FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35647/97 by Rossen ATANASSOV against Bulgaria

The European Court of Human Rights (Fourth Section) , sitting on 11 January 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 April 1997 and registered on 17 April 1997,

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 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 born in 1963 and residing in Varna . Before the Court he is represented by Mrs Z. Kalaydjieva , a lawyer practising in Sofia.

The facts of the case, as submitted by the applicant and account being taken of the information provided by the parties (Rule 48 § 2 (a) of the Rules of Procedure of the European Commission of Human Rights and Rule 54 § 3 (a) of the Rules of Court) , may be summarised as follows.

1. The incident of 8/9 November 1995

At about 3 a.m. on 9 November 1995 the applicant was implicated in a fight in a night bar in Varna and was beaten by Mr P., the private security guard at the bar. The applicant claims that at some point he fell and lost consciousness and that he does not remember clearly the events during the remaining part of the night. He remembers that at about 9 a.m. he was on the premises of the district police, third district of Varna ( Трето Районно Управление на МΒР), and that soon thereafter he went back home by taxi.

When the applicant was examined at the Regional Hospital ( Окръжна болница ) at about noon that day, the doctors found that he had a rupture in the small intestines with a resulting haemorrhage in the abdominal area, about 500 ml of blood having been found therein. Also, the applicant had suffered from peritonitis. Moreover, he had received a blow on the head with a resulting concussion and also had several bruises on his face and chest. The applicant underwent surgery without which his life would have been in danger.

Following the incident criminal proceedings were instituted against the private security guard. The applicant’s requests for the institution of criminal proceedings against police officers were refused.

The procedural steps in all relevant proceedings, the applicant’s allegations, and the findings of the prosecutors, may be summarised as follows.

2. The investigation against Mr P.

Immediately after the incident, on 9 and 10 November 1995, written statements were taken from two witnesses and also from four police officers, who had been dispatched to the scene upon a call from the bar.

On 10 November 1995 the local District Prosecutor’s Office ( Районна Прокуратура ) opened ex officio preliminary investigation proceedings ( дознание ) against Mr P., the private security guard. In these proceedings several witnesses were questioned, some of them repeatedly. The applicant was also heard. Mr P. was initially questioned as a witness. He was then charged with bodily assault and again questioned. A confrontation between the applicant and Mr P. was organised.

Ms M., the bar tender, and Ms S., a waitress, testified that the applicant had entered the bar at around midnight and, in the course of the following three hours, had drunk about 300 or 400 centilitres of cognac. At 3.30 a.m. he had insisted to be served tea although he had been told that the bar had closed. Irritated by the invitations to leave the bar he had thrown a serving tray on the ground. When Mr P., the security guard, had then tried to lead him out of the bar, the applicant had seized a chair and had tried to hit Mr P. There had followed a fight between the two. A glass table had been broken. Mr P. had finally managed to tie the hands of the applicant. Mrs S. had in the meantime called a friend, a taxi driver, to come and help. Upon his arrival the taxi driver had called the police. The police had arrived and had called for an ambulance which had taken the applicant.

The taxi driver, who was also questioned, stated that upon his arrival at the bar he had seen the applicant lying on the ground and had called the police.

Mr P. pleaded guilty but emphasised that he had acted in self defence. He confirmed the sequence of events as described by the bar tender and the waitress. Mr P. testified that during the fight he had kicked the applicant in the stomach and that he had then hit him again in the stomach with his knee.

Three police officers, who had been dispatched to the scene, and the officer on duty at the police station reported in writing that at about 4 a.m. a call from the bar had been received, alerting the police about the incident. Upon their arrival, officers T., B. and A., who had been patrolling the area, had found the applicant lying on the ground, his hands tied with a shirt, visibly seriously injured and drunk. They had then called for an ambulance which had arrived at about 4.30 a.m. and had taken the applicant to the emergency unit of the local hospital. Officers T., B. and A. had remained at the scene and had taken the written statements of two witnesses. The applicant had stayed at the hospital until about 7 a.m. At that time a police officer had visited the hospital and, having been told by Doctor K., who had examined the applicant, that he had not been in need of hospitalisation, had brought him to the police station for questioning.

