CASE OF TSONYO TSONEV v. BULGARIA (No. 3)
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
6. The applicant was born in 1977 and lives in Gabrovo. 7. In a judgment of 20 September 1996, which became final on 5 October 1996, the Gabrovo District Court (Габровски районен съд) found the applicant guilty of an offence and sentenced him to ten months’ imprisonment. In 1996 the applicant spent ten months in prison in execution of that sentence. 8. In a judgment of 20 May 1999, which became final on 20 June 1999, the Gabrovo District Court found the applicant guilty of another offence and sentenced him to ten months’ imprisonment, suspended. 9. In a judgment of 14 November 2001, which became final on 22 October 2002, the Gabrovo District Court found the applicant guilty of yet another offence and sentenced him to eighteen months’ imprisonment (see Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, §§ 10, 14 and 17, 14 January 2010). 10. In late 2002 or early 2003 the applicant asked the Gabrovo District Court to combine the above sentences. On 14 February 2003 the court decided to combine the sentences imposed in 1996 and 1999 but not the one imposed in 2001. The resulting sentence, determined in line with the applicable sentencing rules, was ten months’ imprisonment. Applying a rule allowing the increase of the combined sentence by up to one half, and taking into account periods that the applicant had already spent in prison, the court ordered that the total amount of time which the applicant was to serve under the combined sentence should be thirteen months. He was to serve the eighteen months meted out in 2001 separately. 11. On an appeal by the applicant, on 3 April 2003 the Gabrovo Regional Court (Габровски окръжен съд) upheld that decision. On 3 February 2004 the Supreme Court of Cassation (Върховен касационен съд) refused to hear the applicant’s ensuing appeal on points of law, finding that no appeal lay against the Gabrovo Regional Court’s decision. 12. In the morning of 26 September 2000 it was discovered that a bag with medicines had been stolen from a pharmacy in Gabrovo the previous night. The police inspected the crime scene and took fingerprints, but the ensuing tests could not establish to whom they belonged. 13. The next day, 27 September 2000, police officer N.D., who was in charge of the area where the applicant resided, visited the applicant at his parents’ home, where he lived. The officer invited the applicant to the police station, where the applicant apparently confessed to stealing the bag. The applicant then took the officer back to his home and produced the bag. After that both of them went again to the police station, where a record was drawn up stating that the applicant had voluntarily surrendered the bag, explaining that he had found it near a kindergarten. When later testifying at the trial against him, the applicant said that he had voluntarily followed the officer to the station and had been aware that he could refuse to go there. After surrendering the bag, the applicant was charged and interviewed by an investigator. He said that he understood the charge, was aware of his right to counsel but chose not to have one, and would make a statement. He then went on to confess to stealing the bag. He also said that he had not been sure what to do with the medicines and had decided to surrender them to the police. He expressed regret for his actions. 14. In the following days the police investigator in charge of the case interviewed witnesses and gathered written and expert evidence. On 10 October 2000 he proposed that the applicant be brought to trial. 15. On 17 October 2000 the applicant was indicted. His trial took place on 25 June and 4 October 2001 and 18 and 21 January 2002 before the Gabrovo District Court. At the outset the court apprised the applicant of his right to counsel, but he said that he did not wish to have one. The court heard as witnesses the owner and an employee of the pharmacy, two police officers who had patrolled the area on the night of the theft, the applicant’s father and officer N.D. It also admitted in evidence, among other items, written statements by other officers who had patrolled the area, and the record stating that the applicant had surrendered the bag. The applicant initially objected to officer N.D. testifying on the ground that he had taken part in the investigation. However, noting from documents presented to him in the courtroom that this was not the case, he withdrew his objection and the court allowed officer N.D. to testify. 16. Officer N.D. said that, having learned about the theft, he had visited the applicant at his parents’ home and had invited him to go to the police station for “a conversation”, because the applicant’s name featured on a list of offenders who had previously committed thefts. During the conversation the applicant had confessed to committing the theft, specifying that he had done so to obtain money which he needed for his defence in other criminal cases against him, but not providing any details as to the manner in which he had gone about perpetrating the offence. He had also agreed to produce the stolen medicines, and, although at first asserting that they were not at his parents’ home, had later on admitted that they were there. He had then taken officer N.D. to his parents’ home and had produced the medicines. After that, the officer and the applicant had returned to the police station, where the applicant had signed a record to the effect that he was surrendering the medicines voluntarily. This had obviated the need formally to impound them. 17. In his closing speech the applicant pointed out, inter alia, that officer N.D. was employed by the criminal investigation department of the Gabrovo Police, and was in charge of the area in which the theft had taken place and where the applicant lived. He had thus been under pressure to identify the person who had committed the theft. His testimony was the only evidence linking the applicant to the commission of the offence. 18. On 21 January 2002 the Gabrovo District Court found the applicant guilty and sentenced him to two years and nine months’ imprisonment. It based its finding that the applicant had stolen the medicines chiefly on the testimony of officer N.D. It noted that that testimony was fully corroborated by the statements made by the applicant during his interview with the investigator, but added that it could not take those statements into account because they had not been given in the presence of a judge (see paragraph 36 below). The court went on to say that officer N.D.’s testimony was corroborated, albeit indirectly, by the statements of the officers who had patrolled the area around the pharmacy at the time when the theft had taken place. 