CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 juillet 2014

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BULGARIA   (Application no. 77938/11)                 JUDGMENT       STRASBOURG   1 July 2014     FINAL   17/11/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimitrov and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President ,   Päivi Hirvelä,   George Nicolaou,   Nona Tsotsoria,   Zdravka Kalaydjieva,   Paul Mahoney,   Krzysztof Wojtyczek, judges , and Françoise Elens-Passos, Section Registrar , Having deliberated in private on 10 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 77938/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Bulgarian nationals, Mr Raycho Angelov Dimitrov, Ms Anita Rumenova Velyanova, Mr Raycho Dimitrov Dimitrov and Ms Adriana Georgieva Dimitrova (“the applicants”), on 5 December 2011. 2.     The applicants were represented by Mr V. Vasilev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice. 3.     The applicants alleged, in particular, that a relative of theirs had unjustifiably been ill-treated and killed by police officers and that there had been no effective investigation into or redress for his death. 4.     On 11 July 2012 the then President of the Fourth Section decided to grant priority to the application and to give the Government notice of it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5 .     The first applicant, Mr Raycho Angelov Dimitrov, was born in 2000 and lives in Blagoevgrad. The second applicant, Ms Anita Rumenova Velyanova, was born in 1979 and lives in Sofia. The third applicant, Mr   Raycho Dimitrov Dimitrov, was born in 1948 and lives in Blagoevgrad. The fourth applicant, Ms Adriana Georgieva Dimitrova, was born in 1950 and lives in Kyustendil. 6.     The event which gave rise to their application was the death on 10   November 2005 of Mr Angel Raychov Dimitrov (alias Chorata), born in 1967 and living in Blagoevgrad, who died in the course of a police operation against him. Five police officers who took part in that operation were later investigated and tried on charges of aggravated murder. They were ultimately acquitted. 7 .     The first applicant is Mr Dimitrov’s son. The second applicant was Mr   Dimitrov’s de facto spouse. The third and fourth applicants are Mr   Dimitrov’s parents. A.     Circumstances surrounding Mr Dimitrov’s death 8 .     At the end of October 2005, following a high-profile assassination in Sofia, the Minister of Internal Affairs ordered a nation ‑ wide police operation whose aim was to trace and arrest persons who had committed serious offences. The Blagoevgrad police interviewed Mr Dimitrov in connection with that assassination; no link between him and the offence was established. 9 .     The carrying out of the Minister’s order on the territory of the Blagoevgrad region was organised by the head of the Blagoevgrad Regional Directorate of Internal Affairs. On 10 November 2005 he ordered six police officers to take part in a police operation between 6 p.m. on that day and   2   a.m. the following day. They were told to report for instructions at   6   p.m. In another decision the head of the Directorate’s organised-crime unit, Colonel A.K., ordered an operation against Mr Dimitrov, who was suspected of distributing narcotic drugs and pimping. According to the order, the operation’s goal was to establish, document and put an end to those activities. The plan of the operation was to establish Mr Dimitrov’s whereabouts and carry out urgent investigatory steps. The written plan specified that when making arrests, the police had to proceed with caution so as to avoid any risk to the life and health of arrestees and passers-by. The applicants submit that evidence given by police officers during the ensuing proceedings showed that, although this was not mentioned in the written plan, the police were anticipating resistance on the part of Mr Dimitrov. According to the plan, the officers who were to take part in the operation were split in three groups: one to find Mr Dimitrov and check for evidence of drug trafficking in his car, another to search a hotel run by his family with a view to uncovering evidence of drug trafficking and prostitution, and a third to search Mr Dimitrov’s home, again with a view to uncovering evidence of drug trafficking. There is no information in the case file – the applicants submitted that none had been gathered in the course of the ensuing criminal proceedings – about whether the officers who were to take part in the operation were briefed about the plan or about the exact instructions given to them. The written plan said that the actual operation was to begin at 8 p.m. and that the briefing was to begin at 8 p.m. as well; the Government submitted that the briefing had taken place at about 7 p.m. 10.     The Government submitted that the identity of the person against whom the operation was directed was not revealed during the briefing with a view to preventing leaks of information before the start of the operation. The applicants retorted that since the evidence about the briefing gathered in the course of the ensuing criminal proceedings had not been conclusive, there was no room for such a categorical assertion. 11 .     The officers of the first group went to Mr Dimitrov’s house and found there his de facto wife, the second applicant, and his son, the first applicant. The officers did not present a search warrant; it was later established that no such warrant had been applied for. At about 9.15 p.m. the officers were informed that Mr Dimitrov had died, and at about   9.20   p.m. they left the house, saying that they would not carry out a search there. 