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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 11 November 2008,
Having concluded its consideration of complaint No. 257/2004, submitted to
the Committee against Torture by Mr. Kostadin Nikolov Keremedchiev under
article 22 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,
Having taken into account all information made available to it by the
complainant,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1. The complainant is Mr. Kostadin Nikolov Keremedchiev, a Bulgarian
national, born in 1973. He claims to be a victim of violations by Bulgaria
of article 1, paragraph 1; article 10; article 11; article 12; and article
16 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. He is unrepresented.
The Facts as Presented by the Complainant
2.1 In the Winter of 2003, the complainant worked in the "Hizhata"
restaurant, located on Snezhanka Peak, in the ski resort of Pamporovo,
Bulgaria. On the evening of 3 February 2003, he went to a bar in Pamporovo
with some friends. On the way home at around 6am the next morning, he
decided to wait in the lobby of the Hotel "Murgavets", for the first chair
lift at 8.00am to return to his residence at Snezhanka Peak. He fell asleep
in the hotel lobby and was woken up by someone kicking him. The individual,
unknown to the complainant, tried to force him to leave the hotel. The
complainant explained why he was waiting there and that he was only staying
for another hour. Later, the same individual, accompanied by another man,
again tried to make the complainant leave the lobby [FN1].
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[FN1] From the documents submitted it transpires that the individuals in
question were both hotel employees.
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2.2 Shortly afterwards, two police officers arrived and shouted at the
complainant, handcuffed him, and asked him to present his identity card. The
police officers then took him out of the hotel; he was kicked "once or
twice". The complainant asked the police officers to stop kicking him, but
he was pushed and fell to the ground. He began calling for help, and was
ordered to stop; as he did not obey, he was kicked and beaten with a
truncheon, until he fainted. He woke up in a patrol car, with handcuffs and
shackles on his legs. He was assaulted again in the car and one of the
police officers allegedly attempted to strangle him at which point he again
lost consciousness. He was taken out of the car and was threatened with
being shot. He woke up in a cell of the Regional Police Directorate of
Chepelare; he asked for a doctor who arrived two hours later. The
complainant asked him to unchain him and to give him some medication, but he
said that he was only there to do an alcohol test. The complainant was later
charged with hooliganism, which he claims was initiated following a threat
to the police officers who mistreated him that he would sue them for their
actions.
2.3 On the morning of 5 February 2003, the complainant was released
whereupon he underwent medical examinations with three different medical
doctors, all of whom confirmed that he had certain injuries on his body and
one of whom confirmed that these injuries could have been caused at the
time, and in the manner described by the complainant. [FN2] According to the
complainant, one of the doctors in question stated that he had been
"advised" by the Regional Police Directorate not to provide a medical report
for him. On 4 April 2003, the complainant complained about the assault to
the Regional Military Prosecutor's Office in Plovdiv [FN3], which
investigated his claim. On 23 September 2003, the Plovdiv Military
Deputy-Prosecutor found that although a "slight physical injury" had been
caused to the complainant, the police officers concerned had acted lawfully.
The criminal case was then closed. On 13 November 2003, the complainant
appealed against this decision to the Military Court of Plovdiv, claiming
that it was unfounded and beset by procedural irregularities [FN4]. On 24
November 2003, the Military Court confirmed the Prosecutor's decision. The
complainant submits that he has exhausted domestic remedies, as due to a
legislative change in 2003 it is no longer possible to appeal such rulings
to the Supreme Court.
