Roma Rights 1, 2010: Implementation of Judgments
26th, July, 2010
Non-Execution of European Court Judgments Involving Romani Victims in Bulgaria
One of the guiding principles in the execution of European Court of Human Rights (ECtHR or the Court) judgments that the Committee of Ministers (CoM or the Committee) adopts is that of integral restitution. This includes not only the payment of compensation awarded in the Court’s judgment but also other individual measures which aim at the restoration, to the extent possible, of the status quo ante and seek further justice for victims at the national level. This is particularly necessary for serious human rights violations where restricting the execution of justice to the payment of compensation allows government agents to commit human rights abuses with virtual impunity in some cases. The ECtHR established this requirement for addressing serious human rights violations at the domestic level2 and the CoM is guided by the same principle in its supervision of the execution of judgments. In addition, the execution requires adoption of general measures, a change of the laws or judicial practice, to prevent similar violations of the European Convention of Human Rights (ECHR or the Convention) in the future.
Bulgaria's record of execution of ECtHR judgments
Execution of ECtHR judgments is at present one of the most serious human rights problems in Bulgaria. As of March 2010, the CoM was supervising the execution of individual and general measures in 159 judgments against Bulgaria. This is almost 50% of all the judgments delivered by the Court against this country.3 But, more importantly, a significant number of these judgments, which are under supervision, involve “leading cases”, i.e. cases identified by the CoM as revealing systematic problems and requiring the adoption of general measures. According to the latest CoM report on the supervision of the execution of ECtHR judgments in 2009, there were 72 such Bulgarian cases pending before the Committee.4 Among the Council of Europe (CoE) Member States, only Turkey had more leading cases pending supervision of execution in this period with 125. Bulgaria, however, had the highest share of such cases on a per capita basis. The Bulgarian share of the total number of the leading cases pending before the Committee had not decreased since 2008 – it was 9% of all such cases in that year and remained 9% in 2009.5
The official Bulgarian approach to the execution of ECtHR judgments has traditionally been very narrow. When confronted with the problem, especially in cases involving serious human rights violations and politically sensitive issues, the government keeps stressing that it has paid the compensations awarded but remains very reluctant to consider other measures.6 It has been more open to adopting legislative measures on less sensitive issues related to structural problems in the criminal and the civil procedure which generated many ECtHR applications. Thus, in 2005 the Bulgarian Parliament adopted a new Code of Criminal Procedure and in 2007 it adopted a new Code of Civil Procedure, in both cases aiming at speeding up proceedings by introducing shorter time limits, stricter sanctions for delays and omissions and limiting appeals. However, there has been little improvement in the organisation of the judiciary and thus the effects of these legislative reforms remain to be seen. In March 2009 the Council of Ministers adopted a concept paper for overcoming the reasons for the negative judgments of the Court.7 It envisaged a series of measures addressing those structural problems of legislation and the administration of justice that generated ECtHR judgments finding violations of the Convention in the areas of the right to liberty and security (Article 5), fair trial (Article 6) and the right to property (Article 1 of Protocol 1). The concept paper does not address adequately some of the most serious violations identified in the ECtHR judgments against Bulgaria, or problems stemming from politically sensitive cases. Still, more than a year after its adoption, none of its recommendations have been implemented.
The ECtHR judgments explicitly involving Romani victims can be classified into three groups according to the problems identified therein. All groups include cases resulting in violations of the right to life and/or torture or other prohibited ill-treatment (articles 2 and/or 3 of the ECHR). In the first group violations were caused by excessive use of force by law enforcement officers; in the second group, by excessive use of firearms; and in the third group, Roma were victims of bias-motivated crimes resulting in loss of life. Thus, in addition to articles 2 or 3, in the latter group the Court also found violations of Article 14.
