FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7888/03 by Krastinka Petrova NIKOLOVA and Violeta Atanasova VELICHKOVA against Bulgaria

The European Court of Human Rights ( Fifth Section), sitting on 13 March 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 February 2003 ,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court ,

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

Having regard to the additional information submitted by the applicants upon the invitation of the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Krastinka Petrova Nikolova and Ms Violeta Atanasova Velichkova , are Bulgarian nationals who were born in 1939 and 1960 respectively and live in Shumen. They are represented by Ms Zh. Yoncheva, a lawyer practising in Shumen.

The respondent Government are represented by Ms M. Kotseva, co ‑ agent, of the Ministry of Justice.

A. The circumstances of the case

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

The applicants are the wife and daughter of Mr Atanas Velichkov Nikolov. Mr Nikolov died on 1 October 1994 as a result of his assault and battery by two police officers on 27 September 1994.

1. The events of 27 September 1994 and the ensuing death of Mr Nikolov

At about 2 p.m. o n 27 September 1994 the twelve members of the rapid response force of the Shumen R egional P olice D epartment were training just outside town. They spotted at a distance Mr Nikolov, aged sixty ‑ two at the time, and Mr N.R., who were testing a home ‑ made metal detector. The leader of the team, lieutenant I.I., assumed that the two were treasure ‑ hunters and sent a party to verify his suspicion . Two police officers approached Mr N.R., while two others, chief sergeants B.I. and H.T., moved towards Mr Nikolov. None of the officers was in uniform. C hief sergeants B.I. and H.T. reached Mr Nikolov just as he was trying to hide a hoe in the nearby bushes. Surprised by the sudden appearance of the two men , Mr Nikolov did not throw the hoe , but held it in front of him, taking a defensive posture. Chief sergeant B.I. brusquely pulled it out of his hands and threw it at a safe distance. Each of the officers then proceeded to deliver blows to Mr Nikolov ' s head. After that they brought him to the ground, handcuffed him, and took him to their colleagues. A car was called in and Mr Nikolov and Mr N.R., who had also been apprehended, were taken to the premises of the Shumen R egional P olice D epartment. While he was waiting to be questioned on the precinct premises, at about 3 p.m. Mr Nikolov fainted. Later an ambulance was called in and he was taken to hospital, where it was found that he had slipped in to a coma.

After an unsuccessful operation to evacuate a subdural haematoma, Mr Nikolov died o n 1 October 1994 . A medical report, drawn up in the course of the criminal proceedings opened pursuant to his death, concluded that the cause of his death was a severe cranial and cerebral trauma and internal brain haemorrhage.

2. The criminal proceedings against the police officers

(a) The preliminary investigation

On 2 October 1994 criminal proceedings were opened into the incident by the Shumen Regional Investigation Service . The offence was provisionally characterised as murder, contrary to Article 115 of the of the Criminal Code of 1968 (“the CC”).

On 3 October 1994 the investigator in charge of the case questioned c hief sergeants B.I. and H.T . Mr N.R. was also questioned on the site of the incident in the presence of a medical doctor. The investigator took a number of pictures of the site.

Most of the other witnesses were interviewed in October 1994 and March and May 1995. Several expert reports were drawn up.

Chief sergeants B.I. and H.T . were charged and questioned again on 27 April 1995. They were released on bail.

The two officers who had arrested Mr N.R. were likewise charged and questioned on 2 May 1995.

On 12 May 1995 the investigator in charge of the case drew up his final report, concluding that chief sergeants B.I. and H.T. should be tried for intentionally inflicting grievous bodily harm to Mr Nikolov and thus having negligently caused his death, contrary to Article 124 § 1 of the CC. He also concluded that the two officers who had arrested Mr N.R. should be tried for inflicting light bodily harm to him. He noted, inter alia , that all of them had denied any wrongdoing despite the existing evidence, that they had not drawn any lessons from their act and had not shown any signs of remorse. He also noted that chief sergeant B.I. and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm to another person on 18 April 1994, only a few months before the act in issue in the proceedings. Reflecting on the conditions which had led to the perpetration of the alleged offences, the investigator expressed the opinion that these were “the recent increase in crime which ha[d] led the law ‑ enforcement officers to suspect a criminal intent in all citizens before proven otherwise; the physicality of their training at the [police officers ' school in the town of Pazardzhik], where year after year they [we]re instructed how to deal with violent resistance but [we]re inadequately trained on the legal aspects of law enforcement, a practice that ha[d] been kept up within the newly ‑ formed rapid response force centre in Shumen, as evidenced by the curriculum attached to the case file: it abound[ed] in physical training classes and lack[ed] any legal training classes; the sense of authority that the law-enforcement officers ha[d] over the public, which [wa]s expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens; the sense of impunity; the absence of any eye ‑ witnesses to the two offences, committed in a forested area out of the public ' s sight, and the hope that all [would] be covered up”.

