FIFTH SECTION

Application no. 26827/08 by Nasredin Rabi ABDU against Bulgaria lodged on 15 April 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Nasredin Rabi Abdu, is a Sudanese national who was born in 1968 and lives in Sofia . He is represented before th e Court by Ms M. Ilieva , a lawyer practising in Sofia .

A. The circumstances of the case

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

The applicant resides in Bulgaria where he has been granted refugee status.

On 13 May 2007 the applicant and a friend of his, Mr Z.N., who is also Sudanese, got involved in a fight with two Bulgarians on a busy street in Sofia . The applicant and Mr Z.N. ran away from the fight and called the police, who apprehended the two Bulgarians. They turned out to be Mr M.V. and Mr R.G., described in the police report of the incident as “skinheads”.

A preliminary inquiry into the matter was opened by the police. When questioned, the applicant explained that he and Mr Z.N. had been attacked and that one of their attackers had shouted repeatedly “Dirty niggers, what are you doing here?” One of the two had been brandishing a knife.

Mr Z.N., who was also questioned, corroborated this version of events.

Mr M.V. and Mr R.G. stated that the others had provoked them by pushing Mr M.V. Mr R.G. admitted to having brandished a knife, but explained that this had been in self-defence and that his friend had had blood on his face.

Mr V.I., an eyewitness to the incident, stated that the fight had started when one of the Bulgarians had tripped up one of the Sudanese. He had not heard anyone say anything.

It appears that no other evidence was gathered.

On 15 May 2007 the applicant was examined by doctors, who found that he had a bruise on the nose and swelling of the nasal base, and also contusions of the left knee and right thumb. All injuries had been caused by solid blunt objects.

On an unspecified date the police investigator in charge of the case transferred it to the prosecuting authorities with a recommendation that criminal proceedings be opened for an offence under Article 162 § 2 of the Criminal Code.

In a decision of 15 June 2007 a prosecutor from the Sofia district public prosecutor ’ s office refused to open such proceedings, considering that there were no indications that Mr M.V. and Mr R.G. had committed an offence under Article 162 § 2 of the Criminal Code. She noted that it was not established who had provoked the fight and that, furthermore, if it had been Mr M.V. and Mr R.G., there were no indications that their actions had been motivated by the applicant ’ s and Mr Z.N. ’ s race.

Upon an appeal by the applicant, on 15 October 2007 that decision was upheld by a prosecutor from the Sofia city public prosecutor ’ s office who considered that “there was not the slightest indication” that the applicant and Mr Z.N. had been attacked because of their race.

On 29 July 2008 the applicant ’ s lawyer requested to be provided with copies of documents from the investigation file. She did not refer to any special reasons for that request. In a letter of 6 August 2008 the Sofia district public prosecutor ’ s office refused to provide her with the copies as the case had already been closed.

B. Relevant domestic law

Article 4 § 2 of the Bulgarian Constitution provides that the Republic of Bulgaria

“shall guarantee the life, dignity and rights of the individual and shall create conditions conducive to the free development of the individual and of civil society”.

Article 6 of the Constitution provides further that:

“1. All persons are born free and equal in dignity and rights.

2. All persons shall be equal before the law. There shall be no privileges or restriction of rights on the grounds of race, national or social origin, ethnic self-identity, sex, religion, education, opinion, political affiliation, personal or social status or property status.”

Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia , on racial grounds. At the material time its relevant parts provided:

“1. [A person] who propagates or incites towards racial ... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand.

2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race ... shall be punished with imprisonment of up to three years and a public reprimand.”

In 2009 those provisions were amended to provide for more severe punishments.

Criminal proceedings concerning publicly prosecutable offences can only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio . The offences under Article 162 of the Criminal Code are publicly prosecutable ones.

The Protection against Discrimination Act was passed in September 2003 and came into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services.

C. Relevant international instruments

The relevant international instruments concerning racially-motivated violence have been summarised in the Court ’ s judgment in the case of Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § § 76 ‑ 82 , ECHR 2005 ‑ VII ).

COMPLAINTS

1. The applicant contends that on 13 May 2007 he was attacked because of his race and complains under Article s 3, 13 and 14 of the Convention that the authorities failed to investigate that attack.

2. He further complains under Article 14 of the Convention that the authorities ’ refusal to investigate the attack was itself racially-motivated. Relying on Article 13 of the Convention, he also complains that he is not able to seek damages in relation to the attack.

3. Lastly, he complains, again relying on Article 3 of the Convention, that in failing to provide him with copies of documents from the case file the Sofia district public prosecutor ’ s office hampered his lodging of the present application.

QUESTIONS TO THE PARTIES

1. Has Mr Abdu been subjected to ill-treatment contrary to Article 3 of the Convention? If so, having regard to the procedural protection from ill-treatment, even when inflicted by private persons (see Beganović v. Croatia , no. 46423/06 , § 71 , ECHR 2009 ‑ ... (extracts) ) , was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

2. Have the authorities taken all reasonable steps to investigate any possible racist motivation behind the alleged attack on Mr Abdu, as required by Article 14 of the Convention, read in conjunction with Article 3 (see, mutatis mutandis , Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160 , ECHR 2005 ‑ VII )?