SHOPOV v. BULGARIA - 17253/07 - Chamber Judgment [2013] ECHR 327 (16 April 2013)

In the case of Dimitar Shopov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          George Nicolaou,
          Ledi Bianku,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Paul Mahoney, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 26 March 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 17253/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Dinkov Shopov (“the applicant”), on 20 March 2007.

The applicant was represented first by Mr E. Ganchev and then by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

The applicant alleged, in particular, that the authorities had failed to effectively investigate an assault against him by private individuals.

On 16 May 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Ovchepoltsi.

A. The incident of 1 May 1991

On the evening of 1 May 1991 the applicant was involved in a fight between several people in the village of Ovchepoltsi. During the fight he was stabbed with a knife in the stomach. Some members of the public came to his aid and took him to hospital.

On the same day the applicant was admitted as an in-patient, and underwent an urgent operation. He was discharged on 13 May 1991 and was given thirty days’ sick leave.

B. The investigation into the events

On 1 May 1991 the investigating authorities inspected the site where the fight had taken place. They took photos and seized a wooden stick stained with blood.

On 1 and 2 May 1991 several witnesses were questioned.

On 2 May 1991 criminal proceedings were opened against two of the participants in the fight: T.S. and P.S. They were charged with attempted murder and questioned.

On 12 May 1992 the case investigator commissioned a medical expert report to establish the extent of the victim’s injuries. The report relied on the medical records from the applicant’s stay in hospital and established that he had suffered a 3 cm knife wound in the abdominal cavity which resulted in an injury to the great omentum and to the large intestine. The applicant had also suffered a combination of other injuries: large bruises on the face and on the right leg, and a broken rib.

Between 18 May and 8 June 1992 several witnesses were questioned.

It appears that between 1991 and 1994 the applicant’s mother wrote several times to the prosecuting authorities, complaining of inactivity on the part of the investigator in charge of the case. In response, the supervising prosecutor wrote to the investigator on several occasions requesting that the investigation be completed; for example in a letter of 19 August 1994 the prosecutor requested that the investigation be completed “without delay”.

On 17 June 1996 the attempted murder charge against T.S. was changed to a charge of having caused intermediate bodily harm and he was questioned in this connection.

On 11 September 1996 the attempted murder charge against P.S. was also changed to a charge of having caused intermediate bodily harm and he too was questioned.

Between 25 August 2000 and 1 July 2002 some of the witnesses were recalled for further questioning.

On 18 July 2003, following a complaint by the applicant’s lawyer in relation to the length of the investigation and inactivity on the part of the investigator in charge of the case, the supervising prosecutor removed the investigator and gave instructions to the investigating authorities to commission a new medical expert report and to conclude the investigation within thirty days. The Court has not been informed by either party of what substantive investigative steps, if any, were undertaken after that date.

On 5 June 2006 the public prosecutor terminated the proceedings on the ground that the relevant statutory limitation period for bringing a prosecution had lapsed.

On 13 July 2006 the applicant appealed against the order terminating the proceedings. In a decision of 17 July 2006 the Pazardzhik Regional Court (“the Regional Court”) ruled that the assailants remained charged with attempted murder and therefore the statutory limitation period for prosecution had not lapsed. The court remitted the case to the prosecutor’s office, instructing it to continue with the investigation.

T.S. and P.S. appealed against the decision of the Regional Court. In a final decision of 27 September 2006 the Plovdiv Court of Appeal ruled that the assailants had remained charged only with having caused intermediate bodily harm. The court quashed the Regional Court’s decision and upheld the prosecutor’s order terminating the proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Intermediate bodily harm

The Criminal Code 1968 defines intermediate bodily harm (средна телесна повреда) as, inter alia, injuries penetrating the skull, the chest and the abdominal cavity (Article 129 § 2). At the relevant time the wilful infliction of intermediate bodily harm was an offence punishable by up to five years’ imprisonment (Article 129 § 1). It is subject to public prosecution (Article 161).

