CASE OF DIMITAR MITEV v. BULGARIA
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1972 and is currently detained at Varna Prison. 7. Before the events at issue, he had several previous convictions for theft. 8. A seventy-five-year-old lady, a neighbour of the applicant’s parents, was murdered in her house in Varna on the morning of 18 June 2006, and a number of her personal possessions were stolen from the house. The applicant was suspected of having committed the offence and a search order was issued in respect of him. 9. On the morning of 21 June 2006 the applicant was arrested. He had been hiding in an abandoned house in a neighbouring village. The police report on his arrest stated that he had “slightly” resisted the arrest, and that force had been used in order to take him out of his hiding place (under a bed) and handcuff him. 10. The applicant was taken to the police station in the nearby town of Valchi Dol, where, at 11.30 a.m., an order for his arrest was issued under section 63(1) of the Ministry of the Interior Act 2006 (see paragraph 26 below). The applicant signed a declaration stating that he wanted to be assisted by a lawyer and that he had liver and stomach pains, due to “past ailments”, and wished to be examined by a doctor. 11. Later in the day, two police officers from Varna, Z.K. and V.V., arrived in Valchi Dol. They had a conversation with the applicant, during which he confessed, according to him under physical duress, to having committed the murder and described his actions in the days preceding his arrest. In addition, he confessed to having stolen a gun and other personal possessions from another house on an earlier occasion. The confession was written down and was signed by the applicant and Officer V.V. 12. Later on that same day the applicant was transferred to the police station in Varna, where he asked to be examined by a doctor. The examination started at about 8 p.m. The doctor identified bruises and haematomas on the applicant’s right elbow, right flank, buttocks and wrists, which had been caused by hard, blunt objects less than twenty-four hours earlier. 13. On 22 June 2006 an investigator brought charges against the applicant in relation to another offence, an unrelated theft, and a prosecutor ordered his detention for up to seventy-two hours. On 23 June 2006 the Varna District Court ordered the applicant’s detention on remand in connection with that charge. The criminal proceedings concerning that charge proceeded alongside the proceedings which are the subject of this application, and were completed in March 2007. 14. The murder investigation, to which the investigation into the alleged theft of a gun and other personal possessions mentioned in the applicant’s confession to Officers Z.K. and V.V. was joined, continued over the months which followed. The police gathered further evidence and witness testimony, some of which was identified on the basis of that confession. They never found the objects stolen from the victim’s house. On 18 December 2006 an investigator brought charges against the applicant in connection with the two offences mentioned above. On that occasion the applicant had a lawyer, retained by him on the same day. The applicant made a brief statement that he was not guilty. 15. On an unspecified date in 2007 the applicant was indicted and taken to court. 16. The Varna Regional Court (hereinafter “the Regional Court”), which examined the case at first instance, held its first hearing on 25 June 2007. It heard the doctor who had examined the applicant on the evening of 21 June 2006 (see paragraph 12 above). She stated that she maintained the opinions expressed in her previous report, and the prosecution and the defence posed no further questions. Officers Z.K. and V.V. were examined as witnesses and recounted their conversation with the applicant on 21 June 2006 and the confession he had made to them. They replied to questions posed by the prosecution and the defence. The applicant’s father was examined as well, and he stated that he had visited his son about ten days after his arrest. The applicant had told him that he had been beaten in order to confess, and some traces of this beating had still been visible on him. The Regional Court heard other experts and witnesses. 17. During the next hearing, held on 3 October 2007, the applicant made a statement on the charges. He said that he had not committed the offences, as at the time of the murder he had been at his grandmother’s house in another village, and that he had confessed to the offences under duress. 18. On 11 February 2008 the Regional Court examined more witnesses and then the parties made oral submissions. Counsel for the applicant contested the testimony of Z.K. and V.V. in particular, arguing that their examination had been contrary to Article 118 of the Code of Criminal Procedure (see paragraph 31 below). He pointed out moreover that, while the applicant had made a confession to those two officers, he had not repeated that confession when taken before an investigator. At the same time, the confession was one of “the pillars” of the indictment, as there was no other evidence showing the course of the events inside the victim’s house. 19. In a judgment given on 11 February 2008 the Regional Court convicted the applicant and sentenced him to life imprisonment. On the basis of the evidence collected, it concluded that the applicant had stolen a gun and other personal possessions several days before the murder, and on the day of the murder had entered the victim’s house in order to steal food. When she had surprised him in the house, he had attacked her, hitting her with the gun stolen earlier – in such a way that a part of the gun’s cock had broken off and fallen to the floor – and with an axe which he had found in the house. After the murder the applicant had run away. A stranger had given him a lift to another village, but the applicant had forgotten a bag containing his clothes and the gun in the stranger’s car. 20. In establishing the facts, the Regional Court relied on the following most important pieces of evidence: a metal fragment which had been found under the victim’s body and which the experts confirmed to be the missing part of the cock of the gun; traces of the victim’s blood found on the handle of the gun found in the applicant’s bag; the testimony of the person who had given the applicant a lift in his car and had found that bag; the fact that that person had also recognised the applicant’s photo when it had been shown to him by the police; and the testimony of Officers Z.K. and V.V., who had recounted what the applicant had confessed to them with regard to the course of the events in the victim’s house. As to the officers’ testimony, the Regional Court pointed out that it considered it credible, since the confession as recounted by them had enabled the police to continue the investigation and identify further evidence. 21. The applicant lodged an appeal. 22. In his written and oral submissions to the Varna Court of Appeal (hereinafter “the Court of Appeal”), counsel for the applicant contested once again the testimony given by Z.K. and V.V. He argued that the Regional Court had not commented on the evidence showing that the applicant had been beaten in order to make the confession the officers had recounted, pointed out that the confession had not been repeated once the applicant had been taken before an investigator, and relied again on Article 118 of the Code of Criminal Procedure. 23. In a judgment of 30 May 2008 the Court of Appeal upheld the applicant’s conviction and sentence, finding that his guilt had been proved beyond reasonable doubt. In addition to the evidence described above, it relied on the testimony of a neighbour of the victim, who had seen a person considered to be the applicant on the roof of the victim’s house shortly before the murder. As to Z.K. and V.V., the Court of Appeal pointed out that they had not been investigating bodies within the meaning of the Code of Criminal Procedure, and that their testimony had been assessed in the light of all other evidence. Furthermore, it commented on the exonerating evidence, in particular expert reports finding no fingerprints of the applicant and no traces of his scent in the victim’s house, saying that this was not sufficient to refute the accusations. 24. The applicant lodged an appeal on points of law. His counsel contested once again the testimony of Officers Z.K. and V.V., pointing out that the lower courts had not commented on the evidence showing that the applicant had been beaten in order to confess. Moreover, the officers’ testimony had been given in breach of Article 118 of the Code of Criminal Procedure. 25. In a final judgment of 13 November 2008 the Supreme Court of Cassation upheld the Court of Appeal’s judgment. As to the arguments of the defence concerning the testimony of Z.K. and V.V., it observed that the confession as recounted by the officers contained details which could only have been known to the perpetrator of the crimes at issue, and thus could not have been “instigated”. Moreover, allowing Z.K. and V.V. to testify had not been in breach of Article 118 of the Code of Criminal Procedure.