CCPR/C/117/D/2100/2011
party into the fate of his son and of the other victims of the shipwreck does not exclude that
they could be held in custody in an undisclosed location.
3.3
The author further contends that he and his wife have suffered distress and anguish
as a result of the disappearance of their son and their inability to find out what happened.
He claims that the manner in which their complaint has been dealt with by the State party’s
authorities constitutes inhuman treatment, in violation of article 7 of the Covenant.
3.4
The author submits that he has not had effective access to the courts because a civil
claim for damages would depend entirely on the outcome of the criminal investigation into
the offences of detention and disappearance. Enforced disappearance is not criminalized
under the Bulgarian Criminal Code. In the absence of relevant laws and any findings, the
author is unable to effectively apply to a court. He also complains of the ineffectiveness of
domestic remedies and the undue delays in the pretrial proceedings, which lasted more than
six and a half years and did not establish whether an offence had been committed. The
author considers that these facts reveal a violation of article 14 of the Covenant.
State party’s observations on admissibility and the merits
4.1
On 21 November 2011, the State party challenged the admissibility of the
communication based on the fact that the author had not exhausted all available domestic
remedies. The State party contends that the National Investigation Service, the agency in
charge of the investigation of the incident, initiated proceedings under article 340 (3) (b) of
the Penal Code.3
4.2
On 9 April 2010, by order of the Prosecutor’s Office of Sofia, the investigation was
suspended. The decision to suspend was upheld on 4 June 2010 by the City Court of Sofia.
The suspension of the criminal proceedings under the procedure set out in article 244 (1) of
the Criminal Procedure Code does not mean that the investigation has been discontinued
indefinitely. Paragraph 2 of article 244 allows for a reopening of the investigation “after the
elimination of the reasons for suspension or provided there is a need for further
investigative actions”.
4.3
The State party submits that, in accordance with established procedure, all the
evidence is directed to the attention of the leading prosecutor, who, in turn, may reopen the
proceedings “provided that such actions are relevant to the case and needed to shed light on
its subject”. At the time of the present submission, the criminal proceedings have not been
closed by a final determination. Consequently, the domestic remedies have not been
exhausted by the author and his complaint to the Committee should be declared
inadmissible.4
4.4
Regarding the merits of the communication, specifically under article 6 of the
Covenant, the State party submits that the circumstances of the sinking of the Hera have
been investigated in detail “through written and oral evidence”, such as the statements of
witnesses, including crew members of a ship called Vejen who confirmed the fact that the
Hera had sunk. The sinking has also been confirmed by the report of a forensic expert.
4.5
Requests for more evidence have been made under international legal assistance
agreements with Georgia, Greece, Romania, Turkey and Ukraine, and a request for
documentation has been addressed to the European Union Satellite Centre in Spain. In
3
4
As described by the State party, for damaging or allowing a ship to be damaged, to get stranded or to
sink, resulting in the death of one or more persons.
The State party further notes that the author has requested the Ombudsman to issue an opinion on
potential violations in the present case, but it remains unclear whether such opinion has been issued.
3