CEDH · CASELAW;CLIN;ENG — 13 juin 2002

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Bulgaria - 38361/97 Judgment 13.6.2002 [Section I] Article 2 Article 2-1 Life Death in police custody, failure to provide medical care and effectiveness of investigation: violation Article 3 Inhuman treatment Ill-treatment in police custody: violation Facts : The applicant belongs to the Roma ethnic group. In 1996 her 17-year old son, A., died in police custody following his arrest on suspicion of attempted theft. He had been seen hanging around parked cars and had been chased and apprehended by an off-duty policeman. Witnesses later testified that A., who had been drinking, had slipped and fallen several times. Following the arrival of police officers, A. was handcuffed to a tree while they carried out a search of the area. He was then taken to the police station. However, no written detention order was issued. The register did not have any entry for him, although it mentioned an unidentified detainee; it subsequently appeared that the register had been altered. During the night, the police noticed that A.’s condition was deteriorating. Some time later, an officer drove to the hospital to fetch an ambulance and a doctor. A. was then taken to hospital, where he was pronounced dead shortly afterwards. According to a hospital doctor, the police officers stated that A. had been brought to the police station in the same condition as on his arrival at the hospital. An investigator was appointed to carry out an investigation. He questioned numerous witnesses, organised a reconstruction of events and ordered an autopsy, which established that the cause of death was internal bleeding as a result of a fractured skull around the left eyebrow, due to a blow either by or against a blunt object. Marks were also noted on the chest and wrists. The investigation was transferred to a military investigator because the death had occurred in police custody and five medical experts were appointed to re-examine these conclusions on the basis of the documentary material. The experts’ report confirmed the cause of death but stated that the haematoma had been in place for at least ten hours prior to death, rather than between four and six hours, as stated in the first report. On that basis, the investigation was terminated. Law : Article 2 (death of the applicant’s son) – Since the death occurred in police custody, it was for the Government to provide a plausible explanation. The second forensic report, which relied solely on documentary material, departed in important aspects from the conclusions of the first report, without giving reasons, and this significantly reduced the reliability of its conclusions. It was unlikely that A. would have been out drinking, decided to steal car parts and been capable of running away if, as the second report suggested, he had already sustained a fractured skull ten hours before he died. The first report was consistent with the blow having been sustained while A. was in police custody and there were other injuries which could have been the result of the same events. The suggestion that the blow was sustained in a fall was not supported by the forensic evidence and none of the witnesses who had been seen A. before he was taken to the police station had reported any complaint of an ailment on his part. Moreover, significant weight had to be attached to the suspect behaviour of the police officers who, inter alia , appeared to have delayed access to a doctor and made an apparently false statement at the hospital, and to the fact that the detention records were manipulated, with A. being registered post factum as an unidentified person although the police in fact knew him. These matters required thorough investigation but no such investigation was undertaken. The Government’s explanation was thus implausible and no other explanation had been offered. Conclusion : violation (unanimously). Article 2 (medical care) – The police delayed the provision of medical assistance and this contributed in a decisive manner to the fatal outcome. Furthermore, it was particularly significant that the case-file contained no trace of criticism or disapproval of the way in which the matter was handled. There had therefore been a violation of the State’s obligation to protect the life of persons in custody. Conclusion : violation (unanimously). Article 2 (effectiveness of the investigation) – The investigation commenced promptly and the authorities worked actively on it. However, failings in the autopsy prevented any possibility   of establishing the object which might have caused the skull fracture. Furthermore, it was highly significant that the police officers were never asked to explain why the detention records had been forged, why they had not called for an ambulance straight away or why they had given apparently false information at the hospital. There were also other failings in the investigation, in particular with regard to the limited purpose of the reconstruction and the lack of attention paid to the other traces of injury. Finally, the testimony of the police officers was considered fully credible despite their suspect behaviour, and nothwithstanding the obvious contradictions between the two forensic reports the authorities accepted the conclusions of the second without seeking clarification. The investigation thus lacked the requisite objectivity and thoroughness and its effectiveness could not be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures. Conclusion : violation (unanimously). Article 3 – The Government had not provided a plausible explanation for the injuries on A.’s body, injuries which were indicative of inhuman treatment. It was unnecessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation. Conclusion : violation (unanimously). Article 5 – It was undisputed that A.’s detention was not based on a written order as required by domestic law. The law could not reasonably be interpreted as permitting confinement without a lawful order where there existed doubts as to the detainee’s identity, and such interpretation ran contrary to the elementary guarantees of Article 5. In any case, the police identified A. at the time of his arrest. His detention was therefore unlawful. As the possible attempt to conceal the detention was in any event unsuccessful, it was unnecessary to address the question whether an issue of State responsibility for an unacknowledged detention might arise. The lack of a written order and of a proper record of the detention was sufficient to find that A.’s confinement was in breach of domestic law and contrary to the requirements implicit in Article 5 for the proper recording of deprivations of liberty. Conclusion : violation (unanimously). Article 13 – The criminal investigation was ineffective and that undermined the effectiveness of any other remedy that may have existed, including the possibility of joining the criminal proceedings as a civil party. Conclusion : violation (unanimously). Article 14 – While the applicant’s complaint that the authorities’ perception of her son as a gypsy was decisive in their attitudes and actions was grounded on serious arguments, it could not be concluded that proof beyond a reasonable doubt had been provided. Conclusion : no violation (6 votes to 1). Article 41 – The Court rejected the Government’s objection based on the assertion that the Code of Criminal Procedure provided for the possibility of criminal proceedings being reopened in cases in which the Court had found a violation, opening the possibility for the applicant to submit a claim for damages. It awarded the applicant 19,050 € in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.   © 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