NACHOVA and others - Bulgaria (Nºs 43577/98 and 43579/98)
Judgment 26.2.2004 [Section I]
Facts: Two men of Roma origin, relatives of the applicants, were conscripts serving compulsory military service in an army division dealing with the construction of apartments. They were in detention for repeated absences without leave when they escaped from the construction site where they were confined and took refuge in the house of the grandmother of one of them, situated in a Roma district of a village. Some days later, a military police unit was informed where they were hiding and dispatched four military police officers, under the command of G., to the village. They had instructions to arrest the fugitives using all the means and methods dictated by the circumstances. G. was armed with a handgun and a Kalashnikov automatic rifle. Having noticed the military vehicle in front of their house, the fugitives tried to escape. While running away they were shot by G. after he had given them a warning to stop. Both men died on their way to hospital. One neighbour claimed that several of the policemen had been shooting and that at one stage G. had pointed his gun at him in a brutal manner and had insulted him saying “You damn Gypsies”. The military investigation report concluded that G. had acted in accordance with the regulations and had tried to save the fugitives’ lives by warning them to stop and not shooting at their vital organs. A sketch-map, which lacked relevant details and descriptions of the terrain/area, was appended to the report. The military prosecutor accepted the conclusions and closed the investigation. The applicants’ subsequent appeals to the Armed Forces Prosecutor’s Offices were dismissed.
Law: Article 2(2) (deprivation of life) – The legitimate aim of effecting the lawful arrest of the conscripts did not justify their shooting. They were serving short sentences for absences without leave from compulsory military service and had no record of violent offences. The military officers had been able to observe that the conscripts were unarmed and were not showing any signs of threatening behaviour. In such circumstances, the use of firearms was not “absolutely necessary” within the meaning of Article 2(2), despite the fact that relevant domestic regulations permitted the use of such arms for the arrest of every petty offender. The authorities had failed to plan and control the arrest operation, and had unnecessarily used excessive force.
Conclusion: violation (unanimously).
Article 2 (effective investigation) – There had also been a violation of Article 2 on account of the flawed investigation, which had not taken into consideration whether the use of force had been “absolutely necessary”, as required under the Convention. Moreover, the preservation of evidence at the scene and the taking of relevant measurements, which could have served to clarify the sequence of events, had been neglected. Overall, the investigation suffered numerous omissions and cast serious doubts on the objectivity and impartiality of the investigators and prosecutors involved.
Conclusion: violation (unanimously).
Article 14 – When investigating violent incidents and deaths at the hands of State agents, the authorities have a duty to take all reasonable steps to unmask any racist motive and establish whether ethnic hatred may have played a role in the events. Even though during the arrest operation there had been racist verbal abuse by at least one of the military police officers, the authorities had not embarked on a thorough examination of the facts to uncover possible racist motives. There had been a procedural violation of Article 14. The authorities had not pursued lines of enquiry which were clearly warranted to establish whether there had been a discriminatory motivation during the events, and the Court therefore shifted the burden of proof to the Government for its examination of a possible substantive violation of Article 14. As the authorities had not offered any satisfactory explanation showing that the events had not been the result of a prohibited discriminatory attitude on the part of State agents, there had also been a substantive violation of Article 14, taken together with Article 2.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicants 25,000 and 22,000 euros, respectively, on all heads of damage. It also made an award for costs.