CEDH · CASELAW;CLIN;ENG — 21 juillet 2020

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Bulgaria - 31434/15 Judgment 21.7.2020 [Section IV] Article 2 Article 2-1 Effective investigation Ineffective judicial system, given the impossibility for the brother of a murder victim to claim compensation in respect of non-pecuniary damage: violation Facts – The applicant was refused authorisation by the domestic courts to join, as a civil party, the criminal proceedings relating to his brother’s murder by a private person and to obtain compensation for the pecuniary and non-pecuniary losses sustained. Law – Article 2 ( procedural limb ): At the relevant time, under the binding case-law of the former Supreme Court, only persons belonging to the restricted family circle (parents, children and spouses) could claim non-pecuniary damages for the death of a relative, to the exclusion of other family members such as brothers and sisters. Given that, under the Code of Criminal Procedure, only those persons entitled to claim compensation for loss resulting from a crime could join the criminal proceedings as a civil party, the domestic courts refused the applicant’s request to join the proceedings as a private prosecutor and civil party. The pecuniary damage alleged by the applicant in the domestic proceedings concerned items that had purportedly been stolen from his brother’s home and was thus not a consequence of his death. The possibility of obtaining compensation in respect of this damage was not therefore a procedural obligation on the respondent State under Article   2. With regard to the non-pecuniary damage, in the absence of liability on the part of the public authorities for the death and thus of an “arguable claim” of a breach of Article   2, Article   13 was inapplicable. However, in cases where death was not attributable to the public authorities, the Court had assessed the possibility of obtaining compensation for the non-pecuniary damage arising from the death of a close relative from the standpoint of the positive obligations under Article   2. It appeared from the comparative-law material that all of the Contracting States surveyed provided for a right to compensation in favour of persons who had sustained non-pecuniary damage following the death of one of their close relatives, and that in almost all of those States, this possibility existed where the perpetrator was a private individual. However, the conditions and mechanisms for allocating compensation, and for determining the persons who were entitled to claim it, varied. In the vast majority of countries, there was no pre-defined list of eligible persons and the rightful claimants were determined in each case on the basis of criteria such as the family relationship with the deceased, the reality of the emotional relationship or mutual assistance between them, cohabitation, or the claimant’s capacity as heir. From the manner in which these criteria were applied, however, it seemed that very few countries regulated this possibility in such a restrictive way as Bulgarian law at the relevant time. Moreover, European Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime included a deceased person’s brothers and sisters within the concept of the “victim” of an offence, and as such entitled to benefit from the rights set out in the Directive. While the Directive permitted the States to establish procedures to limit the number of members of a deceased person’s family who could benefit from these rights, it seemed to have envisaged situations where there existed several “family members” and not situations where, as in the present case, one single person could claim that capacity. In addition, the Directive provided that such a limitation was permitted only when “taking into account the individual circumstances of each case”, although the Bulgarian law applicable at the relevant time ruled out, in an absolute manner, the possibility for certain family members to seek compensation, with no assessment of the specific circumstances of each case. Moreover, the relevant Bulgarian case-law had been amended since the events in the present case, and the Supreme Court of Cassation now accepted that persons other than those exhaustively listed in the interpretive decisions of the former Supreme Court could claim compensation, where they were able to establish that, on the basis of their relationship with the deceased, they had endured mental suffering comparable to that of persons in the immediate family circle. Although this development in the domestic law did not in itself justify a finding that the previous situation had been contrary to the Convention, this change in the case-law, adopted, inter alia , in order to bring Bulgarian legislation into line with European Directive 2012/29/EU, had to be taken into consideration in observing a trend in the law of the Contracting States. Thus, there existed a consensus among the Contracting States to the effect that the closest family members ought to have an opportunity to claim pecuniary compensation for non-pecuniary damage sustained as a result of their relative’s death, provided that in each specific case an assessment was carried out of the strength of their ties with the deceased and the actual damage suffered. When, as in the present case, the applicant was the only family member and his deceased brother’s sole heir, with whom he had enjoyed a close relationship, the respondent State had breached its obligation to set up a judicial system capable of providing “appropriate redress” for the purposes of Article   2 in failing to provide any remedy that would have enabled him to claim pecuniary compensation for the non-pecuniary damage that he may have sustained. In consequence, in spite of the effectiveness of the criminal proceedings conducted in the present case, which had enabled the facts to be established and resulted in conviction of the murderer, the fact that it was completely impossible for the applicant to obtain damages for non-pecuniary loss had breached the State’s obligation to put in place an effective judicial system which provided an appropriate response for the victim’s close relatives in the event of death. Conclusion: violation (unanimously). Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also Zavoloka v. Latvia , 58447/00, 7   July 2009, Information Note 121 , and Sarishvili-Bolkvadze v. Georgia , 58240/08, 19   July 2018, Information Note 220 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes