FOURTH SECTION

Application no. 77938/11 Raycho Angelov DIMITROV and others against Bulgaria lodged on 5 December 2011

STATEMENT OF FACTS

1 . The first applicant, Mr Raycho Angelov Dimitrov , was born in 2000 and lives in Blagoevgrad . The second applicant, Ms Anita Rumenova Velyanova , was born in 1979 and lives in Sofia . The third applicant, Mr Raycho Dimitrov Dimitrov , was born in 1948 and lives in Blagoevgrad . The fourth applicant, Ms Adriana Georgieva Dimitrova , was born in 1950 and lives in Kyustendil .

A. The circumstances of the case

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

3. On 10 November 2005 Mr Angel Raychov Dimitrov (alias Chorata ), born in 1967 and living in Blagoevgrad , died in the course of a police operation against him. Five police officers who took part in that operation were later investigated and tried on charges of aggravated murder. They were ultimately acquitted.

4 . The first applicant is Mr Dimitrov ’ s son. The second applicant was Mr Dimitrov ’ s de facto spouse. The third and the fourth applicants are Mr Dimitrov ’ s parents.

1. Circumstances surrounding Mr Dimitrov ’ s death

5. At the end of October 2005, following a high ‑ profile assassination in Sofia , the Minister of Internal Affairs ordered a nation ‑ wide police operation whose aim was to trace and arrest persons who had committed serious offences. The Blagoevgrad police interviewed Mr Dimitrov in connection with that assassination; no connection between him and the offence was established.

6. The carrying out of the Minister ’ s order on the territory of the Blagoevgrad region was organised by the head of the Blagoevgrad Regional Directorate of Internal Affairs. In an order of 10 November 2005 he ordered six police officers to take part in a police operation between 6 p.m. on that day and 2 a.m. the following day. They were told to report for instructions at 6 p.m. In another order the head of the Directorate ’ s organised ‑ crime unit, colonel A.K., ordered an operation against Mr Dimitrov , who was suspected of distributing narcotic drugs and pimping. According to the order, the operation ’ s goal was to establish, document and put an end to those activities. The operation ’ s plan envisaged establishing Mr Dimitrov ’ s whereabouts and carrying out urgent investigatory steps. The plan specifically said that when making arrests, the police had to act with caution so as to avoid any risk to the life and health of the arrestees and of passers ‑ by. The officers who were to take part in the operation were split in three groups: one to find and arrest Mr Dimitrov , another to carry out a search in a hotel run by his family, and a third to carry out a search in Mr Dimitrov ’ s home. There is no information – the applicants say that none was gathered in the ensuing criminal proceedings – as to the precise plan according to which the police were to act and as to the exact instructions given to the officers who took part in the operation.

7. The officers who went to Mr Dimitrov ’ s house found there his de facto wife, the second applicant, and his son, the first applicant. They did not present a search warrant; it was later established that no such warrant had been applied for. At about 9.15 p.m. the officers were informed that Mr Dimitrov had died, and at about 9.20 p.m. they left the house, saying that they would not carry out a search there.

8. The second group, consisting of between ten and fifteen officers wearing balaclavas, went to the family ’ s hotel, where they apparently expected to find one kilogram of cocaine. They did not have a search warrant either. The officers entered the hotel, opening and sometimes breaking the doors of some hotel rooms, and pinning to the ground Mr Dimitrov ’ s brother and some hotel guests. When learning that Dimitrov had died, the officers stopped the search, left the hotel and went back to the police station.

9. The third group consisted of major M.P., captain I.I., chief lieutenant B.M., chief sergeant G.K. and chief sergeant Y.G. Major M.P. was the group ’ s leader. Their task was to find and arrest Mr Dimitrov . Major M.P., captain I.I. and chief lieutenant B.M. were in plain clothes, and the other two officers were in special clothes which did not bear police identification marks. Some of them wore balaclavas, and all were armed, two with Kalashnikov automatic rifles. Their car did not bear police identification marks either. The group was initially supposed to include an investigator, but he decided to remain in the police station and await the unfolding of the operation there.

10. The five officers found Mr Dimitrov in his car; they apparently discovered his whereabouts on the basis of a wiretap which the police had earlier put on his mobile telephone. The car was parked near a building in which Ms M.Z., Mr Dimitrov ’ s girlfriend, at that time sixteen years old, and her sister, Ms E.Z., at that time eighteen years old, lived in a flat on the third floor, with windows overlooking the street. Both of them were at home.

11. According to the applicants and findings of the courts, at about 8.45 p.m. Mr Dimitrov was in his car, driver ‑ side window down, talking with Ms M.Z. on his mobile telephone and through the window. The two agreed to see each other later, and Ms M.Z. moved away from the window of her flat. At that point the five officers stopped their car (there was some uncertainty as to whether they stopped it in front of or behind Mr Dimitrov ’ s car and whether at that point Mr Dimitrov ’ s car was already moving). Chief lieutenant B.M., chief sergeant G.K. and chief sergeant Y.G. took Mr Dimitrov out of his car, which remained with its headlights on. They started hitting him on the head and body. Major M.P. and captain I.I. joined the three. With the help of the two chief sergeants, chief lieutenant B.M. handcuffed Mr Dimitrov behind his back, and the five officers kept on beating him. Ms M.Z. heard Mr Dimitrov shouting a number of times that he was suffocating and could not breathe, and asked his assailants what they wanted from him and why they were beating him. The officers kept silent. The beating continued ten to fifteen minutes. Ms M.Z. and Ms E.Z. could see what was happening through their window, and made calls to the police and the fire brigade at 8.53 p.m. and 9.01 p.m.

12. As a result of Ms M.Z. ’ s and Ms E.Z. ’ s calls the police dispatched a car with two officers to the scene. The two officers, who were apparently not aware of what was going on, were met by Major M.P. and captain I.I. at some distance from the place where Mr Dimitrov ’ s body lay. The major sent them away with the explanation that there was a police operation under way.

13. Shortly after that the head of the Directorate ’ s organised ‑ crime unit, colonel A.K., arrived at the scene, bringing with him an investigator. Seeing that Mr Dimitrov was not moving, at 9.01 p.m. the colonel called in an ambulance. At about 9.25 p.m. the ambulance doctor examined Mr Dimitrov ’ s body and found that he was dead. The colonel then ordered the doctor to take the body away from the scene. It was taken by ambulance to an emergency medical centre, where the death was confirmed.

14. The five officers remained at the scene for some time, and then went back to the police station with their car, apparently following orders by colonel A.K.

15. According to the findings made by the Sofia Military Court in the ensuing criminal proceedings against the five officers, Mr Dimitrov died of traumatic injuries to his head and a rupture of his aorta, induced by intensive blows to his head and back. According to the Military Court of Appeal, which heard the case on appeal, the officers caused Mr Dimitrov ’ s death by pushing him against the ground, which, combined with the position in which he was, the stress induced by the continued violence against him, consisting of a number of hits, his pre ‑ existing medical conditions and cocaine that he had taken some time before the incident, had caused him to asphyxiate. According to the Supreme Court of Cassation, Mr Dimitrov asphyxiated by accident, his death having no causal connection with the officers ’ actions.

2. The criminal proceedings against the five officers

(a) The preliminary investigation

16. Later that night the scene was visited by a prosecutor from the Sofia Military Prosecutor ’ s Office and two military investigators, who were competent to investigate offences committed by military officers. However, they did not carry out any investigative actions. The investigation was taken up by a prosecutor from the Blagoevgrad Regional Prosecutor ’ s Office and an investigator from the Blagoevgrad Regional Investigation Service. Between 10.45 p.m. on 10 November 2005 and 12.10 a.m. on 11 November 2005 the investigator inspected the scene. She carried out a further inspection between 12.20 p.m. and 12.40 p.m. on 11 November 2005. Mr Dimitrov ’ s car, which had been taken to a police station, was also inspected. The investigator also ordered an autopsy on Mr Dimitrov ’ s body.

