Death in police custody or in detention
II. RELEVANT DOMESTIC LAW A. National Police Act ( Закон за полицията ), as in force at the relevant time 99. Section 35(1) of the Act provided as follows: “The police authorities shall issue a written order for an arrested person to be taken to the [place of detention].” B. Code of Criminal Procedure ( Наказателно-процесуален кодекс ) 100. By virtue of Article 388 of the Code, the military courts hear criminal cases in which the accused is, for example, a police officer. Where a case would fall within the competence of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 101. Article 362 § 1 (4) taken in conjunction with Article 359 provides that, in the event of a judgment of the European Court of Human Rights finding a violation of the Convention “of significant importance” to a criminal case that has ended by virtue of a judicial decision, the prosecuting authorities shall request the reopening of the case by the competent court. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 102. The applicant alleged that her son had been ill-treated and had died as a result of injuries inflicted by police officers, that he had not been provided with timely medical treatment while in custody and that the State authorities had failed to undertake a thorough and effective investigation. Article 2 of the Convention provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Whether Mr Zabchekov died as a result of ill-treatment while in police custody 1. The parties' submissions (a) The applicant 103. The applicant submitted that the Government's explanation, which was based on two main arguments – that the fatal skull injury had been sustained long before Mr Zabchekov's arrest and that the remaining injuries on his body had been received during the chase – was implausible as it did not accord with the evidence. 104. As regards the skull injury, the applicant asserted that the conclusions of the second forensic report had been highly suspect as they had deviated from the findings of the first forensic report without any explanation. The authorities had been quick to rely on the second report, ignoring the contradictions. The second report's conclusion as to the timing of the fatal injury had been based only on the shape of the blood clot as seen on photographic images taken almost six hours after the time of death. The suggestion that the skull injury had been inflicted ten hours before Mr Zabchekov's death, at about 6.45 p.m. on 28 January 1996, was, in the applicant's submission, incompatible with the evidence and highly unrealistic. The occurrence of an injury serious enough to eventually cause death could not have gone completely unnoticed by so many persons who had talked to Mr Zabchekov at length and observed him. Furthermore, the Government had not offered any serious evidence in support of their implied theory that Mr Zabchekov's alleged “permanent, chronic, neurotic condition” had increased the chances that the fatal injury had been caused by “falling on a ... broad, even surface”. The Government's explanation of the other injuries found on Mr Zabchekov's body – on his chest, face and right wrist – was clearly implausible in the applicant's view. Such injuries could not be inflicted by falling to the ground while running or by the normal use of handcuffs. Indeed, the origin of those injuries had never been investigated and the Government had developed their own arbitrary theory for the purposes of the present case. In reality, it was obvious that the injuries were the result of ill-treatment and that, in the absence of any evidence to the contrary, they must have been inflicted at the same time as the fatal skull injury. 105. The applicant also considered it particularly striking that no explanation had been provided concerning the suspect behaviour of the police officers and their conspicuous attempt to forge the detention register. (b) The Government 106. The Government, referring to the second forensic report, stated that the fatal injury had been inflicted more than ten hours prior to Mr Zabchekov's death and, therefore, long before his arrest. It was undisputed that Mr Zabchekov had consumed a large quantity of alcohol before his arrest. He had been drunk and staggering. Furthermore, there was clear evidence that he had fallen several times while running. In the Government's view the evidence concerning his behaviour at the time of his arrest and detention – which corresponded to the typical symptoms of a “lucid interval” after a skull fracture – confirmed the medical experts' conclusions about the timing of the fatal injury. 107. The Government pointed out that the statements of the witnesses relating to the whereabouts of Mr Zabchekov prior to his arrest contained contradictions. Furthermore, on several occasions in 1995 the applicant had stated that her son was ill and – when younger – had sometimes lost consciousness and suffocated. Mr Zabchekov himself had confirmed in 1995 that he had suffered from headaches and fainting. On that basis, the Government concluded that the experts' finding that Mr Zabchekov might have received the fatal injury by falling on a broad hard surface was plausible. 108. The Government stressed that there was no evidence of any ill-treatment by the police. In their view, the injuries to Mr Zabchekov's chest and face must have been the result of his falling on the ground, and those to his wrists must have been caused by the normal use of handcuffs. 2. The Court's assessment (a) General principles 109. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI). 110. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Salman and Velikova, cited above). 111. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman, cited above, § 100). (b) Application of those principles to the present case 112. The Court observes that Mr Zabchekov died after being detained for several hours at the Razgrad police station, where he had been brought after being briefly chased by an off-duty police officer. It is incumbent on the Government, therefore, to provide a plausible explanation for Mr Zabchekov's death. 