Anguelova v. Bulgaria
From DADEL
Case Summary
Anguelova v. Bulgaria
European Court of Human Rights
Application No. 38361/97
Judgment of 13 June 2002
The applicant, Assya Anguelova, alleged: that her son, Anguel Zabchekov, had been ill-treated by police and died as a result; that the police had failed to provide adequate medical treatment; that the authorities had failed to carry out an effective investigation; that Zabchekov’s detention had been unlawful; that she did not have an effective remedy before a national authority; and that there had been discrimination against Zabchekov on the basis of his Roma ethnic origin. The allegations claimed that these actions violated Articles 2, 3, 5, 13, and 14 of the Convention.
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Facts
On the evening of 28 January 1996, 17-year-old Zabchekov went out with some friends to a local bar, where he consumed alcohol. Upon leaving the bar shortly before midnight, Zabchekov parted with a friend at the door. All the witnesses were unanimous that he had been in good health at that time, with no visible injuries. At around midnight, Zabchekov was seen on Beli Lom Street and was chased by an off-duty police officer and another young man. During the chase, the police officer allegedly saw Zabchekov slip and fall a number of times, although there were discrepancies with other witness testimonies regarding the number and nature of the falls. The police officer stated that he saw no visible injuries on Zabchekov at the time. On-duty police officers were called to the scene.
One of the police officers who arrived there recognized Zabchekov as a suspect in several pending theft investigations. Once at the scene, the police searched the area for evidence of car theft attempts. While Zabchekov was handcuffed to a tree, the police found two cars which had been broken into and questioned the owners of the cars. The police noticed Zabchekov lying on the ground and moved him to the police car. They stated that he appeared to be drunk and was not communicative.
Zabchekov was taken to the police station at around 12:50 a.m. No written order for his detention was issued. The sergeant on duty stated that he noticed a bruise on Zabchekov’s eyebrow. Zabchekov was placed in the hallway to sober up, where he fell asleep. When the sergeant returned to check on Zabchekov, he noticed that Zabchekov was sleeping and shivering, and decided to remove him to a warmer office. He also noticed that Zabchekov was breathing heavily. The next sergeant on duty noticed Zabchekov’s condition deteriorating at 3:50 a.m. and contacted the officers present at the time of his arrest. Those officers drove to the hospital and returned with a pediatrician, who until then had not been given any information regarding Zabchekov’s condition.
On the pediatrician’s advice, Zabchekov was taken to the hospital and examined by the doctor on duty. A heated discussion between the two doctors ensued, after which the police officers were informed of Zabchekov’s death.
There was no entry in the police station register for Zabchekov’s detention, although the normal practice was to record all detentions. There was an entry for an “unidentified person” assigned the number 72. A visual examination of the register showed that there had been tampering with the registration numbers, and that the entry for number 72 had been added at a later time.
A police report of the events was submitted to the head of the local police on 29 January 1996. That same day, an investigator from the Regional Investigation Service opened criminal proceedings to investigate Zabchekov’s death. A number of police officers were questioned, and photographs of Zabchekov’s body were taken. An autopsy was ordered and carried out. The three experts carrying out the autopsy concluded that the cause of death was an epidural cerebral haematoma followed by a cerebral oedema resulting from a skull fracture. The experts stated that in these kinds of epidural haematoma cases there is typically a lucid interval of four to six hours, during which no visible signs of injury would be displayed except a gradual sleepiness overcoming the victim.
The applicant was informed of her son’s death by police officers on January 29, 1996. The following day, she requested further information from the investigator regarding the circumstances surrounding her son’s death. The applicant claims that the investigator told her that Zabchekov had been taken to hospital but omitted the fact that Zabchekov had been in police custody. She further alleges that the investigator explained that Zabchekov’s fractured skull was caused by a fall and that Zabchekov had an abnormally thin skull. When the applicant received her son’s body, she and family members noticed bruises on his body. They took photographs of his body and clothes before burying him.
Two days after Zabchekov’s death, the investigation was reopened by the Regional Military Prosecutor’s Office when it was discovered that he had died while in police custody. A number of witnesses were again questioned. The investigator ordered a second report by five medical experts. The second report agreed with the initial autopsy as to the cause of death. However, it differed in that it claimed that the time between the skull injury and Zabchekov’s death was at least ten hours (i.e. prior to the time of his arrest). The investigation was subsequently closed on the basis of the second report because no connection could be found between police actions and Zabchekov’s death.
Numerous appeals by the applicant followed, but no further effective investigation took place. The applicant submitted an opinion by Professor Jorgen Thomsen, a member of the United Nations Standing Team of Forensic Experts, who disagreed with the second report’s claim of a lapse of at least ten hours from the skull injury until the time of death. Thomsen stated that this lapse was often no more than a couple of hours. His opinion also stated that Zabchekov might have been saved had he received medical attention earlier.
Admissibility
The Application was found admissible.
Merits
The applicant alleged that the State violated Article 2 by its ill-treatment of her son, leading to his death, in failing to provide timely medical treatment and in failing to carry out an effective investigation into his death. The Court recognized the seriousness of these claims, as this fundamental provision of Article 2 of the Convention enshrines one of the basic values of democratic societies. In cases where an individual dies while in police custody, the responsibility of providing a plausible explanation for the death rests on the State.