In his testimony the applicant stated that at about 1.30 a.m., while drinking cognac in the bar, he had suddenly lost consciousness. He could not remember whether he had been hit. He had regained consciousness in the morning, in a cell at the police station. A police officer had told him that he had been seen by a doctor during the night and had then brought him to another officer. The latter had considered that the applicant had not been fit for questioning and had called a taxi for him. A summons for questioning on the following Monday had been given to the applicant.

On 13 November 1995 the applicant was examined by a forensic doctor. He found a cut on the applicant’s head, which had been surgically treated and bruises of purple-bluish colour around the left eyebrow, the eyelids, the nose and the chin. There was also a superficial cut of the skin of the cheek 2 cm long and a 15 mm long cut on the upper lip. The rim of a tooth had been broken. Several small cuts were found on the palm and a finger of the applicant’s left hand. Bruises were also found on the chest and the left side of the waist. The forensic expert concluded that the injuries must have been caused on 8/9 November, as stated by the applicant. Another medical opinion, ordered in the course of the investigation, found, inter alia , that there was no indication of a complete loss of consciousness having occurred as a result of the injuries.

On 2 April 1996 the preliminary investigation was completed. The investigator proposed to the competent prosecutor to indict Mr P.

On 17 April 1996 the District Prosecutor’s Office ordered the discontinuation of the criminal proceedings against Mr. P.

Based on the evidence collected in the course of the investigation it was established inter alia that the applicant had been heavily drunk and had attacked Mr. P. when he had attempted to lead him out of the bar; that Mr. P. had reacted by kicking the applicant in the abdominal area and that a fight had followed. At some point a taxi driver had called the police who had then called an ambulance.

The prosecutor concluded from these findings that Mr P., albeit having acted in self- defence, had administered blows which had not been strictly necessary to counter the attack. Mr P. had thus caused bodily harm of medium level gravity, temporarily endangering the applicant’s life. Since under the relevant law bodily harm caused in such circumstances was a crime punishable by way of private prosecution, it was unnecessary to continue the public prosecution in the case.

3. The applicant’s allegations against the police

It appears that at least until March 1996 the applicant had not mentioned any suspicion on his part that he might have been beaten by the police.

On 22 March 1996 he wrote to the Regional Military Prosecutor’s Office ( Окръжна Βоенна Прокуратура ) requesting an investigation against the police. On 23 April 1996 he appealed to the Regional Prosecutor’s Office ( Окръжна Прокуратура ) against the discontinuation of the criminal proceedings against Mr P. In these submissions he stated, inter alia , that he had decided to verify himself certain facts about the events in the night of 9 November 1995 and that he had sought information from the Regional Hospital and from the local ambulance service. The applicant enclosed medical certificates reflecting entries in the registers of the Hospital and of the ambulance service.

The register of the ambulance service recorded that a sergeant M. from the police had called on 9 November 1995 at 4.25 and had asked for an ambulance to be dispatched to the bar where the fight had taken place that night. According to the certificate the ambulance had arrived at 4.34 at the bar. The applicant had been examined on the spot by Doctor R. from the ambulance service. Doctor R. had noted that the applicant had received a blow on the head with a resulting concussion and also that there had been an appearance of food poisoning. The certificate further recorded that the applicant had been brought by the ambulance to the urgent surgery unit at the Regional Hospital, to Doctor K. The ambulance had then returned to the premises of the ambulance service, at 5 a.m.

The records of the urgent surgery unit of the Regional Hospital revealed that the applicant had been brought there and had been examined by Doctor K. The certificate stated that the applicant had been injured in the head which had necessitated stitching up, performed by Doctor K. There had been no indication of an acute abdominal condition. The applicant’s arrival had been recorded as having happened at 3.45 a.m. on 9 November 1995. The preceding record in the register was for the examination of a Ms N. at 2.25 a.m. The entry which followed the registration of the applicant’s arrival was for a Ms G., who had been admitted at 5.40 a.m.

The register of the ambulance service did not mention any stitching on the applicant’s head having been found when he had been examined by Doctor R. at about 4.34 a.m.