113. The Government's explanation is that Mr Zabchekov's death could not possibly have been the result of police ill-treatment as the second forensic report had concluded that the fatal injury, a skull fracture, had been inflicted at least ten hours prior to the time of death. It followed that the skull fracture had occurred before 7 p.m. on 28 January 1996, whereas Mr Zabchekov's encounter with the police occurred about five hours later. 114. The Court observes that the conclusion of the second report as to the time at which the injury occurred was based on a visual examination of photographs of the blood clot taken six hours after Mr Zabchekov's death. The experts did not even mention why they considered that no changes had occurred in the blood clot after the boy's death. According to the medical opinion submitted by the applicant – uncontested by the Government – such changes did occur and had to be taken into account. Furthermore, the second forensic report, which relied solely on documentary material, departed in significant respects from the conclusions of the first report without stating why that report's findings concerning the strength of the blow and the time of the skull fracture had been incorrect. The first forensic report, in contrast, had been based on a direct observation of the body (see paragraphs 53-59, 70 and 72-77 above). The Court finds that all of the above significantly reduces the reliability of the second report's conclusions. 115. It is true that certain facts in the present case cannot be unequivocally explained: Mr Zabchekov's reported staggering and mumbling at the time of his arrest may be seen as an indication that he had already been injured at that time, but it may also have been the result of his apparently high level of alcohol intoxication (see paragraphs 11, 22, 28, 59, 60, 74, 76 and 95 above). 116. However, if Mr Zabchekov was indeed injured before 7 p.m. on 28 January 1996, as was suggested by the conclusions of the second medical report, that would mean that he went out with friends, visited a bar and then decided to steal car parts while suffering from a skull fracture. That may appear unlikely even if the so-called “lucid interval” between the injury and the death is taken into account. In particular, it is not disputed that Mr Zabchekov was able to run when C attempted to apprehend him and was walking normally when brought to the police station (see paragraphs 12-14, 16 and 29 above). 117. The Court notes that the first forensic report considered that the skull injury had most likely been inflicted between four and six hours prior to Mr Zabchekov's death and, therefore, possibly at a time when he was in police custody, either before or after he was taken to the police station (see paragraph 59 above). Furthermore, there were a number of other injuries to Mr Zabchekov's body which could have been the result of the same events that caused the skull fracture (see paragraphs 55, 56, 58, 77 and 92-94 above). 118. The Government stated that Mr Zabchekov might have sustained his injuries by falling to the ground – before he encountered the police or during the chase – as he was drunk and had a history of health problems. The traces on his wrists were allegedly caused by the normal use of handcuffs. 119. That supposition is not, however, supported by forensic evidence, as the presence or absence of “ contre -coup lesions” characteristic of falls was not recorded by the autopsy (see paragraphs 73 and 95 above). Furthermore, the Court considers it significant that none of the witnesses who were in contact with the applicant's son until he was taken to the police station reported any complaint of an ailment on his part. As regards the use of handcuffs, according to the medical opinion submitted by the applicant, handcuffs may leave marks if they are too tight or the person is struggling or is dragged. The autopsy found a very slight mark on Mr Zabchekov's left hand and severe bruising on his right hand (see paragraphs 55, 56, 58 and 95 above). It was also reported that at some point he was handcuffed to a tree. It seems unlikely, therefore, that the injury to his right wrist was the result of normal use of tight handcuffs. The other two possible explanations – that Mr Zabchekov was struggling or was dragged – may suggest that he was ill-treated. Finally, the Court does not find the information about Mr Zabchekov's alleged illness reliable or particularly pertinent. It was based on statements made by him and by his mother in the context of questioning on criminal charges and, in any event, cannot lead to any reasonable conclusion as regards the skull fracture or the other injuries (see paragraphs 96-98 above). The Government's proposed conclusion that Mr Zabchekov might have injured himself by falling is thus improbable when examined in the light of all the surrounding facts. 120. In assessing the evidence in the present case, the Court, moreover, attaches significant weight to the information that the police officers behaved in a suspect manner and to the fact that the authorities accepted the credibility of their evidence despite serious indications calling for caution. Examples of the police's suspect behaviour are: between 3 a.m. and 5 a.m. on 29 January 1996, when they delayed contact between Mr Zabchekov and a doctor and possibly attempted to choose which doctor saw him (see paragraphs 32-40 above); their apparently false statement, in answer to a question by Dr Mihailov, that Mr Zabchekov had been taken to the police station in the same condition as that in which the doctor had seen him at about 5 a.m. (see paragraph 39 above); and that the detention records were tampered with (see paragraphs 41-46 above) and that Mr Zabchekov was registered post factum as an “unidentified person” although he had been well known to the police officers as a suspect on theft charges and had been recognised by them at the very moment of their encounter (see paragraphs 25, 42 and 96-98 above). These facts were important indications that required thorough investigation; such an investigation was not undertaken. 