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Ognyanova and Choban v. Bulgaria judgment

Travesty of investigation after death of detainee in custody Ivan FISER, Human rights consultant

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n 24 February 2006, in Strasbourg, the European Court of Human Rights published it decision in Ognyanova and Choban v. Bulgaria. The judgment concerns the death of 23-year-old Zahari Stefanov in Kazanluk police station in June 1993. An official investigation at the time concluded that this man of Romani origin had voluntarily jumped out of a third-floor room where he was being questioned and that all his injuries had been caused by the fall. It has taken almost 13 years for the full results of the investigation conducted by the Bulgarian authorities into Stefanov’s death to come to light. The Strasbourg court established that several of Stefanov’s basic human rights had been violated, including the rights to life, to be free from torture and from arbitrary detention. As befits such documents, the decision is written in dispassionate, legal language. Although extensive, it contains only the bare skeleton of information that is legally relevant to the matter at hand. The decision does not provide many clues to what really happened to Stefanov such a long time ago. Nevertheless, anyone who takes the time to read it would not have difficulties inferring that Stefanov, before falling to his death, must have suffered considerable pain and indignities. In any case it was not up to the Strasbourg court to establish the circumstances in which Stefanov died. That had been the duty of the Bulgarian authorities, under both international and national law. The Bulgarian authorities had been legally bound to investigate what had happened to Stefanov while in police custody and how he had suffered injuries which resulted in death. Such an investigation should have fully complied with international legal requirements for promptness, thoroughness and objectivity. It was the conduct of the Bulgarian authorities in performing this duty that had been the focus of the examinations before the Strasbourg court. In the end, the European judges were unanimous in their findings. Firstly, his right to life had been violated by the Bulgarian authorities who had failed to provide a plausible explanation of the incident that caused Stefanov’s death. A further violation of this right was established by an analysis of the conduct of the investigation and the information collected, which led the Strasbourg court to conclude that the investigation had not been thorough and objective. The Court also established that many of Stefanov’s injuries were unlikely to have occurred in the fall. In fact, some of the injuries, according to the Court, were indicative of injuries suffered as a result of torture and other 24 OBEKTIV

cruel, inhuman and degrading treatment. The judges’ reasoning was partly based on the fact that these injuries had not been properly accounted for in postmortem medical examinations. Because the Bulgarian authorities had failed to properly investigate how these injuries occurred, the court found that Stefanov’s right to be free from torture and inhuman and degrading treatment had also been violated. Furthermore, as no proper records were presented to the Court about the reasons why Stefanov had been arrested in the first place, the Court found that his right to be free from arbitrary detention had been breached. And finally, because there had been no effective criminal investigation, Stefanov’s family had been denied the right to an effective legal remedy. The Court granted Stefanov’s family financial compensation for non-pecuniary damages - a legal term, in this instance, denoting the pain caused by the death of a loved one. There should be much less legal jargon in what follows. For this article is not intended for lawyers. After all, positions taken by the Strasbourg court in this decision are not new and can be found in a number of previous cases implicating Bulgarian authorities and concern similarly tragic events. What follows is something that has not been detailed in the Strasbourg court’s decision which only vaguely refers to allegations that Stefanov had been ill-treated by the police. It was precisely these allegations that have indelibly been cast in my memory and that of many people around the world who were troubled by Zahari Stefanov’s tragic end and who appealed to the Bulgarian authorities to do their duty by international law. In June 1993, within days after Zahari Stefanov’s death, by pure coincidence, I arrived in Sofia on my first trip to Bulgaria as a representative of Amnesty International. My Bulgarian colleagues who had only recently established the Human Rights Project, a non-governmental organization concerned with the protection of human rights of Roma, told me about Stefanov’s case. We then traveled together to Dubovo, the village where he had lived with his young family. I still vividly remember that trip and the interviews in the impoverished Roma neighbourhood, a community of about 700 people. I learned there how Zahari Stefanov had been arrested on 4 June 1993 by three police officers at the Dubovo railway station. The police suspected him of being involved in a group of thieves. Several people including some who worked at the railway station had observed Stefanov being beaten by the police officers immediately after his