In view of an amendment in June 1995 of the Code of Criminal Procedure of 1974 whereby the military courts were given jurisdiction to try police officers, on an unspecified date in 1995 the case was sent to the Varna Regional Military Prosecutor ' s Office. Apparently there it was not processed until January 1998. The applicants complained of this inactivity to the President of the Republic, the Chief Prosecutor and the Council of Ministers. All of them forwarded their complaints to the military prosecution authorities.

On 12 January 1998 the Varna Regional Military Prosecutor ' s Office sent the case to a military investigator for further processing.

I n a letter of 6 February 1998 the Varna Regional Military Prosecutor ' s Office informed the applicants that the work on the case had been held up until the beginning of 1998 because of staffing and backlog problems.

In June 1998 the military investigator in charge of the case was transferred to another post. For this reason, on 31 July 1998 the case was assigned to another military investigator.

Having concluded his work on the case, on 30 December 1998 the investigator drew up his final report, proposing that chief sergeants B.I. and H.T. be committed for trial. He noted, inter alia , that at that time chief sergeant B.I. was a unit commander at the riot ‑ police sector of the Shumen Regional Police Department and that chief sergeant H.T. was a police officer at the specialised unit in charge of bank and cash transfer safety in Sofia .

On 18 August 1999 the Varna Regional Military Prosecutor ' s Office issued an indictment against chief sergeants B.I and H.T. It noted, inter alia , that on 15 January 1999 chief sergeant B.I. had resigned from the police force and that chief sergeant H.T. was still on the force, assigned as a guard at a commercial bank. Concerning the causes which had led to the perpetration of the offence, the prosecutor observed that these were “the accused ' s sense of impunity as officers of the special force of the [Ministry of Internal Affairs], their lack of respect for the human dignity and the health and inviolability of the citizens, their habit of treating citizens as dummies for testing their physical force and abilities, which [were] only needed for apprehending dangerous criminals”.

(b) The judicial proceedings

The trial at the Varna Military Court started on an unspecified date in the autumn of 1999.

On 13 November 1999 the applicants , as well as Mr Nikolov ' s son, brought claims for compensation against the two police officers (5,000 Bulgarian levs (BGN) for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov ' s son) and joined the proceedings as private prosecuting parties alongside the public prosecutor.

The court held a hearing on 3 December 1999. It heard the applicants, Mr Nikolov ' s son and the accused officers. It also heard the concluding argument of the parties. In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants B.I. and H.T. He requested sentences ranging between four and a half and five years of imprisonment, to be served effectively. In their final word the accused stated that they were not guilty and asked the court to be acquitted.

In a judgment of 3 December 1999 the Varna Military Court convicted chief sergeants B.I. and H.T. of having negligently caused the death of Mr Nikolov by wilfully inflicting him grievous bodily harm , contrary to Article 124 § 1 of the CC. It sentenced each of them to three years ' imprisonment, suspended for five years. It also awarded the first applicant BGN 4,000 , the second applicant BGN 3,000, and Mr Nikolov ' s son BGN 3,000, payable jointly and severally by the two officers. The court described in detail the events of 27 September 1994 and held, as relevant:

“... the act has been committed negligently ... The case at hand is a complex offence, where the intention in respect of the lesser result is combined with negligence in respect of the graver one, i.e. the offence has been committed with both forms of mens rea ... The court is of the opinion that both accused have wilfully inflicted grievous bodily harm to [Mr Nikolov] which has later brought about his death. The intentions must be judged through the actions. Taking into account the subjective attitude of the accused towards their act, the court deems that their intention did not go beyond inflicting bodily harm. They behaved merely negligently in respect of the ensuing death. The objective analysis of the accused ' s conduct shows that they did not realise the imminent death of [Mr Nikolov] and neither wished nor envisioned a lethal outcome, their intention being solely to inflict bodily harm...

