CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 juin 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24760/94                       by Anton ASSENOV, Fidanka IVANOVA                       and Stefan IVANOV                       against Bulgaria         The European Commission of Human Rights sitting in private on 27 June 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  A.S. GÖZÜBÜYÜK            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  E. BIELIUNAS              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 6 September 1993 by Anton ASSENOV, Fidanka IVANOVA and Stefan IVANOV against Bulgaria and registered on 3 August 1994 under file No. 24760/94;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on 16 May       1995 and the observations in reply submitted by the applicants       on 15 July 1995;   -      the applicants' additional complaints submitted on 31 August and       14 September 1995;   -      the supplementary observations submitted by the Government on       12 and 30 October 1995 and by the applicants on 10 November and       3 January 1996;   -      the Commission's decision of 22 January 1996 to join the       procedure concerning the additional complaints to the original       application and to hold an oral hearing;   -      the parties' oral submissions at the hearing on 27 June 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are a family of Bulgarian nationals, residing in the city of Shoumen, Bulgaria.   The first applicant is born in 1978. The second applicant, born in 1956 and the third applicant, born in 1952, are the first applicant's parents.   Before the Commission the applicants are represented by Mrs. Zdravka Kalaydjieva, a lawyer practising in Sofia.   A.     Particular circumstances of the case           The facts of the case as submitted by the parties may be summarised as follows.         Events of 19 September 1992 and the ensuing proceedings         On 19 September 1992, while gambling at the bus station square in the city of Shoumen, the first applicant was approached by a policeman and brought into a room at the bus station.         Subsequently the second and the third applicants, who were both working at the bus station, entered the room where the first applicant was detained and asked for his release. At some point more policemen arrived. They forcefully took the first applicant and his father into a police car and brought them to the police station. There they were detained for about two hours and then released.         On 21 September 1992, the first working day following the incident, the applicants visited a doctor. They explained to him that the first applicant had been beaten by three uniformed men with a truncheon and with the handle of a pistol, and that the second applicant had been beaten by two uniformed men with a truncheon.   The doctor examined the first applicant and his mother and issued medical certificates.         The certificate concerning the first applicant stated that the boy had a band-like haematoma about 5 cm long and 1 cm wide on the upper outer side of his right arm, the bruise being purple-bluish in the periphery and pale in the centre, three band-like haematomas each about 6 cm long and 1 cm wide on the right side of his chest, another bruise about 4 cm long on the left scapula, a haematoma of about 2 cm in diameter on the back haired part of the head, and also five grazes each about 5 cm long on the right chest. The doctor concluded that the bruises could have been inflicted through hitting with a truncheon and the handle of a pistol.         The certificate concerning the second applicant stated that she had a bruise about 5 cm long on her left thigh, which could have resulted from a hit with a truncheon.         Shortly after the incident, the second applicant filed a complaint with the District Directorate of Internal Affairs (Regionalna directsia na vatreshnite raboti), alleging that while entering the room at the bus station, she and her husband had seen that policemen were beating and insulting their son. The parents asked the policemen to stop because their son was suffering from heart disturbances. However, the policemen continued to beat the first applicant, and also hit his parents. The second applicant further stated that the first applicant had been beaten again in the police station.   She requested the punishment of the officers responsible for the incident.         In reply to the second applicant's complaints, the District Directorate of Internal Affairs on 13 November 1992 sent a letter, stating that after an examination, it had been established that the third applicant had beaten his son which had prompted the interference of two police officers and that the conduct of the police officers had been lawful.         On 12 December 1992 the second and third applicants filed with the Regional Military Prosecution (Okrazhna voenna prokuratura) a request for the criminal prosecution of the alleged offenders. In the request they again described the events of 19 September 1992, while adding that the third applicant, in an attempt to placate the policeman and prevent the danger of further injuries to his son, had proposed to punish the first applicant himself as a father and had lightly hit him on the buttocks with a thin ply-wood strip. It was further stated that the policeman had taken the third applicant to another room, that shortly thereafter two other policemen had entered the room where the first applicant had been held and had started beating him again with truncheons and with their fists. The applicants stated that the second applicant had entered the room again and had tried to stop the policemen hitting her son, but had been hit with a truncheon on her leg. The applicants further alleged that the first applicant had been beaten again at the entrance of the police station by the two policemen and also by the officer on duty, who had hit the first applicant with the handle of the toy pistol which the boy had been carrying that day. Finally the parents asserted that the first applicant had been held for two hours in the police station handcuffed to a radiator. They enclosed copies of the medical certificates of 21 September 1992, stating that the type of injuries their son had suffered could not have been inflicted by his father.         