FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44625/98 by D.E. against Bulgaria

The European Court of Human Rights (First Section), sitting on 1 July 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 12 May 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 14 November 2002,

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, Mr D.E., is a Bulgarian national who was born in 1973 and lives in Gabrovo. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, 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.

1. The applicant’s arrest, alleged ill ‑ treatment and ensuing medical examination

At approximately 1.30 a.m. on 5 February 1997 the applicant and another person were arrested in the home of a person who had called the police indicating that the two were trying to steal from his car. After his arrest the applicant was taken to the regional police department in Gabrovo, where he was placed in police custody for twenty ‑ four hours.

The applicant alleges that when he was brought to the police department, several police officers started to shout at him, to kick his legs and to hit him in the stomach and in the kidneys. When he said that “[he did not] know about any thefts”, one police officer started to beat his head and back with a rubber hose. The others joined him with truncheons. Then the applicant was thrown to the ground and kicked.

The applicant further submits that at approximately 9 a.m. the following morning he was brought for questioning to a room on the third floor of the police department. When he denied involvement in the commission of the alleged thefts the two officers who were questioning him began to hit him with wooden bats. He sustained blows all over his body, fell on the floor and tried to hide under a table. The two officers then started kicking him. One kick in the face allegedly broke two of his teeth.

Later that day, 5 February 1997, criminal proceedings were opened against the applicant. The investigator who opened the proceedings ordered that the applicant be placed in pre-trial detention. Thereafter the applicant was transferred to a pre-trial detention facility, upon the admission to which he was examined by a paramedic. According to the report drawn up by the paramedic, the examination took place at 4.30 p.m. The paramedic noted that the applicant did not state that he had any ailments and stated that he had no medical complaints. The applicant signed the report. The applicant alleges that in fact the paramedic refused to describe his injuries, because he was not sure whether they had been sustained while the applicant had been in police custody or before that.

The applicant alleges that in the following months he had to ask his relatives to provide him with analgesics, as his jaw had swelled and he was experiencing pain in the area of the broken teeth.

Finally, the applicant alleges that, since the medical facilities in the pre ‑ trial detention centre and in the prison, where he was transferred on 15 April 1997, lacked the necessary material, the broken teeth could not be treated and had to be removed.

2. Evidence submitted by the applicant

In an undated written statement, apparently prepared for the purposes of the proceedings before the Court, the person who was arrested with the applicant on 5 February 1997 and co-accused with him submits that the applicant and himself were beaten by police officers immediately after their arrest. He also submits that he was later refused examination by a doctor. A police officer with whom he talked several days later told him that the applicant had also been seriously beaten. Lastly, he submits that at a confrontation on an unspecified date he saw that the applicant was “swollen and blue” and that the applicant had told him that he had been beaten in room no. 5 on the third floor of the police department.

The documents in the case file indicate in that only one confrontation between the applicant and his co ‑ accused took place on 14 April 1997.

A medical certificate issued by a Gabrovo dental clinic on 22 October 1998 indicates that on 23 December 1997 the applicant underwent surgical treatment for an abscess of the soft tissues of the upper jaw.

A medical certificate issued by the prison authorities on 24 March 2000 indicates that the applicant underwent extraction of teeth roots as follows: root of the 8th upper left tooth extracted on 23 March 1998; root of the 5th lower right tooth extracted on 26 March 1998; roots of the 4th and 5th upper left teeth extracted on 27 May 1998; roots of the 6th and 7th upper right teeth extracted on 28 October 1998; and root of the 3rd upper right tooth extracted on 25 November 1998.

3. Information to the authorities about the applicant’s alleged ill ‑ treatment

On 7 February 1997, after he was acquainted with the charges against him, the applicant was questioned by an investigator in the presence of counsel. He stated that he understood the charges and wished to exercise his right to remain silent. He did not make any reference to being ill ‑ treated after his arrest.

When the applicant was questioned by the same investigator on 28 March 1997, he stated the following: “Stefan [the applicant’s co ‑ accused] and I were taken to the police station. Beside Stefan I got a licking as well.” The applicant, who was assisted by counsel during the questioning, did not elaborate on that statement and did not provide any further details.

On 19 December 1997 the applicant’s father filed an appeal against the applicant’s pre ‑ trial detention with the Gabrovo Regional Prosecutor’s Office, with a copy to the Gabrovo Regional Court. The appeal was returned, as it was not filed by the detained person or a duly authorised representative. On the second page of the document the applicant’s father stated as follows: “... according to our son, as well as to other sources, ... he had been ill ‑ treated on the third floor, room no. 5, where he had been beaten by [S.B.] and another police officer, because he would not admit of having thieved”.

