FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44041/98 by Luben Stojanov KEMEROV against Bulgaria

The European Court of Human Rights ( Fourth Section ) sitting on 16 December 1999 as a Chamber composed of

Mr M. Pellonpää, 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 July 1998 by Luben Stojanov Kemerov against Bulgaria and registered on 21 October 1998 under file no. 44041/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1945 and living in Plovdiv . He is represented before the Court by Mr Ekimdjiev , a lawyer practising in Plovdiv .

A. Particular circumstances of the case

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

On 31 March 1996, shortly after 5.00 a.m., the applicant’s neighbour rang the bell on the door of his apartment and requested him to lower the music. The applicant refused. About 15 minutes later the doorbell rang again. The applicant heard someone shouting “Police! Open the door!”. In reply he required to see the police officers’ identity documents and a warrant authorising the entry into his apartment. The police officers allegedly refused the applicant’s request and attempted to open the door by force. Fearing that the police might break in, the applicant eventually opened the door. Two police officers entered his apartment and allegedly battered him violently. According to the applicant, the police officers were kicking him and were hitting him with truncheons and with their fists. Afterwards they handcuffed the applicant and pushed him down the stairs. Then he was put in a police vehicle and taken to the Fourth District Police Station ( Четвърто районно полицейско управление ) in Plovdiv .

At the police station the applicant’s right hand was handcuffed to an object at the height of his head, thus causing insufficient blood circulation and pain in his shoulder. The applicant was kept in this position for about an hour. At about 7.00 a.m. on 31 March 1996 he was released without having his arrest registered. No charges were ever brought against the applicant.

Later on 31 March 1996 the applicant visited a doctor and had X-ray photographs of his body taken. The X-ray photographs did not disclose 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. 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.

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. A preliminary inquiry was opened under file number 635/96 and police officers at the Fourth District Police Station in Plovdiv were instructed to investigate the complaints.

No concrete steps were undertaken for an unspecified period of time as it was allegedly impossible to identify the police officers involved. On an unspecified date the applicant himself succeeded in identifying one of the police officers. Nevertheless, the inquiry did not progress.

On 24 February 1997 the applicant complained to the higher prosecution authority, the Military Public Prosecutor’s Office in Sofia ( Прокуратура на въоръжените сили ). The applicant again mentioned the name of one of the police officers allegedly involved in the incident and complained of the delay in the preliminary investigation. On 26 February 1997 the applicant’s complaint was transmitted to the Regional Military Prosecutor’s Office in Plovdiv with the instruction to investigate the allegations in respect of the police officer identified by the applicant.

In the following months the applicant and his lawyer visited the Regional Military Prosecutor’s Office in Plovdiv on several occasions and were assured that the inquiry is pending and would be soon completed.

On 11 June 1998 the applicant again asked for information about the preliminary inquiry. He alleged, inter alia , that he was unable to institute civil proceedings as he was prevented from doing so by the delays in the preliminary inquiry against the police officers.

As of 1 September 1999 the applicant has not received any reply.

B. Relevant domestic law and practice

a. Law on the National Police ( Закон за националната полиция ) of 1994, as in force at the relevant time

Section 33

“(1) Police organs may detain a person:

1. who has committed a crime,

2. who obstructs the police in carrying out its duties and does not obey a lawful order

....

(3) The detained person shall have the right to a judicial appeal against an unlawful detention. The court shall promptly decide on the matter.”

Section 34

“Persons who are held in custody pursuant to Section 33 § 1 items 1, 2 ..., shall not be detained for longer than 24 hours.”

Section 35

“(1) A written order for the bringing of the arrested person to the [place of detention] shall be drawn up by the police organ.”

Section 39 provides that the police may proceed to verifications or inquiries inside an apartment without the consent of its occupant when, inter alia , that is necessary to prevent an imminent criminal act. In such a case the police shall prepare minutes to be signed by the occupant of the apartment and shall inform the public prosecutor.

b. The Criminal Procedure Code ( Наказателно процесуален кодекс )

Sections 186 - 188 provide, inter alia , that the competent authorities shall institute criminal proceedings upon receipt of a complaint about an alleged crime, when there exists “sufficient prima facie evidence”. In accordance with Section 190, "[ i ]t shall be considered that there exists sufficient prima facie evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed”. Information about the identity of the alleged perpetrator is not required at that stage.