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[FN2] Copies of medical reports are provided: 1. Report dated 5 February
2003, referring to the results of an ultrasound, "Kidneys - normal size;
slight changes in the parenchyma zones and the calyxes showing contusion
more on the right kidney. The rest parenchyma organs - without
peculiarities. There are no free liquids into the abdomen"; 2. Report dated
5 February 2003, which states "Trauma of the iliac zone, concussion of the
kidney to the right. Erizthrocytoria.";3. Medical-forensic report, dated 12
July 2003, following a medical-forensic assessment ordered by the
investigation. The doctor made the following conclusion based on the two
medical reports mentioned above as well as on his own examination. "Trauma
of the right iliac zone; concussion of the kidney on the right; available
blood in the urine; a blood on the skin of the left armpit, as well as the
left and right thigh and along the back (right iliac zone), a worn out on
the skin of the left cochlea; a worn out on the skin of both wrists, and a
traumatic edema on the back of the fright palm. The above mentioned traumas
were caused by either a hit, to close pressing against a hard blunt object;
it is possible to be caused within the same time and in the same way, the
witnesses declared in their evidence."
[FN3] In relation to this claim, the case file contains copies of "Minutes
of an Examination of witness", during which two witnesses explained on 8
July 2003 what they had witnessed in the morning of 4 February 2003.
[FN4] The complainant states that the Martial Court in Plovdiv accepted as
an established fact, without verification, that he was drunk at the time of
the incident, and that he hit tables and armchairs in the lobby bar, and
threw down ash-trays "thus disturbing the public order".
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The Complaint
3. The complainant claims that the treatment he received at the hands of the
police, and for which the State party authorities failed to provide him with
redress, amounted to violations of articles 1, paragraph 1; 10; 11; 12; and
16, of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
State Party's Observations on Admissibility
4.1 On 30 November 2004, the State party provided its observations and
submitted that the complaint was inadmissible as: (a) the complainant has
failed to exhaust domestic remedies; and (b) the actions of the police
officers do not qualify as "torture", within the meaning of article 1,
paragraph 1, of the Convention. It contended that according to article 359
of the Criminal Procedure Code (CPC), final judgements were subject to
verification and that criminal cases can be re-opened on grounds listed in
article 362 of the CPC. It acknowledged the complainant's argument that
until 30 May 2003, the Criminal Procedure Code allowed appeals against
rulings of the Regional Military Court before the Supreme Court, but that
this possibility was eliminated by an amendment of the Criminal Code. By
virtue of article 237, paragraph 4, Criminal Code, the decision of the
Plovdiv Regional Military Court was final and not subject to appeal.
However, it stated that after 30 May 2003 such rulings became subject to
review within the terms of Chapter XVIII CPC (Re-opening of Criminal Cases).
Accordingly, the complainant could have requested the Military Prosecutor or
the Prosecutor-General to review the judgement, after which either one of
them could have requested the Supreme Court to re-open the case. According
to the State party, the complainant had failed to avail of this remedy and
had thus failed to exhaust domestic remedies.
4.2 The State party submitted that the actions of the police officers
against the complainant do not qualify as "torture" within the meaning of
article 1 of the Convention. It submitted:
(a) that the police officers did not act with the intention of inflicting
severe pain or suffering on the complainant for any of the purposes defined
in the first sentence of article 1, paragraph 1 of the Convention. According
to the State party, the documents submitted by the complainant demonstrate
that the officers acted in compliance with article 78, paragraph 1 (1) and
(2), of the Law on the Ministry of Interior, which "authorises the use of
physical force and other means for police officers if their duties cannot be
exercised by other means and in cases of resistance or refusal of an
individual to comply with a lawful order."
(b) that the actions of the police officers fall under the definition of the
second sentence of article 1, paragraph 1 of the Convention, according to
which the pain or suffering endured by the complainant arose "only from,
inherent in or incidental to lawful sanctions". For the State party, the
material submitted by the complainant demonstrated that the police actions
amounted to such lawful actions. Consequently, any pain or suffering that
may have been caused to the complainant is not of the type defined in
paragraph 1 of the Convention.
