European Court Finds Bulgarian Authorities Responsible for Roma Death

10 July 2002

Nikolai Gouginski1


On June 13, 2002, a chamber of the European Court of Human Rights (the "Court") issued a decision in the case of Anguelova v. Bulgaria, which involved the death while in police custody of Anguel Zabchikov, a 17-year-old Romani man. An unanimous court found Bulgaria in breach of Article 2 (right to life), Article 3 (freedom from torture or inhuman and degrading treatment), Article 5.1.c. (prohibition against unlawful detention), and Article 13 (right to an effective remedy) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). By six votes to one, however, the Court held that the applicant had not proved beyond a reasonable doubt a violation of Article 14 (prohibition of discrimination). The Court awarded to the applicant EUR 19,050 for non-pecuniary damages and EUR 3,5000 for costs and expenses.

The ruling on this case, which was litigated with the help of the European Roma Rights Center, is yet another one which vindicates the efforts of Romani individuals to seek justice for abuses suffered at the hands of the police. It is the most recent in a string of decisions since the 1998 ruling in the case of Assenov and Others v. Bulgaria, which sends a clear signal that human rights abuses against Roma by police or other state officials must be adequately prosecuted.

Details of the Case

The applicant in this case was Mrs Assya Anguelova. Her son, Anguel Zabchikov, was arrested on allegations that he was trying to break into cars, and was detained by the police in Razgrad shortly after midnight on January 29, 1996. In the late afternoon and the evening prior to his detention, Mr Zabchikov was with friends at his home and later in a bar, where he consumed alcohol. He was last seen by friends at about 11:30 PM on January 28, 1996.

According to the official police account of the facts, shortly after midnight on January 29, 1996, the police received a phone call reporting that an unknown person was trying to break into cars parked in front of a residential building on Beli Lom Street in Razgrad. A patrol car was immediately dispatched to the address. Before the patrol car arrived, an off-duty police officer (sergeant "C"), who lived in the building where the alleged car theft had been observed, apprehended the suspect after a chase on foot. When the patrol car's occupants, sergeant "A" and sergeant "B", arrived at the reported location, the suspect had already been apprehended. Sergeant A recognised the suspect. After a second police car with three more officers arrived (sergeant "E", sergeant "F", and sergeant "G"), the police searched the area for evidence of a break-in. During the search, Mr Zabchikov was handcuffed to a tree. Around 1 AM he was taken to the Regional Police Department by sergeant A and sergeant B. Mr Zabchikov, who according to the officers was drunk, was left in a room under the supervision of sergeant "H". At a certain point, Mr Zabchikov displayed signs of deteriorating health conditions, and around 4:30 AM sergeant "H" called officers A and B who drove back to the police station to assess the situation. Then they drove to the emergency department of the Regional Hospital in Razgrad and came back with an ambulance. Mr Zabchikov was taken to the hospital by the ambulance. Upon his arrival at the hospital around 5:00 AM, the internist on duty established that Mr Zabchikov had died.

The Regional Prosecutor's Office opened an investigation into the facts surrounding the death of Mr Zabchikov the same day. Three medical experts carried out an autopsy. In their report ("first medical report") the experts concluded that "[The death was caused by] accumulated epidural cerebral haematoma, ... followed by a cerebral oedema..." They concluded that the lethal injury was sustained four to six hours before the death, and was caused by blows "by or against a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface." The report also documented a number of other traumas and injuries, including skull and cerebral traumas and injuries to the chest and wrists of the diseased. The report concluded that Mr Zabchikov's death had been inevitable in the absence of urgent surgical intervention. The report established that the concentration of alcohol into Mr Zabchikov's blood amounted to a "medium level of alcoholic intoxication".

On January 30, 1996, upon receiving her son's body, the applicant called journalists from local print media, who photographed the injuries on the body of Mr Zabchikov.

On January 31, by order of the Regional Prosecutor, the investigation was transferred to the Regional Military Prosecutor's Office based on the finding that the victim had died after having been in police detention for several hours.

In the course of the investigation carried out by the Military Prosecutor's Office, the authorities questioned witnesses from the residential building at Beli Lom Street, officers who were involved in the apprehension and detention of Mr Zabchikov, and individuals with whom Mr Zabchikov had spent time in the afternoon and evening of January 28, 1996. The undisputed witness accounts of the events revealed that on the evening of January 28, 1996, and until shortly before his apprehension by the police on Beli Lom Street, Mr Zabchikov was in good health and did not bear any signs of injuries or traumas. None of the civilian witnesses or the police officers who were involved in the apprehension of the victim noticed any injuries of Mr Zabchikov at the time. Sergeant H is the first one to report visible injuries on Mr Zabchikov's eyebrow, which he saw upon the arrival of the victim at the police station.

Despite the undisputed witness account, during the course of the investigation it was suggested that the lethal injury may have been inflicted on the victim prior to the arrest, or may have been self-inflicted by the victim during the chase at Beli Lom Street. In this respect, the investigators attached particular importance to accounts of witnesses who reported having seen Mr Zabchikov falling a few times during the chase, as well as to the fact that Mr Zabchikov had consumed alcohol prior to his apprehension. The investigating officer also suggested to the applicant that the victim had an "abnormally thin skull", thus apparently trying to exonerate the police from responsibility.

In April 1996, the investigator appointed five medical experts to re-examine the conclusions of the first medical report concerning the causes of Mr Zabchikov's death and to answer, among other things, whether the injuries could have been sustained by consecutive falls, and also when the injuries were sustained.

The experts reaffirmed the conclusion that Mr Zabchikov's death had been caused by an epidural oedema resulting from a skull injury. They also stated that the skull injury could have been caused by a kick, a punch, or a blow by a blunt object, or also by a fall and collision against a "flat broad surface". Based on the "particular features of the skull structure", the experts concluded that the blow that caused the skull fracture had not been very strong. In stark contrast to the first medical report, the experts concluded that the injuries were sustained "at least 10 hours before the time of the death."

Without making any attempt to reconcile the apparent discrepancies between the first and the second medical reports, and by giving full credit to the second medical report, the Military Prosecutor's Office on July 31, 1996, terminated the investigation into the death of Mr Zabchikov as, according to the office, there was no connection between the acts of the police and the death of Mr Zabchikov. The Military Prosecutor's Office did not comment at all on the other non-lethal injuries of the victim, documented by the first medical report and the photographic evidence.

The applicant with the support of the Human Rights Project, a Bulgarian non-governmental Roma rights organisation, appealed the decision with the National Military Prosecutor's Office. In December 1996, the National Military Prosecutor's Office confirmed the decision and sent the files to the Regional Prosecutor's Office in Razgrad to investigate whether a person other than a police officer had committed a criminal act. In the framework of this investigation, in January and February 1997 a few other witnesses were questioned. However, the requests of the applicant for exhumation of the corpse and additional expert opinion with regard to the cause of the lethal injuries and the time when they were sustained were not granted.

By an order of March 4, 1997, the Regional Prosecutor's Office suspended the criminal proceedings on the ground that all possible evidence had been collected and it was not possible to determine the precise circumstances under which the fatal injury had been inflicted. With respect to the other injuries, the Regional Prosecutor's Office only stated briefly that they had not placed Mr Zabchikov's life in danger. Following applicant's appeals, the Chief Public Prosecutor's Office finally confirmed the decision on March 20, 1997.

Procedure Before the European Court of Human Rights

On September 20, 1997, with the assistance of the European Roma Rights Center, Mrs Assya Anguelova filed an application with the European Commission of Human Rights.2 She alleged violation of Article 2 of the ECHR (the right to life) on three separate counts, violation of Article 3 of the ECHR (freedom from torture and inhuman or degrading treatment) on two separate counts, violation of Article 5.1.c. of the ECHR (prohibition of unlawful detention) on the ground that the arrest and detention of Mr Zabchikov was not based on a decree in writing as explicitly provided for by applicable Bulgarian law, violation of Article 13 of the ECHR (right to an effective remedy) on two separate counts, and violation of Article 14 of the ECHR (prohibition of discrimination) on the ground that the treatment which her son received was due at least in part to his Romani ethnicity and was thus inconsistent with the requirement of non-discrimination set forth by Article 14, taken together with Article 2 and Article 3.

The application was subsequently transmitted to the Court, and on June 6, 2000, a Chamber of the Court declared the application admissible.

In the course of the proceedings before the Strasbourg Court, the applicant, acting through the ERRC, solicited the opinion of Professor Jurgen Tomasen, a member of the UN Standing Team of Forensic Experts. In his opinion, Professor Thomasen disagreed with the conclusion of the second medical report that there had been a lapse of at least 10 hours from the trauma to the death. He also expressed the view that the death of Mr Zabchikov could have been avoided if he had been admitted to the hospital sooner and an operation with evacuation of the haematoma had been performed in time.

The Government in turn maintained that the victim had a record of documented medical problems, including mental retardation and a speech stammer, and that he was susceptible to fainting.

The Decision of the Court

In its decision of June 13, 2002, the European Court of Human Rights held unanimously that there had been a violation of the following provisions of the ECHR:

Violation of Article 2 ECHR (right to life) on three separate counts:

a) Violation on the ground that Mr Zabchikov died as a result of ill treatment while in police custody

The Court noted that Mr Zabchikov died after having been detained for several hours in the Razgrad police station. The explanation provided by the state, based on the second medical report, was that Mr Zabchikov might have been injured hours before the arrest by falling on the ground as he was drunk and had a history of health problems. The Government did not offer any other explanation.

The Court questioned the conclusion of the second medical report that the injuries had occurred at least ten hours before Mr Zabchikov's death and attached more weight to the first medical report, which was based on a visual examination of the body. The first report concluded that his skull injury had most likely been inflicted between four and six hours prior to his death, possibly at a time when he was in police custody, either before or after he was taken to the police station.

The Court found the government's explanation of Mr Zabchikov's death implausible in view of (i) the fact that the Government's claim was not supported by forensic evidence, and none of the witnesses who were in contact with the victim before he was taken to the police station reported any complaint of an ailment on his part, and (ii) the police officers' suspect behaviour.

b) Violation on the ground that the authorities failed to provide timely medical care to Mr Zabchikov

The Court found that the behaviour of the police officers and the lack of any reaction by the authorities constituted a violation of the State's obligation to protect the lives of those in custody. The Court observed that the police delayed the provision of medical assistance to Mr Zabchikov, which contributed in a decisive manner to his death. The Court noted, among other things, the suspect behaviour of the police, who instead of immediately calling a doctor, first contacted the arresting officers, who in turn drove to the hospital to bring an ambulance instead of calling one on the phone. The Court also attached weight to the fact that the case file contained no criticism or disapproval of their actions. Furthermore, the first medical report and the opinion of Professor Thomasen found that the delay in providing medical assistance had been fatal.

c) Violation on the ground that the authorities failed to conduct an effective investigation into the circumstances surrounding the death of Mr Zabchikov

The Court found that the investigation into the death of the victim lacked objectivity and thoroughness. Among other shortcomings of the investigation, the Court noted: that the testimony of the police officers was considered fully credible despite their suspect behaviour; that despite the obvious contradiction between the two medical reports, the authorities accepted the conclusions of the second report without seeking to clarify the discrepancies; and the decisions of the prosecution authorities to end the investigation relied exclusively on the opinion in the second medical report.

Violation of Article 3 ECHR (prohibition of torture and inhuman or degrading treatment)

The Court held that Mr Zabchikov's rights under Article 3 ECHR were breached on the ground that the Government had not provided a plausible explanation for the injuries to Mr Zabchikov's body and that those injuries were indicative of inhuman treatment beyond the permissible threshold of severity under Article 3.

The Court did not find it necessary to make a separate finding under Article 3 with respect of the deficiencies in the investigation, having already dealt with that question under Article 2.

Violation of Article 5.1.c ECHR (prohibition against unlawful detention)

The Court held that the Government had breached Article 5.1.c. ECHR on the ground that the lack of a written order and proper record of Mr Zabchikov's detention, as explicitly required by the National Police Act in force at the relevant time, was in breach of domestic law and contrary to the requirements implicit in Article 5 ECHR.

Violation of Article 13 ECHR (right to an effective remedy)

The Court also held that there had been a violation of Article 13 in relation to the lack of an effective remedy with respect to the violations of Article 2 and Article 3 ECHR. In this regard, the Court upheld its prior case law, pursuant to which in cases of deaths the obligation under Article 13 implies the conduct of a thorough and effective investigation capable of leading to identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure. The Court dismissed the submission of the Government that other remedies were also available, on the ground that where, as in this case, the criminal investigation was ineffective as it lacked sufficient objectivity and thoroughness, the effectiveness of any other remedy that may have existed was consequently undermined.

Opinion of the Court with respect to the claim for discrimination under Article 14 ECHR

By six votes to one the Court dismissed the complaint that the victim's Romani ethnicity was a decisive factor for the treatment which Mr Zabchikov received by the police. The applicant relied on the fact that the victim's ethnic origin was known to the police officers that apprehended him and held him in custody. Their perception of his ethnicity was so strong that some of them were unable to refrain from referring to him as "the Gipsy" even in their official statements. The applicant also maintained that the treatment of her son should be viewed against the backdrop of a systemic racism and hostility of law enforcement authorities towards Roma, which had been documented in a long series of reports and documents of inter-governmental organisations and international and domestic non-governmental organisations.

The majority of the Court, while recognising that the applicant's allegations of discrimination were based on serious arguments, dismissed the claim on the ground that the standard of "proof beyond reasonable doubt" had not been met.

In a thoughtful dissenting opinion, Judge Bonello disagreed with the majority's opinion that the establishment of discrimination requires a standard of proof "beyond reasonable doubt". The judge noted his concern that, as a result of such an approach, in over fifty years, the Court had not found a single instance based on violation of Article 14, the Convention's ban on discrimination. Judge Bonello further noted that the Court's inability to establish a link between abuse and ethnicity in Anguelova v. Bulgaria comes notwithstanding overwhelming evidence provided by numerous reports of inter-governmental organisations and human rights groups that the Bulgarian law enforcement services "boast of an unenviable primacy in racially prejudiced ill-treatment of Roma."

Judge Bonello appealed to the Court to re-think its approach requiring from an applicant in human rights disputes a standard of proof equivalent to that required of the state in order to obtain a criminal conviction. In this respect, he noted the experience of other leading human rights tribunals such as the Inter-American Court of Human Rights and the Supreme Court of the United States, and suggested that in its own case law the Court has developed a "notable arsenal of weapons with which to break the stalemate that has not allowed [the Court], through fifty years of activity, to censure one single case act of racial discrimination in areas of deprivation of life or inhuman treatment."


  1. Nikolai Gouginski is a former staff attorney at the ERRC. He was extensively involved in preparing the Anguelova v. Bulgaria lawsuit.
  2. The application was submitted prior to the entry into force of Protocol No 11 to the ECHR, which abolished the European Commission of Human Rights and created a single court.


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