On 24 March 1993 the Regional Military Prosecution refused to institute criminal proceedings against the policemen concerned. The decision stated inter alia that it had been established that officer X. had caught the first applicant while engaged in unlawful gambling and had brought him to nearby premises, then had telephoned the police station, from where officers Y. and Z. had been sent, and that in the meantime the third applicant had entered the room where his son had been held and had started beating him, explaining to officer X. that he would punish his son himself, and therefore the boy should be released. The decision further read that when officers Y. and Z. had entered the room they had ordered the third applicant to stop hitting his son and leave the room, but instead he had started shouting and pulling the boy, which amounted to disobedience to police orders and had caused the arrest of the first applicant and his father. The decision also stated that the evidence, taken from witnesses, did not establish the use of physical violence by the policemen against the boy. The decision did not discuss the medical certificates.         Against this decision the applicants filed an appeal with the General Military Prosecution (Prokuratura na vaorazhenite sili). They stated that it was obvious from the decision that the only witnesses examined had been the police officers, who were in fact the suspects; that the medical certificates had not been taken into consideration; and that it was untrue that the applicants had disobeyed police orders.         On 21 May 1993 the General Military Prosecution refused to open criminal proceedings against the police officers on the same grounds as the lower prosecution.   The decision stated inter alia:         "V prepiskata e prilozheno meditsinsko udostoverenie, ot koeto       e vidno, che varchu tialoto na nepalnoletnia A. sa nalitse       kravonasiadania, socheshti na leka telesna povreda, a po       mehanisam otgovariashti da sa polucheni ot udari s tvard       lentoviden predmet.         Zamestnik okrazhniat prokuror pravilno e pretsenil, che dori i       da ima naneseni udari po tialoto na nepalnoletnia, sashtite sa       v resultat na nepodchinenie na militsionersko vziskvane.       Uprazhnenoto fizichesko nasilie i pomoshtni sredstva sa pri       usloviata na chl. 24 al. 1 t. 1 i 2 ot deistvuvashtia Zakon za       natsionalnata politsia."         [Translation]         "A medical certificate is enclosed in the file, from which it       appears that there were haematomas on the juvenile's body,       indicating superficial bodily harm, and corresponding, in terms       of mechanism of infliction, to blows with a band-like solid       object.          The Deputy Regional Prosecutor correctly considered that even       if blows were administered on the body of the juvenile, they       occurred as a result of disobedience to police orders. The       physical force and auxiliary means employed were in accordance       with Article 24 para.1 items 1 and 2 of the Law on the National       Police now in force."         On 20 June 1994 the applicants appealed to the Chief General Prosecutor of Bulgaria (Glaven prokuror na Republika Bulgaria). The appeal again explained the applicants' version of the facts. It added that the beating of the first applicant had been accompanied by insults referring to his gipsy ethnic origin, and that his parents had also been called offensive names on the basis of their ethnic origin. The applicants further asserted that there had been a lot of witnesses to the incident as it had taken place at the city bus station, but no effort had been made to take evidence from any of the bystanders. The appeal also stated that there was a contradiction between the findings of the Regional Military Prosecution, which found that physical force had not been employed, and the conclusion of the General Military Prosecution, which established that there had been use of physical force, but that it had been legal. The appeal stated that violations of Articles 3, 6 and 14 of the Convention had occurred in the case.         This appeal was apparently transferred to the General Military Prosecution, which on 28 June 1994 wrote a letter to the applicants' lawyer stating that there were no grounds for annulment of the previous decision.         In examining the applicants' consecutive petitions, the various levels of the prosecution authorities exchanged internal instructions and information on the case.   Upon such an instruction two witnesses of the incident were examined and gave written depositions. One of them confirmed that handcuffs had been used by the police. In an undated information note the investigator at the Regional Military Prosecution stated that the evidence in the case was "contradictory".         