CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 avril 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } EUROPEAN COURT OF HUMAN RIGHTS   227 12.4.2007   Press release issued by the Registrar   CHAMBER JUDGMENT IVAN VASILEV v. BULGARIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Ivan Vasilev v. Bulgaria (application no. 48130/99).   The Court, unanimously, dismissed the Government’s objection of non-exhaustion of domestic remedies, and held that there had been: a violation of Article 3 (prohibition of inhuman or degrading treatment)   of the European Convention on Human Rights; a violation of Article 13 (right to an effective remedy) of the Convention.   The remainder of the application was declared inadmissible.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 12,000   euros (EUR) in respect of non-pecuniary damage and EUR 2,165 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Ivan Tsekov Vasilev, is a Bulgarian national who was born in 1979 and was living in Vidin (Bulgaria) on 14 April 1998.   On the evening of 14 May 1994, when he was 14, while running to join friends in the centre of Vidin, he was chased by two trainee police officers, who mistook him for a person suspected of vandalism. The police officers were patrolling in a private car without the supervising officer who was supposed to accompany them. It is in dispute as to whether the police officers identified themselves, but after a minute the applicant tripped, fell to the ground and the police officers caught up with him. According to witnesses they hit him repeatedly with their truncheons on the back and legs and kicked him. The applicant claimed that he had received several truncheon blows to the head. Shortly afterwards two sergeants arrived on the scene and took the applicant to the emergency ward of Vidin Regional Hospital. It was found that he had an injury on the back of his head. He also complained of severe pain in the area of the right kidney. He was taken to the surgical ward where the injury to his head was treated. From there he was driven to the police station where it was established that he had no connection with the acts of vandalism that had given rise to the incident. He was then taken home. Alarmed at his condition his mother took him back to the hospital, but was told that nothing more could be done for him, as there were no doctors available. At the police station she was given the names of the officers who assaulted her son.   The following day the applicant went to the hospital, where he was admitted to the surgical ward. He was diagnosed as suffering from contusion in the right lumbar area, commotion of the right kidney and haematuria (blood in the urine). He remained in hospital until 28 May 1994. Two days later, on 30 May 1994, the applicant was urgently admitted to the urology centre of the Medical Academy in Sofia. Over the next two years the applicant underwent numerous examinations of his right kidney. In July 1996 he was admitted to the urology ward of the National Institute for Urgent Medical Care “Pirogov”, after complaining about pain in his right lumbar area and on 22 July 1996 he underwent surgery to have his right kidney removed.   Following complaints lodged by the applicant’s parents, criminal proceedings were opened against the two trainee officers in June 1994. A forensic medical report was drawn up concluding that the beating had caused the applicant a short ‑ term life ‑ threatening condition. On 6 July 1995 the applicant's mother, acting for the applicant, who was still underage, submitted a civil claim against the police officers, seeking 400,000 old Bulgarian levs (BGL) [2] on the applicant's behalf.   On 3 November 1995 the Pleven Military Prosecutor's Office filed with the Pleven Military Court an indictment charging the police officers with causing “intermediate” bodily harm to the applicant. A further report by three medical experts concluded, unlike the previous report, that the applicant’s condition had not been truly life ‑ threatening. They also found that before the incident the applicant had been suffering from a congenital kidney anomaly. In the experts' view, the beating had caused the applicant only a temporary (two or three ‑ week) health problem.   In view of the divergence of medical opinion, a third report was prepared by five experts including the doctor who had drawn up the first report. They concluded that it could not be categorically established that the beating had not contributed to the need for the removal of the kidney, but the main factor had been the congenital anomaly. At a later hearing the first medical expert distanced herself from the conclusions of this report maintaining that she stood by the opinion expressed in her initial report. The applicant increased his civil claim to BGL 10,000,000.   In a judgment of 26 January 1998 Pleven Military Court found the police officers guilty of causing the applicant minor bodily harm and not guilty of inflicting on him intermediate bodily harm. It sentenced them to five months' imprisonment, suspended for three years. The court also partially allowed the applicant's claim for damages, awarding him BGL   300,000 [3] .   The police officers appealed, as did the applicant challenging the amount of damages. In a judgment of 8 June 1998 the Military Court of Appeals upheld the Pleven Military Court's judgment. However it took the view that a different finding could have been made as to the reason for the surgical removal of the applicant's right kidney. Since no appeal had been lodged by the prosecution, the court merely noted that factual mistake and did not correct it in its judgment by holding that the applicant had suffered “intermediate” bodily harm.   