17 . The same day, 11 November 2005, three medical doctors – Dr Z.K., head of the forensic medicine sector of the Military Medical Academy , who had arrived from Sofia , Dr Y.Z., head of the forensic ward of the Blagoevgrad Hospital , and Dr M.G., a doctor in the same ward, performed an autopsy on Mr Dimitrov ’ s body. They described in detail their visual inspection of the outside and the inside of the body. They took blood and urine samples and samples of stomach, intestine, brain, kidney and liver tissue, and sent them for chemical testing. They also took samples of brain, myocardial, lung, liver, kidney, adrenal gland and spleen tissue and part of the wall of the aorta, for histological testing. The experts ’ conclusion was that Mr Dimitrov had a number of abrasions and bruises on the head, body and limbs; that he had well ‑ pronounced cyanosis of the skin and of the visible mucous membrane in the upper part of his body; two small and limited haemorrhages under the pia mater; a small laceration of the aortic arch with suffusion around it and haemorrhage in the left pleural cavity; rough pulmonary adhesions; swelling of the brain and of the lungs; heavy venous stasis in the internal organs, with dark liquid blood. The experts said that the analysis of the cause of death and the manner in which the injuries had been sustained would be made in a further report by five experts, to be drawn up after obtaining the results of the chemical and the histological tests.

18 . The Blagoevgrad police gave a press conference at which they said that Mr Dimitrov had died of cardiogenic shock; the applicants were not given any other information on the matter. The death certificate issued by the Blagoevgrad municipality on 12 November 2005 said that Mr Dimitrov had died of acute cardiogenic shock, acute cardiac and breathing insufficiency, and abrasions and blood suffusions on the head and the body. When they later recovered Mr Dimitrov ’ s body, the applicants, having seen the numerous injuries to it, decided not to bury him before the cause of his death could be elucidated. At their request, on 17 November 2005 the Blagoevgrad Regional Prosecutor ’ s Office ordered a second autopsy, to be carried out by the three medical doctors who had performed the first one and two experts suggested by the applicants, Prof Dr S.R., consultant at the Forensic Medicine and Deontology Centre of the Alexandrovska University Hospital in Sofia, and Prof Dr Ts.Y ., cardiac pathologist at the St Ekaterina University Hospital in Sofia.

19 . On 19 November 2005 the five experts performed a second autopsy on Mr Dimitrov ’ s body. They took into account the findings of the first autopsy, and described in detail their own visual inspection of the outside and the inside of the body and the results of additional tests that they carried out (histological analysis of Mr Dimitrov ’ s brain, lungs, heart muscle, aorta, liver, kidney, adrenal gland and spleen, and chemical analysis of his blood and urine). Then they set out their conclusions, saying, inter alia , that the cause of Mr Dimitrov ’ s death had been a closed cerebral trauma, due to four violent blows to the head, accompanied by a commotion and contusion syndrome, which had led to a breakdown of the functions of the brain, and to a paralysis of the vital centres (cardiac and respiratory), which had been the direct cause of death. A secondary factor had been a traumatic rupture of the aorta, which had been caused by a sharp and violent blow to the back, between the third and the fourth thoracic vertebrae, and had led to a haemorrhage of about 150 millilitres of blood in the left pleural cavity. The death had occurred fast, within minutes, but it was not possible to say exactly when. The traumatic injuries to the head and the body – except those to the face, the front of the body, the elbows and the knees – had been caused by multiple blows with a hard blunt object about three centimetres wide. The abrasions on the face, the front of the body, the elbows and the knees had been caused by a fall to the ground. The abrasions on the two wrists had been caused by handcuffs. There had also been at least eight blows, some of which possibly repetitive, to the waist, the abdomen and the body. Part of the injuries to the face and the head could have been caused while Mr Dimitrov had been upright, bending or recumbent, but it was not possible to say exactly; the blow between the vertebrae had most probably been administered while Mr Dimitrov had been upright or slightly bending. There was no medical data showing that Mr Dimitrov had fought or defended himself. He had earlier consumed a small dose of cocaine, but had not been under its influence at the time of his death. The cocaine metabolites in his urine had no connection with his death.

20. In the following days the authorities interviewed a number of police officers and other witnesses and gathered other evidence. On 1 December 2005 Mr Dimitrov ’ s brother gave to the investigator the clothes worn by Mr Dimitrov at the time of his death.

21 . On 9 December 2005 the investigation was taken up by the Sofia Military Prosecutor ’ s Office. On 14 December 2005, without carrying out any further investigative steps, it decided to discontinue the proceedings, reasoning that the force used against Mr Dimitrov had been proportionate in the circumstances, and therefore not criminal under Article 12a of the Criminal Code (see paragraph 91 below).

22. The applicants sought judicial review of the discontinuance.

23 . In a decision of 18 January 2006 the Sofia Military Court found that the Sofia Military Prosecutor ’ s Office ’ findings of fact were one ‑ sided and did not flow from the available evidence. That Office ’ s conclusion that the officers ’ actions could be justified by reference to Article 12a of the Criminal Code was erroneous. The intensity of the violence used by the officers rather pointed to murder with direct intent and special cruelty, at a time when the victim was in a helpless state, and perpetrated in a way that was particularly painful for the victim, contrary to Article 116 of the Code (see paragraph 89 below). In addition, the inquiries made by the prosecuting authorities were incomplete in many respects. For those reasons, the court set the discontinuance aside and referred the case back to the prosecuting authorities, giving them directions as to the application of the substantive law and instructing them to carry out further investigative steps.

(b) The first proceedings before the Sofia Military Court

24. Having carried out further investigative steps, the Sofia Military Prosecutor ’ s Office indicted the five officers of wilfully inflicting bodily damage on Mr Dimitrov and thus negligently causing his death.

25 . On 14 June 2006 the judge ‑ rapporteur at the Sofia Military Court referred the case back to the prosecution, instructing them to comply with the directions on the application of the law given in the decision of 18 January 2005 (see paragraph 23 above).

26. On 29 June 2006 the Sofia Military Prosecutor ’ s Office filed an amended indictment against the officers.

27 . On 5 September 2006 the judge ‑ rapporteur , who this time was the president of the panel, again referred the case back to the prosecution, once more instructing them to comply with the earlier directions on the application of the law.

28. In line with the court ’ s instructions, the Sofia Military Prosecutor ’ s Office indicted the five officers of murdering Mr Dimitrov in the course of the performance of their duties, with special cruelty, in a way which had been particularly painful for him, and while he had been in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code 1968 (see paragraph 89 below).

29. At the start of the trial the applicants brought claims for non ‑ pecuniary damages against the five officers and the Blagoevgrad Regional Police Directorate, whom they regarded as vicariously liable. At trial the court admitted in evidence the expert report drawn up during the preliminary investigation (see paragraph 19 above), and heard the five experts who had taken part in its preparation (see paragraph 18 above). All of them said that they fully stood by their conclusions. Their report was not contested by the parties.

30 . In a judgment of 9 November 2007 the Sofia Military Court found the five officers guilty of murder committed in connection with their duties, with special cruelty and in respect of a person who was in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code (see paragraph 89 below). It sentenced major M.P. to nineteen years ’ imprisonment and the other four officers to eighteen years ’ imprisonment each. It partly allowed the applicants ’ claims for non ‑ pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Directorate of Police, 80,000 Bulgarian levs (BGN), plus interest, to the first applicant and BGN 30,000, plus interest, to each of the other three applicants.

