CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 février 2004

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margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s5D08A2D6 { margin-top:0pt; margin-left:34.6pt; margin-bottom:0pt } .s8DCCCE3B { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt } .s19B7B205 { margin-top:12pt; margin-bottom:36pt; text-indent:14.4pt; page-break-inside:avoid; page-break-after:avoid } .s69A82CF5 { margin-top:36pt; margin-bottom:12pt; text-align:left } .s2DF49AA6 { width:24.54pt; display:inline-block } .s6AC2EB63 { width:201.8pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .s53E9AB06 { margin-top:36pt; margin-bottom:0pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt }     FIRST SECTION     CASE OF NACHOVA AND OTHERS v. BULGARIA     (Applications nos. 43577/98 and 43579/98)     JUDGMENT     STRASBOURG     26 February 2004   THIS CASE WAS REFERRED TO THE GRAND CHAMBER, WHICH DELIVERED JUDGMENT IN THE CASE ON 6 July 2005     This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nachova and Others v. Bulgaria, The European Court of Human Rights (First Section), sitting as a Chamber composed of   Mr   C.L. Rozakis , President ,   Mr   P. Lorenzen ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   V. Zagrebelsky, judges , and Mr S. Nielsen , Section Registrar , Having deliberated in private on 4 September and 16 December 2003, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 43577/98 and 43579/98) 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 four Bulgarian nationals, Ms Anelia Kunchova Nachova, Ms Aksiniya Hristova, Ms Todorka Petrova Rangelova and Mr   Rangel Petkov Rangelov (“the applicants”), on 15 May 1998. 2.     The applicants were represented by Ms N. Vidorova and Mr   Y.   Grozev, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs G. Samaras, of the Ministry of Justice. 3.     The applicants alleged that their respective close relatives, Mr   Kuncho Angelov and Mr Kiril Petkov, who were shot by military police trying to arrest them, were deprived of their lives in violation of Article 2 of the Convention, that the investigation into the events was ineffective and thus in breach of that provision and of Article 13 of the Convention and that the respondent State had failed in its obligation to protect life by law. They also alleged that the events complained of were the result of discriminatory attitudes towards persons of Roma origin and entailed a violation of Article   14 of the Convention. 4.     The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). Following the former Fourth Section's decision of 22   March 2001 to join the applications (Rule 43 § 1) and the Court's decision of 1 November 2001 to change the composition of its Sections (Rule 25 § 1), the present case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     The applications were declared partly admissible on 28 February 2002. The applicants and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the European Roma Rights Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3) THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The case concerns the killing on 19 July 1996 of Mr Angelov and Mr   Petkov by a member of the military police who was attempting to arrest them. 7.     All the applicants are Bulgarian nationals who describe themselves as being of Roma origin. 8.     Ms Anelia Kunchova Nachova, who was born in 1995, is Mr   Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo (Bulgaria). Ms   Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom (Bulgaria), are Mr Petkov's parents. A.     Circumstances surrounding the deaths of Mr Angelov and Mr   Petkov 9.     In 1996 Mr Angelov and Mr Petkov, who were both twenty-one years old, were conscripts in the Construction Force (Строителни войски), a division of the army dealing with the construction of apartment blocks and other civilian projects. 10.     Early in 1996 Mr Angelov and Mr Petkov were arrested for repeated absences without leave. On 22 May 1996 Mr Angelov was sentenced to nine-months' imprisonment and Mr Petkov to five-month imprisonment. Both had previous convictions for theft. 11.     On 15 July 1996 they escaped from a construction site outside the prison where they had been brought for work and went to the home of Mr   Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed. 12.     Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military-Police Unit. 13.     At around twelve noon on 19 July 1996 the officer on duty in the Vratsa Military-Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested. 14.     The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura since, according to a secretary who worked at the municipality and was heard later as a witness, his mother was from the village. 15.     Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (криминално проявени) – a euphemism used to denote persons with previous convictions or persons suspected of offence – and that they had escaped from detention. The officers were instructed that all means and methods dictated by the circumstances were to be used to arrest them. 16.     The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm. calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation. 17.     The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side. 18.     At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T. M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district. 19.     Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave. 20.     As soon as the jeep drew up in front of the house at between 1 p.m. and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The police officers heard the sound of a window-pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed to the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T. M. 21.     Sergeant N. later testified that, having noticed Mr Angelov and Mr   Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!”. He had pulled out his gun, but not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by circumventing several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!”. It was then that the shooting had started. 22.     Major G. stated in his testimony: “...I heard Sergeant N. shouting: 'Freeze, police'...I saw the privates; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards... I saw that they were trying to jump over the [chain-link] fence, so I shouted: 'Freeze, or I'll shoot'. I released the safety-catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground... The privates climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted: 'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted: 'Freeze, or I will shoot with live cartridges”, I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted “Freeze!” when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the privates, but fired at their feet. Under Regulation   45 we can use firearms to arrest members of the military forces who have committed a publicly prosecuted offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the privates' feet, I was 20 metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle...” 23.     According to the statements of the three subordinate officers, Mr   Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing to the direction of the house from which they had come. One of them was lying on his back and the other on his stomach. 24.     A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1.00 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges”. He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had been shouting as he was behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated: “The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura”. 25.     Sergeant S. stated that upon arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!”. He had also heard Major G. shout several times: “Freeze, police!”, from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the event over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle. 26.     The head of the Vratsa Military-Police Unit and other officers were informed about the incident at around 1.30 p.m. 27.     Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to halt. In the house, he had noticed that a window-pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant   K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel. 28.     Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to the Vratsa Hospital, while Major G. and Sergeant N. remained at the scene. 29.     Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital. 30.     Mr Angelov's grandmother, Ms Tonkova, gave the following version of the events: Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard, one of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours' yard with bullet wounds. 31.     According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr   M.M. had asked Major G. for permission to approach and collect him. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!”. B.     The investigation into the deaths 32.     On 19 July 1996 all the officers involved made separate reports in connection with the deaths to the Vratsa Military-Police Unit. None of them was tested for alcohol. 33.     A criminal investigation into the deaths was opened the same day and between 4 p.m. and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place. 34.     A sketch map was appended to the report. It showed the yard of Ms   Tonkova's house and the neighbouring yard where Mr Angelov and Mr   Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch-map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described. 35.     Nine spent cartridge were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the neighbour's   (Mr   M.M.'s) yard, close to the place where the bloodstains were found. Although the exact distance between those cartridges and the bloodstains was not given, it appears from the other measurements on the sketch map to be between 5 and 10 metres. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found. 36.     The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov were apparently trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator. 37.     On 21 July 1996, a pathologist carried out an autopsy. According to the autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows: “There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.” 38.     As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated: “There is a round wound on the left of the buttocks at a distance of 90 cm from the feet... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.” 39.     The report concluded that the injuries had been caused by an automatic rifle fired from a distance. 40.     On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently. 41.     On 1 August 1996 Major G.'s automatic rifle, a cartridge found in it and the nine spent cartridges found on the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable. 42.     A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 per thousand in Mr Petkov's blood and 0.75 per thousand in Mr Angelov's blood (under Bulgarian law driving with alcohol content of more than 0.5 per thousand is an administrative offence). 43.     On 20 September 1996 a forensic examination of the bloodstains found on the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims' blood groups. 44.     On 20 January and on 13 February 1997 another neighbour (Mr   T.M.) and Ms Hristova (one of the applicants) were questioned. On 26   March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned. 45.     On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Mrs Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26   March 1997. The applicants did not ask for any other evidence to be obtained. 46.     On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr   Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator, therefore, concluded that Major G. had acted in accordance with Regulation 45 of the Military-Police Regulations and made a recommendation to the Pleven Regional Prosecution Office that the investigation should be closed as Major G. had not committed an offence. 47.     On 8 April 1997 the Pleven Military Prosecutor accepted the investigator's recommendation and terminated the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military-Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt. 48.     When describing the victims' personal circumstances, including such matters as their family, education and previous convictions, in the decree, the prosecutor mentioned that they both originated from “minority families”, a euphemism mostly used to designate people from the Roma minority. 49.     By an order of 11 June 1997 the prosecutor of the Armed Forces Prosecutor's Offices dismissed the applicants' subsequent appeal on the ground that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations. 50.     On 19 November 1997 the prosecutor from the Investigation Review Department in the Armed Forces Prosecutor's Office dismissed a further appeal on grounds similar to those relied on by the other public prosecutors. II.     REPORTS OF INTERNATIONAL ORGANISATIONS ON ALLEGED DISCRIMINATION AGAINST ROMA 51.     The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the EU network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia , that police abuse against Roma and similar groups, including physical abuse and excessive use of force, has been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal. 52.     The European Commission against Racism and Intolerance at the Council of Europe, in its country reports in the last four years, has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia. 53.     In its report of 2000 on Bulgaria, the European Commission against Racism and Intolerance (ECRI) stated, inter alia : “Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. The Council of Europe's Committee for the Prevention of Torture (CPT) noted in March 1997 that 'criminal suspects deprived of their liberty by the police in Bulgaria run a significant risk of being ill-treated at the time of their apprehension and/or while in police custody, and ... on occasion resort may be had to severe ill-treatment/torture'... [T]he Human Rights Project documents in its Annual Report for 1998 numerous other cases of police misconduct towards members of the Roma/Gypsy community. It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms; home searches conducted without search warrants; destruction of private property; and threats to the personal security of individuals who had complained against the police to the competent authorities... The European Roma Rights Centre reports that [criminal proceedings against perpetrators of violent acts] have been used in recent years to protect Roma rights, but that convictions are isolated compared to the scale of the problem. The Human Rights Project notes in its Annual Report for 1998 that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities. In the present situation, victims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences: there may be a perception that bringing complaints may actually worsen the situation of the victim before the courts. A lack of confidence on the part of victims in the possibility of redress may be compounded by some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. A first step would therefore seem to be the need to acknowledge on a public level that problems exist in this area, and for police and political leaders to express their strong commitment to ensuring that any allegations of misbehaviour or criminal acts on the part of the police are promptly and stringently investigated and dealt with. ECRI in its first report recommends that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ECRI would wish to reiterate this proposal. A specialised body to combat racism and discrimination, as advocated above, could also play an important role in this respect... It is reported that Roma/Gypsies in Bulgarian prisons are also subject to physical abuse by prison guards and other officials: to date; no prosecution of abuses by prison officials has been initiated... ECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police. ECRI stresses that such forms of discrimination practised by local authorities should not be tolerated by the national authorities. In this respect, it is particularly important to ensure that national policies and legislation against discrimination are understood and applied at a local level. Training for officials working within local administrations, to raise awareness and combat prejudices, would also be most desirable. ECRI welcomes signs that the Bulgarian government is willing to address such issues of discrimination. This attitude has been demonstrated by the adoption in April 1999 of the 'Framework Programme for Equal Integration of Roma in Bulgarian Society'. This programme was prepared on the initiative of Roma/Gypsy organisations and in discussion with representatives of all the Roma associations in Bulgaria... This document contains strategies for achieving equality for Roma in Bulgaria, and poses as the main issue the discriminatory treatment of Roma.” 54.     The applicants in their submissions referred also to the findings of specialised bodies of the United Nations (see paragraph 153 below). 55.     Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. III.     RELEVANT DOMESTIC LAW AND PRACTICE 1.     Unpublished Regulations on the Military Police, issued by the Ministry of Defence on 21 December 1994 56.     Section 45 of the Regulations (Regulation 45), as in force at the relevant time, provided as follows: “(1)     Military police officers may use firearms ... under the following circumstances:... 2.     to arrest a person serving in the army who has committed or is about to commit a publicly prosecuted offence and who does not surrender after being warned ... (2)     The use of force shall be preceded by an oral warning and a shot fired in the   air   ... (3)     When using firearms military police officers shall be under a duty, as far as possible, to protect the life of the person against whom they use force and to assist the wounded... (5)     Whenever firearms have been used, a report shall be prepared describing the circumstances which provoked their use; [the report] shall be transmitted to the superiors of the officer concerned.” 57.     In December 2000 Regulation 45 was superseded by Decree No. 7 of 6 December 2000 on the use of force and firearms by military police (published in State Gazette No. 102/2000, amended in 2001). According to section 21 of the Decree, firearms may be used, inter alia , for the arrest of any person who has committed an offence of the category of publicly prosecuted offences. The vast majority of offences under the Criminal Code fall within that category, except offences prosecuted privately, such as light bodily injury and certain types of criminal libel. Nevertheless, according to sections 2, 4(1) and 21 of the Decree, the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration. Also, force and firearms may only be used in the last resort, where the aims pursued cannot be achieved by any other means. 2.     Other relevant law and practice on the use of force during arrest 58.     Article 12 of the Criminal Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in self-defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate, however, cases where force has been used by a police officer or another person in order to effect an arrest, without there being an attack on the arresting officer or any third party. Until 1997 no other provision regulated that matter. It appears, nevertheless, that on some occasions the courts applied Article 12 by analogy. 59.     To fill that lacuna, in its interpretative direction no. 12 issued in 1973, the Supreme Court proclaimed, without further clarification, that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary (12-1973-PPVS). 60.     In its decision no. 15 of 17 March 1995, the Supreme Court, while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts, considered that the principles to be applied were those that had been identified by legal commentators. In particular, inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence, if there were no other means to effect the arrest and if the harm caused was proportionate to the seriousness of the offence. The Supreme Court also stated: “... [Causing harm to an offender in order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to escape, but to a known hiding-place, causing harm will not be justified... The harm caused must be proportionate to the seriousness ... of the offence. If the offender has committed an offence representing insignificant danger to the public, his life and health cannot be put at risk. Putting his life or health at risk could be justified, however, where a person is in hiding after committing a serious offence (such as murder, rape or robbery). The means used to effect the arrest (and the harm caused) must be reasonable in the circumstances. This is the most important condition for lawfulness... Where the harm caused exceeds what was necessary ..., that is to say, where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest, ... the person inflicting it will be liable to prosecution...” 61.     In 1997 Parliament decided to fill the legislative lacuna by adding a new Article 12a to the Criminal Code. It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. Few judgments interpreting Article 12a have been reported. 3.     Code of Criminal Procedure 62.     Article 192 provides that proceedings concerning publicly prosecuted crimes may only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio . Under Article 237 § 6, as worded until 1   January 2000, the victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. The victim had no other means of challenging a refusal to prosecute. 63.     When military courts have jurisdiction to hear a case, as for example when it concerns military-police officers, the responsibility for conducting the investigation and prosecuting lies with the military investigators and prosecutors, whose decisions are amenable to appeal before the Chief Public Prosecutor. 64.     Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case file and take copies of relevant documents, to adduce evidence, to raise objections, to make applications and to appeal against the decisions of the investigating and prosecuting authorities. 4.     The new Protection against Discrimination Act 65.     The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. 66.     Section 9 provides for a shifting burden of proof in discrimination cases. Under that section, where the claimant has proved facts from which an inference that there has been a discriminatory treatment might be drawn, it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment. The Act also provides for the creation of a Commission for Protection against Discrimination with jurisdiction, inter alia , to hear individual complaints. IV.     RELEVANT INTERNATIONAL AND COMPARATIVE LAW A.     United Nations principles 67.     The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 68.     Paragraph 9 provides: “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 69.     According to other provisions of the Principles, law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (paragraph 7). National rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. 70.     Paragraph 23 of the Principles states that victims or their family should have access to an independent process, “including a judicial process.” Further, paragraph 24 provides: “Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.” 71.     The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, provide, inter alia , that there shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions and that the investigation should aim at, inter alia , determining “any pattern or practice which may have brought about” the death. Paragraph 11 states: “In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.” Paragraph 17 states: “A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law...” B.     Jurisprudence of the UN Committee against Torture (CAT) 72.     In its decision of 21 November 2002, the Committee, examining Complaint No. 161/2000 submitted by Hajrizi Dzemajl and others against Yugoslavia, found that a mob action by non-Roma residents of Danilovgrad, Montenegro, who destroyed a Roma settlement on 14 April 1995 in the presence of police officers, was “committed with a significant level of racial motivation”. That fact aggravated the violation of Article   16 §   1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found in the case. 73.     In assessing the evidence, the CAT noted that it had not received a written explanation from the State party concerned and decided to rely on “the detailed submissions made by the complainants”. C.     European Union Directives on discrimination 74.     Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal tr