The police officers appealed on points of law to the Supreme Court of Cassation. The applicant also appealed, requesting an increase in the amount of damages awarded. In a final judgment of 11 November 1998 the Supreme Court of Cassation overturned the police officers’ convictions and dismissed the applicant's civil claim.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 14 April 1998 and transmitted to the Court on 1 November 1998.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Danish), President , Snejana Botoucharova (Bulgarian), Karel Jungwiert (Czech), Rait Maruste (Estonian), Javier Borrego Borrego (Spanish), Renate Jaeger (German), Mark Villiger (Swiss) [4] , judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [5]   Complaints   The applicant complained about being ill-treated by two police officers and the ensuing criminal proceedings, which resulted in their acquittal. He relied, in particular, on Article 3 and Article 13.   Decision of the Court   Article 3   According to the Court's case-law, Article 3 of the Convention does not prohibit the use of force for effecting an arrest provided that it is indispensable and not excessive. In the applicant’s case the Court found that the injuries he had sustained at the hands of the police officers had led to grave physical pain and suffering. Moreover, they had had lasting consequences for his health. The acts of violence against the applicant had been committed by the police officers in the performance of their duties and they had taken place during the applicant's arrest. However, the exact circumstances of the arrest and intensity of the force used against the applicant were disputed by the parties and had been subject to conflicting assessments by the national courts. Disagreeing with the findings of the lower courts, the Supreme Court of Cassation had held that the use of force had been fully warranted. However, the acquittal of the officers by a national court bound by the presumption of innocence and by the manner in which domestic law regulated the use of force by the police did not absolve Bulgaria from its responsibility under the Convention. Bearing in mind the nature and the extent of the applicant's numerous and serious injuries, the circumstances surrounding his arrest (including the fact that the officers, who had been merely trainees, had not been accompanied by a supervisor, and the fact that at the material time the applicant had been only 14 years old and clearly inferior to the officers in terms of physical strength), and analysing those facts in the light of its case-law in this area, the Court concluded that the force used against the applicant had been clearly excessive, both in intensity and duration. There had therefore been a violation of Article 3.   Article 13   The applicant further complained that the criminal proceedings against the police officers, in which he had participated as a civil claimant, had been unfair. He submitted that the courts had not been objective in their assessment of the facts and had failed to redress the grievance which he bore as a result of the beating. He relied on Articles 3, 6 and 13.   The Court considered that the applicant's complaints in that respect under Articles 3 and 6 fell to be dealt with under Article 13, which required the existence of a domestic remedy to enforce the substance of the Convention rights and freedoms in whatever form they might be secured in the national legal order.   While the authorities had investigated the applicant's beating, brought those responsible for it to trial, and convicted and sentenced them, the conviction and sentence had been subsequently quashed and the police officers who assaulted the applicant had been acquitted. That acquittal was not due to the lack of sufficient proof that the officers had committed the act alleged against them, but was the result of the manner in which the Supreme Court of Cassation had interpreted the domestic ‑ law provisions regulating the use of force by the police. It was not for the Court to determine whether that interpretation was correct. The Court had however to verify whether the manner in which the law had been applied had led to a breach of the applicant's right under Article 13 to an effective remedy. In the case under review the Supreme Court of Cassation had not embarked on an assessment of the proportionality of the force used against the applicant. It had not endeavoured to analyse the degree of force and whether it had been necessary and proportionate in the circumstances.   The lower courts had clearly established that the applicant had suffered numerous injuries as a result of excessive force. Without questioning those findings, the Supreme Court of Cassation held that that the officers had lawfully assaulted the applicant, as he had tried to escape and had been – albeit wrongfully – identified as the person wanted by the police. In so doing, the Supreme Court had treated as irrelevant a number of other factors – that at the time of the events the applicant had been 14 years old, that the violence against him had continued after he had been subdued, and that the beating had been wilful –, all of which were material for determining whether the act complained of amounted to a breach of Article 3. That approach was wholly inconsistent with the standards stemming from the Strasbourg case ‑ law in this field. The Supreme Court of Cassation had thus failed to address the substance of the applicant's Convention complaint and there had therefore been a violation of Article 13.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     After a period of sharp inflation rise in 1995 ‑ 97, on 5 July 1999 the Bulgarian lev was revalorized. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL). [3] .     Approximately 153 euros. [4] Judge elected in respect of Liechtenstein. [5] This summary by the Registry does not bind the Court.