12 .     The second group, comprising between ten and fifteen officers wearing balaclavas, went to the family’s hotel, where they apparently expected to find one kilogram of cocaine. They did not have a search warrant either. The officers entered the hotel, opening and sometimes breaking the doors of hotel rooms, and pinning Mr Dimitrov’s brother and some hotel guests to the ground. When learning that Dimitrov had died, the officers likewise stopped the search, left the hotel and went back to the police station. 13 .     The third group comprised five officers: Major M.P., Captain I.I., Chief Lieutenant B.M., Chief Sergeant G.K. and Chief Sergeant Y.G. Major M.P. was the group’s leader. Their task was to find and arrest Mr Dimitrov. Major M.P., Captain I.I. and Chief Lieutenant B.M. were in plain clothes. Some of the officers wore balaclavas, and all were armed, two with Kalashnikov automatic rifles. Their car did not bear police identification marks. The group was initially supposed to include an investigator, but he decided to remain in the police station and await the unfolding of the operation there. In the course of the ensuing proceedings Major M.P. testified that the group’s task had been to carry out a search of Mr Dimitrov with a view to establishing whether he had any narcotic drugs on him. 14 .     The five officers found Mr Dimitrov in his car; they apparently discovered his whereabouts at about 8.40 p.m. on the basis of a wiretap which the police had earlier put on his mobile telephone. The car was parked near a building in which Ms M.Z., Mr Dimitrov’s girlfriend, at that time sixteen years old, and her sister, Ms E.Z., at that time eighteen years old, lived in a flat on the third floor, with windows overlooking the street. Both Ms M.Z. and Ms E.Z. were at home. 15 .     According to the applicants and findings of the courts, at about   8.45   p.m. Mr Dimitrov was in his car, driver-side window down, talking with Ms M.Z. on his mobile telephone and through the window of her flat. The two agreed to see each other later, and Ms M.Z. moved away from the window of her flat. At that point the five officers stopped their car. There is some uncertainty whether they stopped it in front of or behind Mr   Dimitrov’s car and whether at that point Mr Dimitrov’s car was already moving. Chief Lieutenant B.M., Chief Sergeant G.K. and Chief Sergeant Y.G. took Mr Dimitrov out of his car, which remained with its headlights on. They started hitting him on the head and body. Major M.P. and Captain   I.I. joined the three. With the help of the two chief sergeants, Chief Lieutenant B.M. handcuffed Mr Dimitrov behind his back, and the five officers kept on beating him. Ms M.Z. heard Mr Dimitrov shouting a number of times that he was suffocating and could not breathe, and asking his assailants what they wanted from him and why they were beating him. The officers kept silent. The beating continued about ten to fifteen minutes. Ms   M.Z. and Ms E.Z. could observe what was happening through the window of their flat, and made calls to the police and the fire brigade at   8.53   p.m. and 9.01 p.m. 16 .     According to the Government, whose assertions appear to be fully based on the findings of a commission appointed by the Secretary General of the Ministry of Internal Affairs to carry out an internal inquiry into the events surrounding the death of Mr Dimitrov (see paragraphs 92-95 below), Mr Dimitrov did not heed an order on the part of the officers to stop his car, and even accelerated, which made it necessary for the officers to intercept him with their car. Mr Dimitrov then got out of his car without turning the engine off and rushed towards the closest building, disregarding the officers’ shouts “Stop! Remain where you are! Police!”. Two of the officers caught up with him and grabbed his hands, trying to put handcuffs on them. Mr Dimitrov put up fierce resistance. The officers’ efforts to overcome it lasted about five to ten minutes. Mr Dimitrov was shouting “Leave me alone! Get away! Don’t touch me! Filth!” Once the officers were able to handcuff Mr Dimitrov, they put him lying on the ground and stepped back, awaiting the arrival of the on-duty investigative team. The applicants retorted that the courts which later dealt with the case had categorically established that Mr Dimitrov had not put up any resistance. 17 .     As a result of Ms M.Z.’s and Ms E.Z.’s calls the police dispatched a car with two officers to the scene. The two officers, who were apparently not aware of what was going on, were met by Major M.P. and Captain I.I. at some distance from the place where Mr Dimitrov’s body lay. Major M.P. sent them away with the explanation that there was a police operation under way. 18 .     Shortly after that the head of the Directorate’s organised-crime unit, Colonel A.K., arrived at the scene, bringing with him an investigator. Seeing that Mr Dimitrov was not moving, at 9.01 p.m. the Colonel called an ambulance. At about 9.25 p.m. the emergency doctor examined Mr   Dimitrov’s body and found that he was dead. The Colonel then ordered the doctor to take the body away from the scene. The ambulance took it to an emergency medical centre, where the death was confirmed. 19 .     The five officers remained at the scene for some time, and then went back to the police station with their car, apparently following orders by Colonel A.K. Later in the night of 10 November 2005 the scene was visited by a prosecutor from the Sofia Military Prosecutor’s Office and two military investigators, who were competent to investigate offences committed by military officers. However, they did not carry out any investigation actions. 