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FORMER
FIFTH SECTION
CASE OF ZDRAVKO PETROV v. BULGARIA
(Application
no. 20024/04)
JUDGMENT
STRASBOURG
23 June 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zdravko Petrov v.
Bulgaria,
The
European Court of Human Rights (Former Fifth Section), sitting as a
Chamber composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20024/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Zdravko Ivanov Petrov
(“the applicant”), on 22 May 2004.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms R. Nikolova, of the Ministry of Justice.
- The
applicant alleged, in particular, that he had not had a fair trial,
because the defence had not been allowed to test decisive evidence
against him, and that there had been interference with his right to
apply to the Court, because he had unjustifiably been refused copies
of documents in support of his application.
- On
3 February 2009 the Court (Fifth Section) declared the application
partly inadmissible and decided to give the Government notice of the
complaints concerning the alleged hindrance of the applicant's right
to apply to the Court and the alleged unfairness of the criminal
proceedings against him. On 1 February 2011 the Court changed the
composition of its Sections (Rule 25 § 1 of the Rules of Court),
but this case remained with the Chamber constituted within the former
Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is currently serving a life sentence
in Belene Prison.
1. The applicant's arrest and the investigation against
him
- On
24 May 1999 the applicant was arrested by the police in Ruse on
suspicion of murder.
- He
did not have a lawyer until 25 May 1999. On that day, at his request,
Ms M.D. was appointed as his counsel and took part in the pre-trial
proceedings. Subsequently, the applicant found out that after his
arrest Ms M.D. had handed over to the prosecuting authorities a
mobile phone, bank notes and other items which he had given her
earlier and which allegedly incriminated him.
- On
25 May 1999 the applicant was charged and interviewed.
- The
investigation against the applicant continued until May 2000. He was
additionally charged with being an accessory to murder, theft, armed
robbery, abduction, unlawful possession of firearms, rape and causing
bodily harm (to his former girlfriend, Ms G.Y., in February 1999). In
the course of the investigation, the charges were modified on several
occasions.
- On
11 February 2000 the applicant was allowed to examine the results of
the investigation and study the evidence collected.
- On
19 May 2000 an indictment against the applicant and his alleged
accomplice, Mr P.R., was filed with the Ruse Regional Court, and the
applicant was brought to trial. During the ensuing proceedings he was
represented by different court-appointed counsel.
2. Conviction of the applicant by the Ruse Regional
Court
(a) In respect of the bodily harm caused
to Ms G.Y.
- In
the course of the pre-trial investigation, Ms G.Y. had been
interviewed by the investigator on 26 and 27 July and 9 August 1999.
Neither the applicant nor his counsel had attended those interviews;
it is unclear whether they had been informed of them in advance, and
there is no indication that they had requested to be present at them.
Mr G.Y. was later called as a witness at the applicant's trial. She
appeared, along with a number of other witnesses, at a trial session
that took place on 6 July 2000. The applicant and his counsel were
both present. When it came to Ms G.Y.'s turn to testify, the
prosecution requested that the trial continue in private. Counsel for
all accused, including the applicant, agreed, and the court ordered
that the public and the other witnesses be removed from the
courtroom. It reminded Ms G.Y. of her duty to speak the truth. She
declared that she fully maintained the statements that she had made
at her interviews during the pre-trial investigation, and asked the
court to read them out, because it would be too painful for her to
retell the events one more time. All parties, including the
applicant's counsel, expressly declared that they did not object to
that, and the Ruse Regional Court, by reference to Article 279
of the Code of Criminal Procedure (see paragraph 27 below), ordered
that the statements be read out. After the reading of each of the
three statements, Ms G.Y. declared that she fully stood by them.
According to the trial record, after that the court, noting that the
working time had come to an end, adjourned the case for the next
morning, when the trial continued with the examination of other
witnesses. The applicant asserted that at that point he had shouted
indignantly, so as to bring his wish to cross-examine Ms G.Y. to the
court's attention, but that the court had ignored his utterance and
had had Ms G.Y. whisked out of the courtroom. However, the trial
record contains no mention of the applicant's utterance, or of any
request to cross-examine Ms G.Y. There is no indication that the
applicant or his counsel later requested rectification of the record.
- On
6 October 2000 the Ruse Regional Court gave its judgment. It
convicted the applicant of causing bodily harm to Ms G.Y., finding
that he had hit her and broken her jawbone after a drunken sexual
game, during which he had also used a knife to make small cuts on
intimate parts of her body. Under Bulgarian law, the injury suffered
by her (broken jawbone) amounted to bodily harm of medium severity.
