CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 2 juin 2020

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They were represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2.     The facts of the case, as submitted by the applicants, and as appearing from the documents submitted by the applicants and the findings of the domestic criminal and administrative courts which dealt with the case, may be summarised as follows. 3.     The two applicants are the parents of Mr B.R., who died on 4 July 2010, aged twenty-five, after being beaten to death by four people in the course of a neighbourhood quarrel escalating into mob violence. The events on 4 July 2010 4.     The events of 4 July 2010, as described by the applicants, and as appearing from the documents submitted by the applicants and the findings of the domestic criminal and administrative courts which dealt with the case, may be summarised as follows. 5 .     At about 4 p.m. on 4 July 2010, a quarrel erupted between two neighbours living in one of Sofia’s predominantly Roma neighbourhoods – Mr H.L., who was according to the applicants of Bulgarian ethnic origin, and Mr S.D., allegedly of Roma ethnic origin – apparently because Mr H.L. told Mr S.D. that he and his family had to vacate the house they were inhabiting, since it had been illegally put up on land he owned. Mr S.D. refused, saying that his family would only leave the house if ordered to do so by the authorities, whereupon Mr H.L. hit him several times in the face and then drove off, threatening Mr S.D. with further violence. At 4.03 p.m. Mr S.D. called the police emergency number to complain about the incident. 6 .     At 4.04 p.m. the police dispatched a team of two officers. They arrived at the address given in the emergency call at about 4.20 p.m. but saw nothing, and it later transpired that the incident had taken place several houses down the same street. 7 .     About half an hour after leaving the scene, Mr H.L. came back, accompanied by two friends of his, also allegedly of Bulgarian ethnic origin, on whom he had called with a view to gaining an upper hand in the conflict: Mr B.R. (the applicants’ son) and Mr V.B. Mr H.L. and Mr B.R. began throwing stones at Mr S.D. and his family. 8 .     At that point, Mr K.L. (Mr H.L.’s father, who was also living in the same house) telephoned an informal Roma community leader whom he knew, Mr T.F., and asked him to come and persuade the parties to the brawl to stop it. When Mr T.F. arrived shortly after that, Mr B.R. (the applicants’ son) attacked him with a knife, stabbing him with in the leg and cutting his arm. For his part, Mr T.F. hit Mr B.R. several times in the face. Mr H.L. and Mr K.L. intervened and drove the two men apart, telling Mr B.R. that Mr   T.F. was a friend who had come to try to resolve the conflict peacefully. 9 .     During that time, a mob of about fifty to a hundred people apparently belonging to the Roma community massed in the street in front of Mr H.L.’s and Mr K.L.’s house. Many were armed with makeshift weapons: clubs, iron bars, axes, pickaxes, and so on. 10 .     Meanwhile, at 4.25 p.m., the police had received another emergency call with information that the brawl was in fact taking place several houses down the same street. The operator relayed that information to the two officers who were already in the vicinity and they went back to the spot. On their way, they were intercepted by a group of about twenty or thirty Roma people who informed them about the brawl. The officers parked their car nearby and continued on foot. When they arrived at the house, they briefly talked to Mr K.L. to understand the situation, and then positioned themselves at the front gate of his yard to prevent the mob from getting in. Mr K.L. hid in his garage, and Mr B.R. (the applicants’ son) and Mr V.B. hid in Mr K.L.’s house. 11 .     However, the mob irrupted into the yard, overwhelming the two officers and pushing them aside. Several men wielding axes stood beside the officers with a view to preventing them from moving about. Apparently at that point or shortly after that, at 4.46 p.m., the officers radioed for reinforcements. A bit earlier, at 4.39 p.m., a neighbour had also called the police emergency number, saying that the brawl was intensifying and that the two officers already on the spot were being overpowered. As a result of those calls, in the following minutes the police dispatched to the scene six more teams of officers. 12 .     When the mob rushed into the yard, two men urged by Mr T.F. to kill Mr B.R. (the applicants’ son) in reprisal for the knife attack (see paragraph 8 above) also got in. They were armed, respectively, with a shovel shaft and piece of a wooden window frame. At that point, Mr B.R. got out of the house, moved to confront the mob, and hit Mr T.F. The two began fighting, and then Mr B.R., pushing aside the people who had surrounded him, made for the back of the yard, on the other side of the house. Mr T.F., speaking in Roma language, instructed the two men who were already acting under his orders and Mr S.D. (the man who had originally called the police – see paragraph 5 above) to get to Mr B.R. and kill him. After a brief chase, the three of them caught up with Mr B.R. and hit him many times in the head and the body with their makeshift weapons. Mr T.F. joined them, also hitting Mr B.R. with a piece of wood. A hit on the head with an iron bar caused Mr B.R. to fall to the ground. 