20.     On the next day, 11 November 2005, the Blagoevgrad police gave a press conference at which they said that Mr Dimitrov had died of “cardiogenic shock”; the applicants were not given any other information on the matter. The death certificate issued by Blagoevgrad municipality on   12   November 2005 said that Mr Dimitrov had died of acute cardiogenic shock, acute cardiac and breathing insufficiency, and abrasions and blood suffusions on the head and the body. When they later recovered Mr   Dimitrov’s body, the applicants, having seen the numerous injuries to it, decided not to bury him before the cause of his death could be elucidated. 21 .     According to the findings made by the Sofia Military Court in the ensuing criminal proceedings against the five officers who took part in the operation, Mr Dimitrov died of traumatic injuries to his head and a rupture of his aorta, induced by intensive blows to his head and back. According to the Military Court of Appeal, which heard the case on appeal, the officers caused Mr Dimitrov’s death by pushing him against the ground, which, combined with the position in which he was, the stress induced by the continued violence against him, consisting of a number of blows, his pre-existing medical conditions and cocaine that he had taken some time before the incident, had caused him to asphyxiate. According to the Supreme Court of Cassation, Mr Dimitrov asphyxiated by accident, his death having no causal connection with the officers’ actions. B.     The ensuing criminal proceedings 1.     The preliminary investigation 22 .     The investigation was taken up by a prosecutor from the Blagoevgrad Regional Prosecutor’s Office and an investigator from the Blagoevgrad Regional Investigation Service. Between 10.45 p.m. on 10 November 2005 and 12.10 a.m. on 11 November 2005 the investigator inspected the scene. She carried out a further inspection between 12.20 p.m. and 12.40 p.m. on   11 November 2005. Mr Dimitrov’s car, which had been taken to a police station, was also inspected. The investigator also ordered an autopsy on Mr   Dimitrov’s body. 23 .     The same day, 11 November 2005, three medical doctors – Dr Z.K., head of the forensic medicine sector of the Military Medical Academy, who had arrived from Sofia, Dr Y.Z., head of the forensic ward of the Blagoevgrad Hospital, and Dr M.G., a doctor in the same ward, performed an autopsy on Mr Dimitrov’s body. They described in detail their visual inspection of the outside and the inside of the body. They took blood and urine samples and samples of stomach, intestine, brain, kidney and liver tissue and sent them for chemical testing. They also took samples of brain, myocardial, lung, liver, kidney, adrenal gland and spleen tissue and part of the wall of the aorta for histological testing. The experts’ conclusion was that Mr Dimitrov had a number of abrasions and bruises on the head, body and limbs; that he had well ‑ pronounced cyanosis of the skin and of the visible mucous membrane in the upper part of his body; two small and limited haemorrhages under the pia mater; a small laceration of the aortic arch with suffusion around it and haemorrhage in the left pleural cavity; rough pulmonary adhesions; swelling of the brain and of the lungs; and heavy venous stasis in the internal organs, with dark liquid blood. The experts said that the analysis of the cause of death and the manner in which the injuries had been sustained would be made in a further report by five experts, to be drawn up after obtaining the results of the chemical and histological tests. 24 .     Acting at the applicants’ request, on 17 November 2005 the Blagoevgrad Regional Prosecutor’s Office ordered a second autopsy, to be carried out by the three medical doctors who had performed the first one and two experts suggested by the applicants, Prof Dr S.R., consultant at the Forensic Medicine and Deontology Centre of the Alexandrovska University Hospital in Sofia, and Prof Dr Ts.Y., cardiac pathologist at the St Ekaterina University Hospital in Sofia. 25 .     On 19 November 2005 the five experts performed a second autopsy on Mr Dimitrov’s body. They took into account the findings of the first autopsy, and described in detail their own visual inspection of the outside and inside of the body and the results of additional tests that they carried out: histological analysis of Mr Dimitrov’s brain, lungs, heart muscle, aorta, liver, kidney, adrenal gland and spleen, and chemical analysis of his blood and urine. Then they set out their conclusions, saying, inter alia , that the cause of Mr Dimitrov’s death had been a closed cerebral trauma, due to four violent blows to the head, accompanied by a commotion and contusion syndrome, which had led to a breakdown of the functions of the brain, and to a paralysis of the vital centres (cardiac and respiratory), which had been the direct cause of death. A secondary factor had been a traumatic rupture of the aorta, which had been caused by a sharp and violent blow to the back, between the third and the fourth thoracic vertebrae, and had led to a haemorrhage of about one hundred and fifty millilitres of blood in the left pleural cavity. The death had occurred fast, within minutes, but it was not possible to say exactly when. The traumatic injuries to the head and the body – except those to the face, the front of the body, the elbows and