On the basis of these certificates, and referring to the findings of the forensic examination of 13 November 1995 (see above), the applicant claimed that it had been apparent that he had been beaten for a second time following his visit to the urgent surgery unit of the Regional Hospital at 3.45 a.m. and that this had been done by the police in whose hands he had been at that time. The applicant considered that after his examination by Doctor K. at 3.45 a.m. he must have been transported back to the bar and beaten again, whereupon an ambulance had been called. The applicant accordingly requested the reopening of the investigation or the transmission of the file to the Regional Military Prosecutor’s Office, which was competent to open criminal proceedings against police officers.

On 2 May 1996 the Regional Prosecutor’s Office refused to reopen the criminal proceedings, stating that the applicant could bring a private prosecution action in court and that the facts as regards Mr P. had been established. Insofar as the applicant had made new allegations these had been within the competence of the Military Prosecutor’s Office. Upon the applicant’s appeal this decision was confirmed on 13 September 1996 by the Chief Public Prosecutor’s Office ( Главна Прокуратура ).

In view of the applicant’s allegations that he had been beaten by police officers the file was transmitted to the Regional Military Prosecutor’s Office. The Office conducted a preliminary inquiry ( предварителна проверка ). Five police officers were questioned. They confirmed their testimony given during the investigation against Mr P. and added that the applicant had not been beaten by the police. They also stated that the applicant had not been put in a cell at the police station, but had waited for a while in the corridor.

On 30 May 1996 the opening of criminal proceedings against the police officers was refused. The decision stated that the applicant had been beaten by Mr P., that he had been brought to the hospital and that the five police officers questioned had denied having beaten the applicant. Furthermore, the applicant having been drunk and in a helpless state, it was illogical to consider that using force against him could have become necessary.

On 12 June 1996 the applicant appealed against this decision to the General Military Prosecutor’s Office ( Прокуратура на въоръжените сили ) stating inter alia that the facts had not been clarified, that he had not been questioned and that Doctors K. and R. had not been questioned either. The Regional Military Prosecutor’s Office replied that they had taken into account the applicant’s testimony given in the course of the investigation against Mr P.

By decision of 1 July 1996 a prosecutor of the General Military Prosecutor’s Office dismissed the appeal stating that the witnesses examined in the course of the criminal proceedings against Mr P., Mr P.’s own admissions, and the applicant’s testimony showed that all injuries had been caused by Mr P.

On 24 September 1996 the applicant appealed against this decision. The appeal was examined on the merits and dismissed on 16 October 1996 by decision of a senior prosecutor at the General Military Prosecutor’s Office who in substance repeated the findings of the lower prosecutor. He stated, inter alia , that the applicant’s allegations were devoid of any serious foundation.

None of the decisions addressed the applicant’s allegation that he had been brought to the hospital twice during the night. Nor did any of the decisions deal with the applicant’s request that Doctors K. and R. be questioned.

4. Private prosecution proceedings against Mr P.

On 21 March 1997 the applicant instituted private prosecution proceedings against Mr P. The Varna District Court heard witnesses, including Doctors R. and K. and the police officers involved, and collected other evidence.

By judgment of 19 May 1999 Mr P. was convicted of bodily assault committed in circumstances of overstepping the necessary defence against an attack. He was acquitted insofar as it had been alleged that he had also caused a loss of consciousness, as it had not been proven that the applicant had lost consciousness at any moment. Mr P. was ordered to pay 300,000 old Bulgarian levs (about 1,050 FRF) to the applicant and a fine.

The District Court found, inter alia , that after the call for an ambulance the applicant had been seen by Doctor R. who had noted a head injury and the applicant’s intoxication. Doctor K., who had seen the applicant at the hospital, had treated the wound on the applicant’s head and had examined his general state of health. He had not detected an acute abdominal condition. That had been diagnosed later, when the applicant’s condition had deteriorated.

The District Court further found that there were no contradictions arising from the evidence in the case, including all medical certificates. It rejected Mr P.’s assertion that it had been unclear whether the applicant’s injuries had been caused by him.

The applicant did not appeal. Upon the appeal of Mr P., on 18 April 2000 the Regional Court quashed the District Court’s judgment as it found that the amount of the fine had been unclear, different figures having been mentioned in the operative part and in the reasoning of the judgment . The proceedings are pending before the District Court, where a hearing was listed for 7 December 2000.

