Nachova and Others v Bulgaria
The Grand Chamber of the European Court of Human Rights yesterday affirmed in substantial part its first ever finding of racial discrimination in breach of Article 14 of the European Convention of Human Rights. The Court's ruling makes clear that European states have an obligation to investigate possible racist motives behind acts of violence. The case concerns the July 19, 1996, fatal shooting by military police soldiers of two Roma conscripts. The victims, recently absconded from a military construction crew, were known to be unarmed and not dangerous. The killing, by automatic weapon fire, took place in daylight in a largely Roma neighborhood, where the grandmother of one of the victims lived. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damn Gypsies!" while pointing a gun at him.
Facts: Two young Roma men, relatives of the applicants, were members of the armed forces. They were put in jail for unauthorized absences. They then escaped from prison and were hiding in their grandmother's house. When they tried to escape from the house, unarmed, they were shot and killed by a military police officer with an automatic rifle. A subsequent investigation into the case by the authorities concluded that the use of the firearms had been lawful.
Procedural History: In a Chamber judgment of 26 February 2004, the Court held unanimously that there had been violations of Article 2 (right to life) concerning both the shootings and the lack of an effective investigation and violations of Article 14 (non-discrimination) concerning the lack of an investigation into whether discriminatory attitudes played a role in the shootings and concerning the shootings themselves. The case was referred to the Grand Chamber at the Government's request.
Article 2 (right to life): violation
The Court noted as a matter of grave concern that the regulations on the use of firearms by the military police effectively permitted lethal force to be used when arresting a member of the armed forces for even the most minor offence. The Court thus found that there had been a general failure by Bulgaria to comply with its obligation to secure the right to life by putting in place an appropriate legal and administrative framework on the use of force and firearms by military police. Moreover, the authorities failed to comply with their obligation to minimize the risk of loss of life since the arresting officers were instructed to use all available means to arrest the men despite the fact that they were unarmed and posed no danger to life or limb. Also, the conduct of the officer who shot the victims called for serious criticism that he had used grossly excessive force. The subsequent investigation was also flawed.
Article 14 (non-discrimination): violation
The Court noted that, regrettably, the use of firearms in the circumstances of this case was not prohibited by the relevant domestic regulations. The military police officers carried their automatic rifles in accordance with the rules and had been instructed to use all necessary means to effect the arrest. It has not been proven that the arresting officers were driven by discriminatory motives.
However, the investigating authorities had before them the statement of a neighbor, stating that the arresting officer shouted "You damn Gypsies" and pointing a gun at him. This statement called for verification. The investigator and the prosecutors had done nothing to verify the neighbor's statement or the reasons it had been considered necessary to use lethal force. They had disregarded relevant facts and terminated the investigation. As a result, the Court found that the authorities had failed in their duty under Article 14, taken together with Article 2, to take all possible steps to investigate whether or not discrimination may have played a role in the events.
- Grand Chamber Judgment (in English): View it (MSWord doc format)!