CASE OF SIMEONOVI v. BULGARIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6+6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Fair hearing)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
4. The applicant was born in 1975. He is currently serving a life sentence in Sofia Prison. 5. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. 6. On the same day the Burgas investigatory department instigated criminal proceedings against X for armed robbery and homicide. 7. On 3 October 1999 the applicant, Mr Lyuben Simeonov, was arrested in Sofia by a team from the special unit of the Interior Ministry. He was transferred to Burgas. 8. At 8 p.m. on 4 October 1999, an investigator from the Burgas investigatory department placed the applicant in detention for twenty-four hours. He was suspected of having committed the armed robbery and the two murders of 2 July 1999, aided and abetted by a certain A.S. On the following day a prosecutor from the Burgas regional prosecutor’s office extended his detention by three days. 9. The applicant submitted that despite his express requests he had not been assisted by a lawyer for the first three days of his detention. During that time the officials responsible for the investigation had questioned him about the robbery and the two murders committed in Burgas on 2 July 1999. 10. On 6 October 1999 the investigator appointed an official lawyer to defend the applicant. At 12 noon on the same day, in the presence of his officially appointed lawyer, the applicant was formally charged with committing armed robbery in the Burgas bureau de change and of the murder of two persons, and placed in detention. He refused to answer the investigator’s questions. 11. On 12 October 1999 the applicant was questioned in the presence of two lawyers of his choice. He remained silent. 12. On 21 October 1999, assisted by his two lawyers, he confessed. His presumed accomplice, A.S., also confessed to the criminal offences charged. 13. The officers responsible for the investigation subsequently gathered a substantial body of evidence, including witness accounts and medical, scientific, material and documentary evidence. 14. On 4 January 2000 the applicant and A.S., assisted by their defence lawyers, took cognisance of the documents in the investigation file. They retracted their confessions, and their lawyers requested a fresh interrogation of their clients. 15. On 16 February 2000 the Burgas regional prosecutor referred the file to the investigator for further inquiries. He asked him in particular to conduct a number of investigative measures and once again to formally charge both suspects. 16. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his depositions the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 17. On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas regional court. 18. The regional court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 19. On 14 June 2001 the Burgas regional court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, which crime had been accompanied by the murder of two persons and committed with the complicity of A.S. He was also found guilty of the unlawful purchase of a pistol and ammunition. The regional court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b [1] of the Law on the Execution of Punishments, the regional court ordered the applicant’s placement under the so-called “special” prison regime. 20. Drawing on the evidence gathered during the preliminary investigation and at the hearing, the regional court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with the applicant. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had purchased a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by bus. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night. Next morning, just before 9 a.m., they had descended to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The young man had died instantly. The two accomplices had then placed the money which they had found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done. 21. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of the procedural and substantive rules under domestic law and that the regional court had shown bias. 22. The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re-examination of one of the witnesses already questioned by the court of first instance, and several additional expert opinions. On 4 December 2001 the judge-rapporteur responsible for the criminal case rejected the requests for further evidence-gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of evidence of bias. 23. The Court of Appeal considered the criminal case between February and July 2002. It questioned a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 24. On 6 August 2002 the Burgas Court of Appeal upheld the judgment of the court of first instance, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the court of first instance and produced for the first time before the Appeal Court had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those murders and had provided the weapon used by his accomplice. The Court of Appeal drew on the depositions of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the material and documentary evidence gathered. 25. The Court of Appeal observed that the accused’s initial depositions during the preliminary investigation had differed considerably from their submissions to the court of first instance. The initial depositions had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial depositions, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him. 26. The Court of Appeal turned its attention to the applicant’s version of events stating that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Verifications carried out in the Interior Ministry database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events. 27. The Court of Appeal noted that the judgment of the court of first instance displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the regional court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The regional court had responded to all those requests and had provided full reasons for its procedural decisions. There had been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests. 28. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. The problem was that the regional court had been dilatory in issuing its grounds of judgment. However, the defence had been able to submit additional observations on appeal after having secured a copy of the grounds of judgment. 29. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. 30. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. That court found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other evidential requests as mentioned by the defence. 31. Furthermore, in adopting the appeal court’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural legislation had been appropriately applied and that the accused’s rights had been fully respected. 32. The applicant was held in Burgas Provisional Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 33. The applicant submitted that he had been held in a cell without window, toilets or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitation had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench. 34. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Provisional Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared toilet and bathroom and lacked any open-air facilities for detainees. The rapport also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity. 35. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 m2. It had contained a bed and a metal rack. There had been neither running water nor toilets in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules. 36. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 35 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activity in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests. 37. According to a report by the Director of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the official responsible for activities in the prison. 38. Following his transfer to Sofia Prison the applicant had been subject to a “special” prison regime involving virtually total isolation from the rest of the prison population. 39. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 x 2 metres which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 m2. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 40. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 41. The applicant added that up until 2005, the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. Material conditions had improved somewhat after the works in the high-security wing in 2005 and 2006. In December 2008, his prison regime had been relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he has been allowed into an activities room where he can talk to other life prisoners and read books. 42. According to a report by the Director of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 m2 and containing a bed, a table, a rack, a shower and private toilets. His cell had been heated and had running water and proper lighting. 43. Apart from the restrictions imposed by his prison regime, the applicant benefited from all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special commission, and could ultimately be accommodated with the rest of the prison population. 44. Furthermore, in 2010 the applicant applied for the annulment of a number of the provisions of the implementing regulations of the Prisons Act concerning the manner and method of execution of his life sentence. His application was finally dismissed by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the challenged provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their annulment. 45. In June 2001, while in Burgas Prison, the applicant began a hunger strike in protest against the authorities’ refusal to transfer him to Sofia Prison. He was monitored by the prison medical team while on hunger strike. In July 2001 his state of health worsened and he was transferred, on the initiative of the prison authorities, to the Sofia Prison hospital. On recovery he returned to Burgas Prison. 46. On 26 October 2004 the applicant was taken to the Sofia Prison hospital. Medical examinations revealed that he was suffering from tuberculosis. He received medicinal treatment at the hospital until 15 November 2004. He subsequently asked the prison authorities to allow him to take more exercise in the open air, which request was rejected. The applicant submitted that he had been unable to obtain a diet suited to his state of health either during or after his treatment in the prison hospital. 47. According to the 11 October 2011 report by the Director of Sofia Prison, after his stay in the prison hospital in 2004 the applicant had been given regular medical examinations and biological control analyses. The results of his latest examinations in 2011 had shown that his illness had not returned. 48. In August 2010 and January 2011 the applicant was taken into hospital for headaches and insomnia. He was examined and biological analyses were carried out. The doctors concluded that he was suffering from chronic headaches. No serious complications were detected. The applicant received medicinal treatment and the headaches ceased on release from hospital. 49. According to the same report, the applicant had several appointments with the prison dentist and another dentist chosen by his relatives. 50. Furthermore, according to the above-mentioned reports by the Directors of Sofia and Burgas Prisons, the prisons run a prevention and screening programme for tuberculosis comprising prophylactic examinations, medical analyses in cases of suspected infection and hospitalisation of prisoners positively diagnosed with the disease. Specific groups of prisoners such as drug addicts, HIV-positive persons, persons having previously suffered from tuberculosis and diabetics are the subject of special monitoring by the prison doctors.