MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-10

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-10 Velikova group v. Bulgaria (Application No. 41488/98) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1035, CM/ResDH(2020)198, H/Exec(2021)24, CM/Del/Dec(2020)1383/H46-3

 

Application	Case	Judgment of	Final on	Indicator for the classification
41488/98	VELIKOVA	18/05/2000	04/10/2000	Complex problem
77938/11	DIMITROV AND OTHERS	01/07/2014	17/11/2014
36613/08	MIHAYLOVA AND MALINOVA	24/02/2015	24/05/2015
67258/13	MYUMYUN	03/11/2015	03/02/2016
38152/11	STOYKOV	06/10/2015	01/02/2016
78907/16	YANCHOVICHIN	16/03/2021	16/03/2021
840/18	PALFREEMAN	08/06/2021	08/06/2021
37801/16	RIBCHEVA AND OTHERS	30/03/2021	30/06/2021

Case description

These cases concern mainly deaths, ill-treatment including torture and lack of timely medical assistance during arrest, in police detention or in penitentiary facilities, and the lack of an effective investigation into these events (violations of Articles 2 and 3).^[1] The facts occurred between 1993 and 2017.

In the Myumyun case, the European Court found, moreover, that the ineffectiveness of the investigation was due mainly to the lack of a free-standing offence of torture. Certain cases (Dimitrov and Others, Ribcheva and Others) concernparticularly the lack of effective investigation of the broader picture of a killing, such as the planning and conduct of police operation, inter alia on account of lack of publicity and involvement of the applicants in internal inquiries by the Ministry of Internal Affairs (procedural violation of Article 2).

In 2015, the European Court established (S.Z., judgment of 3 March 2015) that there was a systemic problem of ineffective criminal investigations in Bulgaria, revealed by a large number of repetitive cases concerning members of law enforcement agencies or private individuals. The specific measures needed to address the shortcomings of investigations into actions by law enforcement agents are examined in the present group. Measures needed to address the shortcomings affecting the above and other fields of criminal investigations are primarily examined in the S.Z./ Kolevi group of cases.

Status of execution

The authorities provided most recently an addendum to their action plan on 14 October 2021
(DH-DD(2021)1035). The Bulgarian Helsinki Committee (BHC) submitted a communication on the general measures on 19 October 2021 (DH-DD(2021)1119). The authorities indicated they will respond to this communication in due time, after serious consideration and consultations with domestic stakeholder.

Last examination by the Committee of Ministers: At its 1383rd meeting the Committee, noting the absence of tangible progress in certain areas, adopted Interim Resolution CM/ResDH(2020)198. It insisted, inter alia, on the need for improvements of free legal assistance, medical examinations and recording of injuries, as well as of notification arrangements in police detention. It also urged the authorities to, inter alia, introduce judicial review of refusals by prosecutors to open investigations, to ensure independence of preliminary inquiries and investigations as regards risks due to working relationships, to adequately criminalise torture and to establish a national system for compiling statistics related to ill-treatment.

Individual measures:^[2]

Detailed information on the individual measures in these cases can be found in document H/Exec(2021)24.

General measures:

The authorities noted that although the political instability in 2021 made it difficult to adopt reforms, a caretaker government adopted in August 2021 a Road Map for the Execution of the Judgments of the European Court (“2021 road map”). For detailed presentation of the general measures, see
H/Exec(2021)24.

1) Incidence of ill-treatment, monitoring and statistics

a) Reports on ill-treatment: As concerns penitentiary facilities, in its 2017 visit report, the European Committee for Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted that ill-treatment by prison staff appeared very rare. In her 2020 report as national preventive mechanism (NPM), the Ombudsperson reported on an increase of complaints of ill-treatment in such facilities.

As concerns use of force by the police, in its 2017 visit report,^[3] the CPT found that persons in police detention still ran a considerable risk of being ill-treated. In their communication of October 2021, the BHC stated that, according to a survey carried out by them in the period June-October 2021 among 704 persons placed in penitentiary facilities, questioned retrospectively on their experience during police detention (“the 2021 survey”), about 35% reported ill-treatment by police during arrest or police detention.

In her 2020 report the Ombudsperson referred to media footage displaying excessive use of force by the police in respect of demonstrators and journalists during anti-government rallies in 2020 in Sofia. She was informed that the Sofia Police Directorate had established excessive use of force by police officers and transmitted the file to the Prosecutor’s Office (PO). The Bulgarian Parliament set up a temporary commission for investigation of police ill-treatment during the rallies and approved in September 2021 a confidential report. The Ministry of Interior (MoI) has ordered a thorough inquiry of the police actions, which is ongoing.

b) Monitoring mechanisms: Monitoring within the MoI is carried out by the Inspectorate and the Human Resources Directorates. The 2021 road map foresees a possibility for providing for automatic transfer of the complaints of ill-treatment by the police to the PO. The authorities stated that in practice currently all complaints of ill-treatment are sent automatically to the PO. The BHC contested this assertion. 

In 2020, Ombudsperson experts visited 13 police detention facilities and 17 penitentiary facilities. Representatives of BHC carried out interviews of prisoners in 17 prisons and prison hostels in 2021. According to the BHC, there is still no access for civil society observers to police detention facilities.

c) Statistics: The 2021 road map foresees adopting detailed rules on data-gathering on complaints of ill‑treatment and their outcome. Detailed information on statistics is available in H-Exec(2021)24.

2) Measures aimed at preventing ill-treatment of detainees

a) Legal framework governing the use of force: In 2012 the use of force by the police was limited to situations in which it is “absolutely necessary”. In 2017 the “absolute necessity” test was also introduced in respect of the use of force by penitentiary staff and a binding instruction was issued in 2019 by the Minister of Justice. In addition, the 2021 road map foresees to create a specific criminal offence of torture and to specify the criminal offence of extortion of a confession from persons detained by the police.

b) Procedural safeguards during police detention: Domestic law provides basic safeguards for persons detained by the police for a maximum of 24 hours.

-  police detainees have the right of access to a lawyer from the start of their detention, but do not have the formal status of a suspect, meaning that legal assistance is not mandatory and an “exploratory interview” may proceed in the absence of a lawyer, even if legal assistance is requested.^[4] Since 2019, Section 72 § 5 of the Ministry of Interior Act requires that the detainees be informed of their right to legal assistance and of their right to remain silent, as well as of the consequences of the waiver of these rights. The 2021 road map envisages amendments to Instructions 8121z-78 of 2015 (“the 2015 Instructions”) on the procedure for detention to strengthen the safeguards for access to a lawyer at the beginning of the police detention. 

In the 2017 visit report, the CPT noted that the assistance of a lawyer was granted at best at the end of police detention, usually after the person had been interviewed. In October 2021, the authorities indicated that there had been no refusals of requests for an ex officio lawyer according to the MoI and that one police officer was disciplinarily sanctioned for not having summoned a lawyer upon request. The Ombudsperson’s 2020 NPM report informs on failure to allow two persons arrested in the context of anti-governmental rallies to have access to a lawyer from the outset of their detention. The BHC indicated that according to their 2021 survey, 64% of the interviewed had not had access to a lawyer while detained by the police and another 22% had been able to contact a lawyer at the end of the police detention.

In their 2019 communication^[5], the BHC provided statistics showing that in 2018 only 49 out of 40,983 persons detained by the police benefited from free legal assistance, as compared to 25 out of 25,960 detainees for the first five months of 2019. In October 2021, the authorities provided information according to which 30 persons in police detention benefited from free legal assistance in 2020.

- as concerns access to a doctor and reporting of injuries, the 2015 Instructions provide that the detainee can be examined by a doctor at his/her request or when his/her state of health so requires. In case of suspicion of unlawful use of force, the police officer accompanying the detainee must report to his or her hierarchy. The examination is confidential, unless the doctor requires otherwise. The authorities state that the 2015 Instructions will be reviewed and potentially amended to improve medical examinations.

In the 2017 visit report, the CPT observed that access to a doctor was generally provided, but in a manner excluding medical confidentiality, with superficial examination, poor recording and no reporting mechanism. The 2020 Ombudsperson’s NPM report mentions no complaints concerning refusals of access to a doctor.

Persons released after police detention (after 24 hours) can see a doctor at their own choosing and have the potential injuries recorded; those whose detention is prolonged beyond 24 hours can benefit from a medical check and mandatory reporting after transfer to a penitentiary facility (see below).

