CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 mai 2000

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BULGARIA     (Application no. 41488/98)     JUDGMENT     STRASBOURG     18 May 2000       FINAL     04/10/2000         In the case of Velikova v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Mr   M. Pellonpää, President ,   Mr   G. Ress ,   Mr   A. Pastor Ridruejo ,   Mr   I. Cabral Barreto ,   Mr   V. Butkevych ,   Mr   J. Hedigan ,   Mrs   S. Botoucharova , judges , and Mr V . Berger , Section Registrar , Having deliberated in private on 20 January and 27 April 2000, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 41488/98) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article   25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by Ms Anya Velikova, a Bulgarian national, on 12   February 1998. The applicant was represented by Mr I. Dimitrov and Mr Y. Grozev, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs V. Djidjeva, of the Ministry of Justice. The applicant complained under Articles 2, 6, 13 and 14 of the Convention in respect of the death in police custody of Mr Tsonchev, the man with whom she had been living for about twelve years, the alleged ineffective investigation into this event, the alleged obstacles to the determination of her civil right to compensation arising out of the death of Mr Tsonchev, the alleged lack of effective remedies in this respect and the alleged discrimination on the basis of Mr Tsonchev's Romany ethnic origin. 2.     On 7 September 1998 the Commission decided to communicate the application to the Government. Following the entry into force of Protocol No. 11 to the Convention on 1   November 1998, and in accordance with Article 5 § 2 thereof, the application was examined by the Court. In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within that Section included ex officio Mrs S. Botoucharova, the judge elected in respect of Bulgaria (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mr M. Pellonpää, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr G. Ress, Mr I. Cabral Barreto, Mr   V.   Butkevych, Mrs N. Vajić and Mr   J.   Hedigan (Rule 26 § 1 (b)). 3.     The Government's written observations were submitted on 14   December 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 February 1999. 4.     The Court declared the application admissible on 18 May 1999 [1] . 5.     On 9 August 1999 the applicant submitted written observations on the merits and just satisfaction claims, in support of which she filed additional documents on 7 October 1999. On 27 September 1999 the Government submitted, of their own motion, written observations on the facts and the admissibility of the application. They also requested a hearing. 6.     On 14 October 1999 the Court examined the state of the proceedings in the case. It decided to invite the Government to comment in writing on the merits of the application and to submit “copies of all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev”. The Court also decided to invite the parties to a hearing on the merits of the case. 7.     The Government submitted their observations on the merits and “copies of all documents contained in the files” on 11 November 1999. On 14 January 2000 the Government submitted observations on the applicant's claims for just satisfaction. These observations were accepted by decision of the President of the Chamber, acting under Rule 38 § 1. On 14 January 2000 the applicant submitted an additional claim for just satisfaction in respect of the costs of the hearing in Strasbourg, which was accepted for examination by the President of the Chamber, acting under Rule 60 § 1. The Government replied on 28 January 2000. 8.     Having originally been designated by the initials A.V., the applicant subsequently agreed to the disclosure of her name. 9.     Having declared the application admissible, the Court, acting in accordance with Article 38 § 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. No friendly settlement was reached. 10.     Pursuant to a decision of the Chamber of 13 January 2000, the President of the Chamber held on 20 January 2000, before the commencement of the public hearing, a preparatory meeting concerning, inter alia , the Government's objection as to the authenticity of the application. The meeting was attended by the representatives of the parties and the applicant herself. The President of the Chamber and the representative of the Government put questions, to which the applicant replied. The hearing took place in public in the Human Rights Building, Strasbourg, on 20 January 2000.   There appeared before the Court: (a)     for the Government Mrs   V. Djidjeva , Ministry of Justice,   Agent ; (b)     for the applicant Mr   Y. Grozev , Lawyer,   Counsel.   The applicant herself was also present. The Court heard addresses by Mr Grozev and Mrs Djidjeva. 11.     As Mrs Vajić was unable to attend the deliberations on 27   April 2000, she was replaced by Mr A. Pastor Ridruejo, substitute judge, as a member of the Chamber (Rule 26 § 1 (c)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicant is a Bulgarian national, born in 1942 and residing in Pleven. At the relevant time she lived in Bukovlak, a village in the district of Pleven. A.     Circumstances surrounding the death of Mr Tsonchev 13.     In the early hours of 25 September 1994, the man with whom the applicant had lived for about twelve years, Mr Slavtcho Tsonchev, 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of cattle theft. 