Of all the cases against Bulgaria explicitly involving Romani victims, only one, Assenov and Others v Bulgaria from 1998,8 was declared by the CoM to be closed for execution of individual and general measures. This is due to the 1999 reform of the Criminal Procedure Code, which deprived prosecutors of the power to indicate remand measures in pre-trial proceedings and transferred this authority to the courts.9
Right to life, protection against torture and other prohibited ill-treatment
In some of its earlier judgments against Bulgaria the ECtHR considered cases involving serious crimes against Roma perpetrated by police officers resulting in deaths in custody after severe physical ill-treatment. These include Velikova v Bulgaria from 2000,10 Anguelova v Bulgaria from 200211 and Ognyaniova and Coban v Bulgaria from 2006.12 In the Velikova case the Court found two violations of Article 2 (substantive and procedural) and a violation of Article 13 (right to effective remedy) of the ECHR. In the Anguelova case the Court found three violations of Article 2 (causing death, denial of medical treatment and failure to investigate), a violation of Article 3, a violation of Article 5 (right to personal liberty and security) and a violation of Article 13. In the Ognyanova and Choban case the Court found two violations of Article 2 (substantive and procedural), a violation of Article 3, a violation of Article 5 and a violation of Article 13. All these cases are currently under review by the CoM for execution of individual and general measures. With the recent judgment in the case of Sashov and Others v Bulgaria, the ECtHR found two violations of Article 3 (substantive and procedural) in a case of police ill-treatment of three Romani men during their arrest.13 This judgment has not yet been included in the CoM list of Bulgarian judgments pending for execution, but most probably will be after it enters into force.
In its Interim Resolution CM/ResDH(2007)107 from October 2007 the CoM recalled the Government’s obligation to conduct effective investigations capable of establishing the circumstances and the effects of the use of force by police officers, to identify and to punish the perpetrators. It stated clearly that “continuing obligation exists to carry such investigations in these cases where procedural violations of Articles 2, 3 and 13 have been found.”14 Subsequent developments in these cases, however, show a stubborn resistance of the government to reopen the cases for new investigation. In the Anguelova case, the Supreme Prosecutor’s Office of Cassation stated that the case could not be reopened and the competent appellate prosecutor concluded that the initial decision to discontinue the proceedings was lawful and justified.15 In the Ognyanova and Coban case, the Supreme Prosecutor’s Office of Cassation also concluded that no reopening of the criminal investigation was needed and that the initial prosecutorial decision not to prosecute was lawful and justified.16 Only in the Velikova case does the CoM file refer to “oral” information from the Supreme Prosecutor’s Office of Cassation that an inquiry had been opened in 2007.17 However, if opened at all, there have certainly not been any results yet. Thus, as of March 2010, none of the three judgments had been executed.
In addition to the above cases, the Velikova group of cases that are pending execution includes 12 other cases that involve police ill-treatment of non-Romani victims in violation of Article 3 of the ECHR and in one case of Article 2, some dating from 2004. None of the judgments in these cases has been fully executed. The authorities either openly refused to reopen the investigations or brought the perpetrators to trials in which they were not properly punished.18
With regard to the general measures, the government reports the introduction in 2001 of a judicial review of the prosecutors’ decisions to close criminal proceedings, as well as awareness-raising and training activities. Some of these measures, along with the improvement of the legal framework for access to legal aid for indigent defendants contributed to a reduction in the incidence of ill-treatment at the pre-trial stage in the period 1999-2003, measured by the responses of prisoners who were surveyed by NGOs about their pre-trial experiences.19 This downward trend continued in the period 2004-2005.20 After 2005 the Bulgarian Helsinki Committee (BHC) continued to conduct regular surveys every year in four Bulgarian prisons among newly-arrived prisoners on their conditions of preliminary detention.21 The responses on whether force was used against them during pre-trial proceedings reveal the followings results over the past five years:
Use of Force by Police by Year
% of interviewees responding that force was used against them
|At the time of the arrest||23.2||20.1||17.1||23.1||24.0|
|Inside police stations||23.2||20.8||22.9||23.1||22.3|
Source: Annual reports of the Bulgarian Helsinki Committee
The responses do not indicate any positive developments in the use of force at the pre-trial stage since 2005. Most importantly, the share of respondents who report the use of force at the time of arrest, when it can be legal under certain circumstances, is the same as those indicating use of force inside the police station, where it is illegal.
CoM Interim Resolution CM/ResDH(2007)107 urged the Bulgarian government to guarantee the independence of investigations regarding allegations of ill-treatment inflicted by the police. No reform to that effect has been undertaken. The legal and the administrative framework for the investigation of police brutality remains the same as described in the Velikova and the Anguelova judgments.