The first applicant's detention since July 1995         In January 1995 the prosecution authorities in Shoumen opened criminal proceedings on several cases of theft and robbery. In January 1995 the first applicant was questioned, apparently as a suspect, in the course of these proceedings. The investigations revealed the alleged continuous criminal activity of six persons considered to have been accomplices in numerous thefts and robberies.         On 27 July 1995 the first applicant was arrested. On 28 July 1995 he was brought before an investigator, who formally charged him, decided to detain him on remand and questioned him. Present at that moment in the office of the investigator were also prosecutor K. and the first applicant's lawyer. The decision of the investigator to detain the first applicant on remand was approved the same day by prosecutor A., who apparently was not present when the first applicant was charged and questioned.         The charges against the first applicant concerned ten or more thefts allegedly committed between 9 January and 2 May 1995 and four or more robberies committed between 10 September 1994 and 24 July 1995, the last robbery having been committed several days before the arrest. In addition to the first applicant, two other persons were formally charged and one of them was also arrested.         On an unspecified date the first applicant's lawyer challenged his detention on remand before the Shoumen District Court (Shoumenski raionen sad), on the basis of Section 152(5) of the Code of Criminal Procedure (Nakazatelno protsesualen kodeks), but on 19 September 1995 the court found that the detention was lawful.         The first applicant, his lawyer and his parents submitted to the prosecution authorities several requests for the first applicant's release. In his request dated 12 October 1995 the first applicant stated inter alia: "My criminal activity, the crimes committed by me, were established and proved in the course of the investigations. No further evidence has to be collected as regards me.". On this ground, and in view of the fact that he had a one year old daughter and a newborn second child, the first applicant insisted on being released.         The requests for release also raised issues concerning the first applicant's health.   Thus, the requests of 17 August and 12 September 1995 stated that the first applicant had a cyst on his chin and that he suffered from a valvular defect as from birth. The parents complained that the investigating judge would not order an examination by a cardiologist unless they presented their son's medical records, which were unfortunately unavailable. Also, when they visited their son in prison he appeared depressed and complained of heart pain.         In response to this request, on 15 September 1995 the District Prosecutor (Raionen prokuror) in Shoumen ordered the first applicant's examination by a cardiologist. The examination on 20 September 1995 did not confirm the alleged ailment of the first applicant.         On 13 October 1995 the District Prosecutor dismissed two requests for the first applicant's release. The decision stated inter alia that the charges against him concerned serious crimes. Also, his criminal activity had continued after the institution of the criminal proceedings, only the arrest having put an end to it. Therefore there was a danger that the first applicant would commit crimes if released. As regards his alleged health problems, they were not confirmed by the regular medical examinations. On 19 October 1995 the refusal to release the first applicant was confirmed by the Regional Prosecutor (Okrazhen prokuror).         The applicants then complained to the Chief General Prosecutor's Office. They stated inter alia that there had been a "campaign" against them because of their application to the Commission. On 8 December 1995 the Chief General Prosecutor's Office refused to release the first applicant. The decision discussed in detail all arguments of the applicants and stated inter alia: " ... the medical expert, a cardiologist from the Regional Hospital of Shoumen, has concluded after an examination that [the first applicant] does not suffer from any cardiac disease, either congenital or acquired, and that there are no counter-indications for him to stay in detention, as far as his cardio- vascular status is concerned." The decision also stated that the investigation against the first applicant had been completed in general lines in September 1995.   Nevertheless, his detention was still necessary as there was a clear danger of his committing a crime.         The prosecutor's decision also stated that a prolonged detention in the premises of the Shoumen police would be harmful to the first applicant's "physical and mental development" and that therefore he should be moved to the specialised Boychinovzi juvenile penitentiary. The transfer took place three months later, on 25 March 1996.         On 22 March 1996 the preliminary investigation was completed. The investigator found that on 10 September 1994 the first applicant had seen in the street a woman wearing a golden necklace. He walked towards her and, when passing by, caught her left arm, tore the necklace and ran away. On 2 May, 18 July and 22 July 1995 the first applicant had committed similar crimes, again stealing necklaces from strangers in the street. The total value of the stolen property was about 20,000 leva. The investigator concluded that the first applicant had committed four robberies which constituted a continued crime under Section 198 para. 1 of the Penal Code (Nakazatelen kodeks).         The case was then sent to the prosecution authorities for the preparation of an indictment.         