Ribcheva and Others v. Bulgaria (Applications nos. 37801/16 and 2 others)

A selection of key paragraphs can be found below the judgment.

149. However, it can hardly be said that the applicants were in practice in a position to bring such a claim. It is true that the second internal investigation confirmed some of Ms Ribcheva’s allegations of mistakes in the planning and conduct of the operation (see paragraph 63 above). It could have thus served as a basis for a claim for damages against the Ministry of Internal Affairs (see,mutatis mutandisStoyanovi, cited above, § 67). But Ms Ribcheva and the other two applicants were only able to see a copy of the report of that investigation – and of the report of the first internal investigation – in July 2020, long after they had lodged their applications with the Court, and after the expiry of the five-year period during which those reports were to remain classified and of the five-year limitation period for bringing a claim under section 49 of the 1950 Act (see paragraphs 66 and 92 above, and contrast Csiki v. Romania, no. 11273/05, § 81, 5 July 2011). It appears that the Government agreed that the reports be disclosed to the applicants only because the statutory period for their classification had expired; before that they were categorically opposed to those reports, or even excerpts from them, being shown to the applicants (see paragraphs 48 and 66 above). The Government did not contend, and it is indeed highly unlikely, that the applicants would have been able to obtain those reports, or even excerpts or redacted versions of them, earlier. The rules governing the disclosure of documents held by the opposing party in civil litigation in Bulgaria do not say anything about the disclosure of classified documents, and there is no reported case-law on the point (see paragraphs 98-101 above). There is nothing to suggest that the Government’s position on that matter would have been any different in domestic civil proceedings brought by the applicants. But even if the Bulgarian courts would have ordered the disclosure of the reports in the course of such proceedings, that would not have been sufficient, since when launching the proceedings the applicants would have still been obliged to formulate their claim blindly, without being aware of the underlying evidence, with all the associated costs and the risk of further costs. 

150. It follows that the Government’s non-exhaustion objection based on the applicants’ not having brought a claim for damages under section 49 of the 1950 Act, which was joined to the merits (see paragraphs 108 and 113 above), must be rejected.

151. It also follows that the available procedures did not properly discharge the Bulgarian State’s obligation to investigate effectively whether any officials or authorities bore responsibility for failing to take reasonable steps to protect Mr Sharkov’s life during the operation on 14 March 2014. There has therefore been a breach of Article 2 of the Convention in that respect.

178. Two mistakes noted in the reports which can be said to have had a sufficient causal link with Mr Sharkov’s death were the absence of enough prior reconnaissance (see paragraphs 43, 52 and 54 above), and the failure to evaluate carefully enough Mr P.P.’s likely reaction if faced with an attack (see paragraphs 51, 52, 53 and 55 above). Both of those appear to have significantly affected the anti-terrorist squad’s tactical choices – to opt initially for a quick assault rather than a siege, and to try at first to storm into the flat through the front door rather than through the balconies. Two other mistakes noted in the reports that also had a sufficient link with Mr Sharkov’s death were the failure to surprise Mr P.P. and then to act quickly enough to prevent him from putting up effective resistance (see paragraphs 43, 53, 56 and 57 above). A further such mistake was that Mr Sharkov’s team positioned themselves under the balcony in a way which exposed them more to shots fired by Mr P.P. (see paragraph 58 above).

179. It can indeed be thought that better intelligence and planning, and the use of other tactics (more or less aggressive) would have prevented the turn of events which led to Mr Sharkov’s death. Although the materials in the case file do not reveal much detail about this, the overall impression they convey is that the authorities, and in particular the command of the anti-terrorist squad, unduly rushed the operation, and underestimated the degree to which Mr P.P. had prepared to resist any attempt by the police to break into his flat and his determination to ward off any such operation by any means. It is, however, a matter of conjecture whether additional reconnaissance, in particular by the squad itself, or better efforts to predict Mr P.P.’s likely reaction would have enabled the authorities significantly to reduce the risk that he posed to the officers trying to arrest him. The fact remains that this was an operation fraught with danger, conducted against a heavily armed and determined man who had made great efforts to barricade his flat – that was, indeed, the very reason why the operation was carried out by the anti-terrorist squad rather than the regular police (see paragraph 13 above). In spite of their mistakes, the authorities did take precautions which could be perceived as reasonable at the time: they obtained intelligence about Mr P.P., discussed in some detail the available options, and drew up plans on how to go about arresting Mr P.P. and seizing his firearms (see paragraphs 13 to 19 above). They deployed a number of specially trained officers, and acted in a coordinated manner, with an unbroken chain of command at all times (see paragraphs 20 to 25 above). The Court, which is far removed from the events, must be extremely cautious about revisiting any of the choices that the authorities made in those respects with the wisdom of hindsight – something to be resisted even when examining whether the authorities have used force which was “more than absolutely necessary”, where, as already noted, a much stricter standard applies (seeBubbins v. the United Kingdom, no. 50196/99, § 147, ECHR 2005-II (extracts); Huohvanainen v. Finland, no. 57389/00, § 104, 13 March 2007; and Golubeva v. Russia, no. 1062/03, § 110, 17 December 2009). 

180. In sum, it cannot be said that, in spite of some regrettable mistakes, the Bulgarian authorities failed in their duty to take reasonable steps to protect Mr Sharkov’s life. There has therefore been no breach of Article 2 of the Convention under that head.


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