The court's findings of fact were based on Ms G.Y.'s statements and
also on the following: statements of other witnesses who had
testified about Ms G.Y.'s relationship with the applicant and what
she had told them of his hitting her; records of the inspection of Ms
G.Y.'s flat, where the applicant had on a previous occasion fired a
machine gun; reports of medical experts who had examined Ms G.Y. and
who had also testified about the applicant's state of mind at the
time; and a number of items of physical evidence – including
the machine gun and the knife used by the applicant.
(b) In respect of the remaining charges
- The
Ruse Regional Court also convicted the applicant of a number of other
offences: murder, being an accessory to murder, theft, armed robbery,
abduction and illegal possession of firearms. In that respect the
judgment was based on the testimony of numerous witnesses, statements
made by Mr P.R., expert opinions and other evidence. It was also
based on the applicant's statements made on 25 May 1999 and
afterwards in the course of the investigation, even though his
testimony at the trial had differed in content.
- In
describing the facts of the case, the Ruse Regional Court noted that
on one occasion the applicant had planned to rob the house of a
Mr K.D., but had broken into another house by mistake, where he
had shot dead one of the inhabitants.
- The
court acquitted the applicant of a rape charge, mentioning that
he might in fact have had intercourse with the victim after she had
died.
- The
Regional Court determined separate punishments for each of the
offences – life imprisonment without
parole for each of four murders and different terms of imprisonment
for the remaining offences (four years' imprisonment for the
bodily harm caused to Ms G.Y.) – and then imposed, as a
cumulative punishment, the most severe one, namely life
imprisonment without parole. Mr P.R. received the same
sentence. He and the applicant were ordered to reimburse the costs of
the proceedings.
- The
trial against the applicant and Mr P.R. was widely covered by the
media in Ruse. According to the applicant, many of the publications
had assumed that he was guilty even before the Ruse Regional Court's
judgment. He contended that they had been based on statements that he
was guilty which had been made by the prosecuting authorities and the
police.
3. Judgment of the Veliko Tarnovo Court of Appeal
- On
14 May 2001 the applicant appealed against the Ruse Regional Court's
judgment, arguing that the court had misinterpreted the evidence and
had conducted the trial in a “tendentious” manner.
Furthermore, he argued that the court had breached the relevant
procedural rules, because, among other things:
(a) the
defence had not had an opportunity to examine Ms G.Y. because she had
refused to testify at the trial and had thus de facto refused
to answer questions;
(b) the
court had taken into account statements made by the applicant and Mr
P.R. during the pre-trial proceedings, made on the basis of the
initial charges brought against the two of them which had later been
modified; furthermore, the applicant's statements at that stage had
been made under psychological and physical pressure;
(c) the
applicant had not been given copies of documents contained in the
case file; and
(d) the
indictment against the applicant had not contained a list of all the
evidence to be produced and there had been an error in a date
indicated in it.
Furthermore,
the applicant contended that the Ruse Regional Court had de facto
convicted him of an attempted robbery of Mr K.D.'s house, without
there having been a charge to that effect.
- In
a judgment of 11 December 2001 the Veliko Tarnovo Court of Appeal
dismissed the appeal. It found that the Ruse Regional Court's
findings had been adequately reasoned and based on the evidence. It
dismissed the applicant's allegations that the Ruse Regional Court
had breached the procedural rules, finding, in particular:
(a) that
the conviction for bodily harm caused to Ms G.Y. had not been based
exclusively on her testimony given during the investigation, but also
on the statements of other witnesses, and on other evidence which
corroborated Ms G.Y.'s statements, and that the lower court had
properly applied Article 279 of the Code of Criminal Procedure (see
paragraph 27 below) and ordered the reading of Ms G.Y.'s statements;
(b) that
the applicant and Mr P.R. had been questioned in relation to
particular events, and that the subsequent modifications and
clarifications of the charges against them had not affected the
validity of their statements. The applicant had been expressly
advised that his statements could be used as evidence in court.
Furthermore, his counsel had attended the interviews at issue and
there was no indication whatsoever of psychological or physical
pressure having been brought to bear on the applicant;
(c) that
the applicant had been given an adequate opportunity to study the
case file before the beginning of the trial; moreover, during the
trial he had been provided with copies of the necessary documents and
had been able to use them; and
(d) that
even though the indictment had not contained a list of all of the
evidence, the applicant had been aware of the evidence gathered as he
had previously been given an opportunity to study the case file.
Furthermore, the typing error in a date mentioned in the indictment
could not have confused him to such an extent as to hamper his
defence, because he had been aware from other documents what the date
at issue had been.
In
addition, the Veliko Tarnovo Court of Appeal found that the Ruse
Regional Court had indeed stated in its reasoning that the applicant
had attempted to rob the house of Mr K.D. That had been
inappropriate. Accordingly, the Court of Appeal amended the Regional
Court's reasoning in that regard.
4. Judgment of the Supreme Court of Cassation
- On
an unspecified date the applicant appealed on points of law,
reiterating the arguments raised before the Veliko Tarnovo Court of
Appeal. In addition, he argued that Ms M.D., who had been his lawyer
during the preliminary investigation, had not been able to defend his
interests because she had handed over to the prosecuting authorities
items which he had given her earlier. On that basis, he contended
that she had not been lawfully appointed as his counsel.
- In
a judgment of 27 November 2003 the Supreme Court of Cassation
dismissed the applicant's allegations that there had been procedural
violations, upholding the Veliko Tarnovo Court of Appeal's reasoning.
In addition, as regards the applicant's argument concerning Ms M.D.,
it noted that she had been appointed in accordance with the law, that
the applicant had expressly stated that he wished her to represent
him, and that he had not complained about any of her actions as his
counsel.
5. Request for documents from the Ruse Regional Court
- When
he lodged his initial application with the Court, the applicant did
not provide many of the necessary supporting documents.
- In
October 2004 he asked the Ruse Regional Court to provide him
unspecified documents from the case file of the criminal proceedings
against him, in order to support his application. In a letter of 26
October 2004 that court informed the applicant that the copies at
issue would only be provided:
“... if there is an application, duly lodged and
registered in the European Court of Human Rights, and it has been
proven that they are necessary, [that is] specifically requested by
the Court's Registry in relation to proceedings concerning that
application's admissibility.”
- When
the Government were given notice of the application, the Court
requested the parties “to provide all documents related to the
course of the proceedings”. The applicant submitted some
additional documents, but failed to submit a copy of the Veliko
Tarnovo Court of Appeal's judgment of 14 May 2001. At his request,
the Court made a copy of that judgment, which had been sent by Mr
P.R., the applicant's co-accused in the same trial, in his own
application to the Court (no. 27795/03), and joined it to the present
case.
II. RELEVANT DOMESTIC LAW
- The
Bulgarian Code of Criminal Procedure of 1974, in force at the
relevant time, enshrined, in different provisions, the principles of
adversarial proceedings and equality of arms. It also guaranteed the
principle of immediacy, that is, that the courts were to base their
decisions on evidence which they had gathered in person.
- Article
279 of the Code provided for an exception to the principle of
immediacy. It allowed the statement of a witness made during a
pre-trial investigation to be read out in court if the witness, inter
alia, appeared but refused to testify at trial. Where the
statement had been made before a judge, pursuant to Article 210a of
the Code (see the next paragraph), there was no requirement for the
court examining the case to obtain the consent of the parties
(Article 279 § 1). Such consent was, on the other hand, required
where the statement to be read out had been made during the pre-trial
stage before a prosecutor or an investigator (Article 279 § 3).
However, if that statement had been made before the introduction on 1
January 2000 of the possibility to conduct pre-trial interviews in
the presence of the judge (see the next paragraph), it could be read
out without the consent of the parties (paragraph 249 of the
transitional and concluding provisions of the 1999 Act for the
amendment of the Code of Criminal Procedure).
- The
possibility to interview a witness before a judge, in cases where the
witness would not be able to attend the trial due to illness, absence
or other reasons, or where his testimony was of “exceptional
importance for the establishment of objective truth”, was
provided for in Article 210a of the Code. The provision was inserted
with effect from 1 January 2000 with the aim of creating a
possibility to use evidence collected at the pre-trial stage of the
proceedings, while at the same time conforming to the principle of
immediacy. Article 210a § 2 specifically provided that the
investigator or prosecutor in charge of the interview had to ensure
the witness's presence and “a possibility” for the
accused and his counsel to take part in the interview.