Other events in 1995         On 8 March 1995 the third applicant (the first applicant's father) and several other persons who were standing around a public telephone at the market square in Shoumen, were approached by three policemen, handcuffed and taken to the police station as they had allegedly participated in unlawful gambling. At the police station the third applicant was ordered to show the contents of his pockets and was allegedly hit in his face by a policeman. He was released after seven or eight hours.         During an unspecified period of time in 1995 the family of the applicants was allegedly often disturbed by telephone calls from people who claimed that the first applicant had stolen certain belongings from them and insisted on receiving them back.   Some of these persons allegedly explained that they had obtained the telephone number from the police.         The applicants' home was allegedly visited on a number of occasions and without any reason by uniformed or plain-clothes policemen, who displayed a threatening behaviour.         On 15 May, 23 May and 8 September 1995 two daily newspapers published articles about the present case. The articles, whose titles stated that a gipsy gambler had "put Bulgaria on trial in Strasbourg", explained in brief the events of September 1992 and informed the readers that the applicants, when interviewed by journalists, had denied having made an application to the Commission. The applicants recalled having signed a form which they thought was for social payments. In two of the articles the journalists concluded that perhaps some gipsy activists had pushed the case and had misled Amnesty International.   B.     Relevant domestic law and practice   1.     In relation to the events of 19 September 1992         The Code of Criminal Procedure (Nakazatelno protsesualen kodeks)         Section 190         "Dostatachno danni za obrazuvane na predvaritelno proizvodstvo       sa nalitse kogato mozhe da se napravi osnovatelno predpolozhenie       che e izvarsheno prestaplenie."         [Translation]         "There shall be considered to exist sufficient evidence for the       institution of criminal proceedings where a reasonable       supposition can be made that a crime might have been committed."         Section 194(3)         Under this provision when a prosecutor has refused to institute       criminal proceedings, such proceedings can be instituted by a       higher prosecutor upon the petition of the interested person or       ex officio.         Section 237(6)         Under this provision the accused or the victim of a crime can       appeal, within a time limit of seven days, against a decision of       a prosecutor to terminate penal proceedings.         The Law on State Responsibility for Damages (Zakon za       otgovornostta na darzhavata za vredi prichineni na grazhdani)         This law provides that a person who has suffered damages due to unlawful acts of State organs can bring a civil action against the State organ, whose officers are responsible for the damages.         The Law on Obligations and Contracts (Zakon za zadalzheniata i       dogovorite)         This law provides in its Section 45 that a person who has suffered damages can seek redress by bringing a civil action against the person who has, through his fault, caused the damages. Under Section 49, when the damages are caused in the process of an activity mandated by another person, this person's responsibility is also engaged.   According to Section 110 the claim for damages is extinguished with the expiry of a five year prescription period.         The Code of Civil Procedure (Grazhdansko-protsesualen kodeks)         Section 2         "Sadilishtata sa dlazhni da razgledat i razreshat vsiaka podadena       do tiah molba za zashtita i sadeistvie na lichni i imushtestveni       prava."         [Translation]         "The courts are obliged to examine, and to decide on, any claim       submitted to them for the safeguard of, or relief as regards,       personal and pecuniary rights."         Section 165         "Kogato sashtestvuva opasnost, che niakoe dokazatelstvo shte se       izgubi ili negovoto sabirane shte se zatrudni, stranata mozhe da       iska da se sabere tova dokazatelstvo predvaritelno."         [Translation]         "If there exists a danger that certain evidence might be lost or       its collection might become difficult, a party [to the       proceedings] can request the collection of this evidence in       advance."         Section 182         "Sadat spira proizvodstvoto:         ...         *) kogato pri razglezhdaneto na edno grazhdansko delo se razkriat       prestapni obstoiatelstva, ot ustanoviavaneto na koito zavisi       izhodat na grazhdanskia spor."         [Translation]         "The court shall suspend the proceedings:       ...         d) whenever criminal circumstances, the determination of which       is decisive for the outcome of the civil dispute, are discovered       in the course of the civil proceedings."           Section 183         "Proizvodstvoto se vazobnoviava sluzhebno ili po iskane na edna       ot stranite sled kato badat otstraneni prechkite za dvizhenieto       mu..."         [Translation]         "Proceedings which have been suspended shall be resumed ex       officio or upon a party's petition after the respective obstacles       have been removed ..."           Section 222         Vliazlata v sila prisada na nakazatelnia sad e zadalzhotelna za       grazhdanskia sad, koito razglezhda grazhdanskite posleditsi ot       deianieto otnosno tova dali e izvarsheno deianieto, negovata       protivopravnost i vinovnostta na deetsa."         [Translation]         "The findings contained in a final judgment of a penal court and       concerning the issue whether the act in question has been       committed, its unlawfulness and the perpetrator's guilt, are       binding on the civil court when it examines the civil conse-       quences of the criminal act."           Decision No. 12/1966 of the plenary of the Supreme Court's civil chambers (* 12-66-****, **. 38), in so far as relevant, reads as follows:         "Postanovlenieto na prokuraturata, s koeto e prekrateno       nakazatelnoto presledvane poradi tova, che obviniaemiat e scheten       za nevinoven da e izvarshil prestapnoto deianie, ne e       zadalzhitelno za grazhdanskia sad, koito se proiznasia po       grazhdanskite posleditsi ot tova deianie... Grazhdanskiat sad ...       s ogled na dokazatelstvata po grazhdanskia protses mozhe da       prieme druga facticheska obstanovka, napr., che nepozvolenoto       uvrezhdane e resultat na povedenieto imenno na sashtoto litse,       nakazatelnoto presledvane sreshtu koeto e bilo prekrateno.         Ako v grazhdanskia protses sled sabirane na dokazatelstvata se       razkriat novi prestapni obstoiatelstva, ot ustanoviavaneto na       koito zavisi izhodat na grazhdanskia spor, sadat e dlazhen da       spre proizvodstvoto po deloto saglasno chl. 182 b. "d" GPK."         [Translation]         "The decision of the prosecution to terminate the criminal       prosecution based on a finding that the accused is not guilty of       committing the criminal act does not bind the civil court which       is examining the civil consequences of this act...   [T]he civil       court, based on the evidence [collected] in the course of the       civil proceedings, can reach different factual findings, for       example that the tort was in fact caused by the same person, the       criminal prosecution against whom had been terminated.          If in the course of the civil proceedings, after collection of       evidence, fresh criminal circumstances are discovered, the       determination of which is decisive for the outcome of the civil       dispute, the court is obliged to suspend the proceedings in       accordance with Section 182"d" of the Code of Civil Procedure."   2.     Provisions in relation to the events since 1995         The Penal Code (Nakazatelen kodeks)         Section 198 para. 1         This provision, applied in conjunction with Section 63 which       concerns persons under 18 years of age, provides that the       punishment for robbery, which is defined as stealing with the use       of force or threats, is up to three years' imprisonment.         The Code of Criminal Procedure (Nakazatelno-protsesualen kodeks)         Section 152 para. 5         "... (5)   Na zadarzhania se osiguriava nezabavno vazmozhnost da       obzhalva miarkata za neotklonenie pred saotvetnia sad. Sadat se       proiznasia v tridneven srok ot podavaneto na zhalbata s       opredelenie, koeto e okonchatelno."         [Translation]         "... (5)    The detained person shall be provided immediately with       a possibility to file an appeal before the competent court       against the [imposition of detention]. The court shall pronounce       itself   within a time limit of three days from the filing of the       appeal by means of a final decision."         Section 222         According to this provision the investigations must be brought       to an end within two months after they commenced.   A further       prolongation of up to six months may be authorised by a Regional       Prosecutor.   In exceptional cases, the Chief Public Prosecutor       may prolong the investigations up to nine months.   If the period       is prolonged after two months, the Prosecutor will decide on the       detention on remand.         Sections 43, 176 - 178, 208, 219 - 220 and 235 - 237         These provisions concern the competence of the prosecutor in       penal proceed- ings. Section 43 provides that the prosecutor has       the following functions in penal proceedings: "to direct the       preliminary investigation"; "to participate in the judicial stage       of the proceedings as a State prosecutor"; and "to effect a       supervisory control of lawfulness at all stages of the penal       proceedings ...". At the preliminary investigation stage of the       proceedings according to Sections 176 - 178 the prosecutor is       competent, inter alia: to give mandatory instructions to the       investigator; to participate in examinations, searches or any       other acts of investigation; to withdraw a case from the       competence of an investigator and to assign it to another; to       conduct himself an entire preliminary investigation or particular       acts of investigation.         An investigator disagreeing with the instructions of the       prosecutor can submit objections to the higher prosecutor, whose       decision is final and obligatory for the investigator. Section       178 read in conjunction with Sections 219 and 220 provides that,       as an exception to this rule, the investigator is free to decide       whether to conclude his work on the preliminary investigation       with a proposal to terminate the proceedings or with a proposal       to prepare an indictment.       Under Sections 235 - 237 the prosecutor is competent, after       receiving the investigator's proposal, to terminate the       proceedings, to order additional investigations, or to prepare       an indictment and submit the case to the court.   COMPLAINTS   1.     