PARTLY DISSENTING OPINION OF JUDGE MAHONEY

1. There are undoubtedly several unfortunate features to this case, not least the fact that, after the five police officers who had arrested the applicant ’ s relative had been convicted of murder, albeit on different grounds, on four successive occasions by the trial court (the Sofia Military Court) and by the Military Court of Appeal, the Supreme Court of Cassation entered a verdict of acquittal in respect of all the accused. The dismay of the applicants at such an outcome must be evident. More disquieting are the actions of some police officers in, so the national courts held, attempting to hamper immediate and effective inv estigation of the incident (see paragraphs 17-19, 37 and 44 of the judgment in the present case – “the judgment”), as well as the public statements made by the Prime Minister and the Minister of Internal Affairs apparently calling for a verdict of acquittal (paragraph 90 of the judgment). Nonetheless, not without some hesitation, given that the facts of the present case involve the death of a person during an arrest operation by the police (always a situation calling for the most careful of scrutinies), I have not been able to join my colleagues in finding a violation of Articles 2 and 3. In brief, when scrutinised carefully in relation to the actual facts of the case, the criticisms directed by my colleagues against the examination of the circumstances attending the arrest and ensuing death of the applicants ’ relative, Mr Angel Raychov Dimitrov (alias Chorata), by the Bulgarian authorities, in particular the Supreme Court of Cassation, do not in my view disclose shortcomings attaining the seriousness required to give rise to a violation of the procedural aspect of either Article 2 or Article 3 of the Convention.

2. It is apparent from the judgment (see paragraph 140, for example) that, had the proceedings stopped with the last of the decisions by the Military Court of Appeal, there would have been no issue under Article 2 or Article 3 of the Convention. What the text focuses on as the main source of violation is the judgment delivered at the very end of the story by the Supreme Court of Cassation (see paragraph 141 of the judgment). Where the criminal justice system has apparently functioned normally with a police investigation, a prosecution, a trial, appeals and re-trials, with an evolving development in the state of the evidence, in particular expert medical evidence, it is not in principle for this Court to substitute its own conclusion on the case for that of the final national court, by for example expressing a preference for earlier or lower-court decisions based on different medical evidence. Yet that is what would appear to be what the majority of my colleagues have done in the present case. Unfortunately, I am not able to share their view that there are compelling reasons for so doing. Since the judgment is lengthy and the conclusion of violation is based on a myriad of details, the following explanation of my disagreement is also somewhat lengthy and detailed.

3. The first criticism levelled against the Supreme Court of Cassation is that “[it] decided, contrary to its normal role in the Bulgarian judicial system and its esta blished case-law... , to make fresh findings of fact on the direct causal link, or lack thereof, between the officers ’ actions and Mr Dimitrov ’ s death” (paragraph 144 of the judgment). However, I read the summary of the Supreme Court of Cassation ’ s judgment given in the judgment as making clear (at paragraph 85) that that Court did no such thing as “making fresh findings of fact”:

“The court started by saying that enough evidence had been gathered and the relevant facts had been sufficiently elucidated. ... It was not permissible to determine anew the question 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... . That court [the appeal 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.”

There is no “fresh finding of fact” here, merely the statement that the Supreme Court of Cassation is basing itself on the facts as found by the lower court, namely the Military Court of Appeal. The Supreme Court of Cassation then proceeded to analyse these previously established facts in terms of the legal test of causation under Bulgarian law. The judgment is therefore presumably suggesting that such legal analysis by the Supreme Court of Cassation was “contrary to its normal role in the Bulgarian judicial system”. Even supposing that it is appropriate for this Court to be addressing such admonitions to a superior national court as to the latter ’ s observance of its own national law, this is something different. As to the powers of the Supreme Court of Cassation, it is to be noted that the Court was indeed competent to modify the lower court ’ s judgment (see paragraph 106 of the judgment).