THE LAW
I. COMPLAINTS UNDER ARTICLE 6 OF THE CONVENTION
- Relying
on Article 3, Article 6 §§ 1, 2 and 3, and Article 14 of
the Convention, the applicant raised numerous complaints related to
the fairness of the criminal proceedings against him:
(a) He
complained that that the defence had not been
given the opportunity to examine Ms G.Y.
(b) Regarding
the preliminary investigation, he complained that he had not had a
lawyer for twenty-four hours after his arrest and that Ms M.D. had
not been lawfully appointed as his counsel as she had acted against
his interests and had handed over items of his to the prosecution.
Furthermore, he complained that during the investigation the charges
against him had been modified and that as a result he had not been
aware of them, and that the indictment against him had not enumerated
all relevant pieces of evidence against him and had contained
technical errors.
(c) Regarding
the proceedings before the Ruse Regional Court, the applicant
complained that two of the members of the judicial panel had not been
impartial; that the court had taken into account unlawful evidence –
namely his statements made during the investigation under threat and
physical pressure and Mr P.R.'s statements made during the same
period; and that it had not allowed him to examine the case file and
to have copies of documents. Furthermore, he complained that in
describing a robbery committed by him the Regional Court had de
facto convicted him of having planned another robbery, that of Mr
K.D.'s house, and that, although he had been acquitted of the charge
of rape, he had de facto been convicted of sexual assault,
because the Ruse Regional Court had mentioned that he might have had
sexual intercourse with the victim after her death and because the
court had failed partially to exempt him from the obligation to pay
costs for the trial in so far as those costs related to this issue.
The
applicant further complained that the media coverage of the trial had
presented him as guilty before he had been convicted and had thus
influenced the Ruse Regional Court's judgment.
(d) The
applicant complained that the Veliko Tarnovo Court of Appeal had
failed to gather evidence requested by him, and that that court and
the Supreme Court of Cassation had failed to examine all of his
arguments.
(e) Lastly,
he complained that he had wished to be represented by lawyers of his
choice before the Ruse Regional Court and the Supreme Court of
Cassation but had been forced to accept court-appointed lawyers. He
also complained that the domestic courts had erroneously assessed the
evidence and had reached the wrong conclusions.
- As
regards the complaint that the defence had not been given an
opportunity to question Ms G.Y., the Government pointed out that the
Code of Criminal Procedure contained clear rules concerning the
examination of witnesses and that at all stages of the proceedings
the applicant had been represented by counsel. The Government did not
address separately each of the applicant's remaining complaints under
Article 6 of the Convention, but argued that those complaints were
“arbitrary” and that there was “not even an
indirect link” between the applicant's allegations and the
materials presented before the Court. They submitted that the rights
of the defence had been guaranteed by domestic law and respected in
the applicant's case.
- The
Court considers that the complaints fall to be examined under Article
6 of the Convention, which, in so far as relevant, reads:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. ...
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Alleged violation of Article 6 §§ 1 and 3
(d) on account of the lack of opportunity for the defence to examine
Ms G.Y.
- The
applicant complained, firstly, that the defence had not been given an
opportunity to examine his former girlfriend, Ms G.Y., whom he had
been accused of having assaulted. She had been interviewed during the
pre-trial investigation and her statements had been read out in the
courtroom, where she had refused to testify (see paragraphs 12-13
above).
- The
Court observes that, as a general rule, it is for the national courts
to assess the evidence before them. The Court's task under the
Convention is not to give a ruling as to whether statements of
witnesses were properly admitted as evidence, but rather to ascertain
whether the proceedings as a whole, including the way in which
evidence was taken, were fair (see, among many other authorities, Van
Mechelen and Others v. the Netherlands, 23 April 1997, § 50,
Reports of Judgments and Decisions 1997-III, and Solakov v.
“the former Yugoslav Republic of Macedonia”,
no. 47023/99, § 57, ECHR 2001-X).
- All
evidence in criminal proceedings must normally be produced at a
public hearing, in the presence of the accused, with a view to
adversarial argument. This does not mean, however, that in order to
be used as evidence statements of witnesses should always be made at
a public hearing in court: to use as evidence statements obtained at
the pre-trial stage is not in itself inconsistent with Article 6 §§
1 and 3 (d), provided that the rights of the defence have been
respected. As a rule, these rights require that an accused should be
given an adequate and proper opportunity to challenge and question a
witness against him, either when he or she makes his or her
statements or at a later stage (see, among many other authorities,
Unterpertinger v. Austria, 24 November 1986, § 31, Series
A no. 110). In particular, the rights of the defence are restricted
to an extent that is incompatible with the requirements of Article 6
if the conviction is based solely, or in a decisive manner, on the
depositions of a witness whom the accused has had no opportunity to
examine or to have examined either during the investigation or at
trial (see, among other authorities, Van Mechelen and Others,
cited above, § 55, and A.M. v. Italy, no. 37019/97, § 25,
ECHR 1999-IX).
- In
applying those principles to criminal proceedings concerning sexual
abuse, which are often conceived as an ordeal by the victim, the
Court must have regard to their special features. It accepts that in
such cases certain measures may be taken for the purpose of
protecting the victim, provided that they can be reconciled with an
adequate and effective exercise of the rights of the defence (see
P.S. v. Germany, no. 33900/96, § 28, 20 December
2001; S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V;
and Accardi and Others v. Italy (dec.), no. 30598/02, ECHR
2005-II).
- In
regard to the circumstances of the present case, the Court agrees
that the testimony of Ms G.Y. was of decisive importance, because
there were no eyewitnesses to the assault on her. She was thus the
only person who was able to provide relevant details and identity of
the assailant, the remaining evidence showing only that she had been
injured and what her relationship with the applicant had been (see
paragraph 13 above). Therefore, the applicant should have been able
to examine her or have her examined.
- He
alleged that he had not been able to do so. However, the Court notes
that Ms G.Y. was called and appeared as a witness at the applicant's
trial. At the witness stand she declared that she fully maintained
the statements that she had made at her interviews during the
pre-trial investigation, and asked the court to read them out,
because it would be too painful for her to retell the events one more
time. All parties, including the applicant's counsel, expressly
declared that they did not object to that, and the trial court, by
reference to Article 279 of the Code of Criminal Procedure, ordered
that the statements be read out. After the reading of each of the
three statements, Ms G.Y. declared that she fully stood by them (see
paragraphs 12 and 27 above). In view of the circumstances surrounding
the purported offence committed by the applicant against Ms G.Y. (see
paragraphs 9 and 13 above), it could be argued that that manner of
proceeding was not in itself contrary to Article 6 §§ 1 and
3 (d) of the Convention. Criminal proceedings should be organised in
such a way that the interests of victims or witnesses are not
unjustifiably imperilled and this may require striking a fair balance
between the interests of the defence and those witnesses or victims
called upon to testify (see Oyston v. the United Kingdom
(dec.), no. 42011/98, 22 January 2002). However, the Court does not
find it necessary to take a firm stance on that point. It notes that,
even though that manner of proceeding was allowed under the rules of
criminal procedure (see paragraph 27 above), it was open to the
defence to oppose it, if they considered that it would render the
applicant's trial unfair. However, the applicant's counsel expressly
said that he did not object to it. For the purposes of Article 6 §
3 (d), the applicant must be identified with the counsel who acted on
his behalf (see Kamasinski v. Austria, 19 December 1989, §
91, Series A no. 168). Neither the letter nor the spirit of Article 6
§ 3 (d) prevent such a waiver (see Vozhigov v. Russia,
no. 5953/02, § 57, 26 April 2007). In any event, the use
statements obtained at the pre-trial stage as evidence is not in
itself inconsistent with Article 6 §§ 1 and 3 (d), provided
that the rights of the defence have been respected (see paragraph 34
above).
- On that latter point, the Court observes the
following. According to the trial record, after the reading of the
statements the trial court, noting that the working time had ended,
adjourned the case for the next morning, when the trial continued
with the examination of other witnesses. The applicant asserted that
at that point he had shouted indignantly, in order to bring his wish
to cross-examine Ms G.Y. to the court's attention, but that the court
had ignored his utterance and had had Ms G.Y. whisked out of the
courtroom. However, the trial record contains no mention of the
applicant's utterance, or of any request to cross-examine Ms G.Y.
There is no indication that the record's accuracy was challenged by
the applicant or his counsel (see paragraph 12 in fine above).
Therefore, in the absence of proof to the contrary, the Court will
assume that it accurately reflects the procedural steps taken at the
applicant's trial (see Andandonskiy v. Russia, no. 24015/02, §
46, 28 September 2006). It does not appear from the record, and the
applicant failed to demonstrate, that he or his counsel made a clear
and unambiguous request to be allowed to cross-examine Ms G.Y.
(compare, mutatis mutandis, with S. v. Austria, no.
12262/86, Commission decision of 8 September 1988, unreported, and
contrast, mutatis mutandis, Hulki Güneş v.
Turkey, no. 28490/95, § 95, ECHR 2003-VII (extracts),
and Kaste and Mathisen v. Norway, nos. 18885/04 and
21166/04, § 51, ECHR 2006-XIII). It is not apparent that such a
request would have been turned down (contrast, mutatis mutandis,
S.N. v. Sweden, cited above, § 48), or would have proved
futile. It should be noted in that connection that Ms G.Y. did not
try to rely on a privilege allowing her to remain silent, but
confirmed, four consecutive times, that she fully stood by her
statements made during the pre-trial investigation (contrast Lucà
v. Italy, no. 33354/96, §§ 13, 15 and 43, ECHR 2001-II,
and Kaste and Mathisen, cited above, §§ 10-12
and 50-51). It can therefore be concluded that the applicant, who was
legally represented (contrast Bonev v. Bulgaria, no. 60018/00,
§ 41, 8 June 2006, and Khametshin v. Russia, no.
18487/03, §§ 39-40, 4 March 2010), can reasonably be
regarded as having waived his right to examine Ms G.Y. or have her
examined (see Andandonskiy, cited above, § 54). The Court
does not consider that that waiver ran counter to any important
public interest (see Khametshin, cited above, § 42).
- Therefore,
in so far as the proceedings concerned the offence against Ms G.Y.,
the applicant was not denied a fair trial.
B. Complaints that the Ruse Regional Court was not
impartial and that it based its judgment on unlawfully obtained
evidence
- The
applicant complained also that the Ruse Regional Court had not been
impartial.
- The
Court has doubts as to whether the applicant's general allegations in
his appeals in the domestic proceedings that the Ruse Regional Court
had conducted the trial in a “tendentious” manner (see
paragraph 19 in limine above) amounted to raising the issue of
impartiality before the higher national courts and whether, thus, the
applicant exhausted the available domestic remedies, as required
under Article 35 § 1 of the Convention. However, even assuming
that he did effectively raise this issue, the Court would make the
following observations.
- In
so far as the complaint of a lack of impartiality concerns the
alleged bias of two of the judicial panel's members, the applicant
could have requested their recusal. He failed to do that. Therefore,
he failed to exhaust a domestic remedy that was available to him, as
there is no indication that it would have been ineffective.
Furthermore, in so far as the applicant complains that the judges who
examined his case had been influenced by publications in the media,
the Court considers that those allegations are speculative and
unproven (see, mutatis mutandis, Ninn Hansen v.
Denmark (dec.), no. 28972/95, ECHR 1999-V).
- The
applicant also complained that the Ruse Regional Court's judgment was
based on unlawfully obtained evidence, namely his statements made
during the investigation, allegedly under psychological and physical
pressure. However, the Court agrees with the domestic courts'
findings that these allegations have remained unproven (see paragraph
20 above). Furthermore, as noted by them (ibid.), the statements at
issue were made in the presence of the applicant's counsel, who could
have objected to any undue pressure or threat on the part of the
police or the prosecutors.
C. Complaints related to the applicant's right to be
presumed innocent
- Under
this head, the applicant complained, firstly, that in describing a
robbery committed by him and finding that he had in fact planned to
rob another house, that of Mr K.D. (see paragraph 15 above), the Ruse
Regional Court had de facto convicted him of planning another
robbery. However, the Court is satisfied that even if this could have
been problematic, the Veliko Tarnovo Court of Appeal remedied the
situation by finding the lower court's wording inappropriate and
amending it (see paragraph 20 above).
- Secondly,
the applicant argued that there had been a breach of his right to be
presumed innocent, because even though he had been acquitted of a
rape charge, the Ruse Regional Court had stated that he might have
had sexual intercourse with the victim after her death and had not
exempted him from paying the relevant part of the proceedings' costs
(see paragraphs 16 17 above). However, the Court notes that the
Regional Court's remark as to the possible sexual intercourse after
the victim's death did not imply any specific offence on the part of
the applicant, and that in making the disputed order in respect of
the proceedings' costs the Regional Court did not express doubt as to
the applicant's innocence. In any event, the applicant failed to
raise those issues in his ensuing appeals in the domestic proceedings
(see paragraphs 19 and 21 above).
