FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44041/98 by Luben KEMEROV against Bulgaria

The European Court of Human Rights (First Section), sitting on 2 September 2004 as a Chamber composed of

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

Having regard to the above application lodged with the European Commission of Human Rights on 1 July 1998 ,

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

Having regard to the partial decision of 16 December 1999 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national, who was born in 1945 and lives in Plovdiv . He was represented before the Court by Mr M. Ekimdjiev , a lawyer practising in Plovdiv . The respondent Government were represented by their agents Mrs V. Djidjeva and Mrs M. Dimova of the Ministry of Justice.

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

1. The events of 31 March 1996

On 31 March 1996 , at about 3.30 a.m. , the applicant ’ s neighbour asked him to cease disturb ing his neighbours by playing loud music. The applicant, who had consumed alcohol, 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 Paunov and Marinski of the Fourth District Police Station in Plovdiv 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 the ir 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 the y might break in, the applicant eventually opened.

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

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

T he police officers eventually handcuffed the applicant and took him to the p olice s tation. 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.

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. He was never prosecuted for assault on police officers.

2. Disputed documentary evidence

The Government submitted copies of the following documents:

( i ) A handwritten report by police officer Paunov addressed to his superior, dated 31 March 1996 . The report contains the following statement:

“We convinced [the applicant] to open the door, whereupon he assaulted us with a knife in his hand. We used physical force and auxiliary means to seize the knife and to apprehend him”.

(ii) Two reports on offences punishable in summary administrative proceedings ( акт за административно нарушение ) , dated 31 March 1996 and duly registered in the police reports register .

One of the reports, which bears number NP-147, was drawn up by police officer Paunov who stated that a knife had been seized from the applicant at about 6 a.m. that day and that the applicant had thus committed a violation of the regulations on possession of arms. The other report, number NP-148, was drawn up by police officer Marinski who stated that the applicant had refused to comply with a police order to cease a disturbance to the public and had thus committed a violation of the relevant municipal regulations.

On the basis of reports NP-147 and NP-148 the Director of the local police signed punishment forms order ing the applicant to pay fines. However, these punishment orders were not served and were never implemented.

(iii) Excerpts from the detained persons ’ register at the local police station, where the arrest of the applicant was listed, accompanied by the following note: “assaulted the patrol with a knife and resisted [orders]”.

The applicant disputed the evidentiary value of the above documents , which were issued by the police officers involved. He stated that he had never received copies of the reports NP-147 and NP-148, as the relevant procedural rules require. Also, it was unusual t hat several separate reports h ad been made in relation to one and the same incident. Alleging that he had not assaulted the police officers, the applicant suggested that some of the documents allegedly documenting an assault with a knife might have been created later and backdated.

3. 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 under file number 635/96 .

On 4 July 1996 a prosecutor instructed the Director of the Fourth District Police Station in Plovdiv to investigate the complaints.

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

On 23 July 1996 the Director of the Fourth District Police Station 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. No mention of reports NP-147 or NP-148 was made.

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 prosecution authority, the General Military Public Prosecutor ’ s Office in Sofia ( Прокуратура на въоръжените сили ). He stated that he had learned the name of one of the police officers involved , sergeant Marinski . On 26 February 1997 the General Military Public Prosecutor ’ s Office transmitted the applicant ’ s complaint to the regional prosecutor in Plovdiv with instructions to complete the investigation.

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 t he 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.

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:

“As regards the series of blows on the applicant during the incident, these fall under Section 24 § 1(1) of the National Police Act which allows the use of force and handcuffs to put an end to a rampant behaviour or other serious violation of public order.”

The provision cited in the decision was not applicable at the relevant time as it had been repealed in December 1993 , when it was replaced by sections 40 and 41 of the new National Police Act 1993 .

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 .

COMPLAINTS

The applicant complain ed 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 . Also, he alleged that in the police station he had been handcuffed in a way which caused him pain.

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

The applicant complain ed under Article 13 that he d id not have an effective remedy against the police brutality .

THE LAW

A. The parties ’ submissions

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

The Government submitted, inter alia , that the applicant had not exhausted all domestic remedies as he had not appealed against the prosecutor ’ s decision of 15 July 1998 . Furthermore, he had not complained before the domestic authorities about the allegedly unlawful entry into his apartment. The Government also submitted that the applicant had effective domestic remedies at his disposal.