Section 191 provides that in the absence of sufficient prima facie evidence for the institution of criminal proceedings the competent authorities shall open a preliminary inquiry into the events complained of. The inquiry shall be completed within “the shortest possible time”.

c. The Law on State Responsibility for Damages ( Закон за отговорността на държавата за вреди причинени на граждани )

This law provides that a person who has suffered damage due to unlawful acts of State organs can bring a civil action against the State organ, whose officers are responsible. In cases where the alleged damage has resulted from an unlawful administrative decision, an action can be brought only after that decision had been quashed by the competent authority or court.

Section 2 of this law provides for a possibility to claim damages in respect of unlawful detention ordered by criminal investigation authorities. Such an action may be brought only if the detention order has been quashed as “lacking legal basis”.

d. The Law on Obligations and Contracts ( Закон за зад ъ лженията и договорите )

Its Section 45 provides 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.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment and torture. In particular, he states that he was battered by the police and handcuffed in a way which caused him pain. He further complains under Article 5 § 1 that he was detained unlawfully and that his deprivation of liberty did not fall within any of the permissible grounds under that provision. The applicant also complains under Article 8 that the police entered his home unlawfully.

The applicant complains that the inactivity of the public prosecutors resulted in a violation of his right of access to a court within a reasonable time and that he was denied his right to have justice done. He invokes Articles 6 § 1 and 13 of the Convention.

He further complains under Article 13 in conjunction with Article 3 that he does not have an effective remedy against the police brutality and, in particular, that he cannot successfully claim damages in civil proceedings due to the fact that any such proceedings, if instituted by him, would be suspended pending the criminal investigation. The applicant adds that in Bulgaria there is no judicial review over decisions of public prosecutors to refuse the institution of criminal proceedings against police officers.

THE LAW

1. As regards the applicant’s complaints under Articles 3, 8 and 13 in connection with Article 3 the Court considers that it cannot, on the basis of the case file, determine their admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 5 § 1 of the Convention that he was detained unlawfully.

This provision insofar as relevant provides as follows:

Article 5§1 – Right to liberty and security

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

The Court notes that the applicant had a right under the National Police Act (Section 33 § 3), as in force at the relevant time, to challenge before a court the lawfulness of his detention. However, the applicant has not submitted such an appeal. Also, he has not shown that he has raised the issue before the public prosecutor.

The Court finds therefore that the applicant has not exhausted all domestic remedies concerning the alleged breach of his rights under Article 5 of the Convention . It follows that this complaint is inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

3. The applicant complains about the alleged lack of access to a court for a civil action. He invokes Articles 6 and 13 of the Convention. These provisions, insofar as relevant, provide as follows:

Article 6 – Right to a fair trial

“1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

Article 13 – Right to an effective remedy

”Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that the applicant has not availed himself of the possibility to institute civil proceedings, alleging that this would not be an effective remedy as, according to Bulgarian law, the court would be obliged to suspend the proceedings pending the outcome of the prosecutor’s preliminary inquiry.

The Court recalls the case of Assenov and Others v. Bulgaria , where in similar circumstances the applicant had not brought civil proceedings, arguing that that would not have been an efficient remedy. It found that to be pure speculation since the applicant had not attempted to bring civil proceedings. In these circumstances, it stated, it could not be said that the applicant was denied access to a court. Accordingly, the Court found no violation of Article 6 § 1 ( Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3292, § 112).

It is true that, unlike the Assenov case, where the public prosecutor had already delivered a decision refusing to institute criminal proceedings, in the instant case the preliminary inquiry has been pending for 3 years and 6 months and has not yet terminated. Nevertheless, there remains the fact that the applicant has not attempted to bring a civil action and that, therefore, his complaint is based on a speculation of what might have happened. Furthermore, the right of access to a civil court for an action in damages cannot be seen as comprising a right to have the assistance of the criminal justice system. The effectiveness of operation of the criminal justice system is to be examined under Articles 3 and 13 of the Convention.

It follows that the applicant’s complaint of an alleged lack of access to the civil courts and lack of an effective remedy in this respect is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, by a majority,

DECIDES TO ADJOURN the examination of the applicants’ complaints under Articles 3 and 13 of the Convention as regards the alleged ill-treatment and the alleged lack of an effective remedy in that respect, and under Article 8 as regards the alleged violation of the applicant’s right to respect for his home;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää

Registrar President