31. The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to describe the numerous injuries suffered by Mr Dimitrov , and to conclude that he had died of traumatic injuries to his head and his aorta and that no pre ‑ existing medical conditions had played a part in his death. It analysed in detail the expert, witness and other evidence, and expressed the view that colonel A.K. had criminally tried to conceal the offence committed by the five officers. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It went on to set out its findings in relation to each aggravating element of the offence, concluding, inter alia , that the officers had acted with special cruelty and at a time when Mr Dimitrov had been in a helpless state because he had been handcuffed and because he had developed a commotion and contusion syndrome. However, the court did not find that Mr Dimitrov had died in a particularly painful manner. It held that the officers had acted with direct intent – they had kept on hitting Mr Dimitrov with intensity until he had died and even after that. Their motive to do so had been to prevent him from being put on trial. The court also gave reasons on the quantum of the punishment that it had decided to mete out to each of the five officers. It found that there was a considerable preponderance of aggravating factors in relation to major M.P. – he had been the group ’ s leader and had tried to conceal the offence – and a slight preponderance of aggravating factors in relation to the other four officers. It went on to find that Mr Dimitrov had not been in the process of committing an offence when attacked by the officers, and said that in any event in a State adhering to the rule of law the way of dealing with offenders was to bring them justice, not to kill them. Nor was there an indication that Mr Dimitrov had failed to heed an order or had tried to resist arrest. The court found that the officers ’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph 91 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive.

32. The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers ’ actions. It went on to find that each of the applicants had suffered non ‑ pecuniary damage as a result of Mr Dimitrov ’ s death, and determined its amount in equity.

(c) The first proceedings before the Military Court of Appeal

33. The five officers and the Blagoevgrad Regional Directorate of Police appealed.

34 . On 19 February 2008 the Military Court of Appeal quashed the Sofia Military Court ’ s judgment and remitted the case. It held that the panel which had heard the case had been unlawful, because its president had earlier expressed his views on the merits of the case. He had done so by referring the case back to the prosecution on 5 September 2006 (see paragraph 27 above). The ground for the referral had been the prosecution ’ s failure to take heed of the instructions given in the earlier proceedings for judicial review of the discontinuance of the preliminary investigation, and in those judicial review proceedings the court had taken a stance on the merits of the case. By insisting that the prosecution comply with the instructions concerning the application of the substantive law, the presiding judge had in effect shown his agreement with that earlier reasoning and had therefore expressed his views on the merits of the case, which had made him partial.

35 . One judge dissented. In his view, the president of the Sofia Military Court ’ s panel had merely followed the applicable procedure and had not shown any bias.

(d) The second proceedings before the Sofia Military Court

36. The Sofia Military Court re ‑ tried the case, hearing a number of witnesses: relatives of Mr Dimitrov , the head of the Blagoevgrad police, general ‑ major B.Y., colonel A.K. and other police officers, Ms M.Z. and Ms E.Z., and the doctor and the paramedic who had arrived at the scene after Mr Dimitrov ’ s death. The court also heard the five experts who had drawn up the expert report ordered during the preliminary investigation (see paragraph 18 above), and admitted in evidence documents relating to the organisation of the police operation and wiretaps.

37 . In a judgment of 2 October 2008 the Sofia Military Court convicted the five officers of murder committed in connection with their duties and with special cruelty, contrary to Article 116 § 1 (2) and (6) of the Criminal Code (see paragraph 89 below). It sentenced major M.P. to eighteen years ’ imprisonment and the other four officers to sixteen years ’ imprisonment each. It partly allowed the applicants ’ claims for non ‑ pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Directorate of Police, BGN 70,000, plus interest, to the first applicant and BGN 25,000, plus interest, to each of the other three applicants.

38. The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to find that Mr Dimitrov had died of traumatic injuries to his head and his aorta, and had suffered a number of other injuries as a result of the beating to which the five officers had subjected him. It found that no pre ‑ existing medical conditions or previous use of cocaine had played a part in Mr Dimitrov ’ s death. He had not tried to flee or resist the officers, had not failed to heed their orders, and had not been in the middle of committing an offence requiring prompt intervention by the police. The court analysed in detail the witness, expert and others evidence, including the statements of Ms M.Z. and Ms E.Z. and of the five officers, as well as the parties ’ arguments as to the validity and the probative value of that evidence. The court also expressed serious concern about the actions of colonel A.K. before, during and after the incident, and found that he had tried to conceal the actions of the five officers. It also observed that the evidence did not allow a conclusion that Mr Dimitrov had been a seasoned criminal who had rightfully incurred the wrath of the police. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It found that the officers ’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph 91 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive. Their actions had amounted to aggravated murder, committed in the course of the performance of their duties and with special cruelty. However, it could not be said that the offence had been committed in respect of a person in a helpless state or in way that had been particularly painful for the victim. Nor could it be said that the officers had acted with direct intent – it was not sufficiently proved that they had a motive to kill Mr Dimitrov . They had acted with oblique intent (recklessness), being indifferent to the possibility of Mr Dimitrov dying as a result of the beating to which they had subjected him. That was evident from the fact that they had continued hitting him even after he had stopped moving because he had died. They had not tried to take any steps to avert the lethal outcome, but had on the contrary tried to conceal their act from the two officers who had been dispatched to the scene. It could not therefore be accepted that they had acted merely negligently. They had intended to arrest Mr Dimitrov in line with the plan for the police operation, but had without reason and without care for the consequences killed him by beating him to death. The underlying cause had been their low regard for the law and for Mr Dimitrov ’ s rights to life and bodily integrity.

39. The court found that the officers ’ clean criminal records and the good character shown in the course of their employment were mitigating circumstances. On the other hand, the fact that they had reduced Mr Dimitrov to helplessness before killing him and that their offence had been characterised by more than one aggravating factor was an aggravating circumstance. For four of the officers the mitigating circumstances outweighed the aggravating ones. However, that was not the case of major M.P., who had been the group ’ s leader and had tried to cover up the offence by sending away the police patrol; he therefore merited a harsher punishment.

40. The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers ’ actions. It went on to find that each of the applicants had suffered non ‑ pecuniary damage as a result of Mr Dimitrov ’ s death. It determined its amount in equity, acknowledging the applicants ’ varying degrees of distress but also describing Mr Dimitrov as an “unappealing character”.

(e) The second proceedings before the Military Court of Appeal

41. The five officers and the Blagoevgrad Regional Directorate of Police appealed. So did the applicants, challenging the quantum of the officers ’ sentences and of the quantum of the awards of damages.

42. At the request of two of the officers, on 19 December 2008 the Military Court of Appeal ordered a fresh medical expert report, to be drawn up by five experts in forensic medicine, neurosurgery, cardiology and toxicology, to be chosen by the head of the Military Medical Academy . The court found that the expert report drawn up during the preliminary investigation (see paragraph 19 above) contained contradictory conclusions as to the exact way in which Mr Dimitrov ’ s death had been caused and the position of his body at that time.

43 . The expert report became ready on 11 February 2009. It was drawn up by Dr Ts.G ., head of the forensic medicine ward of the Military Medical Academy, Dr E.N., head of division at the Academy ’ s Pathomorphology , Autopsy and Biopsy Diagnostic Department, Dr K.K., head of the Academy ’ s Urgent Toxicology and Allergology Clinic, Dr D.G., head of the Academy ’ s Cardiology and Rheumatology Clinic, and Dr N.M., a neurosurgeon of Academy ’ s Neurosurgery Clinic.