19. In addition, the court of its own motion decided to combine the sentences imposed in 1996 and 1999 (see paragraphs 7 and 8 above). The resulting sentence, determined in line with the relevant sentencing rules, was ten months’ imprisonment. Applying a rule which allowed the combined sentence to be increased by up to one half, and taking into account the periods which the applicant had already spent in prison, the court ordered that the total amount of time which he was to serve under the combined sentence was thirteen months. 20. In its judgment the court noted that the applicant was unemployed and was financially dependent on his parents. 21. The applicant appealed to the Gabrovo Regional Court, arguing that it had not been proved that he had stolen the medicines, and, in the alternative, that his sentence was too harsh. He also said, without giving particulars, that the proceedings against him had been in breach of the rules of criminal procedure and of the Convention. 22. The court examined the case at four hearings. At the first two of those hearings it heard a number of witnesses. At the third, noting that a judge who had taken part in the first two hearings could not continue to sit in the case, the court decided to start hearing the case afresh. 23. At that third hearing, held on 11 March 2003, the applicant called two witnesses with a view to undermining officer N.D.’s credibility. The court acceded to his request over the prosecution’s objection. The first witness said that when investigating a theft of which he had been suspected by officer N.D. of committing, officer N.D. had threatened him that he would frame him in the same way in which he had framed the applicant. The second witness, detained in the same facility as the applicant, said that officer N.D., when arresting him in relation to other offences, had enquired whether he had been aware of any offences committed by the applicant. The tone of his voice had indicated that he bore a personal animosity towards the applicant and wished to frame him. After that the court heard officer N.D., who repeated his account of the events of 27 September 2000. He additionally said that he knew the witnesses called by the applicant, who were either suspected of criminal offences or had previous convictions, and that their statements were not truthful. The court organised a confrontation between them and officer N.D. All three reiterated their positions. Officer N.D. was then crossexamined by the applicant. 24. At the close of the hearing the applicant, saying that he could not afford to retain counsel, asked the court to appoint one for him. The prosecution objected, observing that the applicant had not made such a request during the preliminary investigation and before the firstinstance court. The applicant retorted that he had changed his mind. The court, relying on a declaration about the applicant’s financial situation, decided to appoint counsel for him under Article 70 § 1 (7) of the Code of Criminal Procedure 1974 (see paragraph 37 below). 25. At the last hearing, held on 8 April 2003, the court once again heard officer N.D. It also heard the parties’ closing arguments. The applicant pointed out that the only evidence linking him to the commission of the offence was the officer’s testimony, which was highly suspect and could be the result of collusion between him and the prosecution. Moreover, the officer bore a personal animosity towards him because he had dealt with him on many previous occasions. 26. On 18 April 2003 the Gabrovo Regional Court upheld the applicant’s conviction and sentence. It agreed with the lower court’s findings of fact, but observed that it had erred in even mentioning the statement made by the applicant during his interview with the investigator – this was not admissible evidence. However, there was other evidence showing that the applicant had committed the theft. This was, in the first place, officer N.D.’s testimony, which was coherent and reliable. The court analysed in detail the challenge to officer N.D.’s credibility and concluded that it could not be thrown into doubt by the statements of the two witnesses called by the applicant. It also observed that officer N.D.’s testimony was corroborated by indirect evidence, such as the record of voluntary surrender signed by the applicant. After that the court gave detailed reasons why it did not believe the statements of the two witnesses who had purported to provide an alibi for the applicant and the testimony of the applicant’s father. 27. The court additionally dealt with the question of the combination of the sentences imposed in 1996 and 1999 (see paragraphs 7 and 8 above), and upheld the lower court’s ruling on that point. 28. The applicant appealed on points of law. In a twelvepage additional brief he argued that the lower courts had erred in assessing the evidence. In particular, they had lent too much credence to officer N.D.’s testimony, which was not supported by other evidence, was unspecific, hearsay, based on an informal conversation which had taken place before the institution of criminal proceedings against the applicant, and had been possibly due to officer N.D.’s personal animosity towards the applicant. The lower courts had also failed to analyse properly the testimony of the witnesses called by the applicant. The applicant went on to argue that the lower courts had incorrectly combined his earlier sentences. Lastly, he asked the court to reduce his sentence with a view to providing reparation for the excessive length of the proceedings against him. The brief, although signed by the applicant, gave the impression of having been drafted by a lawyer: it used terms of art, contained numerous citations of caselaw and referred to the applicant in the third person. 29. On 3 February 2004 the applicant asked the Supreme Court of Cassation to appoint counsel for him. Referring to Article 70 § 1 (7) of the Code of Criminal Procedure 1974 (see paragraph 37 below), he pointed out that he did not have the means to retain one because he was unemployed, that he risked imprisonment, and that he was unable to conduct effectively his defence in person. 