...The evidence in the case suggests that no persons other than the accused have been in physical contact with [Mr Nikolov] ... All traumatic injuries which were established were inflicted at the same time, in quick succession. The evidence shows that between 2 and 2.15 p.m. on 27 September 1994 in the area of the Shumen plateau the accused ..., in their capacity of officers of the Shumen Regional Police Department, arrested [Mr Nikolov] by using physical force, and in the process delivered numerous blows to his body, some of which were strong, as a result of their prior apprehension training. There is a direct and proximate causal link between the beating and [Mr Nikolov ' ]s traumatic injuries and the ensuing lethal outcome. In pursuing their direct aim of inflicting bodily harm on [Mr Nikolov], in view of the force and the direction of the blows, the accused did not – but could have – envisioned the end result. It must however also be noted that as members of the rapid response force the accused had special skills for subduing and apprehending offenders. They were executing an order given by their immediate superior ... which included the arrest of [Mr Nikolov]. ...In this connection, the court finds that the conduct of the head of the team, lieutenant I.I., is also reprehensible, because he was the man who could have and should have determined whether Mr Nikolov and Mr N.R. were offenders that had to be unconditionally apprehended. ...

The causes and the conditions for the commission of the offence are the accused ' s feeling of impunity as members of the special force of the Ministry of Internal Affairs.

In determining the type and the quantum of the penalty the court had regard to both accused ' s young age and good character as mitigating circumstances.

The court deemed the unlawful use of physical force as an aggravating circumstance.

The court imposed the penalties having regard to the preponderance of the mitigating circumstances ...

Taking into account the personality of the offenders, the gravity of the offence, and the fact that the accused have no prior convictions, and bearing in mind the aims of the punishment ... the court considers that the penalties do not need to be effectively served. For this reason ... the serving of the sentences is postponed ... The main purpose of the punishment in our law is the general deterrence which is achieved through the imposition of just punishment. In matching the severity of the punishment to the gravity of the offence [the court] must have regard to the personality of the offender as an additional factor. In the case of a suspended sentence, [the court] must put the emphasis on the individual deterrence, concerning the reformation of the offender. In the instant case, the court, having regard to the facts as established above, the type of mens rea involved – negligence –, the low level of public threat of the two offenders, who have perpetrated their act in a relatively distant past, concludes that there is no need for the penalties of imprisonment to be effectively served in order to achieve the aims of the criminal law. ...”

Both the applicants and the officers appealed to the Military Appellate Court. The applicants submitted that the sentence was too lenient and that the compensation awarded was too low. They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty. In their view, the officers had to be sentenced to an effective prison term of about five years.

After holding a hearing on 25 October 2000, i n a judgment of 29 December 2000 the Military Appellate Court partly upheld and partly reversed the lower court ' s judgment . It increased the amount of the compensation to BGN 5,000 for the first applicant, BGN 4,000 for the second applicant and BGN 4,000 for Mr Nikolov ' s son , but upheld the sentence. The court described in detail the events of 27 September 1994 and held that “in view of the police officers ' numerical superiority, their younger age, their special training, the proximity of their colleagues, as well as the fact that in his further actions [Mr] Nikolov [had not] resisted or refused to obey their lawful orders, the physical force used had been in breach of section 40(1)(1) and (2) and section 41(2) and (4) of the National Police Act [of 1993], in force at the material time”. The court ' s opinion continued, as relevant:

“The factual findings of the [lower] court are based on the evidence gathered and are fully accepted by [this] court. In view of the facts, the acts committed by the accused were properly characterised as an offence under Article 124 § 1 of the CC...