44 . The experts took into account the results of the first and the second autopsies, statements given by the five officers and witnesses, and the results of fresh histological tests that they had carried out on the samples taken during the first autopsy (see paragraph 17 above). On that basis they concluded, inter alia , that the main cause of Mr Dimitrov ’ s death had been positional asphyxia, which had led to a mechanical blockage of his respiration as a result of the position in which he had been put. The medical findings – in particular, the cyanosis, the swelling of the internal organs, the vascular congestion, the limited petechial haemorrhages and liquid blood, and the faecal mass in the anus – were the classical symptoms of hypoxia. All witnesses ’ statements showed that upon his arrest Mr Dimitrov had been put in a hog ‑ tie position – face against the ground and hands fixed to one another behind the back – which was known to obstruct the respiratory tract and could lead to death. The medical findings – traces of handcuffs on both wrists, soil and abrasions on Mr Dimitrov ’ s face – albeit indirectly, also showed that he had been put in that position. The asphyxia had been aided by Mr Dimitrov ’ s chronic illnesses: limited flexibility of the lungs due to massive adhesions of the visceral and parietal pleurae, distended and full stomach which had in that position pressed the diaphragm, a hypertrophy of the heart due to the chronic abuse of cocaine (something shown by the fresh histological tests), moderate obesity, and a short neck. The emotional and physical stress under which Mr Dimitrov had been put, coupled with the possibility of emotional delirium resulting from the use of cocaine, could also have played a part.

45 . The experts categorically disagreed with the conclusion of the previous expert report that the death had been due to a closed cerebral trauma and a traumatic rupture of the aorta. The results of the two autopsies and the fresh histological tests excluded the possibility of cerebral trauma. So did the witness statements that Mr Dimitrov had been shouting and raving. The haemorrhages under the pia mater and the swelling of the brain were in fact well ‑ known symptoms of hypoxia. The location of the contusions on the head and the face did not match the location of the haemorrhages under the pia mater. The numerous small haemorrhages around the blood vessels of the brain stem found during the second autopsy, which had taken place nine days after the death, had for sure been postmortal . The rupture of the aorta was also for sure postmortal , had most probably occurred during the autopsy, and had not been caused by a blow. This was indicated by the lack of additional surrounding injuries (such as massive smashing of soft tissue, broken vertebrae and ribs, or injuries to other blood vessels, the lungs or the longitudinal ligament), the manner in which the blood had extravasated into the surrounding tissues (which was consistent with postmortal bleeding, something also confirmed by the fresh histological tests), and the small amount of blood in the left pleural cavity – insignificant for a rupture of the aorta, which would normally cause profuse bleeding of more than a litter of blood. A small amount of bleeding was normally something that occurred during autopsy dissections of blood vessels.

46 . The experts went on to describe numerous traumatic injuries to Mr Dimitrov ’ s body. In their view, some of those – chiefly those to the front of the head, to the front of the body and to the limbs – had been caused by an impact or impacts against the ground. The injuries to the wrists had been caused by handcuffs. The other injuries to the head, the back and the waist were due to blows with hard blunt objects administered during a short period of time but not in a very violent manner – something shown by the lack of large subcutaneous haematomas, of smashed soft subcutaneous tissues, of broken bones, or of traumatised joints. It was not possible categorically to determine the exact position of Mr Dimitrov ’ s body at the time when he had suffered the injuries. The traumatic injuries had not directly caused his death.

47 . The applicants objected to the report ’ s admission into evidence, for two reasons. First, there had been no grounds to appoint experts not featuring on the official lists. Secondly, the experts had not been randomly selected by the court as required by law but had been chosen by an outsider in respect of whom there were suspicions of bias , because a medical doctor from the Military Medical Academy had helped the Blagoevgrad police present misinformation about the cause of Mr Dimitrov ’ s death. The applicants also requested the recusal of the judges dealing with the case, saying that their decision to order the report under such conditions was indicative of bias.

48 . The court rejected the objection and the recusal request, holding that under section 396 of the Judiciary Act 2007 (see paragraph 94 below) it was not bound to appoint experts only from among the persons featuring on the official lists. The rule in section 396(1) was not imperative. The fact that the court had not chosen the experts itself but had delegated that task to the head of the Military Medical Academy showed that it wished to maintain its impartiality by not appearing too closely involved in the experts ‑ selection process. There was no indication that medical doctors from the Academy had tried to hide facts, and there was thus no reason to suspect bias on the part of experts from the Academy. In any event, those experts had been appointed in their personal capacity and not as representatives of the institution.

49 . The applicants also challenged the impartiality, the objectiveness and the competence of the experts who had drawn up the report, and requested an additional expert report, to be drawn up by seven experts appointed in line with section 396(1) of the Judiciary Act 2007. The court found no need to replace the experts, saying that there was no reason to doubt their competence or impartiality, but ordered them to go over the histological samples taken during the second autopsy and, based on their findings, say whether they stuck to their conclusions, and to describe, on the basis of the expert reports drawn up during the preliminary investigation, all injuries to Mr Dimitrov ’ s body.

50 . In their additional report, filed on 27 April 2009, the five experts said that they had been unable to find the histological samples taken during the second autopsy (see paragraph 19 above). They could not therefore draw any conclusions on their basis. The experts went on to describe a number of injuries not mentioned in their original report. In the experts ’ view, all those injuries had been caused by hard blunt objects. Some could have been caused by a truncheon, others from an impact against the ground. However, those injuries had not been life ‑ threatening.

51. The court heard the experts and admitted other evidence.

52. During the oral arguments the applicants reiterated their objections to the first expert report ordered by the court, and made similar objections to the additional report. They also contested the conclusions of those reports, saying that they had relied on erroneous assumptions and had failed to take into account the conclusions of the expert report prepared during the preliminary investigation, and maintained that there were no grounds to regard those fresh reports as more accurate.

53 . On 5 August 2009 the Military Court of Appeal upheld the Sofia Military Court ’ s judgment, agreeing with all of its findings of fact, save for those relating to the exact medical reasons for Mr Dimitrov ’ s death. Based chiefly on the conclusion of the fresh expert reports that it had ordered in the appellate proceedings (see paragraphs 43 ‑ 46 and 50 above), the court found that Mr Dimitrov had died of asphyxia occurring as a result of the officers pressing him face against the ground after handcuffing him with hands behind his back, and keeping him in that position in spite of his cries that he was suffocating and his pleas. The particularities of his physiology and his medical conditions had also helped, but had not been decisive. There was no evidence that his death had been natural or resulting from the use of cocaine; that averment ran counter to the conclusions of the fresh medical expert reports. The court found that those reports were more reliable than the one drawn up during the preliminary investigation (see paragraph 19 above), for several reasons. First, they had been drawn up not only by forensic experts, but also by experts in the fields of pathoanatomy , narcology , cardiology and neurology. All of those experts had categorically said that the first report had been erroneous in its interpretation of the results of the histological tests and its discrepancies with objective medical findings. The conclusions of the fresh reports were more consistent with the witnesses ’ evidence, and were based on categorical histological findings supported by visual materials. The previous report had not explained the sequence of the deadly injuries – how Mr Dimitrov , with his heart stopped and unconscious as a result of his cerebral trauma, had managed to stand up, receive a blow in the back that had ruptured his aorta, and shout that he was suffocating. The second report was more persuasive in its explanation that there had been no cerebral trauma and that the rupture of the aorta had been postmortal , probably occurring during the autopsy. That last point was also confirmed by the fresh histological tests. The histological samples taken during the second autopsy had vanished and could not be re ‑ tested with a view to assessing the validity of the conclusions drawn on their basis, whereas the samples taken during first autopsy and used for the fresh expert report were available for inspection and re ‑ testing.