The applicants allege that three policemen employed excessive and unnecessary physical force against the first applicant, who was a 14 year old boy, that they unnecessarily detained him, that they intentionally administered blows with truncheons on his body, that they kept the boy for two hours on his feet, handcuffed to a radiator in a locked room at the police station, and that the policemen repeatedly offended the boy in public and while detained by referring to his gipsy ethnic origin.         The applicants submit that this treatment went beyond the minimum level of severity of inhuman and degrading treatment within the meaning of Article 3 of the Convention. They state that this was so not only in view of the treatment itself, but also because of the particular circumstances such as the alleged victim's age, weight and height, his unstable state of health caused by heart problems, and his position of inferiority and vulnerability.   2.     The applicants raise various complaints under Article 6 para. 1 of the Convention. Thus they had no access to an independent and impartial tribunal in the determination of the question whether a criminal act had been committed by the police officers. Moreover, in the determination of this issue they were not allowed to take part in the proceedings before the prosecutor or to adduce evidence.         The applicants further complain that they had no access to court in respect of their civil right to compensation. No determination of this right was possible as an action for damages for conduct, which constitutes a criminal offence, would not be examined by the courts in cases where the prosecution refused to prosecute the perpetrators. Moreover, the civil proceedings would have had to be suspended immediately after their institution and the matter be referred to the prosecution again.   3.     Under Article 13 of the Convention the applicants complain that they had no effective remedy for the alleged violation of Article 3, since under Bulgarian law the legal remedy available in such cases was a request for the institution of criminal proceedings, which was dealt with arbitrarily by the authorities. A civil action for damages was not an effective remedy.   4.     The applicants complain that the alleged insults about the first applicant's gipsy ethnic origin indicate racial discrimination contrary to Article 14 in conjunction with Article 3 of the Convention. They further claim that the prosecution handled their complaints arbitrarily due to racial prejudice and this amounted to a violation of Article 14 in conjunction with Article 13 of the Convention.   5.     The applicants complain under Article 5 of the Convention that the first applicant's continuing detention was unnecessary and dangerous for his health; and that it has been unreasonably long and extended beyond the time limits provided for under Bulgarian law. Also, "contrary to the guarantees of Article 5 of the Convention the [first] applicant was never brought in person before the prosecutor or the judge acting in their capacity of judicial bodies authorised to assess the lawfulness of the detention".   Thus, the prosecutor who refused the first applicant's request for release on 8 December 1995 decided in camera, without the participation of any representative of the applicants.         Furthermore, although the first applicant's detention had legal grounds, it has become unnecessary and was used as a tool of pressure against the applicants because of their application to the Commission. Also, contrary to what was stated by the prosecution authorities in their decisions of 13 October 1995 and 8 December 1995, the first applicant was never seen by a doctor. Moreover, at least until 3 January 1996 he was not transferred to the specialised juvenile penitentiary.   6.     The applicants also submit that there has been a violation of the respondent Government's obligation under Article 25 of the Convention not to hinder the exercise of the right to individual petition. Thus, the events complained of which occurred in 1995 amounted to a campaign of pressure and threats against the applicants. Moreover, the applicants were even expressly asked orally, by a representative of the police, to withdraw their application to the Commission.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 September 1993 and registered on 3 August 1994.         On 22 February 1995 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 16 May 1995. The applicants replied on 15 July 1995. On 4 July 1995 the Commission granted the applicants legal aid.         The applicants submitted additional complaints by letters of 31 August and 14 September 1995 and elaborated their arguments by letters of 10 November 1995 and 3 January 1996. The Government replied to the additional complaints by letters of 12 and 30 October 1995.         On 22 January 1996 the Commission decided to examine the applicants' additional complaints together with the initial application and to hold a hearing on the admissibility and the merits of the application.         The hearing took place on 27 June 1996.   The Government were represented by their Agent, Ms. G. Beleva, and also by Ms. S. Margaritova of the Ministry of Justice and Lieutenant-Colonel V. Parvanov of the Military Prosecutor's Office. The applicants were represented by Mrs. Z. Kalaydjieva, a lawyer practising in Sofia, and by Mr. P. Duffy, a barrister practising in the United Kingdom.   THE LAW   1.     