Lexploria

Information Note on the Court’s case-law 77

July-August 2005

Nachova and Others v. Bulgaria [GC] - 43577/98 and 43579/98

Judgment 6.7.2005 [GC]

Article 2

Article 2-1

Life

Effective investigation

Shooting of two Roma fugitives by military police during attempted arrest, and effectiveness of the investigation: violations

Article 14

Discrimination

Alleged racist motives in shooting of two Roma fugitives by mil itary police during attempted arrest: no violation

Failure to investigate possible racist motives: violation

Facts – Two men of Roma origin, relatives of the applicants, were conscripts serving compulsory military service in an army division dealing with the construction of apartments. They were in detention for repeated absences without leave when they escaped from the construction site where they were confined and took refuge in the house of the grandmother of one of them, situated in a Roma district of a village. Neither of the two was armed. Some days later, a military police unit was informed where they were hiding and dispatched four military police officers, under the command of Major G., to the village. They had instructions to arrest the fugitives using all the means and methods dictated by the circumstances. G. was armed with a handgun and a Kalashnikov automati c rifle. Having noticed the military vehicle in front of their house, the fugitives tried to escape. While running away they were shot by G. after he had given them a warning to stop. Both men died on their way to hospital. One neighbour claimed that sever al of the policemen had been shooting and that at one stage G. had pointed his gun at him in a brutal manner and had insulted him saying “You damn Gypsies”.

The autopsy report found that both men had died from gunfire wounds, fired from an automatic rifle from a distance. Mr Petkov had beens shot in the chest and Mr Angelov in the back. The military investigation report concluded that G. had acted in accordance with the regulations and had tried to save the fugitives' lives by warning them to stop and not s hooting at their vital organs. The military prosecutor accepted the conclusions and closed the investigation. The applicants' subsequent appeals were dismissed.

Law – Article 2

(a) Substantive aspect

The deaths of Mr Angelov and Mr Petkov : The Grand Chamber noted as a matter of grave concern that the regulations on the use of firearms by the military police effectively had permitted lethal force to be used when arresting a member of the armed forces for even the most minor offence. Not onl y had the regulations not been published, they had contained no clear safeguards to prevent the arbitrary deprivation of life. Such a legal framework was fundamentally deficient and fell well short of the level of protection “by law” of the right to life t hat was required by the Convention in present-day democratic societies in Europe. Accordingly, there had been a general failure by Bulgaria to comply with its obligation under Article 2 to secure the right to life by putting in place an appropriate legal a nd administrative framework on the use of force and firearms by military police.

The planning and control of the operation : The Grand Chamber endorsed the Chamber's finding that the authorities had failed to comply with their obligation to minimise the ris k of loss of life since the arresting officers had been instructed to use all available means to arrest Mr Angelov and Mr Petkov, despite the fact that they were unarmed and posed no danger to life or limb. The absence of a clear legal and regulatory frame work had permitted a team of heavily armed officers to be dispatched to arrest the two men without any prior discussion of the threat, if any, they posed or clear warnings on the need to minimise any risk to life. In short, the manner in which the operatio n had been planned and controlled betrayed a deplorable disregard for the pre-eminence of the right to life.

The actions of the arresting officers : In the circumstances of the case any resort to potentially lethal force was prohibited by Article 2, regardl ess of any risk that Mr Angelov and Mr Petkov might escape. In addition, the conduct of Major G., the officer who shot the victims, called for serious criticism in that he had used grossly excessive force. Other means could have been used to arrest the men . Although he also carried a handgun, G. had chosen to use his automatic rifle and switched it to automatic mode making it impossible to take aim with any reasonable degree of precision. Lastly, there was no plausible explanation for the fact that Mr Petko v had been wounded in the chest, and the possibility that he had turned to surrender at the last minute but had nevertheless been shot could not be excluded.

In conclusion, Bulgaria had failed to comply with its obligations under Article 2 in that the rele vant legal framework on the use of force was fundamentally flawed and Mr Angelov and Mr Petkov had been killed in circumstances in which any use of firearms to carry out their arrest was incompatible with the said provision. Furthermore, grossly excessive force had been used.