Article 93 § 7 provides that offences punishable by more than five years’ imprisonment are to be considered “serious” for the purposes of the Code.

The limitation period for prosecuting offences under Article 129 of the Code of Criminal Procedure is ten years (Article 80 § 1 (3) of the Code). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 129 of the Code cannot be prosecuted if more than fifteen years have elapsed after its alleged commission.

B. State liability for damage

Under section 1 of the State and Municipalities Responsibility for Damage Act 1988 (hereafter “the State Responsibility Act”) the State is liable, in particular, for damage suffered by individuals as a result of unlawful decisions, acts or omissions by its bodies and civil servants, committed in the course of or in connection with the performance of administrative duties. The Supreme Court of Cassation’s case-law provides that the functions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative duties and those authorities are not liable under section 1 of the Act (тълк. реш. № 3 от 22 април 2005 г. на ВКС по тълк. д. № 3/2004 г., ОСГК).

C. Tort claims in civil proceedings and in the context of criminal proceedings.

Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civil claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civil claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003).

The general limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(g) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. According to interpretative decision of 5 April 2006 adopted by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation time stops running under section 115(1)(g) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).

An overview of other pertinent legislation and practice, applicable at the relevant time, can be found in the Court’s decision in the case of Georgiev v. Bulgaria (no. 34137/03, 11 January 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

The applicant complained that the criminal investigation into the assault against him had been ineffective. He relied on Articles 2, 3 and 13 of the Convention.

The Court’s established case-law provides that in exceptional circumstances, depending on considerations such as the degree and type of force used and the nature of the injuries, physical ill-treatment administered by third parties which does not result in death may be examined under Article 2 of the Convention. The Court has found Article 2 applicable when the person concerned had been the victim of behaviour by State agents which by its very nature had put his life at serious risk even though in the event, he had survived (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004-XI, and Soare and Others v. Romania, no. 24329/02, §§ 108 and 109, 22 February 2011). The Court has followed a similar approach in cases involving non-State actors (see Igor Shevchenko v. Ukraine, no. 22737/04, § 43, 12 January 2012, and Yotova v. Bulgaria, no. 43606/04, § 69, 23 October 2012).

However, having regard to all the circumstances of the case, in particular the nature of the injuries inflicted (see paragraph 11 above), as well as its practice in similar cases, the Court considers that the applicant’s complaint falls to be examined only under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. The Government’s preliminary objection of incompatibility ratione temporis with the provisions of the Convention

The Government submitted that the applicant’s complaints that the investigation into his ill-treatment had been ineffective were incompatible ratione temporis with the provisions of the Convention, because the assault had taken place before the Convention had entered into force in respect of Bulgaria, and the procedural obligation to investigate could not be considered independently of that act. The Government specifically pointed out that in cases like that of the applicant, in which death had not occurred, the Court had no temporal jurisdiction.

The applicant challenged the Government’s assertion, arguing that the Court did have temporal jurisdiction in his case because the authorities’ inactivity had only become an issue after the Convention had entered into force in respect of Bulgaria.

The Court has stated that the procedural obligation to carry out an effective and prompt investigation under Article 2 has evolved into a separate and autonomous duty capable of binding the State, even when the substantive act took place before the critical date (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). For such a procedural obligation to come into effect, a significant proportion of the investigating steps required by this provision will have been or ought to have been taken after the critical date (ibid., § 163). Subsequently the Court applied this principle to cases concerning deaths at the hands of private individuals (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 63, 25 November 2010; and Frandeş v. Romania (dec.) no. 35802/05, 17 May 2011). Furthermore, in Tuna v. Turkey (no. 22339/03, § 58, 19 January 2010), in Stanimirović v. Serbia (no. 26088/06, § 28, 18 October 2011), and recently in P.M. v. Bulgaria (no. 49669/07, § 56, 24 January 2012), it went on to hold that the principles established in Šilih also applied to the procedural obligation to investigate under Article 3 acts of ill-treatment committed by State and non-State actors.