Excessive use of firearms
The second group of ECtHR judgments against Bulgaria pending execution according to the CoM are related to the excessive use of firearms by law enforcement officers as a result of which Romani victims were either killed or seriously wounded. The Grand Chamber case of Nachova and Others v Bulgaria from 2005 concerned the killing by military police officers during pursuit of two Romani conscripts who escaped from a prison where they were serving short-term sentences for repeated escapes from their military detachment. The subsequent investigation found that the use of firearms, based on an unpublished regulation of the Military Police, which repeated the provisions of the National Police Act, was lawful.
The ECtHR found that the use of firearms was not absolutely necessary under the circumstances and that the legislative framework regulating the use of firearms and its implementation fell short of the level of protection of the right to life as guaranteed by Article 2 of the Convention. The Court also considered that the investigation into the circumstances of the killing was not effective as it ignored significant facts without proper explanation and was in essence directed at shielding the officers from prosecution. In light of the findings in the Velikova and Anguelova cases, the ECtHR expressed “grave concern” as to the objectivity and impartiality of the investigators and prosecutors involved.22 Thus, the Court found substantive and procedural violations of Article 2. The other judgment in the group is Tzekov v Bulgaria from 2006. This case involved two police officers shooting a Romani man in the course of a police operation to stop him for an identity check while driving his horse cart. The Romani man was seriously wounded and had to undergo an operation. Subsequent investigation established that the officers’ use of firearms was lawful. The ECtHR found both substantive and procedural violations of Article 3. With the Tzekov judgment the Court made it very clear that the regulation of the use of firearms in the Bulgarian National Police Act is incompatible with Convention standards:
In this case, the Court notes with concern that the relevant provisions of the National Police Act allowed the use of a firearm by the police to arrest a person, regardless of the seriousness of the offense that the person was supposed to have committed, or of the danger he represented. Under this legislation, members of law enforcement could thus legitimately shoot any fugitive who did not stop after a warning. A simple warning appeared sufficient for the courts to admit that the firearms were used as an “ultimate measure”.23
Thus, in the subsequent supervision of the execution of the two judgments, insofar as the use of firearms is concerned,24 two issues appear to be of major relevance: amendment of the national legislative framework in line with Convention standards, including the regulation on the use of firearms by the Military Police and the relevant provisions of the National Police Act; and the possibility of reopening of the investigations. According to information submitted by the Bulgarian government to the CoM, a new investigation was opened into the killing of the two men as follow up to the Nachova judgment. However, it was soon closed, concluding that the officers had acted in accordance with the rules applicable at the material time. In the Tzekov case, prosecuting authorities expressed the view that the investigation could not be reopened, that the decision to discontinue the proceedings was lawful and justified and that the limitation period had expired. With regard to general measures, in October 2007 the Directorate for Legislation within the Ministry of Justice expressed the view that the legal framework regulating the use of firearms is appropriate and that it had been incorrectly applied by the law enforcement officers and investigating authorities in the two cases.25 This is precisely the opposite of what the ECtHR found in the Tzekov case. As a result, there have been no legislative initiatives to amend the National Police Act.
With the Nachova judgment, the Grand Chamber found also a violation of Article 14 of the Convention (discrimination) in conjunction with the procedural aspect of Article 2 because of the failure of the authorities to investigate the possible racist motive of the killing of the two Romani conscripts. One of the officers involved in the pursuit, Major G., allegedly pointed his gun at a Romani bystander in a brutal manner and insulted him, saying: “You damn Gypsies!” Failure to investigate the possible racist motive, according to the Court, is “compounded by the behaviour of the investigator and the prosecutors, who […] disregarded relevant facts and terminated the investigation, thereby shielding Major G. from prosecution.”26
Failure to investigate possible racist motive also led the Court to find a violation of Article 14 in conjunction with Article 2 in the 2007 judgment in Angelova and Iliev v Bulgaria. It concerned a racially-motivated attack by a group of teenagers that resulted in the death of a young Romani man. The assailants were prosecuted but more than 12 years after the incident they had not been sentenced and the obvious racist motive was entirely overlooked. The Court was concerned with the delays and omissions in the investigation of the killing, but it was also particularly concerned by authorities’ failure “to make the required distinction [of the racially-motivated assault] from other, non-racially motivated offences, which constitutes unjustified treatment irreconcilable with Article 14 of the Convention.”27
The European Commission against Racism and Intolerance (ECRI) has mentioned the deficiencies of the Bulgarian criminal justice system in prosecuting bias-motivated crimes. In its third and fourth reports on Bulgaria, ECRI urged the Government to insert a provision into the Criminal Code stating that racist motivation for any ordinary offence constitutes an aggravating circumstance.28 The Government’s response had been that in general the Criminal Code directs the courts to take the motives into consideration in sentencing and that “[w]here it is established that the motivation for the commission of a particular offence is racist, this in all cases is considered as an aggravating circumstance.”29 The Government reiterated this position in the CoM review of the Nachova judgment.30 How is this to be effected, however, without a specific and explicit direction as to the racist or other bias motivation? Both the Nachova and the Angelova and Iliev cases demonstrate clearly that neither the investigating authorities nor the courts take racist motive into consideration under the current legal framework. The government had not offered any evidence to ECRI or to any other body that this has ever happened.