B. Relevant domestic law

1. Use of force by the police

Section 40(1) of the National Police Act, 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 authorities;

...

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

Section 41(2) provided that the use of force had to be commensurate to, inter alia , the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of the persons against whom [force was being used]”.

2. Duty to investigate ill ‑ treatment by the police

Articles 128, 129 and 130 of the Criminal Code (“the CC”) make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the CC).

Article 287 of the CC makes it an offence for an official to engage, in the course of or in connection with the performance of his or her duties, in illegal coercive action towards an accused in order to extract a confession. This offence is likewise publicly prosecutable.

Under Bulgarian law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure (“the CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 186, 187 and 190 of the CCP). During the relevant period the CCP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP).

COMPLAINTS

The applicant complained under Article 3 of the Convention that he had been ill-treated by the police after his arrest. He also complained that the authorities had not investigated the allegations about his ill-treatment.

THE LAW

A. The applicant’s alleged ill ‑ treatment

In respect of his complaint about the alleged ill-treatment by police officers the applicant relied on Article 3 of the Convention, which provides:

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

The Government submitted that the applicant’s allegations of ill ‑ treatment were unsubstantiated and ill-founded. The applicant’s averment that he had been beaten sounded implausible in the light of the medical report drawn up by the paramedic which the applicant had signed without objections. The applicant had made no reference to this report in his initial application to the Court. This report had been made at 4.30 p.m. on 5 February 1997, i.e. after the alleged ill-treatment. If the applicant’s allegations were true, then he would have had numerous visible injuries, which would have been noted in the report. There was further no doubt about the authenticity of the report, especially in view of the fact that it had been signed by the applicant.

The Government further submitted that there was no indication that the applicant’s teeth problems were related to any ill-treatment.

Lastly, the Government argued that the averment of the applicant’s co ‑ accused that the applicant had been “swollen and blue” during a confrontation seemed implausible. After his arrest the applicant had met many people – his parents, his lawyer – and none of them had averred that he bore traces of ill ‑ treatment. Also, the confrontation had taken place on 14 April 1997, more than two months after the alleged beating, which made it impossible for the applicant to be still “swollen and blue”.

The applicant submitted that because the ill-treatment had taken place while he had been in custody, his allegations could only be supported by circumstantial evidence. Such evidence were the applicant’s statement during his questioning on 28 March 1997, the statement made in his father’s appeal of 19 December 1997, the statement of his co-accused and the fact that six of the applicant’s teeth had to be pulled out during the period March – November 1998.

As regards the medical report drawn up on 5 February 1997, the applicant conceded that he had signed it, but nevertheless observed that it had been drawn up by a paramedic who had been working for the Investigation Service in Gabrovo, which cast doubt on its objectivity. The applicant also pointed out that the report did not have a number; therefore the hour noted on it could have been added later.

Concerning the statement of the applicant’s co-accused that he had been “swollen and blue” during the confrontation which apparently took place on 14 April 1997, the applicant averred that his co-accused had not indicated the date of the confrontation. As there was a practice in Bulgaria to organise such investigative actions informally, this confrontation could have taken place on a much earlier date.

Finally, concerning the teeth which had been pulled out, the applicant conceded that the Government’s averment that no causal link could be established between that and the alleged ill-treatment was formally true, but submitted that it was incumbent on the Government to prove the lack of such a link.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, pp. 64 ‑ 65, § 161 in fine ).

Turning to the particular circumstances of the case, the Court observes that, apart from his own statements and the statement of his co-accused, the applicant has not produced any conclusive proof in support of his allegations of ill ‑ treatment. While the Court recognises the difficulty for detained people to obtain evidence of ill ‑ treatment during police custody, in the instant case the applicant did not supply any medical evidence to cast doubt on the authenticity or the results of the medical examination carried out on his person at 4.30 p.m. on 5 February 1997. In this connection, the Court notes that the report drawn up by the paramedic, which the applicant signed, states that the applicant did not aver that he had any ailments and stated that he had no medical complaints. Contrary to what the applicant submits, there is no indication that this report was not exact or genuine.

Concerning the statement of the applicant’s co-accused that he saw the applicant “swollen and blue” at a confrontation, the Court notes that the documents in the case file indicate that only one confrontation took place on 14 April 1997, more than two months after the alleged beating. While the applicant submits that the confrontation could have taken place earlier, the Court notes that neither he nor his co-accused specify when exactly this unrecorded confrontation happened. Given this lack of information, the Court cannot conjecture as to when this confrontation took place or find that it occurred at a time when the applicant still bore the marks of the alleged ill-treatment and thus conclude that there is conclusive proof that the applicant was indeed injured.