54 . The Military Court of Appeal also gave reasons why it agreed with the lower court ’ s rulings concerning the legal characterisation of the offence, the mens rea , and the aggravating factors. In particular, it said that there was no evidence in support of the averment that Mr Dimitrov ’ s death had been accidental, and therefore no room for the application of Article 15 of the Criminal Code (see paragraph 92 below). The officers had been fully aware of the situation and of the fact that they had caused Mr Dimitrov to suffocate, agonise and die, but had pressed on with their actions.

55 . In relation to the points made by the applicants in their appeal and during the oral arguments, the court said, inter alia , that there was no reason to disturb the lower court ’ s findings concerning the mens rea , and that there had been no irregularities in the appointment of the five experts who had been ordered to draw up fresh expert reports in the proceedings before it. The court reiterated that the appointment had not been in breach of section 396 of the Judiciary Act (see paragraph 94 below). It also said that a failure to follow rules not featuring in the Code of Criminal Procedure could not be regarded as a material breach of the rules of procedure. It reiterated its findings concerning the alleged partiality of the experts, and went on to say that they had been competent to give an opinion on the points submitted to them, and had not impermissibly veered out of their fields of expertise. The applicants ’ argument that the experts had relied on data which were not in evidence was also ill ‑ founded. The data used by the experts did not necessarily have to coincide with the evidence admitted by the court at trial or on appeal.

(f) The first proceedings before the Supreme Court of Cassation

56. Both the officers and the applicants appealed on points of law. In an additional brief the applicants reiterated their objections to the expert reports ordered by the Military Court of Appeal. In particular, they challenged the manner in which the experts had been appointed, the accuracy of their conclusions, and the alleged failure of the court to respond to the applicants ’ numerous criticisms of those conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements made at the pre ‑ trial stage which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov ’ s body, and had made unwarranted assumptions – such as those that Mr Dimitrov had used cocaine and had had heart problems.

57 . In a judgment of 20 January 2010 ( реш . â„– 538 от 20 януари 2010 г. по н. д. â„– 598/2009 г., ВКС, II н. о.) a three ‑ member panel of the Supreme Court of Cassation quashed the Military Court of Appeal ’ s judgment and remitted the case.

58 . The court held, inter alia , that the Military Court of Appeal had not breached section 396 of the Judiciary Act 2007 (see paragraph 94 below) when appointing the experts, and that those experts were not partial. That provision allowed the appointment of experts who did not feature on the official lists. The experts had been selected by the head of the Military Medical Academy on the basis of their special skills. There was no indication that the Academy had tried to conceal the murder or tried to devise ways of doing that, as argued by the applicants. The applicants had not objected to Dr Z.K., who was also from the Academy and had taken part in the drawing up of the first expert report, or to Prof Dr S.R., who also, in view of his advanced age, he not been fit to serve as an expert under the applicable rules. The principal rules in that domain were those of the Code of Criminal Procedure, whose foremost requirement was for the experts to be impartial and professionally competent.

59 . The applicants ’ arguments that the experts had relied on data which was not in evidence and that their report was incomplete because based on less histological samples were also ill ‑ founded. The experts were not lawyers and could not be expected to identify admissible evidence. They had used the materials in the case file, including the statements of the accused, which did not necessarily mean statements given before they had been charged. In any event, those statements were identical to those given at trial. As for the histological samples, the Military Court of Appeal had made efforts to find them with a view to making them available to the experts, to no avail. That was probably due to an oversight on the part of one of the original experts, Prof Dr S.R., which cast doubt on the accuracy of the conclusions reached in the expert report in whose preparation he had taken part.

60 . The court went on to say that the Military Court of Appeal had made a mistake to stick fully to the Sofia Military Court ’ s findings of fact concerning the violence against Mr Dimitrov while at the same time accepting, on the basis of the fresh expert reports, that the cause of his death had been asphyxia rather than cerebral trauma and rupture of the aorta. It had also erred in assessing the evidence of Ms M.Z. and Ms E.Z. and juxtaposing it against the statements of the five officers. Based on the experts ’ conclusions, the Military Court of Appeal should have re ‑ assessed the evidence concerning the dynamics of the violence against Mr Dimitrov and the participation of each of the officers in it. It had not analysed in detail the officers ’ statements, and had all too easily accepted that they did not match the rest of the evidence and were a defence position. The court had also omitted to discuss the rules governing the use of force by the police and the evidence concerning the officers ’ task. It had also found that the asphyxia had resulted from pressing Mr Dimitrov ’ s body against the ground without elucidating through expert evidence the intensity and the duration of the pressure that could cause asphyxia in such circumstances and without seeking to establish whether Mr Dimitrov ’ s illnesses could not cause sudden cardiac death. All of that was crucial with a view to establishing the objective elements of the offence, but had remained unclear because the Military Court of Appeal had not properly analysed the evidence and had not sought to establish the truth by, inter alia , including a pulmonologist among the experts that it had appointed.

61 . However, all of that had not resulted, as argued by the officers, in a breach of their right of defence arising out of differences between the facts underlying the initial charges and those established by the court of appeal. That court ’ s fresh findings of fact had concerned solely the biological cause of Mr Dimitrov ’ s death, which meant that there had not been an impermissible modification of the factual basis of the charges.

62 . The Military Court of Appeal had also made contradictory findings, because it had accepted that the beating had not been directly related to the death while at the same time finding that the murder had been committed in an especially cruel way because of the beating. Its reasons on the mens rea were also internally inconsistent, because it had accepted oblique intent while making findings which were more consistent with direct intent. This had been a result of sticking to the reasoning of the Sofia Military Court , which had been based on a different cause of death. Lastly, the court had not given reasons as to the quantum of the punishment, disregarding the officers ’ claim that their sentences were too harsh.

(g) The third proceedings before the Military Court of Appeal

63. The Military Court of Appeal started re ‑ examining the case by ordering a fresh medical expert report. The applicants asked the court to appoint only experts featuring on the official lists and to include among them a psychologist and a gastroenterologist. The court turned the requests down, saying that the five experts who had drawn up the reports that it had previously ordered (see paragraphs 43 ‑ 46 and 50 above) had been duly appointed and that at that stage there was no need for a psychologist and a gastroenterologist. However, in line with the instructions of the Supreme Court of Cassation (see paragraph 60 in fine above), it ordered that the expert team should be increased to six members and include a pulmonologist, also to be chosen by the head of the Military Medical Academy. That pulmonologist was Dr D.D. of the Academy ’ s Pulmonology department.

64. In their report, filed on 13 April 2010, the experts said, inter alia , that Mr Dimitrov had had a number of pre ‑ existing medical conditions and other factors (blood from traumas obstructing the nose and mouth, and a full stomach) which had facilitated the process of asphyxia after he had been put in a harmful position. Those additional factors made it likely that less force and less time had been necessary fully to develop the process of asphyxia; it was however impossible exactly to quantify that force. The process of asphyxia in a healthy person, given a total blockage of the airways, would take several minutes, and if the person concerned was able to breathe in several times, the process would take longer. The force applied to the back would have to be more than 102 kilograms. Mr Dimitrov ’ s pre ‑ existing medical conditions had played a significant role in the lethal outcome. They could also be in themselves an independent cause of death. The use of cocaine, however insignificant, could also lead to sudden cardiac death.

65. The court admitted the new report, as well as the two expert reports drawn up during the previous appellate examination of the case, in evidence. It also heard the experts and admitted other items in evidence.

66 . In view of the serious discrepancies between the conclusions of the expert report prepared during the preliminary investigation and those ordered by the Military Court of Appeal, the applicants asked the court to order an “arbitrage” expert report, to be drawn up by experts who featured on the official lists and had not already taken part in the proceedings. They pointed to previous cases in which such reports had been ordered. The prosecution backed the applicants ’ request. The court turned the request down, saying that the Supreme Court of Cassation had already dealt with the discrepancies between the expert reports, holding that there were no grounds to prefer the earlier one. That court had not found it necessary to seek an “arbitrage” expert report. The latest expert report had been ordered in line with the Supreme Court of Cassation ’ s instructions, and its conclusions corresponded to those of the expert reports ordered during the previous appellate examination of the case.