I . Concerning the appeal of the accused

In the indictment the prosecution has brought charges against the two accused for an offence ... committed in concert. The prosecution has not taken into consideration that the offence under Article 124 § 1 of the CC is only negligent as regards the graver consequence [the death]. Complicity in a criminal offence is only possible in respect of wilful offences, as it presupposes the joint intentional participation of two or more persons, whose actions lead in their entirety to the perpetration of the offence, provided always that these persons realise that they are acting in concert with others. The actus reus of the offence under Article 124 [§ 1 of the CC] is complex. The intention to attain the lesser result [the bodily harm] is combined with negligence with respect to the graver result, i.e. the offence is committed with differing types of mens rea , which excludes the possibility of complicity.

...

The objection of the accused concerning the unfoundedness of the lower court ' s judgment as regards the authors of the offence is groundless. The experts ' conclusion is that the cranial and cerebral traumas were caused by two separate blows to the head, with or against a solid object, delivered with considerable force. The experts provide two explanations as to its possible source. According to the first explanation, one blow was to the head, either on the left temple or on the right occip u t , followed by a fall on the ground and a further blow to the opposite side. According to the second explanation, the two injuries may be due to two separate consecutive blows with a blunt, solid object. The experts categorically exclude the possibility that the blows were inflicted with the sharp (metal) part of the hoe...

The [lower] court was correct in accepting the second explanation, which is supported by the remaining evidence... In their statements, including those made at the trial, the two accused admit the fact that they acted violently in apprehending [Mr] Nikolov. ... [B]oth accused state that the victim did not fall on the ground at any point in time. Both aver that [Mr] Nikolov was standing or squatting. It was therefore impossible for one of the injuries ... to have been the result of a fall on the ground.

The assertion of the accused that the victim ' s death was the result of light and not grievous bodily harm, as accepted by the [lower] court, is groundless and completely unsubstantiated. The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall life ‑ endangering health disruption, i.e. corresponded to the medical and biological indications of grievous bodily harm.

The [lower] court has correctly found that the two accused wilfully inflicted the grievous bodily harm resulting in death. Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death – are convincing and fully accepted by [this] court, so there is no need to repeat them.

...

II. Concerning the appeal of the [applicants]

The appeal is partially well-founded. The punishments imposed – three years ' imprisonment – even though at the minimum possible by law, are not disproportionately lenient. The [lower] court has examined and taken account of all factors which are material for determining the sentence. On the one hand, it is true that a human life has been taken in a situation which did not call for the use of physical violence with such intensity in respect of [Mr] Nikolov. On the other hand, the accused have no prior convictions, are of good character, each of them has administered one blow on the head of the victim, the death has been caused negligently, the [accused] have acted with a view to arresting an offender pursuant to the direct orders of their immediate superior, initially [Mr] Nikolov did not obey and did not throw away the hoe which he was holding, the accused were discharged from the [police]. In view of all this the [court] finds that the [lower] court ' s conclusions as to the quantum of the penalties are well ‑ founded, as well as its conclusion that the correction and the reformation of the accused do not call for the effective serving of the sentence.

The appeal is ... well ‑ founded as regards [the amount of the compensation awarded]. The quantum of the compensation for non-pecuniary damage is to be determined at the time of the delivery of the judgment. At this time the practice of the courts is to allow claims for non ‑ pecuniary damages in higher amounts than the claims of the [applicants]. For this reason the [court] finds that the judgment has to be revised, by increasing the sums awarded to each of the applicants up to the full amount of their claims. This level of compensation will reflect the actual pain and suffering which [the applicants] have sustained from the loss of their relative.”

Both the applicants and the police officers appealed to the Supreme Court of Cassation. The applicants once again submitted, inter alia , that the suspended sentence was too lenient. They argued that the lower court ' s characterisation of chief sergeant B.I. as a person “ of good character ” was questionable as he had been charged with the battery of a detainee six months before the beating of Mr Nikolov. The police officers submitted, inter alia , that the lower courts had imposed a very severe punishment.

After holding a hearing on 5 December 2001, i n a final judgment of 14 January 2002 the Supreme Court of Cassation upheld the lower court ' s judgment in the following terms:

“As regards the appeal of the [applicants]:

It is being argued that the [lower] courts have erred in ordering the suspension of the sentences of the two accused, and a request is made to order their effective serving.

