CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 juillet 2012

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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. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     On 10 November 2005 Mr Angel Raychov Dimitrov (alias Chorata), born in 1967 and living in Blagoevgrad, 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. 4 .     The first applicant is Mr Dimitrov’s son. The second applicant was Mr   Dimitrov’s de facto spouse. The third and the fourth applicants are Mr   Dimitrov’s parents. 1.     Circumstances surrounding Mr Dimitrov’s death 5.     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 connection between him and the offence was established. 6.     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. In an order of 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 order 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 operation’s plan envisaged establishing Mr Dimitrov’s whereabouts and carrying out urgent investigatory steps. The plan specifically said that when making arrests, the police had to act with caution so as to avoid any risk to the life and health of the arrestees and of passers ‑ by. The officers who were to take part in the operation were split in three groups: one to find and arrest Mr Dimitrov, another to carry out a search in a hotel run by his family, and a third to carry out a search in Mr   Dimitrov’s home. There is no information – the applicants say that none was gathered in the ensuing criminal proceedings – as to the precise plan according to which the police were to act and as to the exact instructions given to the officers who took part in the operation. 7.     The officers who went to Mr Dimitrov’s house found there his de facto wife, the second applicant, and his son, the first applicant. They 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. 8.     The second group, consisting of 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 some hotel rooms, and pinning to the ground Mr   Dimitrov’s brother and some hotel guests. When learning that Dimitrov had died, the officers stopped the search, left the hotel and went back to the police station. 9.     The third group consisted of 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, and the other two officers were in special clothes which did not bear police identification marks. Some of them wore balaclavas, and all were armed, two with Kalashnikov automatic rifles. Their car did not bear police identification marks either. 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. 10.     The five officers found Mr Dimitrov in his car; they apparently discovered his whereabouts 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 of them were at home. 11.     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. 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 was some uncertainty as to 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 asked his assailants what they wanted from him and why they were beating him. The officers kept silent. The beating continued ten to fifteen minutes. Ms M.Z. and Ms E.Z. could see what was happening through their window, and made calls to the police and the fire brigade at 8.53 p.m. and 9.01 p.m. 12.     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. The major sent them away with the explanation that there was a police operation under way. 13.     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 in an ambulance. At about 9.25 p.m. the ambulance 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. It was taken by ambulance to an emergency medical centre, where the death was confirmed. 14.     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. 15.     According to the findings made by the Sofia Military Court in the ensuing criminal proceedings against the five officers, 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 hits, 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. 2.     The criminal proceedings against the five officers (a)     The preliminary investigation 16.     Later that night 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 investigative actions. 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. 17 .     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; 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 the histological tests. 18 .     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 the 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. At their 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. 19 .     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 the 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 150 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. 20.     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. 21 .     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, and therefore not criminal under Article 12a of the Criminal Code (see paragraph 91 below). 22.     The applicants sought judicial review of the discontinuance. 23 .     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. That Office’s conclusion that the officers’ actions could be justified by reference to Article 12a of the Criminal Code was erroneous. The intensity of the violence used by the officers 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 Code (see paragraph 89 below). In addition, the inquiries made by the prosecuting authorities were incomplete in many respects. For those reasons, the court set the discontinuance aside and referred the case back to the prosecuting authorities, giving them directions as to the application of the substantive law and instructing them to carry out further investigative steps. (b)     The first proceedings before the Sofia Military Court 24.     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. 25 .     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 23 above). 26.     On 29 June 2006 the Sofia Military Prosecutor’s Office filed an amended indictment against the officers. 27 .     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. 28.     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 89 below). 29.     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 19 above), and heard the five experts who had taken part in its preparation (see paragraph 18 above). All of them said that they fully stood by their conclusions. Their report was not contested by the parties. 30 .     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 89 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 Directorate of Police, 80,000 Bulgarian levs (BGN), plus interest, to the first applicant and BGN 30,000, plus interest, to each of the other three applicants. 31.     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. Their motive to do so had been to prevent him from being put on trial. 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 91 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. 32.     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. (c)     The first proceedings before the Military Court of Appeal 33.     The five officers and the Blagoevgrad Regional Directorate of Police appealed. 34 .     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 27 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. 35 .     One judge dissented. In his view, the president of the Sofia Military Court’s panel had merely followed the applicable procedure and had not shown any bias. (d)     The second proceedings before the Sofia Military Court 36.     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 18 above), and admitted in evidence documents relating to the organisation of the police operation and wiretaps. 37 .     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 89 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 Directorate of Police, BGN 70,000, plus interest, to the first applicant and BGN 25,000, plus interest, to each of the other three applicants. 38.     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 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 as to 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 91 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. 