the knees – had been caused by multiple blows with a hard blunt object about three centimetres wide. The abrasions on the face, the front of the body, the elbows and the knees had been caused by a fall to the ground. The abrasions on the two wrists had been caused by handcuffs. There had also been at least eight blows, some of which possibly repetitive, to the waist, the abdomen and the body. Part of the injuries to the face and the head could have been caused while Mr Dimitrov had been upright, bending or recumbent, but it was not possible to say exactly; the blow between the vertebrae had most probably been administered while Mr Dimitrov had been upright or slightly bending. There was no medical data showing that Mr   Dimitrov had fought or defended himself. He had earlier consumed a small dose of cocaine, but had not been under its influence at the time of his death. The cocaine metabolites in his urine had no connection with his death. 26.     In the following days the authorities interviewed a number of police officers and other witnesses and gathered other evidence. On 1 December 2005 Mr Dimitrov’s brother gave to the investigator the clothes worn by Mr   Dimitrov at the time of his death. 27 .     On 9 December 2005 the investigation was taken up by the Sofia Military Prosecutor’s Office. On 14 December 2005, without carrying out any further investigative steps, it decided to discontinue the proceedings, reasoning that the force used against Mr Dimitrov had been proportionate in the circumstances, as required under section 78 of the Ministry of Internal Affairs Act 1997 (see paragraph 97 below), and that the use of that force had not been criminal by virtue of Article 12a of the Criminal Code 1968 (see paragraph 102 below). 28.     The applicants sought judicial review of the discontinuance. 29 .     In a decision of 18 January 2006, the Sofia Military Court found that the Sofia Military Prosecutor’s Office’ findings of fact were one ‑ sided and did not flow from the available evidence. Those findings were based solely on the oral and written statements of the five officers, which appeared to have been coordinated beforehand, and failed to take into account the statements of the witnesses Ms M.Z. and Ms E.Z., whose content was quite different from those of the officers. In addition, the findings did not match the conclusions of the experts who had carried out the autopsy on Mr   Dimitrov’s body and the fact that the officers had only sustained very minor injuries as a result of the incident. That evidence, together with the facts that Mr Dimitrov had been surrounded by five officers, had not been armed, and had been found dead at about two metres from his car, rather suggested that he had not put up any resistance or tried to flee. The conclusion of the Prosecutor’s Office that the officers’ actions had been in line with section 78 of the Ministry of Internal Affairs Act 1997 (see paragraph 97 below) and could be justified by reference to Article 12a of the Criminal Code 1968 (see paragraph 102 below) was therefore erroneous, especially bearing in mind that there was no indication that at the time when he had been approached by the officers Mr Dimitrov had been in the process of committing an offence. The intensity of the violence used by the officers and the extent of the injuries sustained by Mr Dimitrov rather pointed to murder with direct intent and special cruelty, at a time when the victim was in a helpless state, and perpetrated in a way that was particularly painful for the victim, contrary to Article 116 of the Criminal Code 1968 (see paragraph 100 below). In addition, the inquiries made by the prosecuting authorities were incomplete in many respects: those authorities had not interviewed any higher-ups, gathered a number of relevant documents, asked the five officers specific questions about their individual participation in the events, or subjected Mr Dimitrov’s clothes to testing. In effect, there had not been a proper investigation of the incident by a military investigator. For those reasons, the court set the discontinuance aside and referred the case back to the prosecuting authorities, giving them directions on the application of the substantive law and instructing them to carry out further investigative steps. 2.     The first proceedings before the Sofia Military Court 30.     Having carried out further investigative steps, the Sofia Military Prosecutor’s Office indicted the five officers of wilfully inflicting bodily damage on Mr Dimitrov and thus negligently causing his death. 31 .     On 14 June 2006 the judge-rapporteur at the Sofia Military Court referred the case back to the prosecution, instructing them to comply with the directions on the application of the law given in the decision of   18   January 2005 (see paragraph 29 above). 32.     On 29 June 2006 the Sofia Military Prosecutor’s Office filed an amended indictment against the officers. 33 .     On 5 September 2006 the judge-rapporteur, who this time was the president of the panel, again referred the case back to the prosecution, once more instructing them to comply with the earlier directions on the application of the law. 34.     In line with the court’s instructions, the Sofia Military Prosecutor’s Office indicted the five officers of murdering Mr Dimitrov in the course of the performance of their duties, with special cruelty, in a way which had been particularly painful for him, and while he had been in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code 1968 (see paragraph 100 below). 35 .     