121. Having regard to all the relevant circumstances, the Court thus finds implausible the Government's explanation of Mr Zabchekov's death, which was based on the conclusion of the second forensic report as to the timing of the injury and a supposition that the boy might have injured himself by falling to the ground. The Government have not offered any other explanation. 122. Accordingly, there has been a violation of Article 2 of the Convention. B. The alleged failure to provide timely medical care 1. The parties' submissions 123. The applicant alleged that, although the police officers had seen the boy shivering and shaking, they had considerably delayed medical intervention through a series of suspect acts between 3 a.m. and 5 a.m. In the applicant's view, the most likely explanation was that there had been an attempt to avoid contact between Mr Zabchekov and an independent doctor who might have revealed evidence of ill-treatment. Alternatively, there had been a reckless disregard for the well-being of a detainee. In either case the delay had been fatal. 124. The Government maintained that the police could not be held responsible for not having realised that Mr Zabchekov had been in need of urgent medical attention. When the police officers had first seen him it had been dark. Furthermore, he had been drunk, there had been dirt all over his body and his hair had covered the bruise over his left eyebrow. Mr Zabchekov's condition had been interpreted as symptomatic of the effects of alcohol. He had never complained of an ailment. The fact that no signs of any major problems had been apparent during the lucid interval had been confirmed by the medical experts. 2. The Court's assessment 125. The Court, referring to its findings as regards the suspect conduct of the police (see paragraph 120 above), observes that they delayed the provision of medical assistance to Mr Zabchekov and that that contributed in a decisive manner to the fatal outcome. 126. The Government's position is that the police officers, not being medical professionals, could not be criticised for having failed to detect that there was a medical emergency. 127. That argument is, however, irrelevant, as it is not disputed that at a certain point after 3 a.m. the police officers realised that Mr Zabchekov's condition was deteriorating. Even then, instead of calling for an ambulance, they contacted their colleagues who had arrested the boy. Those officers, who were on patrol duty, saw fit to abandon their patrolling tasks and drive back to the police station to verify the situation. Having seen Mr Zabchekov's condition, they took the time to drive to the hospital and then return, followed by an ambulance, instead of calling for one (see paragraphs 32-40 above). 128. It is particularly significant, furthermore, that the case file does not contain any trace of criticism or disapproval of that manner of dealing with a detainee's medical problem. 129. The first medical report and the expert whose opinion was submitted by the applicant found that the delay in providing medical assistance had been fatal (see paragraphs 59 and 95 above). 130. The Court thus finds that the behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 and the lack of any reaction by the authorities constituted a violation of the State's obligation to protect the lives of persons in custody. 131. There has been therefore a violation of Article 2 § 1 of the Convention in that respect. C. The alleged ineffectiveness of the investigation 1. The parties' submissions 132. The applicant considered that the investigation into the death of her son had been inadequate as the authorities had failed to investigate, inter alia : the post hoc doctoring of the detention records; the non-fatal injuries; the police officers' strange behaviour between 3 a.m. and 5 a.m.; the reason why the two doctors had quarrelled at about 5 a.m.; and the fact that the first information the applicant's family had received about Mr Zabchekov's death had failed to mention that the boy had been detained. 133. The applicant further submitted that because of the traditional ties between prosecutors, investigators and the police and the absence, at the material time, of judicial review in respect of decisions not to prosecute, the decision-making authorities responsible for investigating ill-treatment by the police were not sufficiently independent and impartial. Furthermore, this allegedly reflected a broader pattern that had been noted by international organisations. The applicant referred to the Report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (Document E/CN.4/1997/7 of 10 January 1997), which stated at p. 9: “The Special Rapporteur is concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody [in Bulgaria ]. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. He believes the Government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies.” 134. The applicant lastly alleged that she had on several occasions been misinformed by the authorities about the course of the investigation and its findings and had not been given full access to the case file before February 1997, more than a year after her son's death. 135. The Government asserted that the investigation had been prompt and thorough, referring to the numerous interrogations, expert reports and other investigative measures. The applicant had been provided with an opportunity to consult the case file and to submit appeals and requests for further investigation. Her request for an exhumation had rightly been refused as it had been clearly established that Mr Zabchekov's ribs had been intact. 2. The Court's assessment (a) General principles 136. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see McCann and Others, cited above, p. 49, §§ 161-63; Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 329, § 105; and Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV). 137. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). 138. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident). 139. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, concerning autopsies, Salman, cited above, § 106; concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard. 140. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82, where the father of the victim was not informed of the decisions not to prosecute; Oğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents; and Gül, cited above, § 93; for a full summary of the relevant case-law see McKerr v. the United Kingdom, no. 28883/95, §§ 111-15, ECHR 2001-III). (b) Application of those principles to the present case 141. The Court agrees with the Government that numerous acts of investigation were undertaken in the present case. The investigation commenced promptly and the authorities worked actively on it. An autopsy was carried out, most of the witnesses were questioned repeatedly, two confrontations and a reconstruction of the events were organised and other relevant evidence was collected and analysed. 142. The Court notes, however, that the failure of the autopsy to record morphological data and the absence or presence of “ contre -coup lesions” made it impossible to establish what object might have caused the skull fracture. It is highly significant, furthermore, that the police officers were never asked to explain why the detention register had been forged, why they had not called for an ambulance right away or why they had given apparently false information to Dr Mihailov. These were crucial questions which obviously had to be raised in examinations and confrontations. The reconstruction of the events conducted on 20 March 1996 was, for reasons that are unclear, exclusively concerned with the number of times and the places where Mr Zabchekov had fallen to the ground when he had been trying to escape and ignored the events that took place at the police station, the moments between the boy's arrest and his arrival at the police station and the times when he had been lying on the ground, handcuffed to a tree or was alone with Sergeant Mutafov (C) and his friend D (see paragraphs 21, 26, 29-40 and 68 above). Furthermore, there is no record of any timely visit of the investigator to the scene of Mr Zabchekov's arrest in Beli Lom Street. The site was visited at about 11 a.m. on 29 January 1996 by a police officer from the same police station as the implicated officers. Finally, the investigation concentrated on the origin and timing of the skull injury and paid scant attention to the other traces left on the boy's body. The Government have not explained these omissions. 143. The Court also refers to its findings above that the testimony of the police officers was considered fully credible despite their suspect behaviour and that, notwithstanding the obvious contradiction between the two medical reports, the authorities accepted the conclusions of the second report without seeking to clarify the discrepancies (see paragraph 120 above). Indeed, the decisions of the prosecution authorities to put an end to the investigation relied exclusively on the opinion in the second medical report about the timing of the injury, an opinion that had been based on a questionable analysis (see paragraphs 79, 81, 84 and 88-90 above). 144. The Court finds, therefore, that the investigation lacked the requisite objectivity and thoroughness, a fact which decisively undermined its ability to establish the cause of Mr Zabchekov's death and the identity of the persons responsible. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken. 145. The applicant alleged, in addition, that the failings of the investigation in her case were the result of a general problem of lack of independence, impartiality and public accountability on the part of the authorities handling investigations of police ill-treatment. In these particular circumstances, having already found that the investigation into the death of the applicant's son was not sufficiently objective and thorough, the Court does not need to rule on these additional aspects of her complaint. 146. The Court finds that there has been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to conduct an effective investigation into the death of Mr Zabchekov. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 147. The applicant complained that her son had been ill-treated before his death. She relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 148. The parties' submissions are summarised in paragraphs 103-08 above. 149. The Court found above that the Government had not provided a plausible explanation for the injuries to Mr Zabchekov's body. Those injuries were indicative of inhuman treatment beyond the threshold of severity required by Article 3 of the Convention. There has therefore been a violation of that provision. 150. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation (see Mahmut Kaya v. Turkey, no. 22535/93, § 120, ECHR 2000-III), having already dealt with that question under Article 2 of the Convention (see paragraphs 132-46 above). III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 151. Relying on Article 5 of the Convention, the applicant alleged that the detention of her son during the night of 28 to 29 January 1996 had been unlawful as there had been no lawful detention order and it had not been properly recorded. Article 5 of the Convention, in its relevant parts, provides as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” 152. The applicant stated that it was absurd to consider – as the Government did – that the statutory 24-hour time-limit for police detention ran from the moment when the arrested person's identity was established. No such rule existed under Bulgarian law. Any detention without a written order was in violation of section 35 of the National Police Act. Furthermore, in the present case the police officers recognised Mr Zabchekov right away and addressed him by name. 153. The Government submitted that at the time he was taken to the police station Mr Zabchekov had not been a “detained person” within the meaning of section 35 of the National Police Act as his identity had not been known. It had been necessary to await his sobering up to allow his identification and decide whether detention was necessary. Therefore, a written order for his detention was not required. Such an order could not be issued in respect of a person whose identity was unknown. The Government further stated that the material legal conditions for a lawful detention had existed in any event: Mr Zabchekov had been apprehended while trying to steal and had been taken to the police station for identification. 154. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. They require in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect the individual against arbitrariness. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among other authorities, Grauslys v. Lithuania, no. 36743/97, § 39, 10 October 2000). The unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı, cited above, §§ 104-05). 155. In the present case it is not disputed that Mr Zabchekov's detention was not based on a written order as required by section 35 of the National Police Act. Contrary to the Government's view, that provision cannot be reasonably interpreted as permitting confinement without a lawful order where there are doubts as to the identity of the detainee: such an interpretation runs contrary to the elementary guarantees of Article 5 of the Convention as it would mean a blanket authorisation for unacknowledged detentions. Furthermore, in the present case the police identified Mr Zabchekov at the very moment of his arrest. It follows that the applicant's detention was unlawful. 156. The applicant stated that, in an effort to conceal the very fact that her son had been detained, the first information to the family about his death had omitted any reference to his confinement (see paragraphs 49 and 61 above). The Court observes that Mr Zabchekov's deprivation of liberty was not recorded initially and that the register at the police station was later forged. The suspect behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 is another element which may lead to a conclusion that there was an attempt to conceal the fact that the applicant's son had been detained (see paragraphs 30, 32-40 and 41-46 above). As that attempt was in the event unsuccessful, the Court will not deal with the question whether an issue of State responsibility for an unacknowledged detention may arise. 157. The lack of a written order and of a proper record of Mr Zabchekov's detention is sufficient for the Court to find that his confinement for several hours on 29 January 1996 was in breach of domestic law and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty. There has, therefore, been a violation of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 158. The applicant complained under Article 13 of the Convention of the alleged lack of an effective remedy in respect of the violations of Articles 2 and 3. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 159. The applicant stated that the criminal investigation had not been effective, referring to her complaints under Articles 2 and 3 of the Convention. She added that at the relevant time there had been no judicial remedy against a prosecutor's decision to discontinue criminal proceedings. 160. The Government referred to their submissions under Articles 2 and 3 and stated that the applicant could have applied to join the criminal investigation into her son's death as a private prosecutor or a civil plaintiff. 161. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. Where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see, as a recent authority, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §107, ECHR 2001-V). In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure (see Kaya, cited above, p. 330, § 107; Ergi, cited above, p. 1782, § 98; Salman, cited above, § 123; and Velikova, cited above, § 89). 162. The Court finds that the applicant had an arguable claim under Articles 2 and 3 of the Convention in respect of her son's death and ill-treatment and that, for the purposes of Article 13, she should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. However, in circumstances where – as here and as in Velikova, cited above – the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 141-46 above), and the effectiveness of any other remedy that may have existed, including the remedy suggested by the Government (the possibility of the applicant's joining the criminal proceedings as a civil party) was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention. There has therefore been a violation of that Article. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 163. The applicant complained under Article 14 of the Convention taken in conjunction with Articles 2, 3 and 13 that the police officers' and the investigating authorities' perception of her son as a Rom/Gypsy was a decisive factor in their attitude and acts. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 164. The applicant considered it striking that some of the police officers had been unable to refrain from referring to Mr Zabchekov as “the Gypsy”, even in their official statements. She considered that the reference to her son's origin and the acts of the police and the investigation authorities had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Bulgaria had repeatedly displayed. This attitude had been widely documented by intergovernmental and human rights organisations. 165. The Government submitted that there was no evidence of any racially motivated act on the part of the authorities. The fact that some statements referred to Mr Zabchekov as “the Gypsy” did not constitute such evidence. 166. The Court reiterates that proof “beyond reasonable doubt” may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see paragraph 111 above and the case-law cited there). The Court must therefore assess all the relevant facts, including any inferences that may be drawn from the general information adduced by the applicant about the alleged existence of discriminatory attitudes. 167. It recalls that in Velikova it examined a very similar complaint in paragraph 94 of that judgment and held: “The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ... The Court recalls, however, that the standard of proof required under the Convention is 'proof beyond reasonable doubt'. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's killing and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant. It follows that no violation of Article 14 has been established.” 168. The Court finds that in the present case the applicant's complaints are likewise based on serious arguments. It is unable, however, to reach the conclusion that proof beyond reasonable doubt has been established. There has therefore been no violation of Article 14 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 169. 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 170. The applicant claimed 19,050 euros (EUR) for non-pecuniary damage, a sum comprising EUR 15,250 in respect of the pain and suffering caused by the violation of her son's rights under the Convention and EUR 3,800 in respect of the distress she endured because of the ill-treatment and death of her son and the inadequacy of the authorities' reaction. 171. The Government objected that since Article 362 § 1 (4) of the Bulgarian Code of Criminal Procedure provided for the possibility of reopening criminal proceedings in cases where the European Court of Human Rights had found a violation of the Convention the applicant should, if the Court found a violation in the present case, submit a civil claim for damages once the criminal proceedings were reopened. Alternatively, the Government maintained that the claim was excessive, regard being had to the economic situation in the country. The amount claimed was allegedly 371 times the minimum monthly wage. In the Government's view, the comparison with Turkish cases proposed by the applicant was incorrect as in Turkey the minimum monthly wage was 50% higher than in Bulgaria. Finally, the Government warned against the dangers of excessive awards being made by the Court. 172. The Court notes that the provision of the Code of Criminal Procedure referred to by the Government concerns the reopening of criminal proceedings which were ended by a judicial decision, whereas the investigation in the applicant's case was terminated by a decision of the prosecuting authorities. It is therefore unclear whether the Code of Criminal Procedure requires the reopening of the investigation after the Court's findings in the present case. Furthermore, Article 41 of the Convention does not require applicants to exhaust domestic remedies a second time in order to obtain just satisfaction if they have already done so in vain in respect of their substantive complaints. The wording of that provision – where it refers to the possibility of reparation under domestic law – establishes a rule going to the merits of the just satisfaction issue (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no. 14, pp. 8-9, § 16). In this connection, the Court considers that the hypothetical possibility that the investigation may resume, many years after the death of the applicant's son in police custody and after the first ineffective investigation, and that the applicant may then have the opportunity to bring a civil claim, which would only be successful if the fresh investigation produced results, cannot reasonably be interpreted as restitutio in integrum under domestic law. 173. The Court, having regard to its judgments in similar cases (see Velikova, cited above) and to the fact that the present case concerns the death of a 17-year-old boy in police custody, awards the claim for non-pecuniary damage in full. B. Costs and expenses 174. The applicant claimed 3,800 United States dollars (“USD”) for 95 hours of legal work at an hourly rate of USD 40. She submitted a copy of a contract between her and her lawyer and a time-sheet. 175. The Government considered that the contingency-fee agreement between the applicant and her lawyer was “absurd” and that the rate of USD 40 per hour was excessive and even immoral, as lawyers were under an obligation to help people of limited financial resources. 176. The Court reiterates that only legal costs and expenses which are found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). It further notes that the Government have not disputed the time-sheet presented by the applicant's lawyer. The Court does not find any indication that the number of hours claimed exceeds the legal work which was actually done and which was necessary to be done for the representation of the applicant. As to the hourly rate of USD 40, it has not been claimed that this is a rate higher than the rates charged, for example, by the leading law firms in Bulgaria. Converting into euros the sum claimed and deducting the amount of EUR 762.25 (5,000 French francs) paid in legal aid by the Council of Europe, the Court awards the applicant EUR 3,500 in respect of costs and expenses. C. Default interest 177. According to the information available to the Court, the statutory rate of interest in Bulgaria applicable to claims expressed in foreign convertible currency at the date of adoption of the present judgment is 13.65% per annum.
The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the death of the applicant’s son, in respect of the Bulgarian authorities’ failure to provide timely medical care, and in respect of the Bulgarian State’s obligation to conduct an effective investigation. In particular, it found implausible the Bulgarian Government’s explanation of the applicant’s son’s death and that the investigation had lacked objectivity and thoroughness, a fact which had decisively undermined its ability to establish the cause of the death and those responsible. The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment), a violation of Article 5 (right to liberty and security) and a violation of Article 13 (right to an effective remedy) of the Convention. Lastly, the Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention: the applicant’s complaints that the police officers’ and the investigating authorities’ perception of her son as a Roma/Gypsy had been a decisive factor in their attitude and acts were based on serious arguments; it was unable, however, to reach the conclusion that proof beyond reasonable doubt had been established.