The applicants complain, invoking Articles 3, 6, 13 and 14 (Art. 3, 6, 13, 14) of the Convention, that on 19 September 1992 the first applicant was ill-treated by the police, that the prosecution authorities refused arbitrarily the ensuing complaints against the police officers and that a civil action for damages would not be an effective remedy. They also complain that the first applicant's continuing detention since 27 July 1995 involved breaches of Article 5 (Art. 5) of the Convention and that the applicants were put under pressure to withdraw their application to the Commission.         The Government raise a preliminary objection that the application was an abuse of the right of petition. Thus, the allegations about discrimination based on the boy's ethnic origin were raised for the first time before the Commission and were only after that put before the Chief Public Prosecutor. Also, the application repeatedly refers to the first applicant's alleged congenital cardiac disorder but the results of the medical examinations, conducted by a cardiologist, have shown that he never suffered from such disease.         The applicants reply that all complaints were made in substance before the domestic authorities and that they have not relied on untrue facts.         The Commission considers that the Government's objection could only be accepted if it were clear that the application was based on untrue facts in a deliberate attempt to mislead the Commission. However, this is far from clear at this stage of the proceedings. Noting in this respect the applicants' statement, in their letter to the Commission of 3 January 1996, that the first applicant was not examined by a doctor while in detention, the Commission also observes that the Government presented the results of his examinations which did not confirm the boy's alleged cardiac disorder.   However, the Commission need not establish whether the applicants' contentions in this respect were untrue as the application is not "based" on them. The Commission, therefore, considers that the application cannot be rejected as constituting an abuse of the right of petition within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention (No. 8317/78, Dec. 15.5.80, D.R. 20 p. 44; No. 21987/93, Dec. 19.10.94, D.R. 79 p. 60).   2.     The applicants' complaints relating to the events of September 1992 concern the first applicant's ill-treatment by the police, the refusal of the prosecution authorities to open criminal proceedings against the police officers and the alleged ineffectiveness of a potential civil action for damages.         The Government contend that the applicants have not exhausted all domestic remedies as required under Article 26 (Art. 26) of the Convention. The Government maintain in particular that the appeal to the Chief General Public Prosecutor against the refusal of the public prosecutors to institute criminal proceedings against the police officers concerned was submitted out of time. This was so because under Section 237(6) of the Code of Criminal Procedure there was a seven days' time limit to appeal before a higher prosecutor against a decision of a lower prosecutor, whereas in the present case the decision of May 1993 was challenged on 20 June 1994.         The Government also state that the applicants could have brought a civil action for damages under the Law on Obligations and Contracts or under the Law on State Responsibility for Damages, but failed to use this remedy. There are no obstacles for the civil courts to examine such an action in cases where a prosecutor has refused to institute criminal proceedings. The civil courts are bound only by a judgment of a penal court, but not by a decision of a prosecutor. The Government also submit that under Article 26 (Art. 26) of the Convention the civil action for damages is a remedy to be exhausted in cases of alleged police ill-treatment.         The Government further maintain that the allegations relating to the alleged police brutality are manifestly ill-founded. The short arrest of the first applicant was necessary because the police had to confiscate the proceeds of the unlawful gambling, which he had refused to surrender. As the boy and his father resisted the orders to come to the police station for this purpose, it was necessary and lawful to use physical force. However, this did not include beating. The Government stress that the medical certificate of the first applicant was issued two days after the incident and that therefore the bruises on his body could not be linked directly to his short arrest. Also, the public prosecutors, who are independent from the executive branch in Bulgaria, examined carefully the applicants' complaints and established that the bruises on the first applicant's body had been caused by his father and not by the police. Thus, the father had admitted hitting his son, albeit allegedly only once and slightly. Also, the injuries as described in the medical certificate corresponded to the version of the police as the bruises were pale in the centre and purple-bluish in the periphery, which did not correspond to the round form of a truncheon, but rather matched the form of a thin flat piece of wood, used by the father. Furthermore, the allegations of discrimination on the basis of the applicants' ethnic origin are totally unfounded.         As regards the exhaustion of domestic remedies the applicants reply that Section 237(6) of the Code of Criminal Procedure concerns appeals against decisions of the prosecutor to terminate criminal proceedings. In the present case criminal proceedings were never instituted. The applicable provision for appeals against refusals to institute criminal proceedings is Section 194 and it contains no time limits and no limit to the number of appeals. This is understandable, as only the general prescription as regar