67. During the oral arguments the applicants reiterated their objections to the expert reports ordered by the Military Court of Appeals, challenging the manner of appointment of the experts and their methods of work and conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov ’ s body, had made unwarranted assumptions – such as those that Mr Dimitrov had used cocaine and had had heart problems, and were mutually inconsistent in that they characterised differently the asphyxia from which Mr Dimitrov had allegedly died. However, even if the experts ’ conclusions were to be taken as true, there were still grounds to accept that the five officers had murdered Mr Dimitrov .

68 . On 12 November 2010 the Military Court of Appeal upheld the five officers ’ conviction and the order for damages against them, but decided to reduce their sentences to nine years ’ imprisonment for major M.P. and eight years ’ imprisonment for each of the other four officers.

69 . The court began by setting out the lower court ’ s findings of fact and the developments relating to the fresh expert reports ordered during the previous appellate examination of the case. It went on to describe in detail the experts ’ conclusions, as well as the conclusions of the additional expert report drawn up with the participation of a pulmonologist, and the explanations given by the experts at the hearing. The court fully accepted the conclusions of those reports. In respect of the reports ordered during the previous appellate examination of the case, it gave the same reasons as those that it had given previously (see paragraph 53 above). In respect of the additional report that it had ordered, the court said that that report – prepared with the participation of a pulmonologist – had refined and supplemented the experts ’ conclusions in the previous appellate proceedings, and had not reached a different conclusion as to the cause of Mr Dimitrov ’ s death. The conclusions of the experts matched the rest of the evidence, and the objections against them were ill ‑ founded.

70 . On the basis of the expert reports, the court made fresh findings of fact. It found that the officers had handcuffed Mr Dimitrov and had pushed him to the ground. After that all of them had hit him many times on the body, back and head. Those blows had been quite intensive, and part of them had been administered with a blunt object. The beating had continued a considerable amount of time. All of this had caused Mr Dimitrov difficulties in breathing, but the officers had continued beating him, with the result that he had been unable to make moves easing his breathing. His breathing had also been hampered by his pre ‑ existing medical conditions and by the cocaine that he had taken some time before the incident. All of that, coupled with the stress underwent by Mr Dimitrov , had caused him to asphyxiate and die. The court upheld the rest of the lower court ’ s findings of fact.

71 . The court went on to discuss in detail the evidence, including the officers ’ statements, which it regarded as untruthful. It found that the officers had beached sections 78 and 79 of the Ministry of Internal Affairs Act 1997 (see paragraphs 86 and 87 below) by using excessive force without any necessity to do so, because there was no evidence that Mr Dimitrov had resisted arrest. Even if the officers had initially encountered some resistance, they had continued the use of force after handcuffing Mr Dimitrov . It had to be observed in that connection that they had been well armed, trained and experienced.

72 . The court specifically rejected the averment, put forward by the officers ’ defence, that Mr Dimitrov had died of natural causes. It was true that the injuries which the officers had inflicted on him had not directly caused his death. However, those injuries, coupled with the position in which the officers had forced Mr Dimitrov and his pre ‑ existing conditions, had triggered the chain of events leading to his death. The force and violence used by the officers had been a key part of that chain, and in that sense each of them had contributed to the end result. Their objection that their actions did not have a causal link with the death was therefore unfounded. Mr Dimitrov ’ s pre ‑ existing conditions could not have in themselves caused his death. If the officers had not acted as they did, Mr Dimitrov would have been alive.

73 . The court then gave reasons why, in spite of its partly fresh findings of fact, it agreed with the lower court ’ s rulings concerning the legal characterisation of the offence, the mens rea , and the aggravating factors.

74 . In relation to the points made by the applicants during the oral arguments, the court said, inter alia , that there had been no irregularities in the appointment of the five experts who had been ordered to draw up fresh expert reports in first appellate proceedings, or in their using materials not admitted in evidence. It noted that those arguments had been examined and rejected by the Supreme Court of Cassation in its judgment of 20 January 2010, and briefly summarised the reasons giv en by that court (see paragraph 59 above). The two expert reports ordered during the previous appellate examination of the case were therefore to be fully credited. So was the one ordered during the second appellate examination, for the same reasons. The reports were not mutually inconsistent but in fact supplemented each other. Nor had the experts veered out of their spheres of competence; they had based their conclusions on the histological tests.

75 . The president of the panel dissented as regards the quantum of the punishment. In his view, there were no grounds to go below the sentences meted out by the lower court, which had been based on a careful assessment of the various aggravating and mitigating circumstances. It was not to be overlooked that a term of imprisonment was the most lenient punishment that the law envisaged in respect of murder, the alternative being life imprisonment. The fact, established for the first time in the appellate proceedings, that Mr Dimitrov had medical conditions which had facilitated his death, was a mitigating circumstance, but not an exceptional one, and did not warrant opting for a punishment below the statutory minimum. It had played a minor role in the death, the major factor being the violence to which the officers had subjected Mr Dimitrov . That violence had been in breach of sections 78 and 79 of the Ministry of Internal Affairs Act 1997 (see paragraphs 86 and 87 below) and had had nothing to do with the officers ’ duties.

(h) The second proceedings before the Supreme Court of Cassation

76. The prosecution, the officers, the Blagoevgrad Regional Police Department and the applicants appealed on points of law.

77. In an additional brief the applicants, among other things, reiterated their objections to the expert reports ordered by the Military Court of Appeal. In particular, they challenged the manner in which the experts had been appointed, the accuracy of their conclusions, and the alleged failure of the court to respond to the applicants ’ numerous criticisms of those conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov ’ s body, and had made unwarranted assumptions – such as that Mr Dimitrov had used cocaine and had had heart problems. They also complained about the court of appeal ’ s refusal to order an “arbitrage expert report”.

78 . In a judgment of 9 June 2011 ( реш . â„– 141 от 9 юни 2011 г. по н. д. â„– 54/2011 г., ВКС, I н. о.) a three ‑ member panel of the Supreme Court of Cassation, by two votes to one, quashed the Sofia Military Court ’ s and the Military Court of Appeal ’ s judgments and acquitted the five officers. It also rejected the applicants ’ claims for damages.

79 . The court started by observing that enough evidence had been gathered and the relevant facts had been sufficiently elucidated. There was therefore no bar to disposing of the case immediately. It was not permissible to determine anew the question of how Mr Dimitrov had died; when the case had been before the Supreme Court of Cassation for the first time, it had found that the point had been determined correctly. The first panel of the Military Court of Appeal had already answered the question on the basis of the fresh expert reports that it had ordered – Mr Dimitrov ’ s death had resulted from asphyxia, not cerebral trauma and rupture of the aorta. That court had given reasons why it had chosen to believe the conclusions of the fresh expert reports rather than those of the initial expert report. However, there had been a critical flaw in its reasoning in relation to the actus reus . It had accepted that the five officers had administered a number of blows to Mr Dimitrov . At the same time, it had found that the blows could not have caused his death. The court had therefore overlooked the lack of a causal connection between the death and the officers ’ actions, whereas only such a connection could serve as a basis to hold them criminally liable for the death. They were therefore to be acquitted, because their actions had not constituted the offence with which they had been charged.