COMPLAINTS

The applicant complains under Article 3 of the Convention of the behaviour of the police on the night of 9 November 1995. He submits that in his case the State’s responsibility under Article 3 of the Convention is engaged regardless of whether his serious injuries were the result of the police beating him or of their negligent attitude. This is so because he was in the hands of the police at the relevant time and also because the prosecution authorities refused to investigate the case. The fact is, in the applicant’s view, that when he was first examined he had only a head injury, and that later, after having been in the hands of the police for a certain period of time, he was found to have suffered serious injuries which endangered his life.

The applicant complains under Article 5 of the Convention that he was arrested and detained for about two hours unlawfully and unnecessarily. There were no legal grounds to hold him at the police station. Also, he was kept there without medical supervision which further aggravated his condition.

The applicant also states that there have been breaches of Article 6 of the Convention in the course of the preliminary inquiry when the prosecution authorities refused to open criminal proceedings against the police officers. Also, the applicant complains that he does not have access to a court to bring a civil action for damages against the police officers because following the decisions of the prosecutors his chances are nil. In the applicant’s view this was also in violation of Article 13 of the Convention.

The applicant also complains, invoking Articles 3 and 6 of the Convention, that the amounts of the fine and the compensation which Mr P. was sentenced to pay were humiliatingly low and that the private prosecution proceedings, to which the applicant had joined a civil claim, were unreasonably lengthy.

THE LAW

1. The applicant complains under Article 3 of the Convention that he has suffered ill-treatment while in the hands of the police and that the investigation into the events was not thorough.

Article 3 of the Convention provides as follows:

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

The Court recalls that in assessing evidence, the general principle has been to apply the standard of proof “beyond reasonable doubt” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, § 161).

Such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-...).

In the present case the issue arises whether all injuries suffered by the applicant on 9 November 1995 were inflicted by Mr P., at a time when the applicant was not in the hands of the police, or whether certain injuries might have been inflicted after the arrival of the police, either by police officers or by other persons.

The applicant’s allegation that he might have been beaten for a second time, when he was under police control, is based on a discrepancy in the hours indicated in the registers of the ambulance service and the hospital.

However, the Court considers that all other evidence appears to exclude the version of the events proposed by the applicant.

The Court notes the finding of the prosecuting authorities, which was based on all evidence before them, including a forensic opinion, that all injuries suffered by the applicant had been inflicted by Mr P.

Indeed, the evidence before the Court establishes beyond doubt that Mr P. administered to the applicant numerous powerful blows, including kicking and hitting in the abdominal area and blows in the head. Mr P. himself admitted to having twice kicked the applicant in the abdomen and having hit him in the face. That was also confirmed by the other witnesses, who were, moreover, Mr P.’s colleagues. Thus, the blows administered by Mr P. appear to explain all injuries. Indeed, the Varna District Court in its judgment of 19 May 1999 also established that the applicant’s injuries had been inflicted by Mr P.

If it were accepted that after an initial beating the applicant was first seen by Doctor K. at the hospital, allegedly at 3.45 a.m., and then after an alleged second beating, by Doctor R. in front of the bar, from where a call for an ambulance was made at 4.25 a.m., it would appear that in the course of 40 minutes the applicant had been examined by Doctor K., the wound on his head had been stitched up, and that he had been transported unconscious back to the bar and beaten again. Such a version of the events appears highly unlikely.

Furthermore, it appears that the District Court in its judgment of 19 May 1999 considered that the applicant had been examined first by Doctor R., upon the arrival of the ambulance at the bar, and only after that by Doctor K., at the hospital where he had been brought. Indeed, the comparison between the findings of Doctors R. and K. appears to confirm such a finding. In particular, Doctor R. did not note fresh stitching on the applicant’s head, which would have been visible if the examination by Doctor K. had taken place before that.

In any event, regardless of the sequence of the two examinations, if additional injuries were inflicted during the period of time between them, there would have been discrepancies in the doctors’ findings. Both doctors, however, reported that the applicant had been injured in the head and examined his abdomen. Doctor R. noted head injuries and the suspicion of food poisoning. Doctor K., when receiving the applicant in the hospital, stitched up the cuts on his head and also examined the applicant’s abdominal area, as evidenced by the hospital record. The fact that both doctors failed to detect an acute abdominal condition cannot in any way lead to a conclusion that the injury in the abdominal area was inflicted between the two examinations, as the applicant may be understood to claim.