- as concerns remedies in respect of unlawful police detention, police detention can be challenged before the courts and since 1 January 2019, appeals must be examined immediately.

c) Procedural safeguards in penitentiary facilities: Domestic law allows detainees to request a forensic medical examination and places an obligation on medical professionals to inform the PO directly about any injuries found. In the 2017 visit report, the CPT noted that medical examinations upon admission to penitentiary facilities were still superficial and not confidential, recording was cursory, and the reporting of injuries was often not carried out. The BHC stated that their 2021 survey revealed that 15% of the inmates had been seen by a doctor in thepenitentiary facility only one or several days after their transfer.

3) Measures aimed at improving the effectiveness of investigations and disciplinary action

a) Guarantees for the independence of preliminary inquiries and investigations: After the formal opening of a criminal investigation, allegations of ill-treatment by police officers are investigated by investigating magistrates. However, the preliminary inquiry can be carried out either by a prosecutor or a police officer. Preliminary inquiries and criminal investigations concerning members of the law enforcement agencies are supervised by local prosecutors in the same way as any other investigation.

b) Disciplinary action: Temporary suspension from office during criminal or disciplinary proceedings is possible, if the police officer is likely to hinder the investigation. In May 2018, the Constitutional Court declared unconstitutional a provision requiring the automatic suspension of police officers who are charged with a criminal offence and are in parallel subject to disciplinary proceedings.

Analysis by the Secretariat

A detailed analysis of the individual and general measures can be found in H/Exec(2021)24.

- Individual measures

It should be recalled that, according to the European Court’s practice, law enforcement agents who have been charged with crimes involving ill-treatment should be suspended from duty during the investigation or trial and dismissed if they are convicted. It is therefore regrettable that in the Myumyun case further disciplinary or criminal action related to the applicant’s torture is prescribed, while the police officers received only mild administrative and disciplinary sanction. The authorities could therefore be invited, in view of the seriousness of the violation found, to indicate what alternative measures are available to comply with the above requirements, such as transfer of the responsible police officers to other functions excluding work with detainees.

As concerns the Dimitrov and Others case, it is regrettable that, despite the conclusion of the Supreme Court of Cassation in March 2021 that the police officers had committed negligent homicide, criminal sanction is no longer possible due to the expiry of the statute of limitations. The authorities may therefore be invited to clarify whether any disciplinary measures are possible and, if this is not the case, to submit their assessment on the suitability for the police officers to work in contact with detainees.

It is also concerning that no information has been provided in the Stoykov case. The Committee could therefore urge again the authorities to conduct a criminal investigation into the act of torture in this case, without further delay and to inform it of any developments. Information is also awaited on the individual measures in the Palfreeman and Ribcheva and Others cases, and on the outcome of the request for reopening of the criminal proceedings in the Yanchovichin case.

As concerns the Mihaylova and Malinova case, no further individual measures appear possible in view of the assessment of the PO concerning, inter alia, the expiry of statute of limitations, and it is therefore proposed to close the examination thereof.

- General measures

Overall, only limited progress has been made in respect of the issues identified in Interim Resolution CM/ResDH(2020)198, which can be explained partly by the political instability in 2021.

1) Incidence of ill-treatment, monitoring and statistics

As concerns ill-treatment in penitentiary facilities, while the CPT noted in 2017 that such complaints were very rare, more recently the number of files examined by the PO and the Ombudsperson’s report on 2020 show an increase of such complaints. As concerns police detention, the findings in the 2020 NPM report of the Ombudsperson and the BHC’s October 2021 communication suggest that detained persons still run a considerable risk of ill-treatment, as noted by the CPT in its report on the 2017 visit.

In view of the above, the Committee could reiterate its calls on the authorities to: i) provide an assessment of the reasons for the increase of complaints of ill-treatment in penitentiary facilities and statistics on such complaints; ii) present an in-depth analysis of the measures taken to date to reduce and eradicate the risk of ill-treatment during arrest and police detention, results of such measures and remaining challenges concerning the combat of ill-treatment by the police; iii) put in place a national system for compiling statistics on complaints, prosecutions and disciplinary and criminal penalties related to ill-treatment, as recommended by the CPT; iv) provide clear information on the nature of the disciplinary and criminal sanctions imposed for ill-treatment; v) support a more intensive monitoring by the Ombudsperson and expert NGOs.