This ground of appeal ... is not supported by the materials in the case file and is ill ‑ founded. In order to apply Article 66 of the CC [the lower courts] have weighed all factors relating to the individual and general deterrence function s [ of the criminal law ]. Taking into consideration [the accused ' s] clear criminal record, their good character, the manner in which the offence was committed – one blow each, the form of the mens rea – negligence by each of the accused, the behaviour of the victim, and in view of the aims of the punishment ..., the conclusion that the correction and the reformation of the accused does nor call for the effective serving of the sentence is lawful. This court fully shares it...

As regards the appeal of the two accused:

The grounds of appeal are a breach of the substantive law and obvious inequity of the sentences imposed and compensations awarded

Bearing in mind the [lower courts ' ] findings of fact, which are not subject to review [by this court], this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file. The authorship of the offence has been proven beyond doubt, and the legal characterisation is correct. Each of the accused ... has executed all the elements of the offence under Article 124 § 1 of the CC. The evidence – the statements of the accused, the witness testimony, combined with the medical expert report and the other written evidence, correctly assessed by both levels of court ... has led them to hold that the two have committed the offence independently of each other, in their capacity of police officers on active duty, in connection with the performance of their duties, thus negligently bringing about the death of [Mr Nikolov] by intentionally causing him grievous bodily harm. The personal conviction of the courts has been based on the objective, comprehensive and complete assessment of all the facts of the case, which have been subjected to a serious and through analysis. In view of the facts, as thus established by the appellate court, the conclusions concerning the actus reus and the mens rea are lawful.

In this connection, the objection of the accused that the death was the result of light bodily harm is unfounded. An identical objection was made before the appellate court, which reviewed it and ultimately rejected it. The reasons given are detailed and based on the evidence, and therefore shared by this court.

...

The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless. In determining the punishment of the two accused [the lower courts] have analysed all mitigating and aggravating circumstances. They have correctly found a preponderance of the former and have imposed [a minimal suspended sentence, within the bounds provided for by law]. Extra lenience would be unwarranted, as it would not further [the deterrent and reforming purposes of the criminal law].

The amounts of compensation are likewise equitable. The reparation of the non ‑ pecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and principles of equity... Taking into account the pain and suffering, as well as the irreversibility of the loss sustained, this court considers that the amount set by the [lower] court is just and would recompense the [applicants] to the utmost degree.”

3. The enforcement proceedings against the police officers

The applicants obtained writs of execution against the two police officers on 25 January 2002. As apparently the latter refused to pay of their own accord the award to the applicants , on 28 December 2002 the applicants issued enforcement proceedings against them. During the period 2002 ‑ 04 the enforcement judge at the Shumen Regional Court tried to collect the amounts from the two officers, but to no avail, as the officers did not own any seizable assets. For this reason towards the end of 2004 the two enforcement proceedings were discontinued on the request of the applicants.

4 . The applicants ' tort action against the Shumen Regional Police Department

On 24 July 1997 the two applicants and Mr Nikolov ' s son brought a tort action against the Ministry of Internal Affairs and the Shumen Regional Police Department at the Shumen District Court. They sought non ‑ pecuniary damages for Mr Nikolov ' s death in the amount of 1,500,000 Bulgarian levs (BGL) [1] for the first applicant, BGL 750,000 for the second applicant and BGL 750,000 for Mr Nikolov ' s son.

At the first hearing, which took place on 16 October 1997, the Shumen District Court stayed the proceedings in anticipation of the outcome of the investigation against the officers. After the end of the criminal proceedings on 14 January 2002 (see above), on 16 July 2003 the Shumen District Court resumed the examination of the case.

The court held three hearings on 5 November 2003 and 30 January and 12 May 2004. It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the pleadings of the parties. In a bench ruling of 12 May 2004 it discontinued the proceedings against the Ministry of Internal Affairs, holding that the Shumen Regional Police Department, by which the police officers had been employed, was the only entity capable of being vicariously liable for their actions.

In a judgment of 24 June 2004 the Shumen District Court ordered the Shumen Regional Police Department to pay BGN 1,500 to the first applicant, BGN 750 to the second applicant and BGN 750 to Mr Nikolov ' s son, together with interest at the statutory rate as from 27 September 1994, the date of Mr Nikolov ' s death. It also awarded costs and expenses in the amount of BGN 149.40. It held that the facts surrounding Mr Nikolov ' s death and the non ‑ pecuniary damage sustained by the applicants as a result of it had been fully established in the judgments of the criminal courts which had tried the police officers. These judgments, which assessed the applicants ' non ‑ pecuniary damage at BGN 5,000 and BGN 4,000 respectively, were binding on the civil court. The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers ' actions. It observed however that the applicants had claimed lesser amounts – BGN 1,500 and BGN 750 – and it was therefore unable to increase the amount of the awards.