At the start of the trial the applicants brought claims for non-pecuniary damages against the five officers and the Blagoevgrad Regional Police Directorate, whom they regarded as vicariously liable. At trial the court admitted in evidence the expert report drawn up during the preliminary investigation (see paragraph 25 above), and heard the five experts who had taken part in its preparation (see paragraph 24 above). All of them said that they fully stood by their conclusions. Their report was not contested by the parties. 36 .     In a judgment of 9 November 2007, the Sofia Military Court found the five officers guilty of murder committed in connection with their duties, with special cruelty and in respect of a person who was in a helpless state, contrary to Article 116 § 1 (2), (5) and (6) of the Criminal Code (see paragraph 100 below). It sentenced Major M.P. to nineteen years’ imprisonment and the other four officers to eighteen years’ imprisonment each. It partly allowed the applicants’ claims for non-pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Police Directorate, 80,000 Bulgarian levs (BGN), plus interest, to the first applicant and BGN 30,000, plus interest, to each of the other three applicants. 37 .     The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to describe the numerous injuries suffered by Mr Dimitrov, and to conclude that he had died of traumatic injuries to his head and his aorta and that no pre ‑ existing medical conditions had played a part in his death. It analysed in detail the expert, witness and other evidence, and expressed the view that Colonel   A.K. had criminally tried to conceal the offence committed by the five officers. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It went on to set out its findings in relation to each aggravating element of the offence, concluding, inter alia , that the officers had acted with special cruelty and at a time when Mr Dimitrov had been in a helpless state because he had been handcuffed and because he had developed a commotion and contusion syndrome. However, the court did not find that Mr Dimitrov had died in a particularly painful manner. It held that the officers had acted with direct intent – they had kept on hitting Mr Dimitrov with intensity until he had died and even after that. The court also gave reasons on the quantum of the punishment that it had decided to mete out to each of the five officers. It found that there was a considerable preponderance of aggravating factors in relation to Major M.P. – he had been the group’s leader and had tried to conceal the offence – and a slight preponderance of aggravating factors in relation to the other four officers. It went on to find that Mr Dimitrov had not been in the process of committing an offence when attacked by the officers, and said that in any event in a State adhering to the rule of law the way of dealing with offenders was to bring them justice, not to kill them. Nor was there an indication that Mr Dimitrov had failed to heed an order or had tried to resist arrest. The court found that the officers’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph   102 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive. 38 .     The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers’ actions. It went on to find that each of the applicants had suffered non-pecuniary damage as a result of Mr   Dimitrov’s death, and determined its amount in equity. 3.     The first proceedings before the Military Court of Appeal 39.     The five officers and the Blagoevgrad Regional Directorate of Police appealed. 40 .     On 19 February 2008 the Military Court of Appeal quashed the Sofia Military Court’s judgment and remitted the case. It held that the panel which had heard the case had been unlawful, because its President had earlier expressed his views on the merits of the case. He had done so by referring the case back to the prosecution on 5 September 2006 (see paragraph 33 above). The ground for the referral had been the prosecution’s failure to take heed of the instructions given in the earlier proceedings for judicial review of the discontinuance of the preliminary investigation, and in those judicial review proceedings the court had taken a stance on the merits of the case. By insisting that the prosecution comply with the instructions concerning the application of the substantive law, the presiding judge had in effect shown his agreement with that earlier reasoning and had therefore expressed his views on the merits of the case, which had made him partial. 41 .     One judge dissented. In his view, the President of the Sofia Military Court’s panel had merely followed the applicable procedure and had not showed any bias. 4.     The second proceedings before the Sofia Military Court 42.     The Sofia Military Court re-tried the case, hearing a number of witnesses: relatives of Mr Dimitrov, the head of the Blagoevgrad police, General-Major B.Y., Colonel A.K. and other police officers, Ms M.Z. and Ms   E.Z., and the doctor and the paramedic who had arrived at the scene after Mr Dimitrov’s death. The court also heard the five experts who had drawn up the expert report ordered during the preliminary investigation (see paragraph 24 above), and admitted in evidence documents relating to the organisation of the police operation and wiretaps. 43 .     In a judgment of 2 October 2008, the Sofia Military Court convicted the five officers of murder committed in connection with their duties and with special cruelty, contrary to Article 116 § 1 (2) and (6) of the Criminal Code (see paragraph 100 below). It sentenced Major M.P. to eighteen years’ imprisonment and the other four officers to sixteen years’ imprisonment each. It partly allowed the applicants’ claims for non-pecuniary damages and ordered the officers to pay, jointly with the Blagoevgrad Regional Police Directorate, BGN 70,000, plus interest, to the first applicant and BGN 25,000, plus interest, to each of the other three applicants. 44 .     The court started by setting out in detail its findings of fact concerning the events of 10 November 2005. It went on to find that Mr   Dimitrov had died as a result of traumatic injuries to his head and his aorta, and had suffered a number of other injuries as a result of the beating to which the five officers had subjected him. It found that no pre-existing medical conditions or previous use of cocaine had played a part in Mr   Dimitrov’s death. He had not tried to flee or resist the officers, had not failed to heed their orders, and had not been in the middle of committing an offence requiring prompt intervention by the police. The court analysed in detail the witness, expert and others evidence, including the statements of Ms M.Z. and Ms E.Z. and of the five officers, as well as the parties’ arguments on the validity and the probative value of that evidence. The court also expressed serious concern about the actions of Colonel A.K. before, during and after the incident, and found that he had tried to conceal the actions of the five officers. It also observed that the evidence did not allow a conclusion that Mr Dimitrov had been a seasoned criminal who had rightfully incurred the wrath of the police. On the basis of its findings of fact, the court concluded that the officers had murdered Mr Dimitrov by intensively beating him. It found that the officers’ actions could not be justified by reference to Article 12a of the Criminal Code (see paragraph   102 below), saying that that provision applied only to “civic arrests”, not arrests by the police, and that in any event the force used by the officers had been grossly excessive. Their actions had amounted to aggravated murder, committed in the course of the performance of their duties and with special cruelty. However, it could not be said that the offence had been committed in respect of a person in a helpless state or in way that had been particularly painful for the victim. Nor could it be said that the officers had acted with direct intent – it was not sufficiently proved that they had a motive to kill Mr Dimitrov. They had acted with oblique intent (recklessness), being indifferent to the possibility of Mr Dimitrov dying as a result of the beating to which they had subjected him. That was evident from the fact that they had continued hitting him even after he had stopped moving because he had died. They had not tried to take any steps to avert the lethal outcome, but had on the contrary tried to conceal their act from the two officers who had been dispatched to the scene. It could not therefore be accepted that they had acted merely negligently. They had intended to arrest Mr Dimitrov in line with the plan for the police operation, but had without reason and without care for the consequences killed him by beating him to death. The underlying cause had been their low regard for the law and for Mr Dimitrov’s rights to life and bodily integrity. 45 .     The court found that the officers’ clean criminal records and the good character shown in the course of their employment were mitigating circumstances. On the other hand, the fact that they had reduced Mr   Dimitrov to helplessness before killing him and that their offence had been characterised by more than one aggravating factor was an aggravating circumstance. For four of the officers the mitigating circumstances outweighed the aggravating ones. However, that was not the case of Major   M.P., who had been the group’s leader and had tried to cover up the offence by sending away the police patrol; he therefore merited a harsher punishment. 46 .     The court also held that the Blagoevgrad Regional Police Directorate was vicariously liable for the officers’ actions. It went on to find that each of the applicants had suffered non-pecuniary damage as a result of Mr   Dimitrov’s death. It determined its amount in equity, acknowledging the applicants’ varying degrees of distress but also describing Mr Dimitrov as an “unappealing character”. 5.     The second proceedings before the Military Court of Appeal 47.     The five officers and the Blagoevgrad Regional Police Directorate appealed. So did the applicants, challenging the quantum of the officers’ sentences and of the quantum of the awards of damages. 48 .     At the request of two of the officers, on 19 December 2008 the Military Court of Appeal ordered a fresh medical expert report, to be drawn up by five experts in forensic medicine, neurosurgery, cardiology and toxicology, to be chosen by the head of the Military Medical Academy. The court found that the expert report drawn up during the preliminary investigation (see paragraph 25 above) contained contradictory conclusions about the exact way in which Mr Dimitrov’s death had been caused and the position of his body at that time. 49 .     The expert report became ready on 11 February 2009. It was drawn up by Dr Ts.G., head of the forensic medicine ward of the Military Medical Academy, Dr E.N., head of division at the Academy’s Pathomorphology, Autopsy and Biopsy Diagnostic Department, Dr K.K., head of the Academy’s Urgent Toxicology and Allergology Clinic, Dr D.G., head of the Academy’s Cardiology and Rheumatology Clinic, and Dr N.M., a neurosurgeon of Academy’s Neurosurgery Clinic. 