After the Final Whistle: Racist Violence, the Osman-test at Football Matches, and the Investigative Failures in Koffi v Bulgaria

By Dr. Vladislava Stoyanova

Introduction

Bulgaria won the Eurovision Song Contest in 2026 with the song Bangaranga. Soon after the initial euphoria (the song was indeed the best!, but nobody believed that we could actually win), Bulgaria started to discuss its preparedness to organise large-scale events involving many people and ensuring safety. Such discussions are justified given the record of disturbances that the country has after popular football matches. Football is the most popular sport in the country with CSKA Sofia and Levski Sofia the two biggest football clubs that are famous for their derbies. The police are on high alert when these clubs play matches.

The police was indeed prepared prior to the incident that gave the basis to the case of Koffi v Bulgaria delivered by the Third Section of the European Court of Human Rights  (ECtHR) on 17 February 2026. Yet, after the match between the above-mentioned clubs on 29 September 2018 at 7.45 pm, Koffi was attacked by several men from the retreating crowd. For about 2 minutes he was kicked and hit, incurring serious injuries. At 7.47 pm the police officers who had been driving after the group of Levski fans in a police van, arrived at the scene. They called an ambulance that arrived at 8.00 pm.

Investigation was opened on the following day. It was suspended two times since the perpetrators could not be identified. The Bulgarian courts quashed the prosecutor’s decisions to suspend and gave instructions how to proceed with the investigation. Eventually, nobody could be held criminally responsible for the injury since the perpetrators could not be identified.

Koffi formulated two claims before the ECtHR. The first one was substantive: ‘the authorities had failed to put in place adequate regulations and operational measures with a view to preventing the assault on him.’ The second one was procedural: ‘the authorities had not effectively investigated that assault, which had caused him serious suffering and had been prompted by racist motives.’ (para 129). These claims were reviewed under Article 3 and Article 14 of the ECHR.

To review these claims the Court had to engage with some key questions about the limits of positive obligations under the Convention (see The Limits of Positive Obligations in Human Rights Law, open access). More specifically, for the substantive claim, the limits of the so-called Osman test (see page 203 here, open access), as originally developed by the Court in Osman v the United Kingdom, were tested in the case. As to the procedural claim, the conclusion that the investigation itself was ineffective was relatively straightforward. The more interesting aspect was the argument about racial discrimination that justified the conclusion that Bulgaria breached not only its procedural positive obligation under Article 3, but also its procedural positive obligation under Article 14 taken in conjunction with Article 3. These two aspects are in the focus of the blog post.

Does the Osman test go to football matches?¹

The Osman test as originally developed by the Court in Osman v the United Kingdom implies that States have a positive obligation to take protective operational measures to prevent harm against a specific individual who is at real and immediate risk. This can be referred to as the Osman obligation. For this obligation to be triggered, the following test has been formulated:

    ‘it must be established to its [the Court’s] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.’ (see Osman v the United Kingdom, para 115) (emphasis added)

What distinguishes the test is the specification of the individual (or individuals) who is the object of protection and the specification of the risk of harm to which he or she might be exposed. The risk must be ‘real and immediate’. It then follows that the positive obligation of taking protective operational measures, as originally developed by the Court in Osman v the United Kingdom, is limited by certain qualifications. In particular, the risk has to be of a specific nature, i.e. ‘real and immediate’. In addition, as clarified here, ‘the object of protection is qualified since a specific individual identified in advance is targeted for protection by the State.’

These qualifications, however, have been gradually modified in the Court’s case law (see here) to the effect that there is no more requirement that the individual who could have been protected, has to be specifiable. As the Court stated in the section ‘General principles’ in Koffi v Bulgaria,

    ‘The obligation to take operational measures may apply not only to situations concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a criminal act, but also in cases in which the victim could not be identified before the offence had been perpetrated (see, albeit in the context of Article 2, Kayak v. Turkey, no. 60444/08, § 55, 10 July 2012; Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, § 482, 13 April 2017, with further references cited therein; and Kotilainen and Others v. Finland, no. 62439/12, § 70, 17 September 2020). The Court has drawn a distinction between the two above-noted types of situation. In the latter situation, what is at stake is not whether the authorities’ responsibility could be engaged for having failed to protect specifically the victim in question; rather, it is about ensuring that the authorities have afforded general protection to society (see Kayak, § 55). The Court has thus held that the obligation to afford general protection against potentially lethal acts shall be engaged in respect of the danger emanating from a person with a history of violence’ (see Bljakaj and Others v. Croatia, no. 74448/12, § 121, 18 September 2014). (para 158) (emphasis added)

It then follows that States have a positive obligation to ensure ‘general protection to society’ even where they have no knowledge about a specific individual being at risk. Here I would like to also highlight that in the section ‘General principles’ in Koffi v Bulgaria, the Court does not even mention the requirement for knowledge as a trigger of the Osman obligation (on this requirement, see here). The reasoning in the section ‘General principles’ therefore suggests a very wide scope of the positive obligation.

When the Court applied this obligation to the specific facts, it reviewed the safety plan drafted by the national authorities prior to the football game in general terms: ‘The Court finds that the plan was sufficiently thorough to serve as a basis capable of providing effective protection of the general public in relation to the football match in general.’ (para 171). There were issues with the actual implementation of the plan. It seems however that the Court did not consider them sufficiently serious.

