FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50222/99 by Svetoslav Dimitrov KRASTANOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 4 September, 2003 as a Chamber composed of

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

Having regard to the above application lodged on 3 March 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, Mr Svetoslav Dimitrov Krastanov, is a Bulgarian national who was born in 1952 and lives in Sofia. He is represented before the Court by Ms S. Kitanova, a lawyer practising in Sofia. The respondent Government are 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 events of 2 March 1995

The applicant is a high-school teacher. At about 11.45 a.m. on 2 March 1995 he went to a café with two colleagues of his.

At about 12 noon seven or eight police officers with masks on their heads rushed into the café.

Subsequently it was established that they were officers of the Ministry of Internal Affairs, the Special Anti-Terrorism Squad („ Специализиран отряд за борба с тероризма “) and the Central Service for Combating Organised Crime („ Централна служба за борба с организираната престъпност “) and that they were conducting an operation for the arrest of several persons suspected of criminal offences who were apparently known to go regularly to that café.

The officers shouted “Police!” and ordered everyone in the café to lie down, put their hands up and close their eyes. The applicant asked where exactly he should put his hands. One of the officers told him that he should put his hands behind his neck. The applicant did so and lied down on the bank on which he had been sitting. He remained in this position for about two or three minutes, during which time he was hit twice or thrice in the head with a solid object. After that he was ordered to go out of the café. The applicant asked why he had been hit, since he had done nothing to provoke this. He also said that he had difficulties moving because he was feeling a strong pain in his head and he was bleeding. The police officers threatened the applicant and swore at him, using abusive language. They dragged him outside the café, hit him several times and threw him down on the ground. The applicant was hit several times in the head with the butt of a gun and received several kicks in the ribs. After that the officers ordered the applicant to produce his identity papers. He handed his wallet to an officer, who checked the papers. At that point the applicant’s colleagues managed to explain that apparently there had been some kind of confusion as to the applicant’s identity and the beating stopped. The officers told the applicant that they had mistaken him for another person and apologised.

The applicant crossed the street with the help of his two colleagues and lost consciousness. An ambulance was called which brought him to the neurosurgical ward of the Medical Academy in Sofia in a critical condition.

2. The applicant’s medical treatment and health condition following the events of 2 March 1995

The applicant was examined by the emergency ward team. It was found that he had a cerebral trauma with an epidural haematoma in his left temporal area , cerebral contusion, polyfragmentary fracture of the left temporal bone , fracture of the ninth rib on the right side of the thorax and a subcutaneous emphysema in the right thoracic half. Six hours after his admission it was decided that urgent head surgery was needed. The applicant underwent decompressive craniotomy in the left temporal area, evacuation of the epidural haematoma and coagulation of the damaged arteria meningica media at the left side of his head.

The applicant remained in hospital until 13 March 1995.

During the following five or six months he was in intensive pain and received analgesics and vasodilatory drugs. He was on sick leave until 27 November 1995.

The applicant was directed for another operation but he could not afford it.

On 10 September 1998 a commission in charge of assessing disability issued a decision in which it found that the applicant was under a second degree disability. The diagnosis on which this decision was based was the following: traumatic subdural subarachnoid and extradural haemorrhage, posttraumatic and postoperative status in respect of an acute epidural haematoma in the left temporal area, defect after a depressive polyfragmentary fracture of the left temporal bone, posttraumatic encephalopathy, quadripyramidal syndrome, latent hemiparesis on the right side, central subcompensated otoneurological syndrome, neuritis of the left auditory nerve (light degree), postfractural status of the ninth rib at the right side, arterial hypertension.

3. Civil proceedings for compensation

(a) Proceedings before the Sofia City Court

On 26 May 1995 the applicant took proceedings under the State Responsibility for Damage Act of 1988 against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime, the Specialised Anti-Terrorism Squad and the Sofia City Directorate of Internal Affairs. He alleged, in particular, that officers of those bodies had ill-treated him in violation of the relevant rules for the use of force by the police. He claimed 500,000 Bulgarian levs (“BGL”) as compensation for non ‑ pecuniary damage and BGL 100,000 as compensation for pecuniary damage.

A prosecutor took part in the proceedings ex officio , as required by section 10(1) of the State Responsibility for Damage Act of 1988.