4.3 The State party observed that the complainant was found guilty of
hooliganism (article 325, paragraph 2 [FN5], of the CPC) and for damaging
property (police car under article 216 [6] of the CPC), by three consecutive
instances. At first instance on 11 November 2003, upon appeal on 16 February
2004 and by the Supreme Court on 2 November 2004. In light of his behaviour,
the State party concluded that "it is evident that the police officers had
to apply lawful measures against the complainant in order to interrupt his
hooliganism".
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[FN5] According to the State party, article 325 (2) reads as follows: "Where
the act has occurred with resistance to a body of authority or a
representative of the public, fulfilling their obligations of preserving the
public order, or where by its content it has been distinguished for its
extreme cynicism or arrogance, the punishment shall be deprivation of
liberty for up to five years." 6 According to the State party, article 216
(1) reads as follows: "A person who unlawfully destroys or damages movable
or real property belonging to somebody else, shall be punished by
deprivation of liberty for up to five years."
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Complainant's Comments
5. On 4 January 2005, the complainant contested the State party's argument
that he had not exhausted domestic remedies. He provided a copy of his
request for review under article 362 of the CPC to the Prosecutor General of
25 March 2004, as well as a copy of the reply of 26 May 2004 signed by the
Prosecutor General of the Supreme Prosecution Office. The prosecutor had
concluded that the failure to examine certain witnesses had not resulted in
a prejudiced or incomplete investigation. The complainant further argued
that it was clear from the Supreme Court judgement of 2 November 2004, which
affirmed his conviction for hooliganism, that this judgment was final and
not subject to appeal. He stated that he was considering the possibility of
filing an application for violation of his right to a fair trial with the
European Court of Human Rights (based on article 6 of the European
Convention of Human Rights).
Decision of the Committee on Admissibility
6.1 The Committee examined the admissibility of the communication during its
36th session, in May 2006. It ascertained, as required under article 22,
paragraph 5(a), of the Convention, that the same matter had not been and was
not being considered under another procedure of international investigation
or settlement. It noted that in April 2005, the complainant had submitted an
application to the European Court of Human Rights, registered before the
Court as Case No. 17720/05, and that in substance, this application related
to the same facts (use of force by police officers against the complainant).
The application was, however, still pending and had not been transmitted to
the State party. In these circumstances, the Committee considered that the
above application could not be seen as "being" or "having been" considered
under another procedure of international investigation or settlement, within
the meaning of article 22, paragraph 5 (a), of the Convention. Therefore, it
was not precluded by this provision from examining the communication.
6.2 On the requirement of exhaustion of domestic remedies, the Committee
noted that the State party had challenged the admissibility of the complaint
on the grounds that all available and effective domestic remedies had not
been exhausted. However, it also noted that the complainant responded that
he had made a request for review to the Prosecutor-General who rejected his
request, and he had provided proof of this request as well as the
Prosecutor-General's decision. In these circumstances, and taking into
account that no additional information was adduced by the State party to
support its argument, the Committee concluded that it was not precluded by
the requirements of article 22, paragraph 5 (b), of the Convention, from
considering the communication.
6.3 The Committee noted the complainant's allegations that the police
officials used disproportionate force against him and that he was unable to
obtain redress within the State party. It also noted the State party's
contention that the police officers in question had acted lawfully, within
their competencies defined by the Law on the Ministry of Interior, and that
their acts do not constitute "torture" within the meaning of article 1,
paragraph 1, of the Convention. The Committee considered however, that this
claim had been sufficiently substantiated, for purposes of admissibility.
The Committee concluded that the communication was admissible and invited
the State party to present its observations on the merits.