Finally, the applicant’s averment that as a result of the ill-treatment several of his teeth were hurt and had to be pulled out more than a year later also seems implausible. The applicant’s teeth problems could be due to a multitude of factors and there is no evidence whatsoever to allow the Court to conclude that these problems were the result of ill-treatment.

In conclusion, the material submitted by the applicant is not sufficient to enable the Court to find beyond all reasonable doubt that he sustained any injuries during the period 5-7 February 1997.

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

B. The lack of an investigation

The applicant also complained that there had been no investigation into his complaints about the alleged ill-treatment, in breach of Article 3 of the Convention.

The Government submitted that the authorities were under an obligation to investigate credible assertions of ill-treatment. However, the applicant’s statement made during the questioning on 28 March 1997 was not constitutive of an arguable claim within the meaning of the Court’s case ‑ law, in particular in view of the fact that there existed a medical report establishing the lack of any injuries. It was further striking that during the applicant’s first questioning by the investigator on 7 February 1997, when he was assisted by counsel, he made no reference to any ill-treatment. Finally, the statement of the applicant’s father could equally not raise a reasonable suspicion, because it was made eleven months after the alleged events and was not supported by any evidence.

Referring to the Court’s judgments in the cases of Labita v. Italy (cited above), Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII), Velikova v. Bulgaria (no. 41488/98, ECHR 2000-VI) and Anguelova v. Bulgaria (no. 38361/97, ECHR 2002-IV), the applicant submitted that in cases of allegations of ill ‑ treatment by the police the authorities were under an obligation to conduct an effective investigation. In all those cases the authorities had at least carried out investigations, deemed ineffective by the Court. By contrast, in the case at hand no investigation had taken place, despite the applicant’s statement during his questioning on 28 March 1997 and his father’s statement of 19 December 1997. The authorities were under an obligation to investigate of their own motion even under domestic law. By Articles 186, 187 and 190 of the CCP, they were required to open a criminal investigation if they received information, supported by sufficient evidence, that an offence might have been committed. If the information was not supported by evidence, they were at least required, in accordance with Article 191 of the CCP as in force at the relevant time, to order a preliminary inquiry.

The Court starts by noting that the applicant allowed a considerable period of time to elapse before complaining about the alleged ill ‑ treatment. In particular, it is noteworthy that during his questioning on 7 February 1997 – two days after the alleged beating –, when he was assisted by counsel, the applicant did not make any reference whatsoever to his allegations. He made only a brief statement on 28 March 1997, but did not elaborate on this, even though he was again assisted by counsel. It was only on 19 December 1997 that his father, in an appeal against the applicant’s detention, also made a brief reference to the alleged ill-treatment. However, this appeared only as an ancillary contention in a document which otherwise concerned the well-foundedness of the charges against the applicant and the reasons why he should be released.

Even supposing that initially the applicant’s circumstances could have caused him to feel vulnerable, powerless and apprehensive of the representatives of the State during his custody, the Court cannot accept a priori and without further explanations that the situation remained the same for several months after the alleged beating (see Kürküt v. Turkey (dec.), no. 24933/94, 9 January 2001). The Court further notes in this context that the applicant did not argue that he was prevented from pursuing his complaints by intimidation or otherwise.

In view of these circumstances, the Court considers that it may be open to doubt whether the authorities were effectively put on notice of the applicant’s allegations of ill ‑ treatment.

Even assuming that this was the case, the Court reiterates that Article 3 requires the authorities to investigate allegations of ill ‑ treatment only when they are “arguable” and “raise a reasonable suspicion” (see Assenov and Others , cited above, pp. 3289 ‑ 90, §§ 101 ‑ 02). However, the Court does not consider that the applicant has laid the basis of an arguable claim that he was ill ‑ treated at the hands of the police. In this connection, it notes that the authorities had no evidence, medical or other, on which to start an investigation in respect of the applicant’s allegations. In particular, it does not appear that the applicant or his lawyer requested that he be examined by a medical doctor to contradict the conclusions of the paramedic’s report of 5 February 1997 or request the gathering of other pieces of evidence.

In these circumstances, and contrary to what the applicant argues, he could not legitimately claim that an in-depth investigation should be carried out without him or his lawyer having furnished to the authorities a more reliable starting point for their inquiries (see IÅŸik v. Tukrey (dec.), no. 35064/97, 2 September 2003).

Therefore, in the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State under Article 3 of the Convention cannot be said to have been breached (see S.T. v. Turkey (dec.), no. 28310/95, 9 November 1999; and Kaplan v. Turkey (dec.), no. 24932/94, 19 September 2000).

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

For these reasons, the Court by a majority

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis              Deputy Registrar President