4. The first fresh medical report ordered by the Military Court of Appeal in December 2008 from five experts in varied medical disciplines (see paragraph 48 of the judgment), which was adverted to by the Supreme Court of Cassation in the above-cited extract, found that the earlier medical report on which the courts had relied (see paragraphs 24-25 of the judgment) was defective on medical grounds as regards establishing the cause of death. According to the summary given in the judgment (paragraphs 50-51):

“The experts ... concluded, inter alia , that the main cause of Mr Dimitrov ’ s death had been positional asphyxia ... as a result of the position in which he had been put ... 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.

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.”

As regards the blows to the victim ’ s body, the report is described in the judgment (at paragraph 52) as reading:

“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.”

Thus, the objective medical evidence as established by this report is that Mr Dimitrov had not been the victim of a violent beating up: the truncheon blows to his body had been “administered during a short period of time but not in a very violent manner”. In a second report dating from April 2009, “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” (paragraph 56 of the judgment). In a third expert medical report filed in April 2010, it was added that, while the force to be applied to the back of a normally healthy person in the face-downward arrest position on the ground in order to develop the process of asphyxia would have to have been more than 102 kilograms, Mr Dimitrov ’ s pre-existing medical conditions and other factors had facilitated and accelerated the process of asphyxiation in his case (see paragraph 70 of the judgment).

All told, these three fresh medical reports, which superseded the earlier “erroneous” medical report relied on by the trial court in order to arrive at its findings, do not seem to provide any clear medical evidence of serious, violent and protracted ill-treatment by the five police officers when effecting the arrest.

5. Regarding the expert medical evidence as to the cause of death and the level of violence of the blows adminis tered to Mr Dimitrov, paragraph 139 of the judgment opines that “doubts may arise about the accuracy of the expert reports drawn up during the appellate examination of the case, on account of, among other things, the manner in which the experts who drew them up were appointed”.

Firstly, it is to be noted that the competent national courts did not express any such doubts about “the accuracy” of the reports in question. On the contrary, the Military Court of Appeal “found that those reports [the first two supplementary reports] were more reliable than the one drawn up during the preliminary investigation ... for several reasons”, which it proceeded to explain convincingly in some detail (see paragraph 59 of the judgment). The Supreme Court of Cassation likewise rejected the applicants ’ arguments challenging the reliability and completeness of these two reports and held that there were no grounds to prefer the earlier one (see paragraphs 62 and 65 of the judgment). In the third set of proceedings before it, the Military Court of Appeal again fully accepted the conclusions of the supplementary medical reports (now numbering three) and declared the applicants ’ objections to them to be ill-founded (see paragraph 75 of the judgment). The applicants ’ reiterated objections were not upheld by the Supreme Court of Cassation (see paragraphs 83 and 85 of the judgment). It is difficult to understand how this Court should have more expertise in the medical domain than the superior Bulgarian courts, so as to be able to overturn the latter ’ s conclusions as regards “the accuracy” of the three medical reports in question.

As to the mode of appointment of the experts in question, the national courts (the Military Court of Appeal and the Supreme Court of Cassation) consistently and specifically ruled, in answer to the applicants ’ reiterated objections on this point (see paragraphs 53, 62, 73 and 83 of the judgment), that, as a matter of Bulgarian law, there had been no illegality or irregularity (see paragraphs 54, 64, 69, 80). Here again, it is difficult to understand how this – international – Court should be a more authoritative interpreter of Bulgarian legislation than the superior Bulgarian courts.

6. The judgment suggests (at paragraphs 144 and 145) that the analytical approach taken by the Supreme Court of Cassation had the result that the issue of the possible use of excessive force by the arresting police officers was not at all addressed in the final national judicial decision relating to the circumstances of the applicant ’ s arrest and ensuing death – this presumably being an issue going to compliance with the procedural requirements of Article 3. This reading of the Supreme Court of Cassation ’ s final judgment in the case is, however, difficult to reconcile with the content of the judgment itself .