State Party's Observations on the Merits
7.1 On 27 February 2008, the State party provided its submission on the
merits. It disputes the facts as recounted by the complainant and submits
that having fallen asleep on one of the tables in the lobby of the Murgavets
hotel the complainant was woken up twice by hotel personnel and asked to
leave. He refused to leave and became violent, hitting tables and chairs and
throwing down ashtrays. For this reason, the police were called. Two police
officers arrived and asked him to show his identity card. He refused and
became violent uttering curses, using offensive language and violently
resisting the police officer's attempts to remove him from the hotel. They
had to use necessary force to restrain him in compliance with article 78,
para. 1, sub-paragraphs 1 and 2, of the Law on the Ministry of Interior. The
complainant was handcuffed led out to the hotel and ordered to get into the
patrol car. As he again resisted violently, necessary force was used to put
him in the car, whereupon he was taken to the police station. He continued
to behave aggressively in the car. In light of his behaviour, the police
drew up a statement of the incident, in accordance with the Decree on
Combating Petty Hooliganism. The complainant refused to sign it and
scribbled all over it. The police officers reported the case to the Regional
Police Directorate of Chepelare from which they received instructions to
transport the complainant to the same Directorate. While being driven from
the police station to the Regional Police Directorate, the complainant again
tried to resist violently, inter alia, breaking the windshield of the police
car in the process, and had to be restrained.
7.2 The complainant was apprehended for 24 hours at the Regional Police
Directorate of Chepelare, where he asked for a doctor and was examined by
one prior to being taken to the detention facility. The examining doctor
established that he was in a highly agitated state, smelled distinctly of
alcohol, shouted and used offensive language. He refused the offer of the
administration of a tranquilizing injection. As to his physical examination,
the doctor confirmed that the complainant "did not have any marks of bodily
harm on his face and head". On 5 February 2003 at about 12 noon, the
complainant was released. He was later charged and found guilty of
hooliganism by a judgement of the Chepelare District Court. The Court
considered the medical reports produced by the complainant which, according
to the State party, concluded that he had suffered a "slight physical
injury".
7.3 On the merits, the State party reiterates its arguments provided on
admissibility and maintains its position that it did not violate any of the
complainant's rights. As to the claims of violations of articles 10 and 11,
the State party submits that neither of these claims has been substantiated
by the complainant. In any event, it provides detailed information on how it
has implemented both articles, including the provision of information
submitted to the Committee in the context of the consideration of its third
periodic report to the Committee in 2004. The State party submits that it
was in the context of systematic reviews of its interrogation rules,
instructions, methods and practices etc. that it issued two documents in
2003, on the procedure to be followed by the police upon detaining an
individual and another on the Code of Conduct of policemen. Similarly, the
State party contests the claim under article 12, and sets out the sequence
of appeals made by the complainant to demonstrate that its authorities did
conduct a prompt and impartial investigation. As to article 16, the State
party reiterates its arguments made in relation to the admissibility of the
complaint with respect to article 1. It refers to its version of the facts,
including the author's violent behaviour upon being asked to leave the
hotel, his resistance to arrest and the damage he did to the police car. It
argues that he was found guilty by three instances in the State party and
reiterates that the officers in question acted lawfully within the meaning
of article 78, paragraph 1, sub-paragraph 2, of the Law on the Ministry of
Interior.
Complainant's Comments
8. On 27 March 2008, the complainant commented on the State party's
submission. He submits that he remained in handcuffs with chains on his legs
from 6 am to 10 am and was subsequently detained for 30 hours in a "cage"
while handcuffed. He argues that he could not have damaged the police car in
which he was driven to prison, as he was handcuffed and had chains on his
legs all the time. He submits that only the statements of the two police
officers in question were taken on board by the domestic authorities and
that even the forensic medical certificate was not taken seriously. Although
the certificate was attested to by three doctors, and contains evidence of a
large number of injuries, as well as bruising to his kidneys and blood in
his urine, it was regarded by the court and is regarded by the State party
as merely demonstrating a "slight physical injury".
Issues and Proceedings Before the Committee
Consideration of the Merits
9.1 The Committee has considered the communication in the light of all
information made available to it by the parties concerned, in accordance
with article 22, paragraph 4, of the Convention.