In the present case, while the attack on the applicant took place in 1991, before the entry into force of the Convention in respect of Bulgaria on 7 September 1992, most of the procedural steps were or ought to have been taken after that date (see paragraphs 13-20 above).

In view of the above, the Court finds that the alleged failure to comply with the procedural obligations of Article 3 of the Convention, which took place after 7 September 1992, falls within the Court’s temporal jurisdiction. It rejects, therefore, the Government’s objection.

2. The Government’s preliminary objection of non-exhaustion of domestic remedies

The Government submitted that the applicant had failed to exhaust domestic remedies as he had neither brought an action under section 1 of the State Responsibility Act against the investigating authorities nor a civil claim against the alleged perpetrators.

The applicant stated that the State Responsibility Act was not applicable in his case and furthermore that the Government had not submitted any domestic case-law concerning similar cases. As regards the possibility of his bringing a civil claim, the applicant stated that according to the Court’s case-law this was not a requirement for complaints under Articles 2 or 3, and in any event his joining the criminal proceedings as a civil claimant would have been a waste of time as the case never made it to the trial stage.

The Court observes that a claim against the investigating authorities does not fall within the scope of the State Responsibility Act. Under the domestic case-law investigating and prosecuting authorities are not liable under section 1 of the State Responsibility Act (see paragraph 23 above) and the Government have failed to substantiate their assertion that the State Responsibility Act was applicable in the present case.

In respect of a possible claim by the applicant against the alleged perpetrators for compensation for the damage inflicted, the Court considers that that type of civil remedy cannot be regarded as sufficient for the fulfilment of the State’s obligation under Article 3 in cases such as the present, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009 and Biser Kostov, no. 32662/06, § 72, 10 January 2012).

It follows that the Government’s objections as to non-exhaustion of domestic remedies must also be dismissed.

3. Conclusion

The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The Government noted that the investigation had been comprehensive and in compliance with the procedural obligation under Article 3 of the Convention. The authorities had carried out all possible investigative measures, had established the facts and had carried out a detailed medical assessment which had established the extent and nature of the injuries inflicted on the applicant.

The applicant argued that the investigation could not be regarded as effective as it had not led to the identification and punishment of the perpetrators. While it was true that the authorities had carried out some basic investigative measures, those measures had been carried out over the course of more than a year. Although the perpetrators had been known to the authorities from the beginning, the authorities had not undertaken the necessary measures to ensure the completion of the investigation and the prosecution of the perpetrators. Between the periods 1992 to 1996 and 1996 to 2000, no investigative measures had been carried out, and this had ultimately led to the lapse of the statutory limitation period for bringing a prosecution.

2. The Court’s assessment

(a) General principles

The Court reiterates that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment.

Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see A. v. the United Kingdom, 23 September 1998, § 20, Reports of Judgments and Decisions 1998-VI).

The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see, among other authorities, Šečić v. Croatia, no. 40116/02, § 52, 31 May 2007).

Where an individual raises an arguable claim of ill-treatment, including ill-treatment administered by private individuals, Article 3 of the Convention gives rise to a procedural obligation to conduct an independent official investigation. The investigation must be capable of leading to the identification of those responsible with a view to their punishment (see Biser Kostov, cited above, § 78, with further references).

The scope of this obligation by the State is one of means and not of results; the authorities must have taken all reasonable steps available to them to secure evidence concerning the incident (see Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 69, 27 September 2007 and, mutatis mutandis, Menson and Others v. the United Kingdom (dec.), no. 47916/99, 6 May 2003). A requirement of promptness and reasonable expedition is implicit in this context. Tolerance by the authorities of such acts cannot but undermine public confidence in the principle of lawfulness and the State’s maintenance of the rule of law (see, for example, Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007, and Milanović, no. 44614/07, § 86, 14 December 2010).

(b) Application of those principles to the present case

On the basis of the medical evidence submitted, which appears to be reliable and comprehensive, and which established that the applicant had suffered a knife wound to his abdominal cavity, large bruises on his face and right leg, and a broken rib, the Court considers that the treatment complained of was sufficiently serious to fall within the scope of Article 3 of the Convention.

Therefore, the authorities had a procedural obligation to conduct an effective investigation. The Court notes at the outset that the authorities took a number of investigative steps shortly after the incident: they questioned a number of witnesses, inspected the area where the incident had taken place, and opened criminal proceedings for attempted murder against two of the persons involved in the fight. In the early stages of the investigation the authorities thus made reasonable efforts to gather evidence and establish the facts.

However, the Court observes that the authorities only got round to commissioning a medical expert report a year after the incident and that that measure, taken quite late in the day, was followed by long periods of inactivity, such as from 8 June 1992 to 17 June 1996, from 11 September 1996 to 25 August 2000 and from 18 July 2003 to 5 June 2006. The Court is struck by the fact that the repeated requests of the prosecutor to the investigator to conclude the investigation went unheeded (see paragraphs 13 and 17 above). The Government have offered no explanation for this. It cannot be said that during these periods of inactivity the investigation was dormant to the extent that the applicant should have realised that the investigation was going to be ineffective - on the contrary, the supervising prosecutor’s instructions of 18 July 2003 (see paragraph 17 above) would have suggested that the investigation’s conclusion was finally in sight. Moreover, there was no formal remedy to speed up the investigation as this was entirely in the hands of the authorities. The Court further notes that when the public prosecutor officially terminated the proceedings on the ground of the extinctive prescription of the criminal action, the applicant immediately contested the decision (and was initially successful - see paragraph 19 above). The general conduct of the investigation by the authorities thus allowed the statutory limitation period to lapse.

The Court reiterates that the purpose of effective protection against acts of ill-treatment cannot be achieved where the criminal proceedings are discontinued owing to the fact that the prosecution has become time-barred and where this has occurred, as shown above, as a result of the mismanagement of the case by the relevant State authorities (see passim Beganović, cited above, and in particular §§ 85-87).

In the light of the foregoing, the Court concludes that in the present case the authorities failed to conduct an effective investigation into the wounding of the applicant. Accordingly, there has been a violation of the procedural limb of Article 3 of the Convention.

II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS

The applicant also complained, relying on Articles 6 and 13, that because of the excessive length of the criminal investigation, he had been denied access to a court to claim damages from his attackers.

The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... tribunal established by law...”

The Government submitted that the overall length of the investigation had been reasonable, that the applicant had not availed himself of the opportunity to become a civil party to the proceedings at the investigation stage, and that he could have also brought a claim for damages before the civil courts.

The applicant maintained his position that the investigation had been unreasonably lengthy. He further challenged the Government’s assertion that he could have brought a civil claim. In his view, it would have been ineffective for him to join the criminal proceedings as a civil claimant as the proceedings never reached the trial stage. Hypothetically, he could have brought a separate civil claim against the attackers before the civil courts but that option would have had its disadvantages; for example, he would have had to pay a 4% court fee and would have had to adduce evidence against the perpetrators. In all probability the civil proceedings would have been stayed pending the outcome of the criminal proceedings.

The Court observes that, in accordance with the domestic law as applicable at the material time (see paragraphs 25 and 26 above), the applicant had the right to join the criminal proceedings as a civil claimant at the preliminary investigation stage or to bring a separate claim for damages before the civil courts. He did not pursue either of these avenues and allowed the limitation period for his tort claim to expire. It is true that had he chosen to bring a civil claim in the context of the preliminary investigation, his claim would not have been examined because the proceedings were ultimately terminated as time-barred. However, this outcome could not have been known to the applicant at the time. In any event, by bringing his civil claim either in the criminal proceedings or in separate civil proceedings he would have stopped the limitation period for the action in tort from expiring. There is nothing to indicate that such a claim would have been bound to fail (see, mutatis mutandis, Georgiev (dec.), cited above, with further references).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

The Government submitted that the claim was exorbitant. They also stated that, should the Court find a violation, a ruling in that sense would be sufficient just satisfaction.