The Supreme Court of Cassation, after ruling on the main and crucial issue of causation in relation to the charge of murder (see paragraph 85 of the judgment), also examined, on the basis of the Military Court of Appeal ’ s findings of fact, whether or not “ the [police] officers ’ actions ... constitute[d] an offence” and whether or not “the officers had acted negligently in relation to the death” (see paragraph 87 of the judgment). Such an examination can only have been by reference to the manner in which the arrest was carried out, including the level of violent force used by the arresting officers. The elements taken into account by the Supreme Court of Cassation in this connection were the expert medical reports (as to their conclusions on the violence of the blows administered, see paragraph 4 of the present dissenting opinion above), the rules governing arrest (the statutory provisions at the time specified in substance that no excessive force or violence was to be used – see paragraphs 97-99 of the judgment) and the internal police instructions on the use of handcuffs, notably as to the position in which to put handcuffed arrestees (namely, as in the present case, face against the ground with hands cuffed behind the back). The Supreme Court of Cassation held that the established medical and other facts disclosed that the police officers had been carrying out a police operation of arrest in conformity with the applicable rules and regulations a nd “had not acted negligently”.

While the reasoning of the Supreme Court of Cassation in this regard is not explicit on the issue of the use of force, to my mind it is not possible either to assert, as the judgment does (at paragraph 145), that the Supreme Court of Cassation limited its conclusions to the acts potentially related to the retained medical cause of Mr Dimitrov ’ s death; or to be as categorical as the judgment is in affirming that the Supreme Court of Cassation “failed to analyse in any detail the treatment sustained by Mr Dimitrov or its necessity and compliance with the rules governing the use of force” (paragraph 145 of the judgment).

7. To sum up on this point: as I understand it, the majority of the Supreme Court of Cassation relied on the established medical evidence set out in the latest three medical reports (the accuracy and regularity of which had been upheld both by the Military Court of Appeal in two successive sets of proceedings and by itself), in order to hold as follows:

– firstly, it recalled the findings of fact of the Military Court of Appeal, based on the objective medical conclusions set out in the medical evidence, that the cause of death was (a) asphyxiation, not linked to the blows administered by blunt instruments such as truncheons, and (b) more specifically, the putting of the deceased face-downwards on the ground, with his hands cuffed behind his back;

– it noted that, as laid down in the relevant rules and regulations, this latter treatment constituted an accepted and normally non-dangerous practice regarding the position in which to put persons immediately on arrest;

– it then recalled the further medical conclusion that this standard arrest-position had, however, because of the freak circumstances of the deceased ’ s own personal medical condition and state of health at the time, unforeseeably led to death by asphyxiation: “[the police officers] 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 anatomic al peculiarity – shorter neck. ... Therefore, the case concerned an accident ... for which the officers were not criminally or civilly liable” (paragraph 87 of the judgment).

In other words, the Supreme Court of Cassation held that, unfortunately, an unforeseeable fatal accident had occurred during the course of an arrest which had been carried out in accordance with “the relevant rules”, including those governing the use physical force during an arrest.

8. There is perhaps a natural hesitation on the part of many to accept a thesis of unavoidable accident in the context of a resisted arrest of one man carried out by no less than five police officers. However, I do not find either in the assessment of the factual, objective evidence, notably medical, by the Supreme Court of Cassation or in the latter ’ s legal reasoning any indices of irrationality, unreasonableness, arbitrariness or flagrant non-observance of rules of national law. Nor do I discern any failure to observe the procedural requirements of Articles 2 and/or 3 (the judgment seems to run the requirements of the two Articles together in this respect) by reason of insufficiently addressing the relevant considerations of the case going either to the right to life of the deceased person (that is to say, the circumstances that led to and caused his death when being arrested) or to his right not to be subjected to inhuman and degrading treatment (that is to say, the other circumstances attending the arrest which did not have any causal link with his death but concerned the manner in which the arrest was effected, including in particular the level of physical force and violence used by the arresting police officers). If the judgment of the Supreme Court of Cassation is read carefully, it cannot be said that the circumstances of the arrest, regarding not only the cause of death as such but also the manner of effecting the arrest in its non-lethal aspects, remained unclarified or unaddressed as a result of that Court ’ s procedural treatment of the case. This is not to say that the judgment of the Supreme Court of Cassation is above criticism or that the dissenting opinion of the President of the three-judge panel on the Supreme Court of Cassation, which is mentioned with apparent approval in the judgment (see, for example, paragraphs 144 and 163), lacks merit in terms of its differing reading of the requirements of Bulgarian criminal procedural law. The point is merely that, to my mind, the seriousness of procedural shortcomings capable of giving rise to a violation of the procedural aspect of Articles 2 and 3 of the Convention is simply not present on the facts of the case as far as th e treatment of the case by the Supreme Court of Cassation is concerned.

