DIMITAR SHOPOV v. BULGARIA

The applicant, a Bulgarian National, lodged a claim against the Republic of Bulgaria alleging that its authorities had failed to effectively investigate an assault against him by private individuals. The applicant was involved in a fight between several people on 1 May 1991 in which he was stabbed, admitted to hospital and underwent an urgent operation. The applicant was discharged on 13 May 1991 and was given 30 days sick leave.

Investigation by the authorities began after the incident and on 2 May 1991 criminal proceedings were instituted against two of the participants in the fight on the charge of an attempted murder after they had been questioned. On 12 May 1991,  the case investigator ordered a medical expert report on the applicant’s injuries which established that the applicant had suffered a 3 cm knife wound in the abdominal cavity that resulted in an injury to the great omentum and to the large intestine. The applicant had also suffered a combination of other injuries: large bruises on the face and on the right leg, and a broken rib.

Between 18 May and 8 June 1992 several witnesses were questioned. Between 1991 and 1994 the applicant’s mother wrote several times to the prosecuting authorities, complaining of the inactivity of the investigator in charge. In response, the supervising prosecutor wrote to the investigator on several occasions requesting that the investigation be completed with out delay.

On 17 June 1996 and 11 September 1996 the attempted murder charges against the two participants were changed to a charge of causing intermediate bodily harm after both participants were questioned.  Between 25 August 2000 and 1 July 2002, some of the witnesses were recalled for additional questions.

On 18 July 2003, after the applicant’s lawyer complained of the delay and inactivity of the case by the investigator, the supervising prosecutor removed the investigator and gave instructions to the investigating authorities to commission a new medical expert report and to conclude the investigation within thirty days. Neither party informed the court of any substantive investigative steps taken after 18 July 2003.

On 5 June 2006 the public prosecutor terminated the proceedings on lapse of period of limitation from which the applicant appealed to the Pazardzhik Regional Court on 13 July 2006. The Pazardzhik Regional court decided that the assailants remained charged with attempted murder and the statutory limitation period for prosecution had not lapsed, remitting the case to the prosecutor’s office and instructing it to continue with the investigation. The two participants appealed against the decision to the Plovdiv Court of Appeal which, on 27 September 2006, ruled that the assailants were charged only with having caused intermediate bodily harm, quashed the Pazardzhik Regional Court’s decision, and upheld the prosecutor’s order terminating the proceedings.

Under Bulgarian Criminal code, the period of limitation for a charge on intermediate bodily harm is ten years while the absolute period limitation is fifteen years. The Bulgarian Supreme Court of Cassation’s case-law provided that the functions of the investigative and the prosecuting authorities in the context of a criminal investigation did not amount to administrative duties and those authorities were not liable under section 1 of the State and Municipalities Responsibility for Damage Act of 1988 (“the State Responsibility Act”). In relation to tort claims, a civil claim could be made even during a preliminary investigation, before the case had gone to trial until June 2000 and the five years of period of limitation for tort claim ceases to run during the pendency of the judicial proceedings relating to the tort claim. [Paragraphs 24, 25 and 26]

The applicant complained to the European Court of Human Rights (the ECHR) that the criminal investigation into the assault against him had been ineffective, relying on Articles 2 (the right to life), 3 (the right not to be subjected to torture or to inhuman or degrading treatment or punishment) and 13 (the right to effective remedy) of the European Convention on Human Rights (“the Convention”).

The applicant argued that the investigation could not be regarded as effective because it hadn’t led to the identification and punishment of the perpetrators. While it was true that the authorities had carried out some basic investigative measures, those measures had been carried out over the course of more than a year. Although the perpetrators had been known to the authorities from the beginning, the authorities had not undertaken the necessary measures to ensure the completion of the investigation and the prosecution of the perpetrators. Between the periods 1992 to 1996 and 1996 to 2000, no investigative measures had been carried out, and this had led to the lapse of the statutory limitation period for bringing a prosecution.

The Bulgarian government argued that the investigation had been comprehensive and in compliance with the procedural obligation under Article 3 of the Convention. The authorities had carried out all possible investigative measures, had established the facts and had carried out a detailed medical assessment which had established the extent and nature of the injuries inflicted on the applicant.

The ECHR dismissed the objections of Bulgarian government as to non-exhaustion of domestic remedies and incompatibility with provisions of the Convention. The complaints of the applicant were declared admissible.

On the basis of the medical evidence, the ECHR considered the ill-treatment the applicant complained of was sufficiently serious to fall within the scope of Article 3 of the Convention which requires states to take measures designed to ensure individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals; the authorities had a procedural obligation to conduct an effective investigation.

The ECHR noted at the beginning that the authorities took a number of investigative steps shortly after the incident and made reasonable efforts to gather evidence and establish the facts. The ECHR, however, observed that the authorities took a year after the incident for just commissioning medical expert report and that, this late measure was followed by long periods of inactivity from 8 June 1992 to 17 June 1996, from 11 September 1996 to 25 August 2000, and from 18 July 2003 to 5 June 2006. The ECHR noted that the repeated requests of the prosecutor to the investigator regarding the conclusion of the investigation were unsuccessful and that the general conduct of the investigation by the authorities allowed the statutory limitation period to lapse.

The ECHR reiterated that the purpose of effective protection against acts of ill-treatment could not be achieved where the criminal proceedings were discontinued due to the lapse of the period of limitation and when this resulted from the mismanagement of the case by the State authorities. The ECHR concluded that the authorities failed to conduct an effective investigation into the assault of the applicant and there had been a violation of the procedural limb of Article 3 of the Convention.

The ECHR rejected the applicant's claim as per Articles 6 and 13 (that because of the excessive length of the criminal investigation, he had been denied access to a court to claim damages from his attackers) stating that he could have stopped the limitation period for the action in tort from expiring by bringing his civil claim either in the criminal proceedings or in separate civil proceedings.

 The ECHR awarded the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that might be chargeable as required under Article 41 of the Convention and EUR 2,000 plus any tax that may be chargeable in respect of costs and expenses. The ECHR dismissed the remainder of the applicant’s claim for just satisfaction.

"The investigation [under Article 3 of the Convention] must be capable of leading to the identification of those responsible with a view to their punishment....... the scope of this obligation by the State is one of means and not of results; the authorities must have taken all reasonable steps available to them to secure evidence concerning the incident.... A requirement of promptness and reasonable expedition is implicit in this context. Tolerance by the authorities of such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law". Para. 47 and 48.

"The applicant had the right to join the criminal proceedings as a civil claimant at the preliminary investigation stage or to bring a separate claim for damages before the civil courts. He did not pursue either of these avenues and allowed the limitation period for his tort claim to expire. It is true that had he chosen to bring a civil claim in the context of the preliminary investigation, his claim would not have been examined because the proceedings were ultimately terminated as time-barred. However, this outcome could not have been known to the applicant at the time. In any event, by bringing his civil claim either in the criminal proceedings or in separate civil proceedings he would have stopped the limitation period for the action in tort from expiring. There is nothing to indicate that such a claim would have been bound to fail." Para. 58