On 19 July 2004 the Shumen Regional Police Department appealed. On 15 November 2004 the applicants increased their claims to BGN 5,000 and BGN 4,000 respectively. The Shumen Regional Court held five hearings on 16 November and 14 December 2004, and 11 January, 1 and 24 February 2005.

In a final judgment of 29 March 2005 the Shumen Regional Court upheld the lower court ' s judgment. It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers. Concerning the increasing of the applicants ' claims, the court held that it could not be taken into account, as it had been made for the first time on appeal and as only the defendant had appealed against the first ‑ instance judgment.

The Shumen Regional Police Department paid the award of damages to the applicants shortly after the end of the proceedings.

B. Relevant domestic law

1. The Criminal Code

Article 124 § 1 of the CC provides that whoever negligently causes the death of another by intentionally causing him bodily harm is punishable by a term of imprisonment ranging from three to twelve years in case of grievous bodily harm , from two to eight years in case of intermediate bodily harm , and up to five years in case of light bodily harm .

Articles 128 § 2, 129 § 2 and 130 § 2 of the CC differentiate bodily harm as grievous , intermediate or light on the basis of various medical criteria.

By Article 115 of the CC, murder is punishable by ten to twenty years ' imprisonment. By Article 116 § 1 (2) of the CC, murder committed by police officers in the performance of their duties is punishable by fifteen to twenty years ' imprisonment or life, with or without parole.

Article 54 § 1 of the CC directs the criminal court to determine the sentence within the bounds provided for by law, taking into account the general rules of criminal law , the dangerousness of the offence and of the offender, the motives for committing the offence , and the remainder of the mitigating and the aggravating circumstances.

By Article 66 § 1 of the CC, the court may suspend a sentence of up to three years ' imprisonment for three to five years, provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence, and also provided that the court finds that the aims of the criminal law (in particular, the reformation of offender) may be furthered without the effective serving of the sentence.

2. The National Police Act of 1993

Section 40(1) of the now repealed National Police Act of 1993 („ Закон за националната полиция “), as in force at the material time, read, as relevant:

“... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:

1. resistance or refusal [by a person] to obey a lawful order;

2. arrest of an offender who does not obey or resists the police [officers];

...

5. attack against citizens or police [officers]; ...”

By section 41(2) of the Act, the use of force had to be commensurate to, inter alia , the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained.

3. The Contracts and Obligations Act of 1951

By section 49 of the Contracts and Obligations Act of 1951 („ Закон за задълженията и договорите “), legal persons – including public bodies – are vicariously liable for the tortuous conduct of the individuals employed by them .

COMPLAINTS

1. The applicants complained under Article s 2 and 3 of the Convention about the beating and the ensuing death of Mr Nikolov.

2 . Relying on Articles 6 and 13 of the Convention, t he applicants complained about the alleged in effectiveness of the criminal investigation of Mr Nikolov ' s death and about the alleged lack of effective compensation therefor.

THE LAW

1. The Government raised an objection , claiming that the application had been lodged outside the six ‑ month time ‑ limit laid down in Article 35 § 1 of the Convention . They submitted that the applicants themselves, in their introductory letter to the Court, were apprehensive about where they stood in regard to the time ‑ limit requirement. The applicants ' averment that it had not expired because of the pending enforcement proceedings against the police officers was untenable. The enforcement proceedings were not a continuation of the criminal proceedings. They did not aim to establish the relevant facts, but solely to secure the actual payment of the award made to the applicants. They could thus not be deemed an effective remedy in respect of the violations alleged in the application to the Court. The final decision within the meaning of Article 35 § 1 was therefore that of the Supreme Court of Cassation of 14 January 2002 , of which the applicants had learned at the latest on 1 February 2002, when they had requested the issuing of writs of execution pursuant to it. The application had been lodged on 24 February 2003, more than six months after that.

The applicants replied that their application had been timely because the final decision within the meaning of Article 35 § 1 had not been that of the Supreme Court of Cassation of 14 January 2002, but that of the Shumen Regional Court of 29 March 2005, given in the tort action against the Shumen Regional Police Department.

Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The former Commission and the Court have consistently construed the term “final decision” used in Article 35 § 1 (former Article 26) of the Convention as referring to the final decision resulting from the exhaustion of all domestic remedies according to the generally recognised rules of international law. They have done so because the requirements of this provision concerning the exhaustion of domestic remedies and the six ‑ month period are closely intertwined, as they are combined in the same Article, in a single sentence whose grammatical construction implies such correlation. The remedies which are to be taken into account are those which are capable of effectively and sufficiently redressing the wrongs which are the subject of the international claim (see, among others, De Becker v. Belgium , no. 214/56 , Commission decision of 9 June 1958, Yearbook 2 , p. 214 at p. 242 ; Hatjianastasiou v. Greece , no. 12945/87, Commission decision of 4 April 1990, Decisions and Reports ( DR ) 65, p. 173, at p. 177 ; and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004 ‑ II (extracts) ).

As the application was introduced on 24 February 2003 , the issue is whether the “final decision” in the present case was the judgment given on 14 January 2002 by the Supreme Court of Cassation in the criminal proceedings against the police officers, or the one given on 29 March 2005 by the Shumen Regional Court in the tort action against the police department by which they were employed.

It is beyond doubt that the criminal proceedings against the police officers, coupled with the civil claim against them, were capable of providing full redress to the applicants as they could result in the identification and punishment of those responsible for Mr Nikolov ' s death and the award of compensation therefor.

By contrast, the tort action against the police department could lead solely to the award of compensation on the basis of the department ' s vicarious liability for the officers ' actions. It was therefore not a remedy which had to be used in order to satisfy the exhaustion requirement of Article 35 § 1 (see, among many other authorities, YaÅŸa v. Turkey , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2431 , § 74 in fine ; and Ayder v. Turkey , no. 23656/94, § 98, 8 January 2004 ). However, the applicants did avail themselves of it, with the result that an important aspect of the case which they submitted for consideration to this Court – the availability of effective compensation for Mr Nikolov ' s death – was not settled until 29 March 2005, when the Shumen Regional Court determined, in a final judgment, their claim for such compensation (see, mutatis mutandis , Erdago ̈ z v. Turkey , no. 17128/90, Commission decision of 10 July 1991 , DR 71, p. 275, at pp. 281 ‑ 82). It must also be noted that the proceedings which led to this judgment were issued by the applicants in 1997, while the criminal investigation against the police officers had still not progressed to trial. They were later stayed to await the outcome of the investigation and were resumed only after the civil court had been informed of the entry into force of the criminal court ' s judgment against the officers. Therefore, it cannot be said that the applicants deliberately tried to defer the strict time ‑ limit set in Article 35 § 1 by making use of procedures which could offer them no effective redress (see, mutatis mutandis , Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006 ).

Article 35 § 1 cannot be interpreted in a manner which would require applicant s to refer their complaint s to the Court before their position in relation to the matter of which they complain has been finally determined at the domestic level (see, among many other authorities, S cotts ' of G reenock Ltd., L ithgows Ltd. v. the United Kingdom , no. 9599/81 , Commission decision of 11 March 1985, DR 42, p. 33, at p. 41; Finucane v. the United Kingdom (dec.), no. 29178/95 , 2 July 2002 ; and JaÅ¡ar v. the former Yugoslav Republic of Macedonia (dec.), no. 69908/01 , 11 April 2006 ). Furthermore, the six ‑ month rule must be interpreted and applied without excessive formalism (see Ječius v. Lithuania , no. 34578/97, § 44 , ECHR 2000 ‑ IX ) so as to ensure the effective exercise of the right of individual application ( see Worm v. Austria , no. 22714/93, Commission decision of 27 November 1995, DR 83 ‑ A, p. 17, at p. 24; and Balogh v. Hungary (dec.), no. 47940/99 , 13 May 2003 ). In line with these principles, the Court concludes that the starting point of the six ‑ month period in the present case was 29 March 2005, the date of the Shumen Regional Court ' s judgment. In view of this conclusion it is not necessary to decide whether the enforcement proceedings against the police officers have to be taken into account for calculating the six ‑ month time ‑ limit.

