Lexploria

Information Note on the Court’s case-law 18

May 2000

Velikova v. Bulgaria - 41488/98

Judgment 18.5.2000 [Section IV]

Article 2

Article 2-1

Life

Death of applicant’s partner during police custody and alleged lack of proper investigation into death: violation

Facts : In September 1994, T., a Romany with whom the applicant lived, died in police custody some 12 hours after his arrest on suspicion of th eft of cows. He had apparently been too drunk to be questioned. The regional investigator ordered a criminal investigation into the death and an autopsy was carried out, according to which death was caused by haemorrhaging due to trauma caused by a blunt o bject, which could have resulted from either blows or a fall. No further steps in the investigation appear to have been taken after December 1994. In December 1995, the applicant's lawyer unsuccessfully requested the prosecutor to speed up the investigatio n, but in March 1996 the prosecutor issued an order suspending the criminal proceedings. The order stated that death had resulted from deliberate beating but that it was not possible to ascertain whether this had taken place at the police station or whethe r the police officers had been responsible. Following the applicant’s request, the Chief Public Prosecutor’s Office ordered the reopening of the investigation on the ground that it had not been thorough and complete. However, the investigator allegedly ref used to provide the applicant's lawyer with any information about the investigation and the lawyer received no reply to the complaint filed with the prosecutor’s office. The prosecutor eventually replied to a second request by stating that no further inves tigation should be carried out as there were no clues as to the identity of the offender. However, no formal decision was taken to that effect and in December 1997 the investigator told the lawyer that he was still working on the investigation.

Law : Govern ment’s preliminary objections - (i) as to the Government’s claim that the power of attorney allegedly signed by the applicant must have been submitted by unauthorised persons, since the applicant is illiterate, the applicant confirmed prior to the hearing before the Court that she had signed the power of attorney and demonstrated her ability to sign in the presence of the President of the Chamber and the parties’ representatives. The Government are not estopped from raising the objection, since it is based on a document which came to light after the admissibility decision but they do not allege in express terms that the application was made without the applicant’s consent and it is unclear whether a genuine document signed by a person who had previously clai med to be illiterate would be null and void under Bulgarian law. In any event, under the Rules of Court (Rule 45 § 3) a simple written authority is valid for the purposes of proceedings before the Court, in so far as it has not been shown that it was made without the applicant’s understanding and consent. There has been no serious doubt as to the applicant’s wish to pursue her complaints, and the application has been validly submitted on her behalf;

(ii) as to the Government’s assertion that the admissibili ty decision contains incorrect statements of fact and unjustified conclusions, these are all to be found in the summary of the applicant’s complaints and submissions, which forms part of the text without being an expression of the Court’s opinion. With reg ard to non-exhaustion, the six month rule and abuse of the right of petition, the Government for the most part reiterate the objections which were examined by the Court at the admissibility stage and there are no new elements justifying a re-examination of these matters. In any event, there is no substance to the preliminary objections.

Article 2 - It is undisputed that at the time of his arrest T. was able to walk and that there was some verbal communication with the police and others, but that he did not complain of any ailment at that time or within the following two hours, nor did anyone report any visible sign of such serious injuries as were later found in the autopsy. The Government’s suggestion that T. might have received the fatal injuries before hi s arrest is therefore implausible. Equally implausible is the suggestion that he may have been injured by falling to the ground as he was allegedly staggering. The autopsy report mentioned this as a possibility only in respect of facial injuries, which wer e not among those that led to the acute loss of blood. According to the prosecutor’s report, the fatal injuries were the result of deliberate beating. There is sufficient evidence to reach the conclusion beyond reasonable doubt that T. died as a result of injuries inflicted while in the hands of the police and the responsibility of the State is thus engaged. Moreover, there is no evidence that T. was examined with the proper care due by a medical professional at any time. Consequently, there has been a viol ation in respect of his death.

Conclusion : violation (unanimously).

Article 2 - As to the alleged lack of an effective investigation, certain references in the material submitted could lead to the supposition that there exist documents concerning the investigation which have not been furnished to the Court. However, it is unnecessary to decide whether the Government have complied with their obligations under Article 38. The Court is entitled to draw the inference that the material submitted contains all information about the investigation. There were numerous unexplained om issions from the very beginning and throughout the investigation: no expert was ever asked to comment on the timing of the injuries, there is no trace of any attempt by the investigator to identify the medical team who the police officers claimed visited t he police station, and a number of important witnesses were never questioned. The unexplained failure to undertake indispensable and obvious investigative steps is to be treated with particular vigilance and, failing a plausible explanation by the Governme nt, the State’s responsibility is engaged for a particularly serious violation of its obligation under Article 2 to protect the right to life. The investigator did not proceed to collect available evidence and indeed the investigation remained dormant afte r December 1994. No plausible explanation for these failures has been provided and there has therefore been a violation of the obligation to conduct an effective investigation.

Conclusion : violation (unanimous).

Articles 6 and 13 - The Court considered tha t the complaints about the excessive length of the investigation and the failure to carry out a thorough, effective and timely investigation fell to be examined under Article 13. Having regard to the conclusion reached above, the State has failed to comply with its obligation to carry out an effective investigation and this failure undermined the effectiveness of any other remedies which might have existed.

Conclusion : violation (unanimous).

Article 14 - While the applicant’s complaint is grounded on a numb er of serious arguments and the State has failed to provide a plausible explanation as to the circumstances of T.’s death and the omissions in the investigation, the material does not enable the Court to conclude beyond a reasonable doubt that his murder a nd the lack of a meaningful investigation were motivated by racial prejudice.

Conclusion : no violation (unanimous).

Article 41 - The Court awarded the applicant 100,000 French francs (FRF) in respect of non-pecuniary damages. It considered that this sum should be exempt from attachment but it had no jurisdiction to make such an order. It further awarded the applicant 8, 000 levs (BGL) in respect of pecuniary damage. Finally, it made an award in respect of costs and expenses.

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