13 .     A bit later Mr H.L. (the man at the origin of the brawl – see paragraph 5 above) and two others moved the prostrate and helpless Mr   B.R. towards the front of the yard. When Mr T.F. and the three other attackers, who were about to leave the scene, saw that Mr B.R. was still alive, they resumed hitting him in the head and body with iron bars, pieces of wood and stones. At about that time, the other police teams who had been called in were nearing the scene. When the attackers heard the sirens of the approaching police cars, they dropped their makeshift weapons and ran away. Mr B.R. lost consciousness and a few minutes later, when an emergency medical team had made it to the scene, died – as revealed later by the autopsy, from brain injuries caused by blows to his skull which had fractured it. He had suffered many other injuries as well. The criminal proceedings against the people who killed Mr B.R. 14 .     Criminal proceedings were immediately opened in relation to Mr   B.R.’s death. Mr T.F., Mr S.D. and the two other men who had taken part in the attack on him were charged with aggravated murder. Mr S.D. died in the course of the proceedings: in January 2011 he was found hanged in his cell. 15 .     The trial of the three remaining accused took place in 2012-14. The applicants took part as private prosecuting parties. In April 2014 the Sofia City Court found them guilty and sentenced them to twenty years’ imprisonment each. In February 2015 the Sofia Court of Appeal slightly modified the conviction, finding, contrary to the lower court, that the accused had not acted under the impulse of hooligan motives. It accordingly reduced their sentences to nineteen years’ imprisonment for Mr T.F. and eighteen and seventeen years’ imprisonment respectively for the other two accused. 16 .     In January 2016 the Supreme Court of Cassation further reduced the sentences to sixteen years’ imprisonment each, emphasising that Mr B.R. had attacked Mr T.F. earlier and had thus to an extent provoked the attack against him. The court went on to note that other people from the mob had likewise hit Mr B.R., and that the brawl had started owing to the aggressive conduct of Mr H.L. The applicants’ claim for damages against the police 17 .     In June 2015 the applicants brought a claim for damages against the Sofia Directorate of Internal Affairs (they had initially directed the claim against the Ministry of Internal Affairs, but in October 2015 switched defendants). They argued that the police had failed to take adequate steps to protect their son’s life. 18 .     The Sofia City Administrative Court heard the case on 18 January, 18 April and 27 June 2016. It took evidence from the two police officers who had arrived at the scene first, from Mr V.B. (the friend of Mr H.L. who had also been present – see paragraph 7 above), and from Mr K.L. (Mr   H.L.’s father – see paragraph 8 above). All of them testified about the incident and replied to questions by counsel for the applicants and the court. The court also heard Mr B.R.’s brother, who testified about the applicants’ pain and suffering on account of the loss of their son. 19 .     The court also obtained written evidence: the judgments in the criminal proceedings against the people who had killed Mr B.R. (see paragraphs 15 and 16 above), the police call- and radio-log relating to the events, and documents from an internal inquiry carried out by the police in relation to the incident. 20 .     In her closing submissions, counsel for the applicants argued that the two police officers present at the scene at the time when Mr B.R. had been killed had not taken any steps to prevent that but had rather been concerned to protect their own lives from the raging mob. They had remained near the entrance of the yard, had not tried to neutralise the mob – by for instance identifying its leaders and arresting them –, and had not fired warning shots. Moreover, it had been a mistake for the police initially to dispatch just two officers, given that they were aware that Roma were wont to attack in mobs. 21 .     On 10 November 2016 (see реш. № 7000 от 10.11.2016 г. по адм.   д. № 6218/2015 г., АС-София-град), the Sofia City Administrative Court dismissed the claim. It summarised in detail the witness and other evidence it had obtained, and also the findings of the criminal courts in the proceedings against the people who had killed Mr B.R. (see paragraphs 15 and 16 above), and on that basis held that the claim was unfounded. 22 .     