Conclusion : violation (unanimously).

(b) Procedural aspect – Whether the investigation was effective : The Grand Chamber agreed with the Chamber that the fact that the investigation had validated the use of force in the circumstances of the case only served to confirm the fundamentally defective nature of the regulations and their disregard of the right to life. The investigating authorities' failure to examine relevant matters in the file meant that there had been no strict scrutiny of all the material circumstances. A number of indispensable and obvious investigative steps had not been taken and the investigating authorities had ignored significant facts without seeking any proper explanation, preferring instead to accept Major G.'s sta tements and terminate the investigation. The investigator and the prosecutors had thus effectively shielded G. from prosecution. The Grand Chamber endorsed the Chamber's view that such conduct on the part of the authorities – which had already been remarke d on by the Court in previous cases against Bulgaria – was a matter of grave concern, as it cast serious doubt on the objectivity and impartiality of the investigators and prosecutors involved. In sum, there had been a violation by Bulgaria of its obligati on under Article 2 to investigate the deprivation of life effectively.

Conclusion : violation (unanimously).

Article 13: Like the Chamber, the Grand Chamber found that no separate issue arose under this provision.

Article 14 taken together with Article 2 (s ubstantive aspect) – Whether the killings had been racially motivated : The applicants had advanced various arguments which they maintained showed that the killings had been racially motivated. The Grand Chamber did not, however, find them convincing. It no ted that the use of firearms in circumstances such as those at issue had regrettably not been prohibited by the relevant domestic regulations. The military police officers carried their automatic rifles “in accordance with the rules” and had been instructe d to use all necessary means to carry out the arrest. The possibility that Major G. had simply been adhering strictly to the regulations and would have acted as he did in any similar context, regardless of the ethnicity of the fugitives, could not therefor e be excluded. While the relevant regulations were fundamentally flawed and fell well short of the Convention requirements on the protection of the right to life, there was nothing to suggest that G. would not have used his weapon in a non-Roma neighbourho od.

Departing from the Chamber's approach, the Grand Chamber did not consider that the authorities' alleged failure to carry out an effective investigation into the alleged racist motive for the killing should shift the burden of proof to the respondent Go vernment with regard to the alleged violation of Article 14 taken in conjunction with the substantive aspect of Article 2. In sum, the Court did not find it established that racist attitudes had played a role in Mr Angelov's and Mr Petkov's deaths.

Conclus ion : no violation of Article 14 taken together with Article 2 (eleven votes to six).

Article 14 taken together with Article 2 (procedural aspect) – Whether there had been an adequate investigation into possible racist motives : The investigating authorities had had before them the statement of a neighbour of the victims who said that immediately after the shooting Major G. had shouted: “You damn Gypsies” while pointing a gun at him. That statement, seen against the background of the many published accounts o f the existence in Bulgaria of prejudice and hostility against Roma, called for verification. Any evidence of racist verbal abuse having being uttered by law-enforcement agents in an operation involving the use of force against persons from an ethnic or ot her minority was highly relevant to the question whether or not unlawful, hatred-induced violence had taken place. Where such evidence came to light in the investigation, it had to be verified and – if confirmed – a thorough examination of all the facts ha d to be undertaken in order to uncover any possible racist motives. Furthermore, the fact that Major G. had used grossly excessive force against two unarmed and non-violent men also called for careful investigation.

In sum, the investigator and the prosecu tors involved in the case had had before them plausible information sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events that had led to the d eath of the two men. However, they had done nothing to verify the neighbour's statement, or the reasons it had been considered necessary to use such a degree of force. They had disregarded relevant facts and terminated the investigation, thereby shielding Major G. from prosecution.

It followed that the authorities had failed in their duty under Article 14, taken together with Article 2, to take all possible steps to investigate whether or not discrimination may have played a role in the events.

Conclusion : violation of Article 14 taken together with Article 2 (unanimously).

Article 41: the Grand Chamber upheld the awards to the applicants in the amounts of 25,000 and 22,000 euros, respectively, on all heads of damage. It also made an award for costs.

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