80 . Moreover, there had been an irreparable breach of the rules of procedure affecting the rights of the defence, and that breach could be made good solely by acquitting the officers. The allegations in the indictment as to the exact manner in which the officers had tried to arrest Mr Dimitrov were quite different form the Military Court of Appeal ’ s ultimate findings on the same point. That had amounted to an impermissible modification of the factual basis of the charges, which had been not only contrary to the rules of procedure but also in breach of Article 6 of the Convention. No efforts had been made to amend the charges as was possible under the rules of procedure, and that omission could not be allowed to prejudice the accused. The only way to make it good at that stage was to acquit them. It was true that when hearing the case for the first time the Supreme Court of Cassation had found that there had not been an impermissible modification in the factual basis of the charges in relation to the cause of death (see paragraph 61 above). Therefore, in as much as the court had not taken a stance as to the factual elements of the charges, there was no bar to reviewing that point. Since the court of appeal ’ s findings of law had been based on findings of fact which had not featured in the indictment, it had to be concluded that the officers had been found guilty of a charge which had not been duly proffered against them. At the same time, the facts forming the basis of the initial charges against them did not constitute an offence.

81 . Even if the case were to be analysed by reference to the Military Court of Appeal ’ s impermissible fresh findings of fact, the officers ’ actions did not constitute an offence. The officers ’ act had been perpetrated in the course of an operation for the arrest of a person known to have committed an offence. The officers ’ attitude to that person ’ s death did not point to intent, which was clear from the cause of the death. Therefore, it had to be determined whether the officers had acted negligently in relation to the death, or whether the case fell under Article 15 of the Criminal Code (see paragraph 92 above) because the death had been an accident. The elements that needed to be taken into account for that purpose were the expert reports ordered by the Military Court of Appeal, the rules governing arrest, as well as the internal police instructions on the use of handcuffs and the position in which to put handcuffed arrestees. Under those instructions, the police could use handcuffs and put arrestees face against the ground. They also had constantly to monitor the situation. A person with handcuffs on could remain in that position for a maximum of one hour without being checked for blood flow in the limbs. Therefore, police officers were entitled to put an arrestee face against the ground for not more than one hour. In the case at hand, the operation had lasted about ten minutes, and death by asphyxia could occur, as stated by the experts, in three to four minutes. Therefore, the officers had not acted negligently, because they had not been able to foresee the harmful consequences. They had been carrying out a police operation in line with the relevant rules, which could not a priori envisage death of the arrestee. In the circumstances, the officers had not been in a position to foresee the result or avert it. The events had unfolded very quickly, which had made it impossible to react, and the death had been due to a number of objective factors (chronic medical conditions; distended and full stomach; prior use of cocaine, which had exacerbated the chronic conditions and had led to overagitation ; moderate obesity; and an anatomical peculiarity – shorter neck). Those factors, whose quick action, precluding any life ‑ saving intervention, had led to the death, had been out of the officers ’ control. Therefore, the case concerned an accident, within the meaning of Article 15 of the Criminal Code. The officers were thus not criminally or civilly liable.

82 . There was no need to remit the case, for two reasons. First, all contentious issues could be resolved immediately. Secondly, a remittal would run counter to the need to determine the criminal charges against the officers within a reasonable time, as required by Article 6 of the Convention.

83 . The president of the panel dissented. In his view, it was premature to finish the case in that instance. This was in principle not permissible in cases where the court found a breach of the rules of procedure and made fresh findings of fact. In such circumstances it was necessary to remit the case, so as to preserve the separation of roles between appellate and cassation courts. In any event, there had been no breach of the rules of procedure – as held by the panel of the Supreme Court of Cassation which had dealt with the case before (see paragraph 61 above). The main reason militating in favour of remitting the case, however, was the need to order an “arbitrage” expert report, as requested by the applicants, with a view to resolving the contradictions between the expert report ordered during the preliminary investigation and those ordered by the Military Court of Appeal, which had arrived at differing co nclusions as to the cause of Mr Dimitrov ’ s death. There had been nothing in the previous judgment of the Supreme Court of Cassation to preclude such a course of action. Such an expert report would have been the only means of resolving the differences of opinion between respected medical professionals, and the sole basis for the court to determine the validity of one or the other version. It was moreover the only means of saying how the testing of tissue samples taken from the same person but at different times could lead to conflicting conclusions as to the cause of his death. All of that showed that the refusal to order an “arbitrage” report, to be drawn up by at least seven persons who were experts in the fields that had given rise to controversies and who had nothing to do with the institutions from which the previous experts came, had obstructed the possibilities to find out the truth.

3. Public statements about the case by the Minister of Internal Affairs and by the Prime Minister

84. On 10 August 2009, shortly after the Military Court of Appeal gave its second judgment in the case (see paragraph 53 above), about a thousand persons, including police officers, held a rally in Blagoevgrad to protest against the officers ’ conviction and sentences. At about the same time the Minister of Internal Affairs met with the five officers ’ relatives and the head of the Blagoevgrad Regional Directorate of Internal Affairs, and gave an interview in which he said that the officers had been carrying out their duties, according to plan, but the operation had turned out badly. They had not set out to commit a murder. The Minister was certain that the higher court would “approach [the case] more in ‑ depth” and would “analyse absolutely all facts and circumstances, so that [the case] would have a truly just resolution”. At about the same time the Prime Minister said before the media that the officers ’ convictions would be overturned, and urged the Supreme Court of Cassation to take “the right decision”.

4. Information submitted by the applicants about relatives of judges in the Supreme Court of Cassation

85. The applicants presented three publications in the Bulgarian press which say that the son of the judge presiding the panel of the Supreme Court of Cassation that heard the case for the first time is employed by the Ministry of Internal Affairs.

B. Relevant domestic law

1. Use of force by the police

86 . Section 78 of the Ministry of Internal Affairs Act 1997, in force until 1 May 2006, provided, in so far as relevant:

“(1) The police may use physical force and auxiliary means when performing their duties only if those duties cannot be carried out in a different way, in cases of:

1. resistance or refusal to obey a lawful order;

2. arrest of an offender who does not obey or resists a police officer;

...

5. attacks against civilians or police officers;

...

(2) Auxiliary means are: handcuffs; straitjackets; rubber and electroshock truncheons and devices; chemical substances approved by the Minister of Health, service animals – dogs, horses; blank cartridges, cartridges with rubber, plastic or shock bullets; devices for the forced stopping of motor vehicles; opening devices, light or sound devices with distracting effect; water ‑ spraying and air-pressure devices; armoured vehicles and helicopters.

87 . Section 79 provided:

“(1) Physical force and auxiliary means are to be used only after giving warning, except in cases of sudden attacks or of freeing hostages.

(2) The use of physical force or auxiliary means shall correspond to the specific circumstances, the character of the breach of public order and the personality of the offender.

(3) When using physical force or auxiliary means police officers must if possible protect the health of the persons against whom those are deployed, and must take all measures to safeguard their life of those persons.

(4) The use of physical force or auxiliary means shall be discontinued immediately after they have achieved their aim.

(5) The use of physical force or auxiliary means against clearly identifiable minors or pregnant women. This prohibition does not apply in cases of mass disorder, provided all other measures have been exhausted.”

88 . On 1 May 2006 those provisions were superseded by sections 72 and 73 of the Ministry of Internal Affairs Act 2006. Until recently, the wording of those provisions was largely identical to that of the earlier ones. However, they were amended with effect from 1 July 2012 and now section 72(1) provides that physical force and auxiliary means may be used “only if absolutely necessary”. A newly added subsection 3 of section 73 provides that “police officers shall use only the force absolutely necessary”, and a newly added subsection 7 provides that “[ i ]t is forbidden to use lethal force to arrest or prevent the escape of a person who has committed or is about to commit a non ‑ violent offence if that person does not pose a risk to the life or health of another”.