The applicant replied that he had submitted his application before the prosecutor ’ s decision of 15 July 1998 , after having complained in vain of the delays in the investigation , including to the General Military Prosecutor ’ s Office. Furthermore, the investigation had been dilatory and clearly inadequate as it had been handled by police officers and resulted in a decision reciting the version of the facts proposed by the officers involved. Therefore, the applicant did not have effective remedies at his disposal. The applicant considered that in the circumstances he could not be required to file additional appeals.

B . The Court ’ s assessment

1. Exhaustion of domestic remedies in respect of the complaints under Articles 3 and 8 of the Convention

The Court re iterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51 - 52 and Balogh v. Hungary ( dec .), no. 47940/99, 13 May 2003 ).

As regards complaints of police ill-treatment in Bulgaria, applicants are required to make normal use of the remedies available in the criminal justice system (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports 1998-VIII, p. 3286, § 86, Nankov v. Bulgaria , no. 28882/95, Commission decision of 10 September 1997 , unreported , Boichinov v. Bulgaria , no. 35220/97, Commission decision of 14 January 1998, unreported , Anguelova v . Bulgaria ( dec .), no. 38361/97, 6 June 2000, Osman and Osman v. Bulgaria ( dec .), no. 43233/98, 6 May 2004).

In circumstances where the investigation into the relevant events was dormant for a lengthy period and did not produce any formal findings, an applicant who submitted complaints against the inactivity of the authorities must be considered to have made normal use of the available remedies (see Velikova [A.V.] v. Bulgaria ( dec .), no. 41488/98, ECHR 1999-V and Selmouni v. France , no. 25803/94, Commission decision of 25 November 1996, D ecisions and R eports (DR) 88, pp. 55, 62, 63 ).

In the present case , however, the investigation resulted on 15 July 1998 in a formal decision of the Regional Military Prosecutor , the local level of the competent prosecuting authorities . It was open to the applicant, who was assisted by a lawyer, to appeal. He did not do so, despite the fact that he was informed of the possibility to appeal. While the investigation was indeed lingering for more than two years until July 1998, the Cou rt cannot accept the applicant ’ s argument that he should not be required to appeal against the local prosecutor ’ s decision of 15 July 1998 . That decision was delivered a mere several days after the introduction of his application to the former Commission on 1 July 1998 .

It is true that in a number of cases against Bulgaria the Court found that the authorities had failed to conduct effective investigations into complaints of police ill-treatment despite the fact that the applicants had appealed to all levels of the prosecuting authorities (see Assenov and Others , cited above, §§ 101-106 and 114- 18, Anguelova v. Bulgaria , no. 38361/97 , § § 1 41- 46 and 158-162 , ECHR 2002-IV and Nachova and Others v. Bulgaria , nos. 43577/98 and 43579/98, § ... , 26 February 2004 ). In the latter judgment the Court noted that the repeated cases of ineffective investigation of police violence in Bulgaria we re a matter of particular concern as they raise d doubts on the objectivity and impartiality of the investigators and prosecutors involved (see, Nachova and Others v. Bulgaria , cited above, §§ 136- 39) .

In the present case , it is undisputed that had the applicant appeal ed to the Appellate Military Prosecutor ’ s Office he would have been able to raise the factual and legal arguments he made for the first time before the Court and would have obtained a review at the national level of the local prosecutor ’ s decision of 15 July 1998 . The applicant has not shown convincingly that such a review was bound to be ineffective . M ere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress.

As he did not avail himself of th e possibility to appeal , t he applicant failed to exhaust all domestic remedies in respect of his complaint under Article 3 of the Convention, as required by its Article 35 § 1.

As regards the complaint under Article 8 of the Convention, it is doubtful whether it was raised in the applicant ’ s submissions before the domestic authorities. At all events, the Court ’ s conclusions abo v e apply.

It follows that the complaints under Articles 3 and 8 of the Convention must be rejected in accordance with Article 35 § 4 of the Convention.

2 . Complaint under Article 13 of the Convention

While it is true that the investigation leading to the decision of 15 July 1998 was superficial and clearly inadequate, the Court, f or the reasons developed above , finds unsubstantiated the applicant ’ s claim that the possibility to appeal to the national level of the prosecuting authorities against the local prosecutor ’ s decision of 15 July 1998 could be ruled out as an in effective remedy in all circumstances .

It follows that the applicant ’ s complaint under Article 13 of the Convention that he did not have effective remedies at his disposal is unsubstantiated and therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The remainder of the application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President