30. The Supreme Court of Cassation heard the appeal on 13 February 2004. The hearing was not attended by the applicant, but was attended by a public prosecutor. The prosecutor opposed the applicant’s request for the appointment of counsel, saying that this was not mandatory. The court turned the applicant’s request down. It said that the applicant had not pointed out why he had been unable to retain counsel, that he had had a courtappointed counsel in the proceedings before the lower court, and that the manner in which his appeal on points of law had been drafted made it clear that it had been prepared with the help of a qualified lawyer. After that, the court heard the prosecutor, who submitted that the applicant’s appeal should be dismissed. 31. On 9 March 2004 (реш. № 98 от 9 март 2004 г. по н. д. № 707/2003 г., ВКС, І н. о.) the Supreme Court of Cassation upheld all parts of the lower court’s judgment save the part in which it had confirmed the increase of the applicant’s combined earlier sentence to thirteen months. It found that there had been no grounds to increase that sentence from ten to thirteen months, because the applicant had served it as early as 1996 and an increase would not further the aims of the punishment. As for the merits of the criminal case against the applicant, the court observed that, in the absence of breaches of procedural rules on the part of the lower courts, it was not competent to deal with arguments concerning the assessment of evidence and those courts’ findings of fact. There was no appearance of a breach of the rules of procedure and no error in the application of the substantive law. The applicant’s arguments concerning the establishment of the facts had been rejected by the lower courts after careful consideration of all the evidence. The appellate court had allowed the applicant to call witnesses and had reexamined officer N.D. The claim that it had failed to examine the case with due care was therefore illfounded. The lower courts’ findings of fact were based on evidence which had been properly admitted and assessed. 32. Article 91 §§ 1 and 2 of the Code of Criminal Procedure 1974, superseded on 29 April 2006 by Article 116 §§ 1 and 2 of the Code of Criminal Procedure 2005, provided that a conviction could not rest solely on the confession of the accused, and that a confession did not relieve the authorities of their duty to gather other evidence. 33. The accused may refuse to give explanations (Article 87 § 3 of the 1974 Code and Articles 55 § 1 and 115 § 4 of 2005 Code). Witnesses may also refuse to make statements or give answers that would incriminate them (Article 96 § 1 of the 1974 Code and Article 121 § 1 of 2005 Code). Unlike the 1974 Code, which was silent on the point, the 2005 Code specifically provides, in Article 122 § 2, that witnesses have the right to consult a lawyer if they consider that by answering a question they may incriminate themselves. 34. Article 93 § 1 of the 1974 Code provided that a person who had taken part in the proceedings in another capacity could not be a witness. An exception was made for former accused, private prosecutors, civil claimants, civil defendants, and persons who had attested the carrying out of investigative steps (поемни лица). Article 118 § 1 of the 2005 Code maintained the same position. Its paragraph 2 specifies that the bar also applies to persons who have carried out investigative actions or conducted trial proceedings even if the records of those proceedings have not been drawn up in line with the Code’s requirements. 35. Article 73 § 1 of the 1974 Code, as amended in 1990, provided that counsel for the accused was entitled to take part in the proceedings from the point when the accused had been arrested or charged. Article 73 § 2, as amended in 1990, provided that the authorities had to explain to the accused that he or she was entitled to the assistance of counsel, and to give him or her the opportunity to contact a counsel. It went on to specify that the authorities could not take any investigative steps until they had done so. Article 97 §§ 1 and 2 of the 2005 Code maintained the same position, with slightly different wording. 36. Following an amendment that came into force on 1 January 2000, Article 277 § 1 of the 1974 Code allowed the admission in evidence of statements made by the accused during interrogation in the course of the pretrial investigation only if the interrogation had taken place in the presence of a judge. Article 279 § 1 of the 2005 Code kept the same rule, but paragraphs 2 and 3 of that Article allow for exceptions in certain circumstances, with paragraph 4 adding the proviso that a conviction cannot be based solely on statements not made before a judge. 37. Points (1) to (6) of Article 70 § 1 of the 1974 Code listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel. None of these is relevant to the present case. On 1 January 2000 a new point 7 was added. It was part of a comprehensive overhaul of the Code intended to bring it into line with the Convention. It was based on Article 6 § 3 (c) of the Convention, and provided that the appointment of counsel was mandatory if the accused could not afford one but wished to be legally represented and the interests of justice so required. The text of Article 94 § 1 (9) of the 2005 Code matches exactly that of Article 70 § 1 (7) of the 1974 Code. 38. Article 94 § 1 (7) of the 2005 Code, as originally enacted, provided that the participation of counsel in the proceedings before the Supreme Court of Cassation was compulsory in all cases, with the result that counsel had to be appointed if not retained by the accused (Article 94 §§ 2 and 3). However, in November 2009 the Government laid before Parliament a bill for the amendment of the Code, which proposed, among other things, the repeal of that provision. The explanatory notes to the bill stated that the system of mandatory appointment of counsel before the Supreme Court of Cassation in all cases without exception had proved ineffective and that the accused did not show any great interest in it. Moreover, Article 94 § 1 (7) often coincided with other grounds for the mandatory appointment of counsel, for instance those predicating such appointment on the subject matter of the case or the situation of the accused. Parliament enacted the bill in April 2010 and it became law on 28 May 2010.