50 .     The experts took into account the results of the first and the second autopsies, statements given by the five officers and witnesses, and the results of fresh histological tests that they had carried out on the samples taken during the first autopsy (see paragraph 23 above). On that basis they concluded, inter alia , that the main cause of Mr Dimitrov’s death had been positional asphyxia, which had led to a mechanical blockage of his respiration as a result of the position in which he had been put. The medical findings – in particular, the cyanosis, the swelling of the internal organs, the vascular congestion, the limited petechial haemorrhages and liquid blood, and the faecal mass in the anus – were the classical symptoms of hypoxia. All witnesses’ statements showed that upon his arrest Mr Dimitrov had been put in a hog ‑ tie position – face against the ground and hands fixed to one another behind the back – which was known to obstruct the respiratory tract and could lead to death. The medical findings – traces of handcuffs on both wrists, soil and abrasions on Mr Dimitrov’s face – albeit indirectly, also showed that he had been put in that position. The asphyxia had been aided by Mr Dimitrov’s chronic illnesses: limited flexibility of the lungs due to massive adhesions of the visceral and parietal pleurae, distended and full stomach which had in that position pressed the diaphragm, a hypertrophy of the heart due to the chronic abuse of cocaine (something shown by the fresh histological tests), moderate obesity, and a short neck. The emotional and physical stress under which Mr Dimitrov had been put, coupled with the possibility of emotional delirium resulting from the use of cocaine, could also have played a part. 51 .     The experts categorically disagreed with the conclusion of the previous expert report that the death had been due to a closed cerebral trauma and a traumatic rupture of the aorta. The results of the two autopsies and the fresh histological tests excluded the possibility of cerebral trauma. So did the witness statements that Mr Dimitrov had been shouting and raving. The haemorrhages under the pia mater and the swelling of the brain were in fact well-known symptoms of hypoxia. The location of the contusions on the head and the face did not match the location of the haemorrhages under the pia mater. The numerous small haemorrhages around the blood vessels of the brain stem found during the second autopsy, which had taken place nine days after the death, had for sure been postmortal. The rupture of the aorta was also definitely postmortal, had most probably occurred during the autopsy, and had not been caused by a blow. This was indicated by the lack of additional surrounding injuries (such as massive smashing of soft tissue, broken vertebrae and ribs, or injuries to other blood vessels, the lungs or the longitudinal ligament), the manner in which the blood had extravasated into the surrounding tissues (which was consistent with postmortal bleeding, something also confirmed by the fresh histological tests), and the small amount of blood in the left pleural cavity – insignificant for a rupture of the aorta, which would normally cause profuse bleeding of more than a litter of blood. A small amount of bleeding was normally something that occurred during autopsy dissections of blood vessels. 52 .     The experts went on to describe numerous traumatic injuries to Mr   Dimitrov’s body. In their view, some of those – chiefly those to the front of the head, to the front of the body and to the limbs – had been caused by an impact or impacts against the ground. The injuries to the wrists had been caused by handcuffs. The other injuries to the head, the back and the waist were due to blows with hard blunt objects administered during a short period of time but not in a very violent manner – something shown by the lack of large subcutaneous haematomas, of smashed soft subcutaneous tissues, of broken bones, or of traumatised joints. It was not possible categorically to determine the exact position of Mr Dimitrov’s body at the time when he had suffered the injuries. The traumatic injuries had not directly caused his death. 53 .     The applicants objected against the report’s admission into evidence, for two reasons. First, there had been no grounds to appoint experts not featuring on the official lists. Secondly, the experts had not been randomly selected by the court as required by law, but chosen by an outsider in respect of whom there were reasons to suspect that he was biased, because a medical doctor from the Military Medical Academy had helped the Blagoevgrad police present misinformation about the cause of Mr   Dimitrov’s death. The applicants also requested the recusal of the judges dealing with the case, saying that their decision to order the report under such conditions was indicative of bias. 54 .     The court rejected the objection and the recusal request, holding that under section 396 of the Judiciary Act 2007 (see paragraph 105 below) it was not bound to appoint experts only from among the persons featuring on the official lists. The rule in section 396(1) was not imperative. The fact that the court had not chosen the experts itself but had delegated that task to the head of the Military Medical Academy showed that it wished to maintain its impartiality by not appearing too closely involved in the experts ‑ selection process. There was no indication that medical doctors from the Academy had tried to hide facts, and there was thus no reason to suspect bias on the part of experts from the Academy. In any event, those experts had been appointed in their personal capacity and not as representatives of the institution. 