Communicated on 15 January 2016

FIFTH SECTION

Application no. 34197/15 Stamen Georgiev MITEV against Bulgaria lodged on 8 July 2015

STATEMENT OF FACTS

The applicant, Mr Stamen Georgiev Mitev , is a Bulgarian national, who was born in 1967 and lives in Staro Oryahovo . He is represented before the Court by Ms D.T. Pchelinska- Boycheva , a lawyer practising in Varna.

A. The circumstances of the case

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

The applicant was driving his car on the evening of 10 March 2014 in the region of Varna when the police signalled to him to pull over to the side of the road. He continued driving for about a kilometre and only stopped when his car reached a field and could not advance further. The reason for not stopping immediately, he submits, was that he had drunk alcohol that evening and feared the consequences if caught.

The police officers who had followed him left their car and approached the applicant ’ s car. According to the applicant, while he was trying to get out of his vehicle, one of the officers kicked him in one leg and then pushed him to the ground. The applicant fell on his back and the officers went on kicking him. After a few minutes they handcuffed him, following which one of them hit him with a rubber truncheon on the head. Then they put him in the police car and took him to the police station where they called the applicant ’ s brother. The latter brought the applicant ’ s identity documents and drove him to the hospital as he was having difficulties breathing. The doctors operated on him immediately: he had a broken rib which had pierced one of his lungs and was a threat to his life. On 14 March 2014 the applicant was issued with a medical certificate evidencing this; the certificate also recorded that the applicant had bruises on the head and a broken leg which required immobilisation with a cast. The certificate concluded that it was not excluded for the injuries to have been sustained in the manner described by the applicant, namely by beating and kicking him.

Criminal proceedings into the officers ’ conduct were opened as a result of the applicant ’ s injuries. On 31 October 2014 the Varna District Prosecutor decided to terminate the proceedings, finding that there was no evidence pointing to the officers having used violence when apprehending the applicant. The force used by the officers had been necessary for neutralising and detaining him. In particular, when the applicant had tried to flee his car, he had tripped and fallen to the ground because the surface of the field through which he had been running had been rough and muddy. One of the officers had caught up with him, had held him down with the help of his knees and had handcuffed him. Once they had all gone to the police station, the applicant had told everyone in hearing reach that he had tripped in the field and had hurt his leg. The prosecutor heard several police officers as witnesses, as well as the applicant ’ s brother. Having established inconsistencies between the officers ’ testimony and that of the applicant and his brother, the prosecutor concluded that the applicant ’ s complaints were not supported by the evidence gathered. The prosecutor ’ s decision to terminate the proceedings was confirmed by two levels of court, respectively on 24 November 2014 and 9 January 2015.

B. Relevant domestic law

1. Use of force for restraint by police officers

Section 72 of the Ministry of Internal Affairs Act 2006 (“the 2006 Act”), in force at the time of the events, provided that, in the exercise of their duties, the police could use force and special auxiliary means for restraint “only where absolutely necessary” in cases of, inter alia , resistance or refusal to obey a lawful order, arrest of an offender who disobeys or resists a police officer, and attacks against citizens and police officers. Pursuant to section 73(5) of the 2006 Act, the use of force had to be discontinued as soon as the objective for which it was being used was attained.

Article 12a of the Criminal Code provides that causing harm to a person while arresting them for an offence is not punishable where no other means of effecting the arrest exists and the force used is necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary.

2. Institution of criminal proceedings

According to Article 207 of the Code of Criminal Procedure 2006 (“the 2006 Code”) criminal proceedings ( досъдебно производство ) are instituted where there is a legitimate reason and sufficient information that a crime has been committed. Criminal proceedings for publicly prosecutable offences may be instituted only by a decision of a prosecutor (Article 212 of the 2006 Code). Written orders of the higher prosecutor are mandatory for the lower prosecutor (section 143(3) of the Judiciary System Act 2007).

3. Victims ’ rights during the pre-trial criminal proceedings

During the pre-trail criminal proceedings victims had the right to personal safety, to be informed of the criminal proceedings ’ progress, to take part in the investigation, to make requests, comments and objections and to appeal against the acts suspending or terminating the proceedings (Article 75 of the Code of Criminal Procedure).

4. Prosecution for ill-treatment of individuals

Pursuant to Articles 128, 129 and 130 of the Criminal Code, causing minor, moderate or severe bodily harm to another person is a criminal offence. 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. The offence is publicly prosecutable.

COMPLAINTS

The applicant complains under Article 3 and Article 13 in conjunction with Article 3 of the Convention about the injuries caused to him by the police while arresting him, as well as about the absence of an effective remedy in this connection.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment in breach of Article 3 of the Convention as a result of the force used during his apprehension by the police?

2. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95 , § 131), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy in that regard, as required by Article 13 of the Convention?

The parties are invited to submit to the Court all documents related to the investigation into the incident when the applicant sustained his injuries.