14.     On 24 September 1994 at 11 a.m. the Pleven police received a telephone call from the village of Bukovlak informing them of the theft of nine cows. Police Sergeant Ivanov and his colleague Petranov were immediately dispatched to the village, where they met Mr N., the person who had been tending the cattle. Mr N. was brought to the police station in Pleven. There he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas, but then explained that, at about 10 a.m., Mr Tsonchev, accompanied by a 10-year-old boy, had taken away the nine cows through the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas. Mr N. affirmed that he was afraid of Mr Tsonchev, who had been drunk at the time of their encounter. 15.     In his testimony given later, Sergeant Ivanov relayed the following: “We were told that the perpetrator was Slavtcho [Tsonchev] – a Gypsy from the village of Bukovlak whose nickname was Patcho. We knew this person as he was from our criminally active contingent.” It transpires from all testimonies that Mr Tsonchev's relatives, who were later questioned in relation to the investigation into his death, also knew the police officers and their nicknames. 16.     The same police patrol drove back to the village of Bukovlak, where they were joined by two of the cattle owners and all four started searching the village for Mr Tsonchev. They found him at about 2 p.m. at his aunt and uncle's house. According to Sergeant Ivanov's testimony, Mr Tsonchev was “drinking alcohol in the company of other Gypsies”. 17.     According to the testimonies of Mr Tsonchev's cousin and Mrs K., an elderly woman who was a neighbour of Mr Tsonchev's relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs   K. During this time Mr Tsonchev drank four beers. He had apparently also drunk alcohol before that. According to the same testimony and that of Mr Tsonchev's uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. The uncle further testified that Mr Tsonchev had not complained of any medical problem and had behaved normally. 18.     The police officers invited Mr Tsonchev to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr Tsonchev was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car “had an argument with the Gypsy but ... did not beat him. They only talked”. The car arrived at the home of the cattle owners, where a crowd of about twenty to thirty persons had gathered. According to police officer Ivanov they wanted to beat up Mr Tsonchev, but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 2.30   p.m. Mr Tsonchev was handed over to Sergeant Kostadinov, the officer on duty. 19.     Sergeant Kostadinov stated in his testimony to investigator Enchev that he had locked Mr Tsonchev in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr   Tsonchev had been seated on a couch in the hallway. Both Sergeant Kostadinov and Mr N. testified that Mr Tsonchev had been very drunk. According to Mr N. at some point, while seated, Mr   Tsonchev had defecated into his trousers. It appears that Mr Tsonchev had some verbal exchanges with others while at the police station. An internal police note of 20 October 1994 concerning the death of Mr Tsonchev (see paragraph 33 below) stated that he had denied having stolen the cows. The source of this information was not mentioned in the note. Mr N. on his part relayed in his testimony that at some point Mr Tsonchev had been asked questions about the cattle theft, but had replied that he had slaughtered one of the cows. 20.     At 5 p.m. Sergeant Kostadinov contacted by telephone police officer Lubenov who arrived at the police station and started questioning the witness, Mr N. According to officer Lubenov, Mr Tsonchev was too drunk to be questioned. Police officer Lubenov issued an order for the detention of Mr Tsonchev after having consulted the prosecutor on duty, Ms Popova. The order stated that it was issued on 24 September 1994 at 7 p.m. 21.     According to the testimony of police officers Kostadinov and Lubenov, at about 7 p.m. Mr Tsonchev “complained that he was not feeling well” whereupon Sergeant Kostadinov contacted the emergency unit of the local hospital for an ambulance. At the police station were present Mr N. and one of the owners of the stolen cattle, who had arrived at about 7 p.m. to report that the cows had been found earlier in the afternoon. The two men left shortly after 7 p.m., Mr N. apparently having spent the whole afternoon at the police station. The testimony of Mr N. does not contain any reference to the fact that Mr   Tsonchev had displayed signs of ill-health. Apparently, the other person present was not questioned in the course of the investigation, as no such testimony has been submitted by the Government. According to the internal police note of 20 October 1994, all the above events, including Mr Tsonchev's complaint that he did not feel well and the arrival of an ambulance, happened at about 10 p.m. and not at about 7   p.m. The note did not specify the source of this information. 22.     According to the testimony of officers Kostadinov and Lubenov, a physician and a paramedic arrived at the police station shortly after the call for an ambulance and examined Mr Tsonchev briefly. The physician allegedly pressed and touched Mr Tsonchev's body, but said that the latter was too drunk to be examined and that he would examine him when he sobered up. No written record of this medical examination is to be found among the documents in the files, as submitted by the Government, of all authorities which had dealt with the case. During the investigation into the death of Mr   Tsonchev apparently no questions were put to the police officers about the identity of the members of the medical team and no further detail was established. 