The Court considers that the applicant must have suffered anxiety and frustration as a result of the violation found and that that damage cannot be made good solely by the finding of a violation. Ruling ex aequo et bono, as required under Article 41 of the Convention, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

The applicant sought reimbursement of EUR 5,440 incurred in fees for sixty-eight hours of work by his legal representatives on the proceedings before the Court, charged at a rate of EUR 80 per hour. He submitted a fee agreement and a time sheet, and requested that any sum awarded by the Court under this head be made directly payable to his legal representatives. The applicant also sought reimbursement of EUR 70 for postage and office expenses. He did not submit any receipts.

The Government submitted that the applicant’s claim for costs and expenses was exaggerated. They stated that there was no documentation proving that the applicant had actually paid such fees and suggested that in assessing the quantum of the award, the Court should have regard to its settled practice and to the reality of the Bulgarian economic situation. The Government further submitted that the claim for postage and office expenses could be reimbursed upon presentation of the relevant proof.

According to the Court’s case-law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum.

Having regard to the material in its possession, the above considerations, the lack of complexity of the case and the fact that the applicant’s lawyers did not represent him at the initial stage of the proceedings, the Court considers it reasonable to award the sum of EUR 2,000 covering costs and expenses under all heads, plus any tax that may be chargeable. This sum is to be paid directly to the applicant’s legal representatives.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares by a majority the complaint concerning the alleged ineffectiveness of the criminal investigation into the applicant’s ill-treatment admissible and the remainder of the application inadmissible;

2. Holds by six votes to one that there has been a violation of the procedural limb of Article 3 of the Convention;

3. Holds by six votes to one

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of costs and expenses, the former sum to be paid directly to the applicant’s legal representatives;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Ineta Ziemele
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kalaydjieva is annexed to this judgment.

I.Z.
T.LE.

DISSENTING OPINION OF JUDGE KALAYDJIEVA

In 1991, when the applicant (at that time 32 years old) was involved and seriously injured in a fight with private individuals, Bulgaria was not a Party to the Convention, which at that time did not entail any “separate and autonomous duty” of “effective and prompt investigation” under Article 2 or 3. Nonetheless, the next day the national authorities instituted criminal proceedings and charged the suspected perpetrators with attempted murder.

By 1996 the applicant had missed the opportunity to join the criminal proceedings as a civil party or to institute separate compensation proceedings for the serious injuries he had sustained, as the general limitation period for such claims had expired. I fully agree with the majority in dismissing Mr Shopov’s complaints under Article 6 based on an alleged violation of his right to obtain compensation for the ill-treatment to which he was subjected.

It might also be of interest to note that at that time the case-law of the Court under Article 3 of the Convention did not yet require States Parties to conduct an effective investigation into any acts of violence, whether committed by State agents or private parties, while the view that Article 6 of the Convention did not guarantee any individual right of the victims to criminal proceedings was already fully valid - as it is to this day. Had the applicant complained before the Court at that time, there is a reasonable chance that his application would have been declared inadmissible both on account of the fact that the events took place before ratification of the Convention and on account of the Court’s view that the Convention did not guarantee any right to criminal proceedings against third parties.

The applicant’s inactivity continued until 2003. By that time the development of the Court’s views on the State obligation to investigate had already been triggered in its case-law of the late 1990s. However, he failed to join the criminal proceedings either as a civil party or as a private prosecutor and/or to request steps for their timely and proper conduct, with the exception of his mother’s complaints in the period 1991-1994 (resulting in the prosecutor’s order that they be completed “without delay”) and his lawyer’s request in 2003 (resulting in an order that they be completed in thirty days). In the meantime, in 1996, the initial charges of attempted murder had been changed to “causing intermediate bodily harm”.