In addition, the Committee could invite the authorities to provide concrete information on the results of any inquiry or investigation in the reported instances of ill-treatment and excessive use of force during the 2020 rallies, and, as the case may be, the sanctions imposed and any other measure taken.

2) Measures aimed at preventing ill-treatment

As concerns the legal framework, the Committee could urge the authorities to rapidly finalise their work foreseen in a road map of August 2021, so as to provide, without any further delay, for the offense of torture accompanied with adequate, dissuasive penalties, and consider the need to criminalise the extortion of a confession from suspect not yet served with charges at the pre-trial stage.

As concerns safeguards against ill-treatment, expert and civil society reports indicate that free legal assistance is not always available or is delayed and that the promptness, quality and confidentiality of medical examinations and recording of injuries in police detention and in penitentiary facilities need to be improved. It is therefore positive that the authorities are considering amendments to the 2015 Instructions to strengthen the safeguards for access to a lawyer at the outset of the police detention and to improve medical examinations. Further information on concrete proposals should be provided in due time. 

In this regard, the Committee could reiterate its calls to: i) ensure that persons detained by the police have prompt and efficient access to a lawyer, including free legal assistance and that the wish of the detainee to be interviewed in the presence of a lawyer is respected, except in duly justified situations; ii) ensure that the recording of injuries in police detention and in penitentiary facilities is properly done; iii) introduce systematic video recording of the interrogations of suspects; iv) introduce clear rules on automatic notification to the PO of complaints of ill-treatment received by the police; v) consider providing for automatic notification to the PO of medical findings of signs of ill-treatment of a person detained by the police.

3) Measures aimed at improving the effectiveness of investigations and disciplinary action

As concerns the Committee’s invitation to extend judicial review to refusals to open an investigation, it should be recalled while the issue is of considerable importance for the execution of the present group, it is also examined in the S.Z/Kolevi group, which concerns effectiveness of criminal proceedings in general. Therefore, for the sake of coherence, the Committee might wish to continue examining this issue in the latter group.

Under the present group of cases, the Committee could again urge the authorities to entrust the preliminary inquiries and investigations of allegations of ill-treatment to prosecutors and investigating magistrates who do not have working relationships with the respective law enforcement agents, to ensure independence (preliminary inquiry should not be entrusted, inter alia, to a police officer whose duty station is in the respective prison[6]).

As concerns the need to prevent ineffectiveness of investigations related to the poor quality of medical examination (shortcoming established in the recent Palfreeman judgment), the authorities’ assessment is necessary as to whether further measures are needed to ensure that detainees are examined by doctors, who have both formal and de facto independence, and also are suitably trained.

As concerns the need to prevent ineffectiveness of investigations due to a failure by a court to apply properly the absolute necessity test concerning use of force (shortcoming established in the recent Yanchovichin case), the authorities’ assessment is necessary as to whether further measures are needed to ensure that courts apply the domestic law in a Convention-compliant manner.

As concerns disciplinary action, the authorities could moreover be invited to indicate how they have ensured, or intend to ensure, that law enforcement agents who have been charged with crimes involving ill-treatment are suspended from duty during the investigation or trial and dismissed if they are convicted, in conformity with the established case-law of the Court on this issue. They could also be encouraged again to ensure that police officers charged with ill-treatment could be suspended, not only in situation where there is a risk of them hindering the investigation, but also on grounds related to the seriousness of charges against them, together with safeguards against abusive suspension; and indicate whether penitentiary staff can be suspended if charged with ill-treatment. 

As concerns publicity and involvement of victims or their relatives in internal inquiries of the MoI, the recent Ribcheva and Others judgment shows that internal inspections of the MoI could, depending on the circumstances, satisfy the independence requirement. However, to discharge effectively the so-called additional investigative duty, if the facts are not covered by criminal law, there should be sufficient disclosure of the results to the individuals concerned and some form of public scrutiny. The Committee could therefore invite the authorities to provide their assessment on the need of amendments to the rules on classification of information or changes in the practices applicable to these internal inquires, so as to allow victims or their relatives, in justified cases, to gain sufficient and timely knowledge of their outcome.

Financing assured: YES