23.     At about 11 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there. According to the internal police note of 20 October 1994, Mr I.P. had testified that Mr Tsonchev was drunk. No such testimony can be found in the material submitted by the Government. 24.     According to the testimony of Sergeant Kostadinov, the officer on duty, at a certain point during the night Mr Tsonchev started vomiting in the cell where he had been placed. He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr Tsonchev went to the toilet again. On his way back to the couch, he fell on the floor. Police officer Kostadinov instructed the detained Mr I.P. to help to get Mr Tsonchev seated on the couch. Officer Kostadinov noticed that Mr Tsonchev was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station. The internal note of 20 October 1994 specified that Sergeant Kostadinov had seen Mr Tsonchev lying on the ground at about 1.50 a.m. on 25   September 1994. The source of the information about the hour was not mentioned. 25.     According to the police officers' testimonies, the same physician and paramedic, whose identities have not been disclosed, arrived at around 2   a.m. and found Mr Tsonchev dead. The doctor did not draw up a death certificate. This was done later by Dr Dorovski, the forensic expert who visited the site with the investigator, Mr Enchev, and who also conducted the autopsy. B.     The investigation into the death of Mr Tsonchev 26.     Immediately after Mr Tsonchev was found dead, the police informed the investigator on duty, Mr Enchev, who arrived at 2.30 a.m. to inspect the scene. According to the written record of the inspection, the dead body of Mr   Tsonchev was found in the hallway of the first floor, southern section, of the Pleven police station. He was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that “[o]n the right side of the face there was a bruise. Because of the dark colour of the skin, there were no other visible injuries on the body”. The investigator finished the inspection at 3 a.m. The inspection record states that a forensic expert, Dr   Dorovski, and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator. Photographs of the scene were taken during the inspection. The Government have not submitted copies thereof. 27.     Dr Dorovski issued death certificate no. 217 on 25 September 1994 indicating “acute anaemia, fat embolism and haematomas on the trunk and the limbs” as the causes of death. He also marked the option “accident” in the column requesting information about the possible circumstances. He left blank the space provided to indicate the time of death. 28.     On 25 September 1994 Mr Enchev, regional investigator, issued an order for the opening of a criminal investigation into the death of Mr   Tsonchev. On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, officers Ivanov, Kostadinov and Lubenov. The documents in the files of the authorities which investigated the death of Mr Tsonchev, as submitted by the Government, contain no trace of any questioning of police officer Petranov, who had been together with Sergeant Ivanov during Mr Tsonchev's arrest and his transfer to the police station. 29.     The investigator also ordered a biochemical report and a forensic medical report. The forensic medical report was assigned to Dr Dorovski, who had been present at the inspection of the corpse. He was requested by investigator Enchev to answer the following questions: “1.     What traumatic injuries are to be found on the corpse [of Mr Tsonchev]? 2.     What was the cause of his death? 3.     How were the injuries inflicted?” 30.     The forensic expert carried out a post-mortem examination between 8.30 a.m. and 11.30 a.m. on 25   September 1994. He found a haematoma of purple-blue colour under the lower right eyelid; oval bruises of a red-brown colour measuring 2 by 0.5 to 1   cm beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5   cm; one bruise of a red-brown colour, oblong, measuring 2 by 0.5   cm on the centre of the chin; symmetrical haematomas of a strong purple-blue colour measuring 40 by 18   cm on the front side of both armpits and the upper part of the arms; and three haematomas of purple-blue colour on the left buttock and on the upper back of the left thigh, perpendicular to the femur, measuring 8 to 10   cm by 1.5 to 2   cm. The laboratory analysis of the blood and the urine of Mr Tsonchev revealed an alcohol content of 0.4 per thousand [1] . The report concluded: “The inspection and the autopsy of Slavtcho Tsonchev's corpse discloses a state of acute loss of blood – pale post-mortal spots, anaemic internal organs, massive haematomas on a large surface of the upper limbs and the left buttock, a bruise on the left eyelid, scratches on the face. The cause of Mr Tsonchev's death was the acute loss of blood resulting from the large and deep haematomas on the upper limbs and the left buttock, as it appears from the autopsy. The injuries are the result of a blunt trauma. The injuries described as double stripped haematomas on the left buttock resulted from the impact of one or more long hard objects, approximately 2   cm wide. The haematomas in the upper limbs resulted from the impact of – blows by or collision with – a hard, blunt object. They do not have a characteristic shape and it is therefore not possible to identify the object which had caused them. The injuries on the face could have been caused by blows, or could have been the result of falling, as they are located on the protruding parts of the face. The analysis of the corpse did not disclose any ailment which could be related to the death [of Mr Tsonchev]. No injuries from sharp objects or firearms were found.” The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator. 31.     