In terms of implementation of the safety plan in the specific case, the Court invoked the qualifications of the Osman-obligation as originally developed in Osman v United Kingdom. It noted that the risks to the specific person ‘could not have been known or expected in advance, bearing in mind the unpredictability of human conduct’ (para 180). Neither could the national authorities be aware of ‘imminent danger from the [violent] group, or some of its members’ (para 181). It then follows that the Osman-obligation was not triggered due to the absence of knowledge.

This conclusion seems convincing. A conceptual challenge nevertheless remains: how, if at all, can the Osman obligation be invoked where the victim was not identifiable at the relevant point in time, but was instead randomly targeted? The question how and whether at all to expand the Osman-obligation for ensuring ‘general protection to society’ remains open. For this reason, Judge Pavli warned in his Concurring Opinion that ‘[W]hen it comes to the policing of mass gatherings, the Court should not interpret the doctrine of affording ‘general protection to society’ in such a way that it not only imposes an impossible burden on law enforcement, but also subjects the State Parties to a form of strict liability to prevent random acts of mob violence’ (para 8). In contrast, the three dissenting judges in their Joint Dissenting Opinion favoured an expansive positive obligation of affording ‘general protection to society.’

The reasoning of the majority in Koffi v Bulgaria suggests that even if there is an obligation to ensure ‘general protection to society’, there needs to be some awareness (knowledge) by the authorities that a specific individual is at risk and/or specific perpetrators might pose a risk to unidentifiable other individuals (para 180-181.)

Risk assessment

Koffi v Bulgaria is also notable since the Court held that the Osman obligation has an additional procedural aspect: authorities are under the obligation to perform risk assessment. They have to assess ‘the nature and the level of risk’, which ‘constitutes an integral part of the duty of taking preventive operational measures’ (para 172). This marks an important new development in relation to ‘general protection to society’, including the protection of individuals before, during, and after public events.

The procedural positive obligation of performing risk assessment as part of the Osman obligation was first established in the context of domestic violence (see here). In light of Koffi v Bulgaria, it is now clear that States have to do risk assessment to ensure ‘general protection to society’ in other contexts also. In Koffi v Bulgaria, the Court concluded that ‘the authorities performed an adequate assessment of the risk’ (para 173).

The Duty to Investigate Racially Motivated Violence

Although no violation of the substantive positive obligation was found in Koffi v Bulgaria, the Court did find that Bulgaria breached its procedural positive obligation on two counts – the procedural aspect under Article 3 and under Article 14 taken in conjunction with Article 3. As to the procedural aspect of Article 3, the most serious omission was that the police after its arrival at the scene failed to secure evidence (e.g. it did not contain the crowd to ensure that eyewitnesses do not leave and did not look for the perpetrators). This omission ‘was so serious that it resulted in a failure to secure and collect evidence, which in turn jeopardised the potential effectiveness of the subsequent investigation’ (para 187). In addition, there were delays in the investigation (para 188). It was also important that the domestic courts themselves thought that the investigation was deficient (para 190).

An interesting aspect of the Court’s reasoning concerning the effectiveness of the investigation and the securing of evidence is its observation that the police officers should have been equipped with body cameras:

    ‘had the officers on the van been equipped with body cameras, they might have been in a position to collect clearer footage (to that collected from the CCTV cameras, see on that point paragraph 94 above) of the fans in the group, so that some of them could have been identified and subsequently interviewed.’ (para 189)

This is interesting since it sends a general signal to the State Parties to equip police officers with body cameras.

Finally, since the applicant’s lawyer pointed out that the attack might have been racially motivated, the Bulgarian authorities were under the obligation to investigate ‘any potential racist overtones’ (para 191). Yet, ‘no specific efforts appear to have been put towards unmasking any potential racist motive behind the assault on the applicant.’ This omission in combination with the above-mentioned omissions led the Court to conclude that Bulgaria breached the procedural aspect of Article 3.

The omission to ‘investigate whether discriminatory motivation may have played a role in the assault’ was the sole basis for the Court to conclude that Article 14 was also breached. The reasoning on this point is very short (para 200-201). It suggests that even if no other investigatory omissions and deficiencies could be identified, the mere absence of ‘a purposeful effort to specifically investigate any potential racist overtones’ (para 191) suffices for breaching Article 14. The Court did not mention a specific threshold for triggering the positive obligation to investigate racist motives. The mere fact that the applicant’s lawyer ‘had explicitly pointed out that the attack appeared racially motivated’ sufficed (para 191).

Conclusion

As Bulgaria is preparing to organise a major public event, such as Eurovision, that will attract people from around the world and where ‘general protection to society’ needs to be ensured, Koffi v Bulgaria seems to send the following clear signals. First, there is no obligation to ensure the individual safety of everyone. Some level of individual responsibility is necessary. Yet, the national authorities need to do ‘assessment of the nature and level of risk’ prior to the event. This is the second signal. Third, in case information becomes available about more specific individual(s) at risk or specific violent perpetrators, specific protection measures need to be taken. Fourth, in case violence does occur, there needs to be efficient and prompt investigations. Fifth, any racial overtones need to be specifically investigated. 

1. Title inspired by Patrick Leisure’s article about schools ↩︎