The first hearing was held on 2 October 1995. The applicant provided particulars of his claim for compensation for pecuniary damage. The defendants did not dispute most of the facts alleged by the applicant, but maintained, inter alia , that he had provoked the beating through his inadequate behaviour, that the use of force by the police had been lawful and that they were not liable for damage caused in the course of police operations. They also disputed the amount of compensation sought. The Sofia City Directorate of Internal Affairs submitted that it was not liable because it had not participated in the planning or the execution of the operation on 2 March 1995. The applicant requested the defendants to provide a copy of the order pursuant to which the operation had been carried out, in order to clarify whose officers had participated in it. He also presented written evidence and asked for leave to call witnesses. The court admitted the written evidence, gave leave to the applicant to call witnesses, ordered an accounting and a medical expert reports and directed the defendants to provide a copy of the order pursuant to which the operation had been carried out.

The next hearing was held on 19 February 1996. The court heard a witness called by the applicant, the applicant in person, and the medical and the accountingexperts. It admitted their reports in evidence. Counsel for the Specialised Anti-Terrorism Squad stated that the order pursuant to which the 2 March 1995 operation had been carried out was secret and could be produced only if the court made a special ruling to that effect. The court agreed and adjourned the case.

The third hearing took place on 20 May 1996. The order pursuant to which the operation of 2 March 1995 had been carried out was admitted in evidence. The court allowed the applicant to adduce further written evidence and adjourned the case.

The hearing listed for 10 June 1996 failed to take place because the Sofia City Directorate of Internal Affairs had not been duly summoned.

The fourth and last hearing was held on 30 September 1996. The court heard the parties’ closing arguments. In his observations the prosecutor who participated in the proceedings ex officio concluded that the applicant’s averments of ill-treatment were true and that his action was well-founded.

The Sofia City Court gave judgment on 4 November 1996. It found that the police officers involved in the 2 March 1995 incident had used unnecessary physical force, in breach of the National Police Act which regulated the use of force by the police. It further found that the use of force had not been provoked in any way by the applicant and accordingly rejected the defendants’ argument of contributory negligence. The court found that the police officers had been employed by the first three defendants (the Ministry of Internal Affairs, the Central Service for Combating Organised Crime and the Specialised Anti-Terrorism Squad), but not by the fourth defendant (the Sofia City Directorate of Internal Affairs). Finally, it found that the applicant had sustained damage due to the unlawful behaviour of the officers. It awarded the applicant the whole amount of the compensation for non-pecuniary damage sought (BGL 500,000) and partially dismissed his claim for compensation for pecuniary damage, awarding him BGL 63,064.57 under that head. The court ordered that both amounts should bear interest at the statutory rate starting from 2 March 1995 until final settlement. The first three defendants were ordered to pay jointly and severally.

(b) Proceedings before the Supreme Court and the Sofia Court of Appeals

On 26 November 1996 the Ministry of the Internal Affairs appealed against the judgment to the Supreme Court. The Central Service for Combating Organised Crime also appealed on 2 December 1996. The Ministry’s appeal concerned only the amount of the compensation for non-pecuniary damage awarded to the applicant, whereas the Central Service for Combating Organised Crime’s appeal concerned the awards of compensation for both pecuniary and non-pecuniary damage.

Copies of the appeals were served on the other parties to the case. As the Specialised Anti-Terrorism Squad had changed its address, the initial service of process, having been made at its old address, had to be repeated at its new one.

On 28 October 1997 the case file was sent to the Supreme Court.

In December 1997 the Code of Civil Procedure (“CCP”) was amended to provide for three-instance proceedings. Accordingly, all appeals which had been filed with the Supreme Court prior to the amendment were to be forwarded to the newly created courts of appeals. The amendment entered into force on 1 April 1998.

On 1 April 1998 the Supreme Court of Cassation forwarded the appeals to the newly created Sofia Court of Appeals.

On 9 July 1998 the Sofia Court of Appeals, acting in pursuance of the new rules of civil procedure adopted with the 1997 amendment of the CCP, instructed the appellants – the Ministry of Internal Affairs and the Central Service for Combating Organised Crime – to indicate which parts of the judgment below they were appealing against and why they considered that that judgment was erroneous.

On 29 July 1998 the Central Service for Combating Organised Crime complied with the court’s instructions, submitting an amended appeal in which it specified that it was appealing only against the amount of non ‑ pecuniary compensation awarded to the applicant, because it considered that the Sofia City Court had erroneously assessed the extent of the damage suffered by him.

On 30 July 1998 the Ministry of Internal Affairs withdrew its appeal and on 24 August 1998 the Sofia Court of Appeals discontinued the proceedings in respect of that appellant.