There is nothing to show that Mr Shopov undertook any other serious attempts to pursue his interest in the conduct of these proceedings in the period of almost nine years which elapsed between the last request made by his mother in 1994 (see paragraph 13 of the judgment) and the single request made by his lawyer on 18 July 2003 for further action in the long-dormant proceedings (see paragraph 17). By that time the applicant was clearly aware of the ineffectiveness of the criminal investigation and must have become aware that the reduction of the charges against the perpetrators in 1996 entailed the risk of an earlier time-bar for their prosecution. However, he failed to challenge that reclassification at the time, as he could have, and demonstrated no further interest in the proceedings for the next three years. In these circumstances I am not inclined to believe that the discontinuation of the proceedings as being time-barred took the applicant by surprise and I cannot agree with the majority’s views that his appeal against the discontinuation of the proceedings in 2006 can be seen as an “immediate” reaction (see paragraph 51). Mr Shopov did not complain that he had no access to or opportunities for other action, as the majority appears to have assumed (see paragraph 51 in fine) in view of the absence of formal remedies at his disposal. Although undertaken between long intervals of complete inactivity, his attempts while the proceedings were still open did trigger a reaction, while the last one was undertaken when it was already too late. Thus, neither the applicant nor the investigating authorities took reasonable steps for the proper conduct and conclusion of the investigation in the meantime.

While I am equally “struck by the fact that the repeated requests of the prosecutor to the investigator to conclude the investigation went unheeded” and I fully agree with the majority that “[t]he general conduct of the investigation by the authorities allowed the statutory limitation period to lapse” (see paragraph 51), I remain unconvinced that the applicant’s own conduct did not contribute to this situation. Unlike Mr Shopov, all the applicants in the cases relied on in the present case raised their complaints before this Court only after having done “all that could be reasonably expected” to pursue their rights at the national level.

In contrast, Mr Shopov remained inactive for two notable periods of nine and three years, in full awareness of the dormant nature of the investigation and the risk, for at least a significant part of these periods, that the proceedings would be discontinued as being time-barred. The applicant provided no explanation as to why he had failed to bring his complaints under the Convention in the period before 2003, once he became aware of the ineffectiveness of the investigation, or after the expiry of the thirty-day time-limit for concluding it (see paragraph 17), but instead waited for three more years before lodging his application with the Court in 2007.

By that time the Court had dismissed numerous similar complaints as inadmissible in accordance with the criteria applicable at the time: the fact that the events complained of took place before the ratification of the Convention; the fact that the Convention does not guarantee any individual right to criminal proceedings against private parties; and the visible failure of the applicants to reasonably pursue their rights before the national authorities before coming to the Court or to register their complaints within a reasonable time after realising that the available domestic remedies were ineffective. I am not convinced that the present application would have had a different fate had it been examined at the time of its lodging.

However, by 2013, when this application was examined, the living instrument of the Convention had not only elaborated the doctrine of positive obligations to investigate, but also expanded the now independent “procedural aspect” of the protection of individual rights under Article 3 and applied it with hindsight to events which took place even before ratification of the Convention. Relying rigorously on all the new standards resulting from this subsequent development, the conclusions of the majority on the merits of the complaints appear to attach considerable significance to the ex officio nature of the positive obligation to investigate ill-treatment by private parties, while failing to subject to reasonable scrutiny the applicant’s own conduct for the purposes of their admissibility. In this regard I find it difficult to agree that such an emphasis will meaningfully serve the purposes for which the ex officio nature of the obligation to investigate was initially developed, namely to impose a duty to establish and disclose the circumstances of wilful ill-treatment by State agents so as to safeguard the public interest in their accountability.

This approach to examining the applicant’s “immediate” reactions in 2013 appears to favour individuals who remained “wisely” inactive for as long as necessary for the Court to develop its doctrine, in order to benefit from their own inactivity. I am far from convinced that the Convention case-law may be interpreted as an instrument for making up for missed opportunities.

Summum jus, summa injuria?

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHOPOV v. BULGARIA - 17253/07 - Chamber Judgment [2013] ECHR 327 (16 April 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/327.html Cite as: [2013] ECHR 327