The Government’s explanation that the skull injury suffered by Zabchekov was sustained prior to his arrest is based upon the second forensic report. The Court observed, however, that the circumstances surrounding that report, as well as the Government’s omission of explanation of the discrepancies between the two reports, significantly reduces the credibility of the second report’s conclusions. The Court found other facts of the case to be incompatible with the Government’s theory of the time of injury. The Court also gave weight to the information that the police officers acted in a suspicious manner which undermined the credibility of their testimonies. The Court found the only explanation offered for Zabchekov’s death by the Government to be implausible, and therefore concluded that there had been a violation of Article 2.
The Court also analyzed the delay in provision of medical care to Zabchekov by the police officers and concluded that this delay contributed significantly to the fatal outcome of the case. The Court found this treatment to have violated the State’s obligation, under Article 2 § 1, to protect the lives of individuals in custody.
The Court found a further violation of Article 2 in the State’s failure to carry out an effective investigation into Zabchekov’s death, as is required implicitly in Article 2. The investigation must be thorough, impartial, and careful, in order to secure effective implementation of domestic law. In this case, the authorities did promptly carry numerous acts of investigation. However, there were a number of significant omissions, including, among others, the failure to record certain data in the autopsy, the failure to clarify discrepancies in the two forensic reports, and the failure to clarify numerous significant details with the officers involved. There was also a lack of independence, impartiality, and public accountability, all crucial factors of an effective investigation. The Court therefore found that the State had violated Article 2 § 1 in this respect.
The applicant claimed that there had been ill-treatment of her son prior to his death at the hands of the authorities, in violation of Article 3. The Court upheld this claim, observing that the Government had not provided any plausible explanation for the injuries to Zabchekov’s body, which were otherwise indicative of inhuman treatment beyond the threshold of severity.
The Court found Zabchekov’s detention to have been a violation of Article 5. The State had an obligation under that Article to conform to the substantive and procedural domestic laws regarding detention, in order to protect individuals from arbitrariness. The absence of any written order or proper record of Zabchekov’s detention is incompatible with, and contrary to the requirements of, Article 5.
The Court, having found violations of Articles 2 and 3, also ruled that there was a violation of Article 13 in that the applicant had no effective remedy at the national level to address the claims of her son’s death and ill-treatment. In the present case, where the criminal investigation into the death was ineffective and consequently undermined any other remedy that may have been available, the Court found the State had failed to carry out its obligations as set forth in Article 13.
The applicant alleged that the attitudes and actions of the police and authorities were directly influenced by their perception of her son as a Rom/Gypsy and there had, therefore, been a violation of Article 14. The Court emphasized that the standard of proof in such decisions is “beyond reasonable doubt” and, as in the similar claim in Velikova v. Bulgaria, the evidence available to the Court did not allow it to conclude beyond a reasonable doubt the presence of racially motivated prejudice. The Court did acknowledge the seriousness of the allegations, but found no violation of Article 14.
Decision
The Court unanimously held:
1. that there had been a violation of Article 2 with respect to Zabchekov’s death, in that the failure to provide timely medical care and the failure to conduct an effective investigation into the death
2. that there had been a violation of Article 3
3. that there had been a violation of Article 5
4. that there had been a violation of Article 13.
The Court held by six votes to one that there had been no violation of Article 14.
The Court awarded the applicant EUR 19,050 in non-pecuniary damages and EUR 3,500 in costs and expenses.
Dissenting Opinion
In a strongly worded dissent, Judge Bonello observed that in fifty years, the Court had not found any violation of Articles 2 or 3 to be motivated by the race, color, or place of origin of the victim. Bonello found it "disturbing" that the Court "[f]requently and regularly . . . acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it. Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence."
The problem, Bonello opined, lay in the evidentiary rule which the Court employed. Requiring “proof beyond reasonable doubt” led to these many decisions that do not reflect reality. Being the third case of death in custody of Roma at the hands of the Bulgarian police (see Assenov and Others v. Bulgaria and Velikova v. Bulgaria), there were clear warning signs that this link between physical abuse and ethnicity is not merely coincidental. The Court has never explained the justification for this legally untenable and unachievable standard.
Bonello referred in detail to Amnesty International’s 1996 report on Bulgaria’s deaths occurring in custody which emphasized that the problem is “further compounded by a pattern of impunity of law-enforcement officers responsible for human rights violations.” He also referred to other human rights watchdogs and intergovernmental organizations that had observed and documented this problem.
Bonello offered an alternative method of adjudicating such claims of discrimination. This method would shift the burden of proof to the defendant, a course employed by the Court in other instances (such as death in police custody) where the search for truth would otherwise be impossible. Inferences and rebuttable presumptions would allow the Court to break the stalemate that has caused it to find not a single case of racial discrimination in areas of deprivation of life or inhuman treatment.
For these reasons, Bonello did not agree with the Court’s finding that there had been no violation of Article 14.