The court noted that the police, having at first been alerted about a minor neighbourhood incident, had only dispatched two officers, who had later called for backup. It could not hence be said that they had remained passive. The two officers had, at risk to their own lives, chiefly sought to protect Mr H.L. and Mr K.L. (the owners of the house), who had appeared to be the people most in danger of attack. The court went on to find that, given that the instructions to kill Mr B.R. had been uttered in Roma, that the main attack on him had taken place in the back of the house while the raging mob had been inside the yard, and that the whole situation had unfolded within a few minutes, it could not be said that the police had been aware that Mr B.R.’s life in particular had been at immediate risk. The court was further satisfied that the two officers present at the scene had done all that had been reasonably feasible, and that their choice not to use their firearms, even for warning shots, had been based on their contemporaneous assessment of the situation and could not be revisited. 23 .     The court went on to hold that the case had to be examined not only under the statutory provisions governing the powers and duties of the police, but also by reference to the requirements of Article 2 of the Convention. It quoted extensively from this Court’s judgment in Osman v.   the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998-VIII) and from a number of subsequent judgments in the same line of case-law, and directed itself to apply the two-prong test set out in paragraph 116 of Osman . Applying the test, it reiterated that the two officers had not been in a position to know beforehand of the attack on Mr   B.R., or see it and focus on it in the chaotic situation they had found themselves in, and thus perceive that Mr B.R.’s life had been at immediate risk. Their actions had been reasonable in the circumstances. Moreover, the police had had no reason to suspect earlier that the conflict would escalate so dramatically. The applicants’ argument based on the predominantly Roma character of the neighbourhood and the consequent need for the police to dispatch from the outset more officers had only been raised very late in the proceedings and without an attempt formally to amend the statement of claim, and could hence not be taken into account. 24 .     The applicants appealed on points of law. They reiterated that, in their view, the two officers present at the scene had remained unduly passive. They had been faced with a sudden attack and could have thus legitimately used their firearms. They had also been clearly aware of the risk to Mr B.R.’s life, since the initial brawl between him, on the one hand, and Mr T.F. and his two friends, on the other, had taken place before their eyes. This, as well as the irruption of the mob inside the yard, had manifestly engendered a real and immediate risk in that respect. 25 .     In a final judgment of 4 May 2018 (see реш. № 5845 от   04.05.2018   г. по адм. д. № 733/2017 г., ВАС, III о.), the Supreme Administrative Court upheld the lower court’s judgment. Unlike that court, it found – by reference to the first prong of the Osman test (see Osman , cited above, § 116) – that in view of the size and degree of agitation of the mob, the two officers present at the scene could have reasonably surmised that there had existed a real and immediate risk to the lives of some of the people present, including Mr B.R. In the court’s view, however, the officers had taken reasonable steps to prevent that risk from materialising. They had been clearly outnumbered, and had had to react to a very quickly unfolding situation. Their choice not to fire warning shots could not be impugned. COMPLAINTS 26.     The applicants complained under Article 2 of the Convention that the police had not taken sufficient steps to protect the life of their son. 27.     The applicants further complained under Article 13 of the Convention that they had not had an effective remedy in that respect. THE LAW Complaint under Article 2 of the Convention 28.     In respect of their complaint that the police had not taken sufficient steps to protect the life of their son, the applicants relied on Article 2 of the Convention, which provides, in so far as relevant: “1.     Everyone’s right to life shall be protected by law. ...” The applicants’ submissions 29.     The applicants submitted that, as evident from the reasoning of the Supreme Administrative Court, the police had been aware of the risk to their son’s life. In the applicants’ view, however, the police had failed to take reasonable steps to avert that risk. The two officers initially dispatched to deal with the incident which had led to their son’s death had arrived at the scene about twenty-four minutes after the first emergency call, thus missing an opportunity to stymie the emerging brawl before it could degenerate. Also, the police ought to have surmised from the locale of the conflict – a predominantly Roma neighbourhood – that it was likely to draw in more people, since it was well known that Roma, who had strong kin and ethnic solidarity, tended to resolve even minor neighbourhood conflicts by forming aggressive mobs. Yet, the police had at first dispatched only two officers, who had in turn failed promptly to call for backup. The Court’s assessment 30.     