- Thirdly,
the applicant complained that his right to be presumed innocent had
been breached by the media who had covered his trial and who had
allegedly assumed that he had been guilty even before his conviction
(see paragraph 18 above). The Court notes that the State cannot be
held responsible for the actions of the media and that this part of
the complaint is therefore incompatible ratione personae with
the provisions of the Convention. As to the allegation that the
publications at issue were based on statements from the authorities
concerning the applicant's guilt, the Court notes that this is a mere
unproven supposition (see, mutatis mutandis, Craxi v. Italy
(no. 1), no. 34896/97, § 105, 5 December 2002).
D. Complaints concerning the legal assistance provided
to the applicant
- The
applicant complained that for the first twenty-four hours after his
arrest on 24 May 1999 he had not been represented by counsel.
However, the Court refers to the statement of the Ruse Regional Court
that its judgment was based on the applicant's statements made on 25
May 1999 and subsequent to that date, when he already had counsel
(see paragraph 14 above and also, mutatis mutandis, Hovanesian
v. Bulgaria, no. 31814/03, § 37, 21
December 2010). Therefore, it does not appear that the
authorities acted in breach of Article 6 § 3 (c) of the
Convention or that the applicant's defence was irretrievably
prejudiced by the failure to provide him with counsel in the initial
period (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27
November 2008). It is true that in the case of Dayanan v. Turkey
(no. 7377/03, §§ 31-33, ECHR 2009-...) the Court found
that it is problematic to deprive a pre-trial detainee of legal
assistance even if during the relevant period he or she does not make
any statements that are later used to convict him or her. However,
that conclusion was based on the fact that at the relevant time
Turkish law expressly and systematically barred certain categories of
accused from having access to a lawyer during the entire period of
their pre-trial detention, which could have a serious impact on their
defence (ibid., and see also, mutatis mutandis, Başar
v. Turkey (dec.), no. 17880/07, 5 April 2011). In the present
case, by contrast, there were no legislative restrictions on access
to legal assistance during pre-trial detention, and the applicant was
able to obtain the assistance of counsel one day after his arrest.
The Court further notes that according to the 1974 Code of Criminal
Procedure, as in force at the relevant time, statements made before
the formal institution of criminal proceedings were not considered as
part of the material in the case (see Hovanesian, cited above,
§§ 19 and 37).
- The
applicant also submitted that Ms M.D. had not been lawfully appointed
to serve as his counsel during the preliminary investigation because
she had acted against his interests in handing over items of his to
the prosecution (see paragraph 7 above).
- However
the Court notes, as did the Supreme Court of Cassation (see paragraph
22 above), that the applicant did not complain in relation to any of
Ms M.D.'s actions as his counsel and did not argue that the legal
assistance that she had provided to him during the preliminary
investigation had been inadequate. Furthermore, the Court does not
take the view that Ms M.D. did, as the applicant alleged, act in
a manner that should have alerted the authorities that it would be
inappropriate for her to serve as his counsel, given his express wish
to be represented by her. According to his own account, she did not,
for instance, disclose to the authorities facts which the applicant
had confided in her as his counsel, which would have represented a
grave betrayal of his trust. Rather, she merely handed over objects
that he had given to her. Thus, the Court sees no reason to depart
from the Supreme Court of Cassation's conclusion that Ms M.D.'s
appointment to serve as counsel for the applicant did not mean that
he had been inadequately represented during the preliminary
investigation.
- The
applicant also complained that he had not been allowed to be
represented by lawyers of his choice, but had had to accept
court-appointed counsel. However, the Court notes that this
allegation is general in nature and has remained unproven.
E. Complaints under Article 6 § 3 (a) and (b)
- The
applicant complained that during the investigation the charges
against him had been modified on several occasions. However, the
Court does not find a modification of the charges in the course of
the investigation problematic in light of the applicant's rights
under Article 6 § 3 (a) and (b) of the Convention to be informed
of the accusations against him and to have adequate time and
facilities to prepare his defence. It observes that the applicant
must have become aware of the exact charges against him, at the
latest, when the indictment against him was filed with the Ruse
Regional Court (see paragraph 11 above). After that, the charges were
not amended and the applicant was able to organise his defence. He
was therefore afforded the guarantees of Article 6 § 3 (a) and
(b) of the Convention.
- As
to the complaints that the indictment against the applicant did not
contain a list of the relevant evidence and had a technical error in
it, and that during the proceedings before the Ruse Regional Court
the applicant had not been allowed to study the case file and to have
copies of certain documents, the Court sees no reason to depart from
the findings of the domestic courts (see paragraphs 20 and 22 above),
which it finds adequate and sufficient. Furthermore, it notes that
throughout the proceedings the applicant was assisted by counsel (see
paragraph 11 above), who were also entitled to study the case file
and copy documents. Therefore, the Court does not consider that the
applicant's right to have adequate facilities to prepare his defence
was unduly restricted.