55 .     The applicants also challenged the impartiality, the objectiveness and the competence of the experts who had drawn up the report, and requested an additional expert report, to be drawn up by seven experts appointed in line with section 396(1) of the Judiciary Act 2007. The court found no need to replace the experts, saying that there was no reason to doubt their competence or impartiality, but ordered them to go over the histological samples taken during the second autopsy and, based on their findings, say whether they stuck to their conclusions, and to describe, on the basis of the expert reports drawn up during the preliminary investigation, all injuries to Mr Dimitrov’s body. 56 .     In their additional report, filed on 27 April 2009, the five experts said that they had been unable to find the histological samples taken during the second autopsy (see paragraph 25 above). They could not therefore draw any conclusions on their basis. The experts went on to describe a number of injuries not mentioned in their original report. In the experts’ view, all those injuries had been caused by hard blunt objects. Some could have been caused by a truncheon, others from an impact against the ground. However, those injuries had not been life-threatening. 57.     The court heard the experts and admitted other evidence. 58.     During the oral arguments the applicants reiterated their objections to the first expert report ordered by the court, and made similar objections to the additional report. They also contested the conclusions of those reports, saying that they had relied on erroneous assumptions and had failed to take into account the conclusions of the expert report prepared during the preliminary investigation, and maintained that there were no grounds to regard those fresh reports as more accurate. 59 .     On 5 August 2009 the Military Court of Appeal upheld the Sofia Military Court’s judgment, agreeing with all of its findings of fact, save for those relating to the exact medical reasons for Mr Dimitrov’s death. Based chiefly on the conclusion of the fresh expert reports that it had ordered in the appellate proceedings (see paragraphs 49-52 and 56 above), the court found that Mr Dimitrov had died of asphyxia occurring as a result of the officers pressing his face against the ground after handcuffing him with hands behind his back, and keeping him in that position in spite of his cries that he was suffocating and his pleas. The particularities of his physiology and his medical conditions had also helped, but had not been decisive. There was no evidence that his death had been natural or resulting from the use of cocaine; that assertion ran counter to the conclusions of the fresh medical expert reports. The court found that those reports were more reliable than the one drawn up during the preliminary investigation (see paragraph 25 above), for several reasons. First, they had been drawn up not only by forensic experts, but also by experts in the fields of pathoanatomy, narcology, cardiology and neurology. All those experts had categorically said that the first report had been erroneous in its interpretation of the results of the histological tests and its discrepancies with objective medical findings. The conclusions of the fresh reports were more consistent with the witnesses’ evidence, and were based on categorical histological findings supported by visual materials. The previous report had not explained the sequence of the deadly injuries – how Mr Dimitrov, with his heart stopped and unconscious as a result of his cerebral trauma, had managed to stand up, receive a blow in the back that had ruptured his aorta, and shout that he was suffocating. The second report was more persuasive in its explanation that there had been no cerebral trauma and that the rupture of the aorta had been postmortal, probably occurring during the autopsy. That last point was also confirmed by the fresh histological tests. The histological samples taken in the course of the second autopsy had vanished and could not be re-tested with a view to assessing the validity of the conclusions drawn on their basis, whereas the samples taken in the course of the first autopsy and used for the fresh expert report were available for inspection and re-testing. 60 .     The Military Court of Appeal also gave reasons why it agreed with the lower court’s rulings concerning the legal characterisation of the offence, the mens rea , and the aggravating factors. In particular, it said that there was no evidence in support of the claim that Mr Dimitrov’s death had been accidental, and therefore no room for the application of Article 15 of the Criminal Code (see paragraph 103 below). The officers had been fully aware of the situation and of the fact that they had caused Mr Dimitrov to suffocate, suffer pain and die, but had pressed on with their actions. 61 .     In relation to the points made by the applicants in their appeal and during the oral arguments, the court said, inter alia , that there was no reason to disturb the lower court’s findings concerning the mens rea , and that there had been no irregularities in the appointment of the five experts who had been ordered to draw up fresh expert reports in the proceedings before it. The court reiterated that the appointment had not been in breach of section   396 of the Judiciary Act