39.     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. 40.     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”. (e)     The second proceedings before the Military Court of Appeal 41.     The five officers and the Blagoevgrad Regional Directorate of Police appealed. So did the applicants, challenging the quantum of the officers’ sentences and of the quantum of the awards of damages. 42.     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 19 above) contained contradictory conclusions as to the exact way in which Mr Dimitrov’s death had been caused and the position of his body at that time. 43 .     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. 44 .     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 17 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. 45 .     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 for sure 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. 46 .     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. 47 .     The applicants objected to 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 had been chosen by an outsider in respect of whom there were suspicions of bias, 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. 48 .     The court rejected the objection and the recusal request, holding that under section 396 of the Judiciary Act 2007 (see paragraph 94 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. 49 .     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. 50 .     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 19 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. 51.     The court heard the experts and admitted other evidence. 52.     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. 53 .     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 43 ‑ 46 and 50 above), the court found that Mr Dimitrov had died of asphyxia occurring as a result of the officers pressing him 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 averment 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 19 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 of 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 during 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 during first autopsy and used for the fresh expert report were available for inspection and re ‑ testing. 54 .     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 averment that Mr Dimitrov’s death had been accidental, and therefore no room for the application of Article 15 of the Criminal Code (see paragraph 92 below). The officers had been fully aware of the situation and of the fact that they had caused Mr Dimitrov to suffocate, agonise and die, but had pressed on with their actions. 55 .     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 (see paragraph 94 below). It also said that a failure to follow rules not featuring in the Code of Criminal Procedure could not be regarded as a material breach of the rules of procedure. It reiterated its findings concerning the alleged partiality of the experts, and went on to say that they had been competent to give an opinion on the points submitted to them, and had not impermissibly veered out of their fields of expertise. The applicants’ argument that the experts had relied on data which were not in evidence was also ill ‑ founded. The data used by the experts did not necessarily have to coincide with the evidence admitted by the court at trial or on appeal. (f)     The first proceedings before the Supreme Court of Cassation 56.     Both the officers and the applicants appealed on points of law. In an additional brief the applicants reiterated their objections to the expert reports ordered by the Military Court of Appeal. In particular, they challenged the manner in which the experts had been appointed, the accuracy of their conclusions, and the alleged failure of the court to respond to the applicants’ numerous criticisms of those conclusions. In particular, they said that the experts had used less material for their histological tests, had relied on statements made at the pre ‑ trial stage which had not been admitted in evidence, had veered out of their spheres of competence, had mischaracterised a number of injuries on Mr Dimitrov’s body, and had made unwarranted assumptions – such as those that Mr Dimitrov had used cocaine and had had heart problems. 57 .     In a judgment of 20 January 2010 (реш. № 538 от 20 януари 2010   г. по н. д. № 598/2009 г., ВКС, II н. о.) a three ‑ member panel of the Supreme Court of Cassation quashed the Military Court of Appeal’s judgment and remitted the case. 58 .     The court held, inter alia , that the Military Court of Appeal had not breached section 396 of the Judiciary Act 2007 (see paragraph 94 below) when appointing the experts, and that those experts were not partial. That provision allowed the appointment of experts who did not feature on the official lists. The experts had been selected by the head of the Military Medical Academy on the basis of their special skills. There was no indication that the Academy had tried to conceal the murder or tried to devise ways of doing that, as argued by the applicants. The applicants had not objected to Dr Z.K., who was also from the Academy and had taken part in the drawing up of the first expert report, or to Prof Dr S.R., who also, in view of his advanced age, he not been fit to serve as an expert under the applicable rules. The principal rules in that domain were those of the Code of Criminal Procedure, whose foremost requirement was for the experts to be impartial and professionally competent. 59 .     The applicants’ arguments that the experts had relied on data which was not in evidence and that their report was incomplete because based on less histological samples were also ill ‑ founded. The experts were not lawyers and could not be expected to identify admissible evidence. They had used the materials in the case file, including the statements of the accused, which did not necessarily mean statements given before they had been charged. In any event, those statements were identical to those given at trial. As for the histological samples, the Military Court of Appeal had made efforts to find them with a view to making them available to the experts, to no avail. That was probably due to an oversight on the part of one of the original experts, Prof Dr S.R., which cast doubt on the accuracy of the conclusions reached in the expert report in whose preparation he had taken part. 60 .     The court went on to say that the Military Court of Appeal had made a mistake to stick fully to the Sofia Military Court’s findings of fact concerning the violence against Mr Dimitrov while at the same time accepting, on the basis of the fresh expert reports, that the cause of his death had been asphyxia rather than cerebral trauma and rupture of the aorta. It had also erred in assessing the evidence of Ms M.Z. and Ms E.Z. and juxtaposing it against the statements of the five officers. Based on the experts’ conclusions, the Military Court of Appeal should have re ‑ assessed the evidence concerning the dynamics of the violence against Mr Dimitrov and the participation of each of the officers in it. It had not analysed in detail the officers’ statements, and had all too easily accepted that they did not match the rest of the evidence and were a defence position. The court had also omitted to discuss the rules governing the use of force by the police and the evidence concerning the officers’ task. It had also found that the asphyxia had resulted from pressing Mr Dimitrov’s body against the ground without elucidating through expert evidence the intensity and the duration of the pressure that could cause asphyxia in such circumstances and without seeking to establish whether Mr Dimitrov’s illnesses could not cause sudden cardiac death. All of that was crucial with a view to establishing the objective elements of the offence, but had remained unclear because the Military Court of Appeal had not properly analysed the evidence and had not sought to establish the truth by, inter alia , including a p