Other problems related to the execution of ECtHR judgments and pending structural issues
On 25 March 2010 the ECtHR issued its judgment in Paraskeva Todorova v Bulgaria. The Court found a violation of Article 14 in conjunction with Article 6.1 of the Convention in a case of a Romani woman who domestic courts refused to sentence to anything less than effective imprisonment due to her ethnic origin. In its reasoning, the trial court underlined that there was “an impression of impunity, especially among members of minority groups, for whom a suspended sentence is not a sentence.”31 This judgment has not become final yet but is likely to enter the already long list of Bulgarian judgments pending execution before the CoM because it demonstrates the lack of sensitivity of the domestic justice system to discrimination and particularly to discrimination against Roma.
Although not explicitly recognised by the CoM, Roma are victims of numerous other structural problems of the Bulgarian justice system. These generate plenty of negative judgments by the ECtHR that subsequently become the subject of extensive reviews for execution by the CoM. These include problems involving:
- Excessive length of criminal proceedings and lack of effective judicial review of the lawfulness of the pre-trial detention (Kitov group of cases);
- Length of detention on remand (Bojilov and Kirilov groups of cases);
- Inhuman and degrading conditions of detention (Kehayov group of cases); and
- Monitoring of prisoners’ correspondence (Petrov group of cases).
All of these groups of cases have been under review by the CoM for years with little progress in implementing general measures at the domestic level. The Court is likely to rule soon on several cases involving excessive use of firearms against Roma and forced evictions of Romani families from their only homes. Other Bulgarian cases pending before the Strasbourg court and potentially involving Romani victims include placement in special schools for delinquent children in violation of due process standards, inhuman treatment in places for deprivation of liberty and racial discrimination.32
With almost all judgments explicitly involving Romani victims not executed and with some pending for execution before the CoM for almost ten years (e.g. the Velikova judgment), Bulgaria demonstrates gross disregard for the international system of human rights protection and a lack of sensitivity to the structural problems faced by some of the most vulnerable members of Bulgarian society when confronted with the justice system. The Government’s failure to comply with ECtHR judgments creates serious problems for a number of stakeholders. In the first place are the victims of systematic human rights violations for whom justice, including international justice, remains detached from their daily lives and largely an illusion. Second are the local human rights advocates for whom the lack of execution is a strong disincentive in their efforts to bring structural human rights problems of vulnerable groups to the attention of domestic and international bodies. And last, but not least, are the Strasbourg human rights protection organs themselves, which are brought to the role of registrars of violations without the opportunity to significantly influence subsequent developments on the ground. This perhaps makes the reform of the execution of ECtHR judgments an even more urgent problem than the reform of the procedure for adjudication of cases.
- Dr Krassimir Kanev is Chair of the Bulgarian Helsinki Committee (BHC). He teaches human rights at the Sofia State University (Bulgaria). He is also Chairperson of the Board of Trustees of the UN Voluntary Fund for Victims of Torture.
- Among other judgments: European Court of Human Rights (ECtHR), Krastanov v Bulgaria, Application no. 50222/99, 30 September 2004, paragraph 60; ECtHR, Yaşa v Turkey, Application no. 22495/93, 2 September 1998, paragraph 74; ECtHR, Tanrıkulu v Turkey, Application no. 23763/94, 8 July 1999, paragraph 79; ECtHR, Ayder and Others v Turkey, Application no. 23656/98, 8 January 2004, paragraph 98.
- The list of cases pending for execution as of March 2010 is available on the CoM website at: http://www.coe.int/t/DGHL/MONITORING/EXECUTION/Reports/Current/Bulgaria_en.pdf. Those initiated by the ERRC are available at:http://www.errc.org/en-strategic-litigation-european-court.php.
- CoM, Supervision of the Execution of Judgments of the European Court of Human Rights, 3rd Annual Report, Strasbourg, April 2010, 44.
- Ibid., 40.
- See, for example, the very typical reaction to the execution of the Court’s judgments involving violations of the freedom of assembly and of association of ethnic Macedonians in: ECRI, Report on Bulgaria (fourth monitoring cycle), 24 February 2009, paragraph 52; Reply of the Bulgarian government to the CERD list of issues, 74th Session, 17 February 2009, Article 4, available at: http://www2.ohchr.org/english/bodies/cerd/cerds74.htm.
- Council of Ministers, Concept Paper for Overcoming the Reasons for the Negative Judgments of the European Court of Human Rights against the Republic of Bulgaria and for Solution of the Problems Stemming from Them, adopted with Decision of the Council of Ministers No. 144, 9 March 2009, available at: http://www.justice.government.bg/new/Pages/Verdicts/Default.aspx.
- ECtHR, Assenov and Others v Bulgaria, Application no. 24760/94, 28 October 1998.
- CoM, Interim Resolution CM/ResDH(2000)109.
- ECtHR, Velikova v Bulgaria, Application no. 41488/98, 18 May 2000.
- ECtHR, Anguelova v Bulgaria, Application no. 38361/97, 13 June 2002.
- ECtHR, Ognyanova and Choban v Bulgaria, Application no. 46317/99, 23 February 2006.
- ECtHR, Sashov and Others v Bulgaria, Application no. 14383/03, 7 January 2010.
- CoM, Interim Resolution CM/ResDH(2007)107.
- See the list of pending Bulgarian cases at footnote 3 above, examination of the Velikova group of cases.
- Ibid. This conclusion refers to the same act, closing the investigation, which the ECtHR found to be deficient, giving rise to a procedural violation of Article 2.
- This was the case of Nikolova and Velichkova (judgment of 20 December 2007) in which the ECtHR found two violations of Article 2 (substantive and procedural). The perpetrators of a killing in police custody (police officers) received suspended minimum sentences of more than seven years after the wrongful act. They have continued to serve in the police force and one was even promoted.
- See: BHC, Human Rights and the Work of the Bulgarian Police (Sofia, 2004), 36.
- See the BHC annual reports on human rights developments in Bulgaria for 2004 and 2005, available at: www.bghelsinki.org.
- All the surveys were conducted in November-December of the respective year.
- ECtHR, Nachova and Others v Bulgaria, Application nos. 43577/98 and 43579/98, 6 July 2005, paragraphs 116-117.
- ECtHR, Tzekov c. Bulgarie, Application no. 45500/99, 23 February 2006, paragraph 54 (translation from French by the author).
- The Nachova judgment also concerns the legal and policy framework for the investigation of bias-motivated crimes (see below).
- See the list of pending Bulgarian cases at footnote 3 above, examination of the Nachova group of cases.
- ECtHR, Nachova and Others v Bulgaria, Application nos. 43577/98 and 43579/98, Grand Chamber judgment, 6 July 2005, paragraph 167.
- ECtHR, Angelova and Iliev v Bulgaria, Application no. 55523/00, 26 July 2007, paragraph 117.
- ECRI, Report on Bulgaria (fourth monitoring cycle), Strasbourg, 24 February 2009, paragraphs 22-25.
- Ibid., paragraph 53.
- See the list of pending Bulgarian cases at footnote 3 above, examination of the Nachova group of cases.
- ECtHR, Paraskeva Todorova c. Bulgarie, Application no. 37193/07, 25 March 2010, paragraph 10 (translation from French by the author).
- See among others: Yordanova and Others v Bulgaria, Application no. 25446/06; Mihaylova and Malinova v Bulgaria, Application no. 36613/08; V.T. and Others v Bulgaria, Application no. 51776/08; Dimov v Bulgaria, Application no. 57123/08; and Kirilov and Others v Bulgaria, Application no. 50292/09.