The European Roma Rights Center welcomes a landmark decision of the European Court of Human Rights

26 February 2004

On 26 February 2004, the European Court of Human Rights announced its judgment in the case of Nachova vs. Bulgaria. The Court unanimously found the Bulgarian state responsible for the deaths of two Romani men as well as its subsequent failure to conduct an effective official investigation, in violation of Article 2 (right to life). For the first time in its history, the Court also found a violation of the guarantee against racial discrimination contained in Article 14 taken together with Article 2, and in doing so stressed that the Bulgarian authorities have "failed in their duty ... to take all possible steps to establish whether or not discriminatory attitudes may have played a role" in the events at issue.

On 19 July 1996 military police Major G. shot dead two Romani men, Mr Kuncho Angelov and Mr Kiril Petkov, conscripts in the Construction Force of the Bulgarian army, in the village of Lesura, north-west Bulgaria. Mr Angelov and Mr Petkov had escaped from prison and hid in the house of Mr Angelov's grandmother in Lesura. Four military police officers under the command of Major G. were dispatched to locate and arrest the two men. Mr Angelov and Mr Petkov, both unarmed, were shot with an automatic rifle by Major G. while trying to escape from the house of Mr Angelov's grandmother and running through a neighbor's yard. The wounded men were then taken to hospital where they were pronounced dead. Subsequent investigation into the case by the Bulgarian authorities found that the use of firearms had been lawful.

The applicants, Ms Anelia Nachova, Ms Aksiniya Hristova, Ms Todorka Rangelova and Mr Rangel Rangelov, all Bulgarian Roma, represented by lawyers of the European Roma Rights Center, in cooperation with the Bulgarian Helsinki Committee and the Human Rights Project, alleged that their relatives Mr Kuncho Angelov and Mr Kiril Petkov were deprived of their lives in violation of Article 2 of the Convention, as a result of inadequate legislation and practice which permitted the use of lethal force without absolute necessity. They also complained that the authorities failed to conduct an effective investigation into the deaths, in violation of Article 2 and Article 13 (right to an effective remedy). Finally, the applicants alleged that prejudice and hostile attitudes towards people of Roma origin played a decisive role in the events leading up to the deaths of Mr Angelov and Mr Petkov and that no meaningful investigation was carried out, relying on Article 14 in conjunction with Article 2.

The European Roma Rights Center (ERRC) also intervened in the case requesting the Court to reassess its approach to interpreting Article 14 of the European Convention. In its written comments the ERRC argued that: 

• The Court's current standard of proof under Article 14 with respect to claims of racial discrimination of "beyond reasonable doubt"is inconsistent with other international human rights standards and renders the Convention's protection illusory.
   
• The Court has not hesitated to lighten or shift the burden of proof in other contexts as needed in order to reach a just result. Such an approach should apply with equal force to cases brought under Article 14.
   
• International and comparative jurisprudence and legislation with respect to claims of discrimination reflects a clear and growing trend of shifting the burden of proof to the alleged perpetrator.
   
• In view of the particularly invidious nature of race discrimination and the "special importance" attached thereto, the right to be free from such discrimination is a fundamental right requiring a high level of protection.
   
• Consequently, the Court should impose an obligation on the respondent state to conduct an investigation capable of proving or disproving the discrimination complaint. The state's failure to do so should support an inference that Article 14 has been violated. 

In its judgement the European Court of Human Rights agreed with the applicants.

With respect to the inadequacy of Bulgarian legislation it observed that:

" ... the relevant regulations on the use of firearms by military police were not published, did not make use of firearms dependent on an assessment of the surrounding circumstances, and, most importantly, did not require an evaluation of the nature of the offence committed by the fugitive and of the threat he or she posed. The regulations permitted use of firearms for the arrest of every petty offender ... Although the Supreme Court has stated that a proportionality requirement existed under criminal law as interpreted by legal commentators, the matter was not clearly regulated ... and the Supreme Court's interpretation was apparently not applied in practice, as evidenced by the conclusions of the investigator and the prosecutors in the present case ..."

Finally, the Court then went on to explain its historic ruling under Article 14 taken together with Article 2:

"The Court considers that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. ... In order to maintain public confidence in their law enforcement machinery, contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing ... the Court considers that in cases where the authorities have not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and have disregarded evidence of possible discrimination, it may, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government ..."

For additional details regarding the above case, please contact Branimir Plese, Legal Director, European Roma Rights Center (email: branko@errc.org, phone:+361 413 2200) and Krassimir Kanev, Chair, Bulgarian Helsinki Committee (email:krassimir@bghelsinki.org, phone: +3592 943 9060).