F. Remaining complaints under Article 6
- The
applicant also complained that the Veliko Tarnovo Court of Appeal
failed to collect evidence requested by him. However, this complaint
is general and abstract, as the applicant failed to specify what
information he had sought and had been unable to establish.
- The
same is true in respect of the applicant's complaint that the Veliko
Tarnovo Court of Appeal and the Supreme Court of Cassation had failed
to respond to all arguments raised by him, the particular arguments
in question not being specified. Furthermore, the Court observes
that, in fact, the two domestic courts examined the applicant's
appeals in detail and responded to his main arguments (see paragraphs
20 and 22 above).
- The remainder of the applicant's complaints under
Article 6 essentially relate to the outcome of the proceedings and
the manner in which the domestic courts assessed and interpreted the
evidence in the case. However, the Court has on
numerous occasions held that it is not a court of fourth instance and
that it is in the first place for domestic courts to interpret the
evidence and apply domestic law. The Court's jurisdiction is limited
to ensuring that the decisions of those courts are not flawed by
arbitrariness or otherwise manifestly unreasonable (see, among many
other authorities, Patsuria v. Georgia, no. 30779/04, §
86, 6 November 2007). In the case at hand, the
Court sees no reason to find that the domestic courts' judgments fell
foul of these criteria.
G. Conclusion
- In
view of the above considerations, the Court concludes that the
criminal proceedings against the applicant were not unfair on the
grounds examined above.
- It
follows that this part of the application is manifestly ill-founded
and must therefore be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
II. Complaint under Article 34 of the Convention
- The
applicant also complained under Article 34 of the Convention that the
Ruse Regional Court had refused to provide him with copies of certain
documents in support of his application to the Court.
- Article
34 of the Convention reads:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government took the view that the Ruse Regional Court's refusal had
not been final and that the applicant could have requested the
documents again, showing, as that court had required, that he had
lodged an application with the Court.
- The
Court observes that Article 34 of the Convention imposes an
obligation on the Contracting States not to hinder the right of
individual petition. While the obligation imposed is of a procedural
nature, distinguishable from the substantive rights set out in the
Convention and its Protocols, it flows from the very essence of this
procedural right that it is open to individuals to complain of its
alleged infringements in Convention proceedings. The undertaking not
to hinder the effective exercise of the right of individual
application precludes any interference with the individual's right to
present and pursue his complaint before the Court effectively (see,
among other authorities, Poleshchuk v. Russia, no. 60776/00,
§ 27, 7 October 2004, and Boicenco v. Moldova,
no. 41088/05, § 157, 11 July 2006).
- In
the present case, the applicant failed to support his initial
application to the Court with all necessary documents (see paragraph
23 above). Even after the Government were given notice of the
application and the parties were requested to provide the relevant
documents related to the criminal proceedings against the applicant,
the applicant was unable to provide a copy of the Veliko Tarnovo
Court of Appeal's judgment of 14 May 2001, which, in fact, the
Court received from another applicant (see paragraph 25 above).
- The
Court notes that the applicant advised the authorities that he was
requesting copies of the documents relating to his own criminal trial
in connection with his application, which at that time was already
pending (see paragraphs 1 and 24 above). In those circumstances, the
Court sees no justification for their refusal to provide him with
copies of these documents, or for their insistence for proof that
they had been specifically requested by the Court's Registry. Nor
does it consider that, once he had informed the authorities about his
complaint to the Court and that he needed the documents in issue to
support his application, the applicant should have been required, as
argued by the Government (see paragraph 60 above), to apply on
numerous occasions to receive them or establish to the authorities'
satisfaction that they were necessary for the Strasbourg proceedings.
Therefore, the Court concludes that the authorities interfered
unjustifiably with the applicant's right of individual petition and
thus failed to comply with their obligation under Article 34 of the
Convention not to hinder the effective exercise of this right.
- Accordingly,
there has been a breach of that provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction in proper
form. Accordingly, the Court considers that there is no call to award
him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 of the
Convention inadmissible;
- Holds that the respondent State has failed to
comply with its obligations under Article 34 of the Convention.
Done in English, and notified in writing on 23 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