9.2 The Committee notes the claim that the complainant was subjected to
torture, as defined by article 1, paragraph 1, and/or cruel, inhuman or
degrading treatment or punishment, as defined by article 16, paragraph 1, of
the Convention. It notes that the exact circumstances of the arrest and
intensity of the force used against the complainant are disputed by the
parties but that the medical reports were assessed by the domestic courts as
demonstrating a "slight physical injury" to the complainant. It observes
that, according to the Decision of 23 September 2003, the doctor who
examined the complainant in prison immediately after his arrest testified to
having found no bruising on the complainant's face, head or arms, which
appears to be contradicted by the medical reports subsequently produced. The
State party adopts the courts' interpretation of the medical reports that
the injuries caused were slight and arose from the lawful use of necessary
force, in accordance with article 78, paragraph 1, sub-paragraphs 1 and 2,
of the Law on the Ministry of the Interior.
9.3 From a review of the medical reports themselves, the Committee observes
that the complainant suffered multiple bruising on various external parts of
his body, to the extent that the injuries inflicted caused bruising to his
kidneys and blood in his urine. In addition, the forensic medical report, of
12 July 2003, ordered by the State party's authorities themselves for the
purposes of the investigation, attests to the injuries described in the two
earlier medical reports and gives the view that these injuries could have
arisen at the time of and in the manner described by the complainant. It
also observes that the medical reports themselves do not refer to a "slight
physical injury" but that this is the domestic court's interpretation. While
recognizing that pain and suffering may arise from a lawful arrest of an
uncooperative and/or violent individual, the Committee considers that the
use of force in such circumstances should be limited to what is necessary
and proportionate. The State party argues that the force used was
"necessary", and states that the complainant had to be handcuffed, however
it does not describe the type of force used nor say whether and/or how it
was proportionate, i.e how the intensity of the force used was necessary in
the particular circumstances of the case. The Committee considers the
complainant's injuries too great to correspond to the use of proportionate
force by two police officers, particularly as it would appear that the
complainant was unarmed. It cannot agree with the domestic courts'
interpretation that the complainant suffered from a "slight physical
injury", as a result of the force inflicted upon him. While noting, on the
basis of the evidence provided, that the injuries inflicted do not appear to
amount to "severe pain and suffering", within the meaning of article 1,
paragraph 1, it does consider that the treatment of the complainant by the
police officials amounts to acts of cruel, inhuman or degrading treatment or
punishment within the terms of article 16 of the Convention.
9.4 As to the claim of a violation of article 12, while noting that the
State party did conduct a prompt investigation into the incident in
question, an investigation in itself is not sufficient to demonstrate the
State party's conformity with its obligations under this provision if it can
be shown not to have been conducted impartially. In this regard, the
Committee notes the claims, uncontested by the State party, that one of the
doctors in question had been requested by the police authorities not to
provide the complainant with a medical report and that the Prosecutor had
failed to summon certain witnesses. It also notes that the Prosecutor's
office arrived at the same interpretation of the medical reports as the
domestic courts themselves, to the extent that the complainant had suffered
from a "slight physical injury", an interpretation already contested by the
Committee in its finding of a violation of article 16 above. For these
reasons, the Committee considers that the State party has also violated
article 12 of the Convention.
9.5 As to the claims of violations of articles 10 and 11, the Committee
notes that the complainant has failed to provide any arguments or
information to substantiate such claims and thus is not in a position to
making any finding with respect to the rights protected therein.
10. The Committee, acting under article 22, paragraph 7, of the Convention,
is of the view that the facts before it disclose violations of articles 12,
and 16, paragraph 1, of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
11. In pursuance of rule 111, paragraph 5, of its rules of procedure, the
Committee urges the State party to provide an effective remedy to the
complainant, including fair and adequate compensation for the suffering
inflicted, in line with the Committee's General Comment No. 2, as well as
medical rehabilitation, and to inform it within 90 days from the date of the
transmittal of this decision, of the steps it has taken in response to the
views expressed above.
[Adopted in English, French, Spanish and Russian, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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