A hearing listed for 29 October 1998 did not take place, because the Sofia Appellate Prosecutor’s Office, which had to participate in the proceedings ex officio , had not been duly summoned.

A hearing fixed for 18 February 1999 was adjourned because counsel for the applicant was ill and could not attend.

A hearing was held on 15 April 1999. The parties did not submit additional evidence. The court heard their closing arguments and accepted their written observations. The Central Service for Combating Organised Crime reiterated its position that the claim for compensation for non ‑ pecuniary damage, allowed in full by the Sofia City Court, was excessive, in particular because the applicant had contributed to the inflicting of his injuries through his inadequate behaviour during the 2 March 1995 incident.

The Sofia Court of Appeals gave judgment on 5 May 1999. It held that the applicant had been ill-treated by police officers, that he had not contributed in any way to that, and that as a result of the ill-treatment he had sustained serious injuries. Accordingly, the court upheld the Sofia City Court’s judgment. On the same day the court notified all parties about its judgment, indicating that they could appeal on points of law to the Supreme Court of Cassation. No appeal having been lodged within the statutory time ‑ limit, the judgment entered into force on 27 May 1999.

On 24 June 1999 the applicant’s lawyer requested the Sofia City Court to issue a writ of execution pursuant to the judgment. On 29 June that court issued a such a writ against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime, and the Specialised Anti ‑ Terrorism Squad.

On 5 July 1999 a monetary reform took place, whereby BGL 1,000 became 1 new Bulgarian lev (“BGN”).

On 12 July 1999 the applicant presented the writ of execution to the financial department of the Ministry of Internal Affairs and four days later, on 16 July, he received the compensation awarded to him by the courts together with the interest which had accrued on it. He was altogether paid BGN 2249.84, BGN 563.06 representing the principal amount of compensation awarded by the courts (BGN 500 for non-pecuniary damage and BGN 63.06 for pecuniary damage), BGN 1,570.80 representing interest, and the remainder costs and expenses for the proceedings.

B. Relevant domestic law and practice

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:

“... [P]olice [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 a police [officer]; ...

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

Section 41(2) provided that the use of force had to be commensurate to, in particular, 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 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 (“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 prosecuted one (Article 161 of the CC).

Criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (“CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence has been committed (Articles 187 and 190 of the CCP). Article 191 of the CCP, as in force at the material time, provided that if the information to the prosecuting or investigating authorities was not supported by evidence, they had to open a preliminary inquiry (verification) to determine whether the opening of a criminal investigation was warranted.

3. Civil remedies against ill-treatment by the police

The Obligations and Contracts Act provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage.

Section 1 of the State Responsibility for Damage Act of 1988 („ Закон за отговорността на държавата за вреди, причинени на граждани “) provides that the State is liable for damage suffered by private persons as a result of unlawful acts of civil servants, committed in the course of or in connection with the performance of their duties. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts (section 4 in fine ).

Section 7 of the Act provides that the action in responsibility must be brought against the authority by whom the civil servant concerned is employed. A prosecutor participates in the proceedings ex officio (section 10(1)).

Section 4 of the Act, which is equivalent to section 51(1) of the Obligations and Contracts Act, provides that compensation for damage sustained pursuant to the unlawful act of a civil servant is due for all damage which is the direct and proximate result of the act. The Supreme Court has construed section 51(1) of the Obligations and Contracts Act as meaning, inter alia , that if new damage arises following the initial award of compensation (e.g. the health of the injured person worsens), he or she may claim additional compensation ( Постановление № 4 от 30 октомври 1975 г. по гр.д. № 5/1975 г. на Пленума на Върховния Съд, т. 10 ). The Supreme Court has also stated that inflation does not constitute newly arisen damage and does not warrant the awarding of additional compensation ( Определение № 119 от 25 септември 1992 г. по гр.д. № 764/1992 г., IV г.о. на Върховния Съд ).

COMPLAINTS

1. The applicant submitted that his rights under Article 3 had been violated. In particular, he alleged that he had been brutally attacked and beaten by masked police officers without any explanation.

2. The applicant complained under Article 6 § 1 of the Convention that the proceedings on appeal had lasted unreasonably long.

3. The applicant complained that the authorities did not adequately compensate him for the damage he sustained as a result of the ill-treatment. He submitted that although the Sofia City Court had awarded him the compensation sought in full, in the end he had received a sum significantly devalued by inflation. In his view, this was due to the excessive length of the proceedings on appeal and to the fact that he could not increase his claim before the appellate court.

