the Appellate Military Prosecutor ' s Office ( военно-апелативна прокуратура ) in Sofia . The applicant did not appeal.

In the meantime, on 1 July 1998 the applicant submitted an application to the former European Commission of Human Rights alleging, inter alia , violations of Articles 3, 8 and 13 of the Convention in relation to the events of 31 March 1996.

By final decision of 2 September 2004 the Court, to which the competence to examine the application was transferred by virtue of Article 5 § 2 of Protocol No. 11 to the Convention, declared the application inadmissible for failure to exhaust domestic remedies, since the applicant had failed to appeal against the regional prosecutors ' decision of 15 July 1998 (see Kemerov v. Bulgaria ( dec .), no. 44041/98, 2 September 2004).

On 27 September 2004 the applicant filed with the Appellate Military Prosecutor ' s Office an appeal against the decision of 15 July 1998 of the Regional Military Prosecutor ' s Office.

On 15 November 2004 the Appellate Military Prosecutor ' s Office dismissed the appeal, upholding the decision of 15 July 1998.

The applicant appealed to the Supreme Cassation Prosecutor ' s Office.

On 25 February 2005 a prosecutor from that service dismissed the appeal as the prosecution of the police officers concerned was time-barred.

He commented on the substance of the complaints, noting that the applicant ' s allegation that the police had forced his front door had been contradicted by witness evidence and also finding that the applicant ' s injuries corresponded to the police officers ' version of the events. The prosecutor also found that in any event the prosecution of the police officers concerned was time-barred, which excluded any possibility of pursuing the matter.

B . Relevant domestic law

Under Article 80 § 1 read in conjunction with Articles 128-131 of the Penal Code, as in force at the relevant time, the prosecution of a police officer accused of ill-treatment which had not resulted in serious permanent or life-threatening injury was precluded after the expiry of three or five years, depending on whether the ill-treatment could be characterised as having affected the victim ' s health or had only caused pain.

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment and torture in that he had been battered by the police and handcuffed in a way which caused him pain. The applicant also complained that the investigation into the events had been ineffective.

The applicant complained under Article 8 that the police h ad entered his home unlawfully.

The applicant complained under Article 13 that he did not have an effective remedy against the police brutality.

THE LAW

The applicant complained under Articles 3, 8 and 13 of the Convention in respect of the events of 31 March 1996 and the ensuing investigation .

The Court observes at the outset that the authorities ' decisions delivered in 2004 and 2005 constitute “relevant new information” within the meaning of Article 35 § 2(b) of the Convention. It follows that the present application is not inadmissible under that provision as being substantially the same as the matter examined by the Court in application no. 44041/98.

For the reasons set out below, however, the Court finds that the application is inadmissible for failure to exhaust domestic remedies within the meaning of Article 35 § 1.

It notes that while the applicant eventually submitted an appeal to the highest prosecuting authorities, as required in cases against Bulgaria concerning alleged ill-treatment by the police (see Anguelova v. Bulgaria ( dec .), no. 38361/97, 6 June 2000, Kemerov v. Bulgaria ( dec .), cited above, and Dimov v. Bulgaria , no. 56762/00, §§ 76-84 , 8 March 2007 ), the appeal was dismissed as belated since the relevant statutory time-limit for the prosecution of the police officers concerned had expired.

According to the Court ' s established case-law, d omestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by the appellant (see Agbovi v. Germany ( dec .), no. 71759/01, 25 September 2006) .

It is true that the Court has also held that non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter ' s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02 , § 43-45 , ECHR 2009 ‑ ..., with further references and Keser and Kömürcü v. Turkey , no. 5981/03 , § 54 , 23 June 2009 ) .

The present case is different, however, in that the authorities were legally prevented from pursuing an investigation into the matter. Through his own failure to complain to the relevant authority earlier, the applicant brought about a situation in which it was no longer possible for the national authorities to pursue the matter as the statutory time limit for the prosecution of the police officers concerned had expired. Even if in 2005 the relevant prosecutor commented on the substance of the complaints considering them ill-founded, this opinion was delivered upon an appeal lodged many years after the first one - when it was no longer possible to prevent the expiry of the time limit. The Court cannot speculate whether the same view would have been taken in different circumstances.

It follows that the applicant has failed to exhaust all domestic remedies within the meaning of Article 35 § 1 of the Convention and that the application must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President