It should be noted at the outset that the present case does not concern death in the hands of State agents (contrast, for instance, Velikova v.   Bulgaria , no. 41488/98, ECHR 2000-VI; Anguelova v. Bulgaria , no.   38361/97, ECHR 2002-IV; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005-VII), but an allegation that the police did not do enough when called to intervene in a brawl which resulted in the death of the applicants’ close relative. The case is thus solely concerned with the State’s positive obligations under Article 2 of the Convention. 31.     It is settled that Article 2 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction. On top entailing a duty to have effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions, this obligation implies, in well-defined circumstances, a duty for the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another (see, among other authorities, Osman , cited above, § 116, Reports 1998-VIII; Mastromatteo v.   Italy [GC], no. 37703/97, § 67, ECHR   2002-VIII; Rantsev v. Cyprus and Russia , no. 25965/04, § 218, ECHR 2010 (extracts); and Nicolae Virgiliu Tănase v. Romania [GC], no.   41720/13, § 136, 25 June 2019). However, this latter duty only becomes operative when (a) the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of another, and (b) failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman , § 116; Mastromatteo , § 68; Rantsev , § 219; and Nicolae Virgiliu Tănase , § 136, all cited above). 32.     In some cases, such as those involving the indiscriminate risk to life which could be posed by the release of violent prisoners on leave or licence, or by the failure to supervise mentally disturbed people predisposed to violence, the authorities may also have a positive duty to afford general protection to society (see Mastromatteo , cited above, § 69; Maiorano and   Others v. Italy , no. 28634/06, § 111, 15 December 2009; and Bljakaj and Others v. Croatia , no. 74448/12, §§ 108-11 and 121, 18 September 2014). 33.     In the present case, there is nothing to suggest that before their arrival at the scene of the brawl the police were or ought to have been aware of any real and immediate risk to the life of Mr B.R., who had not yet got involved in the brawl when the police received the initial emergency call (see paragraphs 5 and 7 above, and compare, mutatis mutandis , with Choreftakis and Choreftaki v. Greece , no. 46846/08, §§ 6 and 50, 17   January 2012, and with İlhan and Others v. Turkey (dec.), no. 23856/07, §§ 5-6 and 42, 27 August 2013). Indeed, the police were first called by one of the people who later took part in the killing of Mr B.R. (see paragraph   5   in fine above). At that point, the incident appeared relatively minor and only involved two people; the mob formed some time after that (see paragraphs 5-9 above). Nor did the police have cause to believe that anyone with a particular propensity for violence, such as people previously convicted of serious violent offences, would be involved in the brawl (contrast Maiorano and Others , §§ 116-18; Choreftakis and Choreftaki , §   50 in fine ; and Bljakaj and Others , §§ 116-17, all cited above). It cannot be accepted that the mere fact that the brawl took place in a predominantly Roma neighbourhood was sufficient in that respect. While the applicants may be right that when making operational choices the police must take into account all of their potentially relevant knowledge and experience, and adjust their methods accordingly, there is no evidence that the brawl in the present case occurred during a period of tense interethnic clashes, or that the police had any concrete information capable of alerting them to the possibility of it degenerating into uncontrollable mob violence. 34.     The police cannot therefore be reproached for only dispatching two officers at first. Since the officers were initially given a wrong address (see paragraph 6 above), they cannot be faulted for arriving at the scene with some delay either. The particular chain of events leading to Mr B.R.’s death could not have been foreseen by the police early enough for them to dispatch sufficient forces to be able to avert it. 35.     The fact that, once on the spot, the two officers did not react forcefully enough to prevent the men who rushed towards Mr B.R. from attacking him cannot lead to the conclusion that the authorities failed in their obligation to take reasonable operational measures to protect Mr B.R. either. It must not be overlooked in this connection that the situation must be assessed as it presented itself to the officers at the time rather than with the benefit of hindsight (see Verri v. Italy (dec.) [Committee], no. 41130/18, § 36, 26 November 2019). Although the precise sequence of events is not entirely certain, the evidence suggests that the whole situation – both the initial and the follow-up attacks on Mr B.R. – unfolded in a matter of a few minutes. More importantly, the materials in the case file also suggests that throughout that time the two officers were being restrained by the armed mob which vastly outnumbered them: the mob had pushed them back and was surrounding them, threatening them with violence if they were to attempt to react more vigorously (see paragraphs 9-13 above). It thus appears that the officers were simply unable, without risking other violence, including to themselves, to take effective steps to prevent the attack on Mr   B.R. As noted by the national courts (see paragraphs 22 in fine and   25   in   fine above), it is far from clear that the proper course of action for them was to draw their handguns and fire warning shots. It must not be overlooked that they were in the middle of an agitated mob and had to react to a variety of threats to both themselves and all other people present, not just Mr B.R. When the situation escalated, with the mob rushing inside the yard, they promptly called for backup, which was also promptly dispatched but inevitably took a while to arrive (see paragraphs 11-13 above). 36.     It is true that the presence of more police officers at the scene would have perhaps prevented the death Mr B.R. However, a mere condition sine   qua non does not suffice to engage the State’s responsibility in cases of this type (see Mastromatteo , cited above, § 74, and Van Colle v.   the   United   Kingdom , no. 7678/09, § 104, 13 November 2012). 37.     The national courts, which had the benefit of hearing eyewitnesses and of examining the entirety of the written evidence in the case (see paragraphs 18 and 19 above), found that the police had acted reasonably in the circumstances (see paragraphs 21-23 and 25 above). For the reasons set out in the previous paragraphs, the Court sees no basis to disagree with that assessment. 38.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Complaint under Article 13 of the Convention 39.     In respect of their complaint that they had not had an effective remedy with respect to their complaint under Article 2 of the Convention, the applicants relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The applicants’ submissions 40.     The applicants submitted that the effectiveness of the proceedings for damages against the police had been undermined by the failure of the Bulgarian administrative courts duly to analyse the situation and to assess properly the failings of the police. No other remedy was open to the applicants, since in cases of this kind criminal proceedings could only be brought by the prosecuting authorities. The Court’s assessment 41.     It is not necessary to ascertain whether the applicants’ complaint under Article 2 of the Convention was arguable, because even if it is assumed that it was, the applicants did have at their disposal an effective remedy in respect of it, for the reasons that follow. 42.     Where an alleged failure by the authorities to protect someone from the acts of others is concerned, Article 13 may not always require that the authorities undertake to investigate the allegations. There should, however, be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies in this respect. Furthermore, in the case of a breach of Articles 2 or 3 of the Convention, which rank as its most fundamental provisions, compensation for the non ‑ pecuniary damage flowing from the breach should, in principle, be available as part of the range of redress (see Paul and Audrey Edwards v.   the United Kingdom , no. 46477/99, § 97, ECHR 2002-II). The proceedings for damages against the police were therefore, in principle, an adequate remedy in respect of the applicants’ alleged grievance under Article 2. 43.     It remains to be established whether the manner in which those proceedings unfolded in the instant case also met the requirements of Article 13. One of those requirements is that the compensation claims of people alleging a breach of Article 2 be assessed by reference to a standard comparable to the one used by this Court. In other words, the national authorities, though bound by the terms in which domestic law is couched, must review the acts alleged to amount to a breach of Article 2 in the light of the principles which lie at the heart of the Court’s analysis of complaints under that provision (see Vasil Sashov Petrov v. Bulgaria , no. 63106/00, §   60, 10 June 2010). That is what the Bulgarian administrative courts did in the case at hand. They expressly directed themselves to examine the applicants’ claim by reference to the two-pronged Osman test (see Osman , cited above, § 116), which they followed, and, as can be seen from their reasoning, overall did so (see paragraphs 22-23 and 25 above). The mere fact that they dismissed the claim cannot establish that the remedy was ineffective (see Swedish Engine Drivers’ Union v. Sweden , 6 February 1976, § 50, Series A no. 20). 44.     It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously Declares the application inadmissible. Done in English and notified in writing on 25 June 2020.   Anne-Marie Dougin   Gabriele Kucsko-Stadlmayer   Acting Deputy Registrar   President