On the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr Tsonchev, was informed that he was dead. When later that day his body was transported to the applicant's house in the village of Bukovlak, the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Mr Tsonchev was buried that evening. 32.     On 28 September 1994 the investigator questioned Mr Tsonchev's uncle, aunt and cousin, Mrs K., their neighbour, and Mr N., the person whose cows had been stolen. 33.     On 20 October 1994 a colonel from the Directorate of the National Police (Дирекция на националната полиция) in Sofia drew up a note on the death of Mr Tsonchev, apparently in the framework of an internal inquiry conducted within the police department. The note described the events and concluded that the case was within the competence of the investigation authorities. No other document in respect of this police inquiry can be found among the material submitted by the Government. 34.     On 21 December 1994 an expert in chemistry issued a report on the analysis of samples of stomach contents as well as liver, kidney and brain tissue taken from the corpse. The purpose of the analysis, as defined by the investigator, had been to search for traces of toxic substances. No such substances were found. Insignificant quantities of aspirin, pain killers and codeine were detected. 35.     The material submitted by the Government in response to the Court's request for “all documents contained in the files of all authorities which [had] dealt with the investigation into the death of Mr Tsonchev” does not show any investigation activity after December 1994. 36.     In the months following the death of Mr Tsonchev, the applicant regularly visited the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant allegedly visited Mr Enchev's office on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, according to the applicant, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21   December 1994. 37.     On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor's Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor's Office (Главна прокуратура). On 19 March 1996 regional prosecutor Popova issued an order suspending the criminal proceedings in the death of Mr Tsonchev. The order stated, inter alia : “Tsonchev's death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased Tsonchev was detained under a police order for [a maximum period of] twenty-four hours pursuant to the Police Act [Закон за националната полиция], for the theft on 24 September 1994 of nine cows in the vicinity of the village of Bukovlak, Pleven District ... In the course of the investigation, it proved impossible to determine whether Tsonchev was beaten up in the Pleven police station or outside it. Nor was there any evidence demonstrating whether it was the cattle owners or police officers who did the beating.” 38.     In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor's Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police station. She also objected to the significant delays in the investigation. By an order of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor's Office granted the applicant's request for the reopening of the investigation. The order stated, inter alia : “[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded ... ... it is necessary to establish Mr   Tsonchev's particular health problems during his stay at the police station and the findings of the emergency medical team on his state of health. The physician and the paramedic of the emergency unit who examined [Mr   Tsonchev] should be found and questioned, and the relevant documents recording the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime, under Article 123 of the Criminal Code [Наказателен кодекс], was committed. The health condition of Mr   Tsonchev prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the time at which the injuries occurred. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of Mr   Tsonchev should be requested and attached to the file, and [the applicant's] allegation of incorrect documents should be investigated. After all these issues, as well as others that may come up during the investigation, are clarified, a decision on the merits should be taken.” 39.     According to the applicant, during the months following the order of the Chief Public Prosecutor's Office, her counsel spoke by telephone, on at least two occasions, with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6   January 1997 counsel filed a complaint with the Pleven Regional Prosecutor's Office, asserting that no investigation was taking place in defiance of the order of the Chief Public Prosecutor's Office, and requested that investigator Enchev be taken off the case. Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov allegedly spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the order of the Chief Public Prosecutor's Office of 8   July 1996. Following this conversation, counsel for the applicant filed another complaint with the Chief Public Prosecutor's Office renewing his request for investigator Enchev to be taken off the case and to expedite the proceedings. 40.     On 17 August 1997 counsel received a copy of a letter signed by regional prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor's Office. In apparent response to counsel's complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova's opinion the investigation should be suspended. According to the prosecutor, “there are no clues as to the identity of the offender and this precludes any further investigation”. She also refused to remove investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov. The investigation has apparently not been suspended as there is no formal order to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev allegedly confirmed that he was still working on the case. II.     RELEVANT DOMESTIC LAW 41.     Under Bulgarian law, criminal proceedings can be brought only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (Наказателно процесуален кодекс)). In accordance with the law as in force at the relevant time and until 1   January 2000, a decision to terminate pending criminal proceedings was subject to appeal by the victim to the higher prosecutor (Article 237 § 6 of the Code as in force until 1 January 2000). In practice, as in the applicant's case, appeals to the higher prosecutor were also possible against a decision to suspend criminal proceedings (Article 239 of the Code as in force until 1   January 2000). No further remedies existed under the relevant law. FINAL SUBMISSIONS TO THE COURT 42.     At the hearing on 20 January 2000, the Government invited the Court to reject the application as being inadmissible, or to dismiss the applicant's claims as unfounded. 43.     On the same occasion the applicant reiterated her request to the Court to find violations of Articles 2, 6, 13 and 14 of the Convention. THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTIONS 44.     The Government raised a number of preliminary objections, whereas the applicant maintained that the case should be examined on the merits. A.     The authenticity of the application 45.     In their written observations on the merits of 11 November 1999, the Government noted that a declaration of means, made on 1 July 1999 before a notary and submitted by the applicant in support of her legal aid request, contained the applicant's thumb-print and a note from the notary stating that the applicant was illiterate. The Government further observed that the power of attorney, whereby the applicant had authorised her lawyers to represent her before the Convention organs and which was dated 9   February 1998, contained a signature. The Government submitted that a power of attorney issued by an illiterate person could only be valid, in accordance with Article 151 § 1 of the Bulgarian Code of Civil Procedure, if it contained that person's thumb-print and if it was co-signed by two witnesses. Since this was not the case in respect of the power of attorney of 9 February 1998, it followed that the application had been submitted by persons who were not duly authorised to do so on behalf of the applicant. The Government requested the Court to declare the application inadmissible. 46.     During the preparatory meeting before the public hearing on 20   January 2000 (see paragraph 10 above), the applicant declared that she had signed the document in issue and explained in detail the circumstances in which she did so. She stated, inter alia , that she had been assisted in filling out the form and had signed it herself. Asked whether she wished to demonstrate her ability to sign, she put her signature on a piece of paper, in the presence of the President of the Chamber and the representatives of the parties. At the close of the preparatory meeting, the representative of the Government did not comment on the authenticity of the applicant's signature on the power of attorney, but stated that she maintained the Government's preliminary objection. 47.     The Court observes that the Government are not estopped from raising the above objection, as it is based on a document which was created and came to light after 18 May 1999, the date of the admissibility decision in the present case (see the Ergi v. Turkey judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1770, § 62). 48.     The Court further recalls that in cases of similar challenges by Governments a question was put to the applicant as to whether he or she had signed the document in issue. A general assessment of all the evidence and, in particular, of the question whether the applicant maintained an interest in pursuing the case, was also relevant (see the Ergi v. Turkey judgment cited above, pp. 1770-71, §§ 63-64; Kurt v. Turkey, application no. 24276/94, Commission decision of 22 May 1995, Decisions and Reports 81-A, p. 112; Sarli v. Turkey, application no. 24490/94, Commission's report of 21 October 1999, § 107, unpublished; and Aslan v. Turkey, applications nos.   22491/93 and 22497/93, Commission's report of 22 May 1997, unpublished). 49.     In the present case the Government do not allege in express terms that the application was made without the applicant's consent. Their objection appears to be centred on the question whether the power of attorney of 9 February 1998 is legally valid. 50.     In so far as the Government rely on the requirement of Bulgarian law that a document emanating from an illiterate person must carry a thumb-print placed in the presence of two witnesses, the Court first observes that it is unclear whether a genuine document, signed by the hand of someone who had on another occasion stated to be illiterate, would be considered null and void under Bulgarian law. In any event, the Court recalls that the representative of the applicant must produce a “power of attorney or a written authority to act” (Rule   45   §   3 of the Rules of Court and Rule 43 § 3 of the Rules of Procedure of the Commission, as in force at the time the present application was filed with the Commission). Therefore, a simple written authority would be valid for purposes of the proceedings before the Court, in so far as it has not been shown that it was made without the applicant's understanding and consent. 51.     As regards this latter point, the Court takes into account all evidence before it, including the meeting with the applicant in person in the presence of the President of the Chamber and the representative of the Government (see paragraph 46 above). It further considers that at no point has there been serious doubt as to the will of the applicant to pursue her complaints. Finally, the Court notes that one of the two lawyers, whose names appear on the impugned power of attorney dated 9 February 1998, has been her representative before the domestic authorities since at least 1995 (see paragraphs 1 and 36 above). 52.     The Court finds, therefore, that the application has been validly submitted on behalf of the applicant and dismisses the first preliminary objection by the Government. B.     The remaining preliminary objections 53.     In their written observations of 27 September 1999, the Government stated that the admissibility decision of 18 May 1999 contained a number of incorrect statements of fact and unjustified conclusions. In particular, on pages 7 to 12 of the admissibility decision, there were unacceptable statements. The Government further reiterated their position that the application should be rejected for failure to exhaust domestic remedies. They maintained, as they did at the admissibility stage of the proceedings, that, inter alia , the applicant should have brought a civil action for damages and should have joined the criminal investigation into the death of Mr Tsonchev as a private prosecutor. The Government further stated that the Court's finding as regards the six-month time-limit was “contrary to the letter and the meaning of Article 35 of the Convention”. In their observations of 11 November 1999 and at the hearing before the Court, the Government also maintained that the application amounted to an abuse of the right of petition. On the basis of the above considerations, the Government requested the Court to declare the application inadmissible. 54.     The applicant replied that the application should be examined on the merits. 55.     The Court takes cognisance of the Government's observations on the facts and takes them into account fully, along with all other evidence. Indeed, it is precisely after declaring an application admissible that the Court proceeds to a final establishment of the facts, in accordance with Article 38 of the Convention, on the basis of the submission of the parties and, if need be, its own investigation. 56.     The Court further notes that the alleged unacceptable statements in its admissibility decision are all to be found in the summary of the applicant's complaints and submissions, which forms part of the text of the decision as much as the summary of the Government's position does, without any of them being the expression of the Court's opinion. 57.     In respect of the Government's request that the application be declared inadmissible, the Court recalls that the provision of Article 35 § 4 in fine of the Convention, according to which the Court may declare an application inadmissible at any stage of the proceedings, does not signify that a respondent State is able to raise an admissibility question at any stage of the proceedings if that question could have been raised earlier (see paragraph 88 of the explanatory report to Protocol No. 11 to the Convention and Rule 55 of the Rules of Court). In the present case the Government, for the most part, reiterate their objections as to the admissibility of the application, which were already examined by the Court and rejected by its decision of 18 May 1999. The Court sees no new element justifying a re-examination of these matters. In any event, looking into the substance of the Government's preliminary objections, the Court finds no merit in any of them. 58.     The Court dismisses, therefore, the remainder of the Government's preliminary objections. II.     ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 59.     The applicant alleged violations of Article 2 of the Convention in that Mr Tsonchev had died as a result of injuries intentionally inflicted by the police, that he had not received adequate medical treatment while in police custody and that there had not been a meaningful investigation into the circumstances of his death. Article 2 provides as follows: “1.     Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” A.     Arguments of the parties 1.     The applicant 60.     In the applicant's view all available evidence indicated that Mr   Tsonchev was in good health at the time he first encountered the police in the early afternoon of 24   September 1994. The fact that he had been drinking alcohol (not more than four beers) did not affect his general state of health, which was apparently good. 61.     The applicant submitted that the Government had not provided any explicit explanation, let alone a plausible one, for what had happened, and had thus failed to show that its agents had not been responsible for the death of Mr Tsonchev. The Government had only implied, in their submissions to the Court, that Mr Tsonchev might have received his injuries by falling on the ground, due to his alcohol intoxication. However, it sufficed to examine the conclusions of the forensic report concerning the type and the size of the injuries which had caused Mr Tsonchev's death to discard such a version of the facts as implausible. 62.     The applicant further submitted that Mr Tsonchev had not received adequate medical treatment for several hours, while he had been in police custody apparently suffering from life-threatening injuries. The applicant stated that Bulgarian legislation contained no provisions guaranteeing access to a doctor for persons deprived of their liberty. She further disputed the Government's position that everything possible had been done. She recalled that, according to the police officers' testimonies, the doctor who had seen Mr Tsonchev, and whose identity was never disclosed, had stated that Mr Tsonchev had been too drunk to be examined. In the applicant's view these facts, if they were true, could only serve to establish the doctor's liability for medical malpractice, and not as grounds for the conclusion that adequate measures had been taken. She submitted that there were two possible explanations: either the doctor had arrived after the death of Mr Tsonchev and, appalled by what the police had done, had refused cooperation, or no doctor had ever arrived, the whole story having been made up by the police. In either case, Mr Tsonchev had been denied appropriate and timely medical care. 63.     The applicant also alleged that the authorities had failed in their duty under Article   2 of the Convention to undertake a prompt, thorough and effective investigation into the circumstances surrounding Mr Tsonchev's death. Although the investigation had started promptly, nothing had been done since December 1994, despite the applicant's repeated requests. 64.     The applicant further contended that the investigation had been characterised by a number of omissions and inconsistencies which had resulted in most of the questions surrounding the death of Mr Tsonchev remaining unanswered. In the applicant's view these omissions were so numerous and so striking that they could only be described as an effort by the investigation authorities to cover up for the police, rather than to investigate their acts. 2.     The Government 65.     The Government contended that the complaints under Article 2 were manifestly ill-founded. In their view, the applicant's allegation that Mr Tsonchev had died as a result of ill-treatment by police officers was not supported by the evidence in the case. The investigation had established that prior to his arrest he had consumed a large quantity of alcohol and that he had been staggering and falling when apprehended and later at the police station. At the same time little and highly contradictory evidence was available regarding the manner in which he had spent the hours prior to his arrest. The Government submitted that the forensic medical experts had concluded that the fatal injuries could have been the result of falling. These considerations and the fact that no evidence of police brutality was established during the investigation should, in their view, lead to the conclusion that the applicant's allegations were unfounded. 66.     The Government further maintained that until 10 p.m. on 24   September 1994, Mr Tsonchev had not complained of any ailment. He had been under the influence of alcohol and had not been communicative. It was normal in these circumstances that the police officers had decided to leave him to sober up. When Mr Tsonchev had complained that he felt unwell, an emergency medical team had urgently been dispatched, but the doctor had found it impossible to examine him due to his state of alcohol intoxication. In the Government's view, therefore, the police could not be held responsible for not having provided adequate medical treatment. In fact, everything possible was done. 67.     The Government also affirmed that all necessary investigation steps had been undertaken promptly. An investigator had visited the site immediately after Mr Tsonchev's death and had then proceeded with questioning witnesses. An autopsy had been ordered and promptly performed. Therefore, the allegation that the investigation was not effective was also unfounded. B.     The Court's assessment 1.     As to the alleged killing of Mr Tsonchev 68.     The Court recalls that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2, the Court must subject to the most careful scrutiny complaints about deprivation of life (see, among other authorities, Çakıcı v.   Turkey [GC], no.   23657/94, §   86, ECHR 1999-IV). 69.     In the present case it is alleged by the applicant that the authorities were responsible for the death of Mr Tsonchev. It is alleged that he was severely beaten while in the h