2. Relevant provisions of the Criminal Code

89 . Article 116 § 1 of the Criminal Code 1968 provides that an official committing murder in connection with the performance of his or her duties (point 2), of a person who is in a helpless state (point 5), and with special cruelty or in a way that is particularly painful for the victim (point 6) is liable to fifteen to twenty years ’ imprisonment or life imprisonment with or without a right to parole.

90 . Article 12 of the Code regulates the degree of force that may be used in self ‑ defence. It requires essentially that any action in self ‑ defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party. Until 1997 there were no other provisions regulating this issue. However, the courts appear to have applied Article 12 in certain cases concerning the use of force to effect an arrest.

91 . Article 12a § 1 of the Code, added in 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.

92 . Article 15 of the Code provides that the perpetrator is not guilty of an offence if he or she was not bound or able to foresee that his or her actions will lead to harmful consequences; such an act is considered accidental.

3. The appointment of experts in criminal proceedings

93. Article 147 of the Code of Criminal Procedure 2005 provides that the preparation of an expert report is to be assigned to experts in the relevant field of science, art or technology. Article 148 § 1 sets out the grounds on which experts can be disqualified (various circumstances indicative of bias, lack of professional credentials, etc.)

94 . Section 396(1) of the Judiciary Act 2007, as in force at the material time, provided that the authority requesting an expert report was to appoint as experts, by random selection, persons featuring on an official list of persons approved to act as such experts. An amendment that came into force in April 2011 dropped the random selection requirement. Section 396(2) provides that if necessary the authority can appoint as expert a person not featuring on the list. In a judgment of 29 May 2012 ( реш . № 247 от 29 май 2012 г. по н. д. № 768/2012 г., ВКС, III н. о.) the Supreme Court of Cassation held that if a court were to appoint a person not featuring on the list, as possible under that provision, it had to say why it considered it necessary to do so: for instance the lack of experts in the relevant sphere, the specifics of the issue that needed to be elucidated, or the existence of grounds to disqualify certain experts featuring on the list. The lack of reasons on that point, coupled with the availability of experts featuring on the list, amounted to grounds to suspect bias.

4. Powers of the Supreme Court of Cassation in the examination of appeals on points of law

95 . Under Article 348 § 1 of the Code of Criminal Procedure 2005, the grounds on which the Supreme Court of Cassation may quash an appellate court ’ s judgment are a breach of the substantive law, a material breach of the rules of procedure, or manifest disproportionality of the sentence. In interpreting its powers under that provision, the Supreme Court of Cassation has on a number of occasions ( реш . № 16 от 17 януари 2007 г. по н. д. № 687/2006 г., ВКС, II н. о.; реш . № 3 от 29 януари 2008 г. по н. д. № 660/2007 г., ВКС, III н. о.; реш . № 168 от 8 май 2009 г. по н. д. № 108/2009 г., ВКС, III н. о.; реш . № 44 от 29 януари 2010 г. по н. д. № 694/2009 г., ВКС, III н. о.; реш . № 66 от 8 март 2010 г. по н. д. № 707/2009 г., ВКС, II н. о.; реш . № 97 от 27 април 2010 г. по н. д. № 6/2010 г., ВКС, III н. о.) held that it cannot make fresh findings of fact. Its role was limited to ensuring that the lower courts have duly followed the rules concerning the admission and assessment of evidence, and that their rulings are not based on inexistent or distorted evidence or contrary to formal logic.

COMPLAINTS

96. The applicants raise two complaints under Article 2 of the Convention:

(a) They complain that Mr Dimitrov was killed by the police in breach of the requirements of that provision. In their view, the police intended to cause his death, and the officers who carried out his arrest used unnecessary force and acted in breach of their instructions and the domestic law provisions governing the use of force by the police.

(b) The applicants further complain that the authorities did not investigate effectively the circumstances in which Mr Dimitrov lost his life. They say that the investigation did not apply a standard comparable to that required by Article 2. They also draw attention to the attempts to stifle the investigation and influence the ensuing judicial proceedings, as well as to a number of omissions in the initial gathering of evidence and in the conduct of the preliminary investigation and of the judicial proceedings. They also point out that no attempts were made to investigate higher ‑ ups, or to check whether the operation for Mr Dimitrov ’ s arrest had been adequately planned or the officers who took part in it adequately briefed. Lastly, they point out that in acquitting the officers the Supreme Court of Cassation disregarded facts established by the lower courts, did not thoroughly examine whether the officers had complied with the rules governing the use of force and auxiliary means by the police, paid no heed to the violence to which the officers had subjected Mr Dimitrov before his death (with the result that that violence remained completely unpunished), and did not seek to clarify whether there had been alternative ways to arrest Mr Dimitrov .

97. The applicants also raise several complaints under Article 6 § 1 of the Convention:

(a) They complain that some of the Supreme Court of Cassation judges who took part in the examination of the criminal case against the five police officers were biased because relatives of theirs were reportedly employed by the Ministry of Internal Affairs, and that there was no mechanism to check the existence of such links. In the applicants ’ view, that was especially relevant in view of the strong pressure by the Ministry and high officials for the officers ’ acquittal.

(b) The applicants further complain that when hearing the case for a second time the Supreme Court of Cassation, veering out of its normal role, made fresh findings of fact while at the same time refusing to re ‑ examine the cause of Mr Dimitrov ’ s death, did not gather the requisite evidence (the “arbitrage” expert report requested by the applicants) without saying why it considered that unnecessary, and relied on the fresh expert reports which the Military Court of Appeal had ordered and admitted in evidence in breach of the rules of procedure and which had been drawn up by possibly biased experts.

(c) Lastly, the applicants complain that in their judgments the Military Court of Appeal and the Supreme Court of Cassation did not duly address a number of crucial arguments that they raised: ( i ) arguments concerning the material on which the experts had relied to form their conclusions; (ii) arguments concerning the accuracy of the experts ’ conclusions and their alleged failure to analyse properly certain injuries on Mr Dimitrov ’ s body; (iii) arguments concerning the experts ’ lack of professional competence in certain areas; and (iv) arguments concerning certain allegedly unwarranted assumptions made by the experts.

QUESTIONS TO THE PARTIES

1. Was Mr Angel Raychov Dimitrov ’ s right to life, enshrined in Article 2 of the Convention, breached? In particular, was he deprived of his life intentionally, in breach of Article 2 § 1? If not, did his death result from a use of force which was absolutely necessary for the purposes of Article 2 § 2 (a) or (b)? Was the police operation against him organised and carried out in way to minimise any risk to his life?

2. Did the investigation into the circumstances in which Mr Dimitrov lost his life, as well as the ensuing criminal proceedings, comply with the requirements of Article 2 of the Convention? In particular, does the way in which the proceedings evolved suggest that the courts were prepared to allow life ‑ endangering offences to go unpunished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004 ‑ XII)? Also, was the scope of the investigation sufficient (see Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 163, ECHR 2011 ‑ ...) ?

3. Was Mr Dimitrov subjected to treatment proscribed by Article 3 of the Convention before his death? Was the force used against him strictly necessary in the circumstances (see Ivan Vasilev v. Bulgaria , no. 48130/99, § 63, 12 April 2007 )? Did the authorities investigate effectively that aspect of the case? Did the courts duly examine it ( mutatis mutandis , ibid., §§ 77 ‑ 79)?

4. Were the Supreme Court of Cassation judges who dealt with the criminal case against the five officers independent and impartial, as required by Article 6 § 1 of the Convention? In particular, did the pressure brought to bear on them by the executive cast doubt on their independence and impartiality?

5. Was the Supreme Court of Cassation ’ s judgment of 9 June 2011 arbitrary? Also, did the courts ’ refusal to order the “arbitrage” expert report requested by the applicants render the proceedings unfair as a whole?