CCPR/C/130/D/2820/2016
obligation to conduct an effective official investigation. 12 The Court indicated that the
investigation, as with that under article 2, should be conducted in such a way as to lead to the
identification and punishment of those responsible. He also refers to paragraph 117 of the
same decision, in which the Court recalled that article 13 guaranteed the availability at the
national level of a remedy to enforce the substance of the Convention rights and freedoms in
whatever form they might happen to be secured in the domestic legal order. The effect of that
article was therefore to require the provision of a domestic remedy allowing the competent
national authority both to deal with the substance of the relevant Convention complaint and
to grant appropriate relief, although contracting States were afforded some discretion as to
the manner in which they conformed to their obligations under that provision. The scope of
the obligation under article 13 varied depending on the nature of the applicant’s complaint
under the Convention. Where an individual had an arguable claim that he or she had been illtreated in breach of article 3, the notion of an effective remedy entailed, in addition to a
thorough and effective investigation of the kind also required by article 3, effective access
for the complainant to the investigatory procedure and the payment of compensation where
appropriate.
3.4
The author also refers to paragraph 140 of the European Court of Human Rights
decision in Anguelova v. Bulgaria, in which the Court indicated that there must be a sufficient
element of public scrutiny of the investigation or its results to secure accountability in
practice, as well as in theory, maintain public confidence in the authorities’ adherence to the
rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The
degree of public scrutiny required might well vary from case to case. 13
3.5
The author argues that, by analogy, the investigation of his allegations of the abuse
suffered at the hands of the police officers was not effective and that its objective was not to
identify them in order to engage their criminal responsibility. On the one hand, the author did
not have effective access to the investigation during the preliminary procedure. He was not
able to participate during the interrogations of the two accused police officers or the witnesses
called by them. The Code of Criminal Procedure does not even provide the victim with any
formal procedural activity nor initiative in the form of “requests, notes and challenges”. He
refers to paragraph 86 of the European Court of Human Rights decision in Assenov and others
v. Bulgaria, in which the Court recalled that, under Bulgarian law, it was not possible for a
complainant to initiate a criminal prosecution in respect of offences allegedly committed by
agents of the State in the performance of their duties. According to the author, that means
that all actions of the investigation take place at the initiative and under the control of the
corresponding public bodies and that the victims have no influence on the course of those
proceedings.
3.6
The author also claims that his access to the Supreme Court of Cassation was
unjustifiably restricted. The author did not receive a copy of the Prosecutor General’s request
before the Supreme Court of Cassation to annul the decision of the Military Court of Appeal
nor a summons to participate in the proceedings. He submits that it was the Supreme Court
of Cassation, before which he was deprived of providing his input, that annulled the judgment
of the Military Court of Appeal in his favour. That led in practice to his deprivation of
compensation for moral damages awarded in the final judgment of the Military Court of
Appeal.
3.7
The author also alleges a violation of article 14 (1) of the Covenant. He claims that
the State party’s authorities failed to respect his right to full access to a tribunal and the
principle of equality of arms, given that he was not notified of the Prosecutor General’s
request for annulment of the decision of the Military Court of Appeal before the Supreme
Court of Cassation and was not summoned to participate in those proceedings.
12
13
4
European Court of Human Rights, Assenov and others v. Bulgaria (application No. 24760/94),
judgment of 28 October 1998.
European Court of Human Rights, Anguelova v. Bulgaria (application No. 38361/97), judgment of 13
June 2002.