The Court further does not find anything in the material before it which would indicate that the applicant might have been ill-treated between 5 a.m. and 7 a.m., when he was apparently in the regional hospital, and between 7 a.m. and 9 a.m., when he was at the police station. Indeed, the applicant does not seem to allege that he was ill-treated during those intervals. In any event, the forensic medical experts who reported in the course of the investigation found that the applicant’s injuries must have been inflicted at the time initially indicated by him.

Finally, insofar as the applicant alleges that the police did not provide the medical assistance he needed, it is noted that the police called for an ambulance which brought the applicant to the hospital and that the applicant was then taken to the police station for questioning upon the assurance by Doctor K. that his condition was satisfactory. It does not appear that in the particular circumstances Doctor K.’s failure to detect the applicant’s injury in the abdomen may give raise to an issue under Article 3.

In the light of all above, the sole fact that the hospital register recorded the applicant’s arrival there as having happened at 3.45 a.m. cannot be seen as proof beyond reasonable doubt that the applicant was beaten for a second time, while in the hands of the police.

The Court observes, in addition, that the District Court in its judgment of 19 May 1999 rejected the applicant’s allegation that he had lost consciousness.

The applicant’s complaint under Article 3 as regards the alleged ill-treatment is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains of the alleged ineffective investigation. The Court must examine this complaint under Article 13 of the Convention. Insofar as the applicant may be understood as arguing that the alleged ineffective investigation led to a situation where it was impossible for him to establish the alleged violation of Article 3 of the Convention, the Court must also deal with this complaint from the angle of that latter provision ( Ilhan v. Turkey [GC], no. 22277/93, §§ 89-93, ECHR 2000-...).

The Court notes that despite the applicant’s request Doctors R. and K. were not questioned in the course of the investigation.

It is observed, however, that the prosecuting authorities appointed a medical expert and examined medical reports. On that basis they made express findings that Mr P. had caused all injuries found on the applicant’s body. The prosecutors also stated that they had taken into account all evidence collected during the investigation against Mr P. and the evidence submitted by the applicant.

Furthermore, the prosecuting authorities found that the applicant’s allegations against the police, which were mentioned for the first time only six months after the events, were “devoid of any serious foundation”.

Therefore, given all elements of the case, even if the failure to question Doctors R. and K. and to provide more detailed reasoning in reply to the applicant’s allegations may be open to criticism, the Court does not find it established that in the particular circumstances it amounted to a failure to abide by the obligation to conduct an effective investigation, as may arise under Articles 3 or 13 of the Convention.

The complaints under those provisions must therefore be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant complains under Article 5 of the Convention that he was detained unlawfully.

The Court notes that it is unclear whether the applicant was indeed deprived of his liberty. It appears that he was taken for questioning from the hospital at about 7 a.m. and went home at about 9 a.m. There is no indication that the applicant was not free to leave the police station during that period of time. Nevertheless, even assuming that the applicant was ordered to appear for questioning, the complaint that that was unlawful has not been substantiated and is therefore manifestly ill-founded.

4. The applicant also complains, invoking Articles 6 and 13 of the Convention, of the refusal of the authorities to open criminal proceedings against the police officers. He alleges that that refusal effectively bars his right to seek damages.

The Court notes that similar complaints have been examined in the case of Assenov and Others v. Bulgaria ( judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII) and dismissed. The Court sees no new element in the applicant’s case.

In respect of his complaint that an inadequately light sentence was passed against Mr P., assuming that an issue may arise in the context of a positive obligation of the State under Article 3 of the Convention to provide protection against ill-treatment committed by private individuals, the Court notes that the applicant did not appeal against the judgment of 19 May 1999 and has not, therefore, exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

As regards the remainder of the complaints, in the light of all material before it, having regard to all developments up until the latest information received from the applicant, and insofar as the matters raised are within its competence, the Court does not consider that they disclose any appearance of a violation of the Convention. They are therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President