9. The present case is not one of absence of investigation or absence of prosecution of those public agents responsible for the death. The Court should therefore be circumspect before jumping to conclusions of violation of Articles 2 and 3. Although the initial stages of the investigation are characterised by the judgment as having suf fered from flaws (see paragraph 139), this did not prevent the arresting police officers from being prosecuted and, at the level of the trial court and the first appellate court, of being convicted of murder. Articles 2 and 3 do not demand perfect or ideal investigations and prosecutions, and it will doubtless almost always be possible, with the benefit of hindsight, to identify some flaws or ways in which things could have been done more efficiently. In the present case, full trials and re-trials were conducted; and copious medical evidence was obtained. The ultimate outcome, and some of the procedural steps taken along the way, were not as the applicants would have wished; but that, without more, is insufficient to ground a finding of violation of Articles 2 and 3 of the Convention.

10. The judgment also relies on “serious concerns” about the planning and supervision of the arrest operation as a contributing factor for justifying its finding of violation of Articl es 2 and 3 (see paragraphs 146- 47). These “serious concerns”, however, on closer examination turn out to be based on rather weak argumentation. Common sense alone tells one that it is difficult to talk of a lack of proper planning or supervision in relation to an operation where five police officers carry out a ten-minute operation in a public street to arrest a suspect “in line with the relevant rules [governing arrest]” (to use the words of the Supreme Court of Cassation), without any recourse to firearms or vehicle-pursuit and where death of the arrestee has accidentally and unpredictably resulted from resort to the accepted, normally non-dangerous position for holding persons immediately on arrest. As the judgment of that Court makes crystal clear, no amount of prior planning or supervision during the arrest operation could have prevented the unforeseeable, freak accident that led to the death of the applicants ’ relative. The facts of the present case are in no way to be compared with those in the cases cited in the judgment as relevant authorities (namely Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011 – which concerned the alleged killing of Iraqi nationals by members of the British armed forces in Iraq; McKerr v. the United Kingdom , no. 28883/95, ECHR 2001-III – where the police killed three suspected terrorists by firing over 100 rounds into the car in which the latter were travelling; and Avş ar v. Turkey , no. 25657/94, ECHR 2001-VII – where the applicant ’ s brother was abducted and murdered by village guards).

11. To conclude, there are indeed regrettable aspects of the present case calling for criticism – notably, as said at the outset, the initial efforts of certain police officers to hamper the investigations and the public declarations made by two governmental ministers with the apparent intention of exerting pressure on the appeal courts in favour of an acquittal of the police officers. Nonetheless, on their own these two factors are not sufficient to entail a violation of the procedural aspect of Articles 2 and 3, given the overall way in which the investigation and the prosecution were in fact pursued. And in concentrating in the way that it does on the procedural treatment of the case by the Supreme Court of Cassation, the majority of the chamber has, I believe, strayed overly into the territory of interpretation of national law, which is a matter for the Bulgarian courts themselves, not this Court. In my opinion, such shortcomings in its procedural treatment of the case as can be put at the door of the Supreme Court of Cassation do not entail the seriousness required to give rise to a violation of the procedural re quirements of Articles 2 and 3.

12. I, however, respect that the judgment of the Court has been to find a violation of Articles 2 and 3, and I have found it appropriate to join my colleagues in the vote to award the applicants just satisfaction under Article 41 of the Convention.