In light of the foregoing considerations, the applicant s can be deemed as having lodged their application in good time . T he Government ' s objection must accordingly be dismissed.

2. In respect of their complaints concerning the ill ‑ treatment and death of Mr Nikolov the applicants relied on Articles 2 and 3 of the Convention, which provide, as relevant:

Article 2

“1. Everyone ' s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

...

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

2.1. The Government, referring to the case of Caraher v. the United Kingdom ( (dec.), no. 24520/94, ECHR 2000 ‑ I ), submitted that applicants who had received compensation for the breach of their Convention rights could no longer claim to be victims of a violation. The possibility of obtaining compensation for the death of a person in principle constituted sufficient redress for an alleged violation of Article 2 of the Convention. Not only had the applicants been awarded in full the compensation they had asked for, but the authorities had charged and convicted the police officers responsible for Mr Nikolov ' s death. Concerning the officers ' penalties, the national courts had had regard to the gravity of their offence, their motives for committing it, and all other aggravating and mitigating circumstances. All levels of court had given full reasons for their rulings on this point. The penalties were adequate if compared to the constant practice of the domestic courts in respect of such offences, where they imposed an average sentence of three years and two months, as could be seen from the published case ‑ law of the Supreme Court of Cassation. The sentences meted out to the officers could thus not be considered unduly lenient.

The applicants replied that they had not received the amounts which the police officers had been ordered to pay them in damages. Moreover, the officers ' penalties had been inadequate in view of the extreme gravity of their offence, which consisted of an unprovoked beating resulting in death. The investigation of this beating, after initially resulting in a conclusion on 12 May 1995 that the accused should be committed to trial, had then been halted and only renewed on 12 January 1998 after the applicants ' numerous complaints to all possible instances. The criminal proceedings had lasted overall almost eight years and, had it not been for the applicants ' persistent complaints, would have probably never resulted in a trial. The State had thus not effectively enforced the laws preserving the right to life and the prohibition of ill ‑ treatment. The sentence imposed on the police officers was not sufficiently effective and did not amount to full redress for the ill ‑ treatment and death of Mr Nikolov.

Article 34 of the Convention provides, as relevant:

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ....”

The Court considers that the question whether the applicants may still claim to be victims of violations of Articles 2 and 3 of the Convention in respect of Mr Nikolov ' s death is closely linked to the questions whether the investigation of Mr Nikolov ' s death was effective and whether the compensation which the applicants received therefor was also effective. However, these issues go to the merits of the applicants ' complaints under Articles 6 and 13 of the Convention (see below). The Court therefore decides to join the Government ' s objection to the merits.

2.2. Neither the Government, nor the applicants commented on the substance of the complains.

The Court considers 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 these complaints 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.

3. In respect of their complaint about the ineffectiveness of the investigation of and the compensation for Mr Nikolov ' s death the applicants relied on Articles 6 and 13 of the Convention. These provisions read, as relevant:

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13

“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.”

The Government submitted that the investigation of Mr Nikolov ' s death had been full and comprehensive. The authorities had gathered all relevant evidence. They had conducted twenty ‑ eight interviews, a site inspection and an identity parade. They had also ordered seven forensic reports, including an autopsy. All levels of court had meticulously analysed all available evidence and had found the police officers guilty. The investigation and the judicial proceedings had not been unduly protracted.

The applicants replied that, had it not been for their complaints to various institutions, the criminal investigation against the police officers, after having been halted in May 1995, would have never progressed to trial. It had resumed only in January 1998, more than two and a half years later. A number of other delays had accumulated throughout the following years, during the preliminary investigation, as well as during the trial and the ensuing appeals.

The Court considers, in the light of the parties ' submissions, 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 these complaints 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

Decides to join to the merits the question whether the applicants may still claim to be victims in respect of the alleged violations of Articles 2 and 3 of the Convention;

Declares the application admissible , without prejudging the merits of the case .

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . On 5 July 1999 the Bulgarian lev was revalorized. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL).