CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 décembre 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB8084949 { width:138.49pt; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sDB6B63EE { width:176.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 23302/03 by Anna Nikolova TODOROVA against Bulgaria The European Court of Human Rights (Fifth Section), sitting on 8   December 2009 as a Chamber composed of:   Peer Lorenzen, President ,   Renate Jaeger,   Karel Jungwiert,   Rait Maruste,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges , and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 18 July 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the fact that the Belgian Government were informed on 15 January 2008 of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), but did not avail themselves of that opportunity, Having deliberated, decides as follows: THE FACTS The applicant, Ms Anna Nikolova Todorova, is a Bulgarian and Belgian national born in 1949 and living in Seraing, Belgium. She is represented before the Court by Mr S. Yankov, a lawyer practising in Plovdiv, Bulgaria. The Bulgarian Government (“the Government”) are represented by their Agent, Ms M. Dimova, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 24 October 1994 the applicant’s son, Mr Zhivko Todorov Todorov, born in 1972 and living in Plovdiv, was involved in a road traffic accident. On 2 November 1994 he died from his injuries. 1.     The events of 24 October 1994 and Mr Todorov’s death In the fall of 1994 Mr Todorov befriended S.N. In the morning of 24   October 1994 the two travelled from Plovdiv to Varna. They were travelling by car, a BMW 5 Series belonging to a company owned by S.N.’s family. In the afternoon they left Varna and headed back to Plovdiv. On their way back, at about 10 p.m. they passed through the town of Chirpan, where they met S.N.’s brother and two friends of his, I.M. and I.I. According to later statements of S.N. and a friend of his, S.S. (see below), shortly after that, on the road to Plovdiv they saw S.S., whose car was stopped beside the road because he had a flat tyre. They lent him the BMW’s spare tyre and continued on their way. When, some time after 11 p.m., the two were passing through the village of Plodovitovo, where the speed limit was 50 kilometres per hour, they started overtaking a lorry with a trailer. The lorry, driven by P.P., reached a crossroad and started turning left. The BMW was moving behind it at about 100 kilometres per hour. It did not slow down and collided head ‑ on with the lorry’s trailer. Immediately after the crash the BMW started burning. P.P., who had not sustained any injuries, got out of the lorry and, with the help of the driver of a Lada Niva with registration plates from the town of Yambol, took Mr Todorov and S.N. out of the burning BMW. At about midnight Mr Todorov and S.N. were taken to a hospital in Chirpan. Mr Todorov was in a very bad condition and unconscious. S.N.’s injuries, although serious, were not as critical. Some time later a police officer came to the hospital. He was unable to interview Mr Todorov or S.N., the former being unconscious and the latter apparently being in a state of shock and incapable of making coherent statements. After that the officer visited the scene of the accident and took notes and pictures. On 28 October 1994 Mr Todorov was transferred to a hospital in Plovdiv. He did not regain consciousness and died on 2 November 1994. On 3 November 1994 a doctor from the forensic medicine chair of the Plovdiv Medical University performed an autopsy on Mr Todorov’s body. He found numerous traumatic injuries to his head, limbs and internal organs. The doctor’s conclusion was that he had died from his brain injuries. In his opinion, these injuries had been caused by the shock generated inside the BMW during the collision. 2.     The criminal investigation On the night of the accident the police opened an inquiry against S.N. on suspicion that, by breaching the road traffic regulations, he had caused the accident and had thus negligently inflicted bodily injury on Mr Todorov. On 25 October 1994 the police interviewed P.P. He described the accident and said that he had taken the two injured men out of the BMW with the help of other drivers who had stopped nearby. The same day he gave a blood sample. The sample was analysed on 1 November 1994 and it was determined that his blood had no alcohol content. On 16 December 1994 the officer investigating the case asked an expert to determine whether Mr Todorov’s death had been a result of the accident. On 3 January 1995 the police sent the case to the Chirpan District Prosecutor’s Office, proposing to convert the inquiry into a full ‑ blown homicide investigation. The case was then forwarded to the Stara Zagora Regional Prosecutor’s Office, which on 20 January 1995 opened a criminal investigation. On 9 February 1995 the investigator to whom the case had been assigned asked an expert to determine whether P.P. had manoeuvred properly. In his report, filed on 5 March 1995, the expert said that P.P. had carried out the left turn correctly and that the accident had occurred because of the BMW’s high speed, well above the maximum allowed on that part of the road. On 1 March 1995 the investigator interviewed P.P. again. On 7 March 1995 the investigator asked an expert to determine (i) the exact spot where the BMW and the lorry’s trailer had collided, (ii) the BMW’s and the lorry’s exact speed before the accident, (iii) the distance between the BMW and the lorry at the time when the lorry had begun its left turn, and (iv) whether it had been possible for the BMW’s driver to avoid the accident. In his report, filed on 13 March 1995, the expert said that (i)   the impact had taken place on the road; (ii) the lorry had been travelling at 13 kilometres per hour and the BMW at about 100 km per hour; and that (iii) the BMW had been at 83 metres behind the lorry at the time when the lorry had started to turn, and that (iv) the BMW’s driver could have stopped before the collision point. It seems that no procedural steps were taken in the following months. On 6 September 1995 the investigator sent the file to the Stara Zagora Regional Prosecutor’s Office with a recommendation to discontinue the proceedings. On 26 September 1995 that Office referred the case back, noting that, although more than half a year had passed following the opening of the investigation, the inquiries had not been comprehensive and thorough. No steps had been carried out with the participation of S.N. and various other pieces of evidence had not been gathered. In the meantime, on 14 September 1995 the applicant and her husband (who later passed away) brought a civil ‑ party claim against S.N. On 23 October 1995 the investigator interviewed S.N. He described the events of 24 October 1994 and asserted that, although the BMW had belonged to his and his brother’s company, the one driving it at the time of the accident had been Mr Todorov. He also said that he would be able to find witnesses who could confirm that assertion. On 17 November 1995 the investigator interviewed P.P. one more time. He mentioned the driver of the Lada Niva, but said that he did not remember his name or the exact number of his registration plates. He described how the two of them had taken the two injured men out of the BMW, and said that the one behind the wheel had been S.N. After that the investigator organised an identity parade at which P.P. identified S.N. as the BMW’s driver. On 22 November 1995 the investigator interviewed S.S. He said that he knew S.N. well, but had not known Mr Todorov at all. He also said that when S.N. and Mr Todorov had stopped to help him with the flat tyre, the one driving the BMW had been Mr Todorov. On 24 November 1995 the investigator charged S.N. and interviewed him. S.N. asserted that the person driving the BMW at the time of the accident had been Mr Todorov. On the way from Varna they had switched several times, but at the time of the accident the one behind the wheel had been Mr Todorov. This had been witnessed by several people in Chirpan. It has also been witnessed by his friend, S.S., on the road between Chirpan and the place of the accident. The same day the investigator questioned I.M. and I.I., who said that they had been having dinner with S.N.’s brother in Chirpan when they had met S.N. and Mr Todorov. They also said that they were acquainted with S.N., but had known Mr Todorov only by sight. Both of them stated that the one driving the BMW at the time of their meeting had been Mr Todorov. On 7 December 1995 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, recommending that the proceedings be discontinued. He noted that the technical expert report and the inspection of the site of the accident showed that the accident had been the fault of the BMW’s driver. The only contentious issue was whether this had been S.N. or Mr Todorov. P.P. had stated that the one behind the wheel had been S.N. However, the latter had disputed this assertion and had called three witnesses – I.M., I.I. and S.S. – who had asserted that the one driving the BMW had been Mr Todorov. It could therefore be concluded that the BMW had been driven by Mr Todorov. On 10 January 1996 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator. On 18 January 1996 the investigator interviewed the police officer who had started the inquiry. He said that he had first gone to the hospital and then to the scene of the accident, but was unable to say which of the two persons in the BMW had been the driver. On 4 April 1996 the investigator asked two medical experts to assess the extent of S.N.’s injuries and to express an opinion on whether he had indeed been unable to make coherent statements after the accident. In their report, filed on 9 May 1995, the experts said that it was impossible to determine this solely from the materials in the file because shortly before the accident S.N. had been involved in another road traffic accident. It was necessary to examine him personally. On 11 July 1996 the investigator asked five experts to express their opinion on whether Mr Todorov or S.N. had been driving the BMW at the time of the accident. However, the experts were unable to examine S.N., who had gone missing, and the report could not be completed. On 30   December 1996 the experts sent the file back to the investigator and asked him to order that S.N. be compelled to appear. On 11 April 1997 the Stara Zagora Regional Prosecutor’s Office, to which the file had been sent, returned it for further investigation. It ordered that S.N. be compelled to submit to an examination by the experts. On 24 April 1997 the investigator requested the police to trace S.N. with a view to summoning him. The police supplied information about his address on 2 May 1997. On 13 May 1997 he was summoned for 20 May 1997, but failed to appear. Accordingly, on 9 July 1997 the investigator ordered that he be brought by force. On 23 July 1997 the Stara Zagora Regional Prosecutor’s Office decided to place him in custody. On 21   November 1997 he was put down for national tracing. On 30 March 1998 S.N. appeared before the investigator. He was charged, interviewed and allowed to examine the file with his counsel. He said that he stood by his previous statements. On 13 October 1998 the investigator sent the case to the Chirpan District Prosecutor’s Office, recommending that S.N. be brought to trial. On 26 January 1999 the Stara Zagora Regional Prosecutor’s Office sent the case back to the investigator, noting, inter alia , that he had not properly worded the charge, that no information had been gathered on any previous road traffic offences committed by S.N., and that a medical expert report had not been finalised. It instructed the investigator to examine whether P.P. had made a left turn in line with the road traffic rules and, if he found that this was not the case, to charge him as well. On 9 February 1999 the investigator asked an expert to determine whether P.P. had properly turned left. In his report, filed on 5 March 1999, the expert stated that P.P. had not breached any road traffic rules. On 11 March 1999 the investigator asked five experts to determine, on the basis of the injuries sustained by Mr Todorov and S.N., which of the two had been driving the BMW at the time of the accident. The experts studied the documents in the file, including the medical report drawn up when Mr   Todorov had been admitted to the hospital in Chirpan, his autopsy report, and a medical report on S.N.’s condition on the day after the accident. On 8 June 1999 they examined S.N. and on 11 June 1999 subjected him to an X-ray and a CAT-scan. However, they were not able to inspect the BMW, as it had apparently disappeared. On 14 July 1999 the investigator interviewed S.N. in relation to the BMW’s whereabouts. He said that he had left it on a street in the village of Gradina. Somebody had later removed it from there and he had no idea where it was. In their report the experts said that, without inspecting the BMW and on the basis of the medical data alone, they could not reach a definite conclusion as to which of the two had been driving it at the time of the accident. On 23 August 1999 the investigator charged S.N. anew and interviewed him, and on 7 September 1999 made an order allowing the applicant’s participation in the proceedings as a civil claimant. On 15 September 1999 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, proposing that S.N. be brought to trial. On 27 September 1999 the Stara Zagora Regional Prosecutor’s Office discontinued the proceedings, reasoning that it had not been conclusively established who had been driving the BMW at the time of the accident. According to I.M., I.I. and S.S., it had been Mr Todorov, whereas P.P. maintained that it had been S.N. The experts had been unable to arrive at a categorical conclusion on this point. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proven. On 19 May 2001 it sent the case of its own motion to the Stara Zagora Regional Court. In a decision of 6 June 2001 the Stara Zagora Regional Court, noting that in accordance with an intervening legislative amendment the decision to discontinue an investigation was no longer subject to automatic review by the courts, but could only be reviewed pursuant to an application of those concerned, referred the case back to the prosecution authorities with instructions to inform the applicant of the discontinuance. On 27 June 2001 a prosecutor of the Stara Zagora Regional Prosecutor’s Office again discontinued the investigation. He described the circumstances of the accident and said that it was clear that the BMW’s driver had breached the road traffic regulations, whereas P.P. had properly made a left turn. However, despite taking all necessary steps, the investigation had been unable to ascertain who had been driving the BMW at the time of the accident. Three witnesses – I.M., I.I. and S.S. – were categorical that the BMW had been driven by Mr Todorov. The experts were unable to arrive at a definite conclusion on this point. The police officer who had inspected the scene could not say who had been driving the BMW either. On the other hand, P.P., when interviewed, had stated that the BMW had been driven by S.N., and had identified him as the driver during an identity parade. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proven. This decision was sent to the applicant on 2 January 2003. On 10 January 2003 the applicant sought judicial review by the Stara Zagora Regional Court. She argued that the conclusion that it could not be determined whether S.N. had been behind the wheel at the time of the accident was based on incomplete evidence. The authorities’ preference for the testimony of I.M., I.I. and S.S., who had not witnessed the accident, over the testimony of P.P., who had taken the victims out of the burning BMW, was unwarranted. The discrepancy between their versions should have been elucidated through a confrontation. She further pointed out that it would not have been very hard to establish the identity of the Lada Niva’s driver and then interview him, which had not been done. On 24   January 2003 the court, observing that the prosecution authorities had failed to serve a copy of the application on S.N., referred the case back to them with instructions to do so. They apparently complied with these instructions and re-sent the file to the court. After holding a hearing on 7 May 2003, in a decision of 23 May 2003 the court upheld the decision to discontinue the proceedings. It held that when hearing a challenge against a decision discontinuing a criminal investigation it could not scrutinise the manner in which the prosecution authorities had assessed the evidence, nor take their place and fill in the gaps in their reasoning. It was not competent to gather fresh evidence either; its assessment had to be based on the available material. Accordingly, even if it were to find gaps in it, it could not set aside the discontinuance decision on that ground. The applicant appealed, but, following a legislative amendment effective from 3 June 2003 and providing that first ‑ instance courts’ decisions reviewing prosecutor’s decisions to discontinue criminal investigations were final, the court terminated the proceedings on 23 June 2003. Throughout the proceedings the applicant wrote many letters to the prosecution authorities, urging them to expedite the processing of the case. On some of those occasions the Chief Prosecutor’s Office sent letters to the lower prosecutor’s offices, instructing them to finalise the case promptly. 3.     The civil proceedings On 7 December 1998 the applicant brought a tort claim against S.N. in the Plovdiv Regional Court. After holding a hearing on 5 February 1999, on 16 March 1999 the court ordered a stay of the proceedings pending the outcome of the criminal investigation. On several occasions between 2001 and 2003 it enquired about the investigation’s progress. On 23 December 2003, following the termination of the criminal proceedings, it resumed the examination of the claim. The court then held two hearings, on 11 February and 9 April 2004. The applicant was not found to be summoned for the first of those at her home, and was deemed summoned under a rule allowing constructive summoning where a party failed to inform the court of a change of address. The court tried to summon the applicant for the second hearing through the lawyer who had represented her before the stay of the proceedings. Neither the applicant nor the lawyer appeared. The court admitted in evidence the prosecutor’s decision to discontinue the criminal proceedings and the Stara Zagora Regional Court’s decision upholding the discontinuance. The court dismissed the applicant’s claim on 10 May 2004. It observed that the reason for the discontinuance of the criminal proceedings against S.N. had been the impossibility of determining who had been driving the BMW at the time of the accident and whether the line in the middle of the carriageway had been continuous or dotted. The claim was therefore unfounded. It is unclear whether the applicant was notified of the judgment; notifications were sent to her address in Bulgaria, where she no longer lived, and to the above ‑ mentioned lawyer. The applicant did not appeal against the judgment. B.     Relevant domestic law Article 343 § 1 (c), read in conjunction with Article 342 § 1 of the 1968 Criminal Code, makes it an offence to cause the death of another by driving in reckless disregard of the road traffic regulations. The penalty on conviction is up to six years’ imprisonment. The law concerning civil ‑ party claims in criminal proceedings and separate civil claims is set out in the Court’s admissibility decision in the case of Tonchev v. Bulgaria ((dec.), no. 18527/02, 14 October 2008) and in paragraphs 29 and 30 of the Court’s judgment in the case of Dinchev v.   Bulgaria (no. 23057/03, 22 January 2009). The legislative provisions governing the discontinuance of criminal investigations before trial have been set out in detail in the Court’s decision in the case of Nenkov v. Bulgaria ((dec.), no. 24128/02, 7 October 2008). The law governing the effects of a decision to discontinue an investigation on the examination of a separate civil claim arising out of the same events has been set out in paragraphs 61 and 62 of the Court’s judgment in the case of Assenov and Others v. Bulgaria (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII). COMPLAINTS   1.     The applicant complained under Article 2 of the Convention that the authorities had not investigated the death of her son properly and had deprived her of any redress in that regard. 2.     The applicant complained under Article 6 § 1 of the Convention that her claim against S.N. had not been determined within a reasonable time. THE LAW 1.     In respect of her complaint that the authorities had failed to conduct an effective investigation into the death of her son the applicant relied on Article 2 of the Convention, which, in so far as relevant, provides: “1.     Everyone’s right to life shall be protected by law. ...” The Government submitted that the investigation of the accident had started immediately. The case had been referred back for further investigation many times, and all required steps had been taken. The authorities had gathered all relevant pieces of evidence, and the investigation had been comprehensive, impartial and independent. In the applicant’s view, the investigation could not be seen as effective. She pointed out that the authorities had failed to finalise it for an extremely long time, and asserted that they had made glaring omissions in the gathering and assessment of evidence. In particular, P.P. had not been properly interviewed. No attempt had been made to identify and question the driver of the Lada Niva. S.N. had been interviewed for the first time about a year after the accident, which had allowed him to concoct a favourable defence version. No efforts had been made to verify S.S.’s statement by, for instance, checking whether the BMW’s spare tyre was missing. All expert reports had been ordered belatedly and had accordingly been unable to arrive at reliable conclusions. No serious efforts had been made to trace S.N. when he had gone missing between 1997 and 1998. No attempt had been made to test I.M.’s and I.I.’s statements. The emergency medical doctors and nurses had not been interviewed, and the BMW had not been inspected and preserved for further testing. None of these deficiencies had been rectified by the court hearing the application for judicial review of the decision discontinuing the proceedings because of the stance that it had taken as to its competence in such proceedings. This stance had given the prosecution authorities unlimited discretion and had made it possible for their fully unwarranted conclusions to stand. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     In respect of the complaint that her claim against S.N. had not been determined within a reasonable time the applicant relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The Government submitted that the length of the proceedings was not attributable to the authorities. In the applicant’s view, the proceedings had lasted an inordinate amount of time. The Court considers, in the light of the criteria established by its case ‑ law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case. Claudia Westerdiek   Peer Lorenzen   Registrar   President