arrest. The unfortunate young man, father of two, was then taken to the Mayor’s office. News traveled fast in the village and Stefanov’s mother-in-law came to the office to inquire about him. In the corridor, outside the room where Stefanov was being questioned, she and another woman heard him crying. After about an hour Stefanov was led out of the room. His feet were so swollen that he had to be helped to put on his shoes. Outside, a police officer pointing to the car boot, reportedly told Stefanov: ·Come here Lassie, you know your place”. The police then took Stefanov to his home and told him to collect all the goods he had allegedly stolen. He took a few items and told the family that the police would not release him otherwise. The officers manhandled him even in his home, in view of his family. As the ‘collection of evidence’ continued Stefanov was taken to another house in the neighbourhood. An older woman described to me how three police officers punched and beat Stefanov, while a crowd of people gathered to protest such brutal conduct. An officer then reportedly fired several shots in the air and the people dispersed. From Dubovo, Stefanov was taken to Kazanluk. Two days later word had reached his family the he had died. According to the television and press reports he had committed suicide by jumping from the third story office where he was being interrogated. At the time when I met Stefanov’s family they had not been given a death certificate and had been told that there was no autopsy report that they could examine. My Bulgarian colleagues and I wanted to hear what the police in Kazanluk had to say about Stefanov’s tragic end. Although it was early afternoon, when we arrived at the station there was no officer available to speak to us. They were all at a meeting, out of town. With its considerable expertise in opposing torture, Amnesty International assessed the information I collected in Dubovo and found that there was sufficient prima facie evidence that Stefanov, before he died in suspicious circumstances, had been subjected to torture. The organization called on its members to urge Bulgarian authorities to comply with its international obligations and to initiate a full and impartial investigation into the case. In subsequent years, on return visits to Sofia I tried to engage the officials I met in the General Prosecutor’s office to show me information that would indicate that the investigators into Stefanov’s death had carried out their duty in good faith and in line with international standards. On once such occasion, in January 1996, I was received by Colonel Nikolay Kolev, then acting Prosecutor of the Bulgarian Armed Forces. He told me that the investigation in this as well as in other cases brought to his attention by my organization had been completed. And then he added that he could not give copies of the investigation reports or of the autopsy reports because they were considered classified information. These documents, he told me, were of sensitive military nature and protected by an international treaty, apparently one of the agreements concluded in Vienna by the superpow-

ers at the height of the Cold war, governing strategic nuclear arms. When he proceeded to show to me the relevant issue of the Official Gazette where this treaty had been published I found it difficult to hide my bemusement with this absurd defence. Almost 13 years after my visit to Dubovo and Kazanluk, reading the detailed judgment of the Strasbourg court, I found out how the Bulgarian investigators described the events leading to this young man’s death. The initial investigation report stated, among other things: ·Mr Stefanov, still handcuffed, bolted from his chair, made towards the open window and climbed on the window sill by stepping on a chair placed under the window. Chief sergeant H.B. shouted: ·This one is going to run”. Lieutenant I.C. turned around and saw Mr Stefanov in the window frame, one leg out in the air and the other leg inside the room. The lieutenant shouted: ·Don’t jump!”, but Mr Stefanov threw his other leg out of the window and jumped.” My pedantic mind attempted to visualize this account and I pondered at the absurd image: the man standing in the window frame one leg out in the air the other leg inside. Then he throws the other leg out of the window. Perhaps something got lost in translation. And perhaps the context of the finely drafted European judgement makes the Bulgarian investigator’s report appear as an even greater travesty of justice. At the end of the day, in the text of the Strasbourg decision, I found the details that further convinced me that in June 1993, my Bulgarian colleagues and I had been right to believe Stefanov had been subjected to torture. Injuries to the head and chest, which caused Stefanov’s death, indicate that he fell with his head and upper body first hitting the ground. Among many injuries there are those like bruises on Stefanov’s buttocks that appear to me unlikely to have been suffered in the fall. But the autopsy report also describes injuries on Stefanov’s feet. Not a doubt in my mind how he had suffered these. I immediately recognized these swellings as characteristic injuries following beatings on the soles of the feet. These are highly unlikely to have been suffered in a fall, head first to the ground. I will remember the tragic fate of Zahari Stefanov. And I regret that much of my Bulgarian experiences in the Nineties were connected to many other cases of Roma who had fallen victim to racist police brutality. Last week, after a long interview, a journalist asked me if I would finish by telling him a story with a happy ending. I had to explain how in my line of work, assisting people who have suffered human rights violations, the stories are mostly about pain and injustice. Whatever the ultimate outcome I did not consider it a happy one. Certainly no such ending for this story. Correction: In the last edition of Obektiv an error was made in the designation of the author of the article “Travesty of investigation after death of detainee in custody”. Ivan Fiser is a human rights consultant based in London.

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Travesty of investigation after death the detainee in custody