THE LAW

1. In respect of his complaint about the alleged ill-treatment 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 operation on 2 March 1995 had been carried out pursuant to a lawful order. Further, when they had entered into the café, the police officers had manifested themselves as such but the applicant had retorted to their orders. From the moment when the applicant’s identity had been established, the violence against him had stopped. The police officers had explained that there had been a mistake and had apologised. No violence had been used against any other person in the café. For this reason in the ensuing civil proceedings the defendants had averred that the applicant had contributed to a certain extent to his ill ‑ treatment through his behaviour. Finally, it was obvious that despite the violence to which the applicant had been subjected, there was no intention of inflicting him bodily injuries.

The Government further submitted that an internal inquiry had been carried out by the Ministry of Internal Affairs, but that they had not been able to find any documents relating to that inquiry in the archive of the Ministry.

The applicant replied that the police had acted in breach of sections 40 and 41 of the National Police Act, which indicated in what circumstances police officers could use force in the performance of their duties. He had not provoked their violent behaviour in any way, which had been proven in the course of the civil proceedings for compensation. Also, he was not the only person who had been ill-treated during the raid in the café.

The applicant further submitted that the fact that no documents had been found in the archive of the Ministry of Internal Affairs did not mean that no inquiry had been carried out. He further stated that he knew of the existence of a preliminary inquiry carried out by the prosecution authorities, but that he did not have detailed information about it.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. In respect of his complaint about the length of the proceedings the applicant relied on Article 6 of the Convention, which provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted that the length of the proceedings was not attributable to the authorities. They argued that the case had been complex, involving four defendants. The proceedings had been further complicated by the reform of the civil justice system, which had made necessary the forwarding the Ministry of Internal Affairs’ and the Central Service for Combating Organised Crime’s appeals to the newly created Sofia Court of Appeals and their brining into line with the new procedural requirements of the Code of Civil Procedure.

The Government did not comment on the applicant’s conduct during the proceedings.

Concerning the conduct of the authorities, the Government were of the view that that they had acted diligently. The intervals between the hearings had been short and the case had been adjourned only when needed to gather additional evidence. The two judgments had been delivered promptly. The applicant’s allegation that the Ministry of Internal Affairs and the Central Service for Combating Organised Crime had filed appeals against the first ‑ instance judgment only with a view to delaying the payment of compensation was unfounded. The two bodies had merely exercised their right of appeal because they had not agreed with the Sofia City Court’s findings about the extent of the damage suffered by the applicant and the lack of contributory negligence on his part. Moreover, the Ministry later withdrew its appeal.

The applicant submitted that the proceedings had lasted unreasonably long because the Ministry of Internal Affairs and the Central Service for Combating Organised Crime had appealed against the award of compensation for non-pecuniary damage by the Sofia City Court solely with the intention of prolonging the proceedings and thus delaying the actual payment of compensation.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

3. The applicant’s complaint about the diminishing of the value of the compensation awarded to him because of inflation falls to be examined under Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that the applicant had failed to exhaust domestic remedies, because he had not filed a further action, requesting additional compensation under section 4 of the State Responsibility for Damage Act in conjunction with section 51(1) of the Obligations and Contracts Act, on the ground that his health had worsened.

The applicant replied that his complaint related to the fact that he was not adequately compensated for the initial damage he had suffered and not to an alleged impossibility to obtain compensation for an eventual further damage due to a worsening of his health.

The Court notes that the applicant did not claim that he could not be awarded additional compensation for a worsening of his health, but submitted that by the time he actually received the compensation awarded to him by the Sofia City Court for the damage he had sustained prior to its judgment the real value of that compensation had greatly diminished because of the inflation. Therefore, the possibility for the applicant to file another action on the ground that his health had worsened does not appear relevant. Insofar as the Government may be taken to submit that the applicant could have made a new claim grounded on the theory that inflation constituted newly arisen damage, the Court notes that this theory has been expressly rejected by the Supreme Court.

The Government’s objection must therefore be dismissed.

As to the substance of the complaint, the Government submitted that the delay in the payment of the compensation had been made good through the payment of interest at the statutory rate. Also, since the award of compensation for pecuniary damage had not been appealed against, the applicant could have obtained payment of that amount earlier.

The applicant replied that following the Sofia City Court’s judgment the authorities should have paid him the compensation awarded without further delay. Instead, they had appealed against the judgment and had waited for the issuing of a writ of execution to comply with their obligations.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

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

Søren Nielsen Christos Rozakis              Deputy Registrar President