“We are in a state of war”, says prime minister Borisov on different occasions. Its fronts are many - all types of criminals, thieves, robbers, con artists, significant parts of the political class, quite a few businessmen, almost the whole group of the employees (“wherever you look in the state, you’d only see schemes”), and lately the foreign investors, too. And since “a la guerre comme a la guerre”, the means are not selected. But since a series of internal and external factors prevent Borisov’s and deputy prime minister Tzvetanov’s wishes to deal with “the culprits” as quickly, mercilessly and effectively as they would like to, then the traditional tools, police, prosecution and court, also have to be used (there is no other way!). Except with regard to the court things are not that easy; it has strict rules, called codices, which “tie the hands of justice”. Well, if that’s the case, we’ll change the rules, thinks the government. And so they do. This is the background of the amendments to the Penal Proceedings Code adopted in March. What’s impressive is that some of them were adopted with the ruling GERB votes only, without even the votes of ATAKA.
Both the parliamentary opposition and three of the participants (Dokovska, Grozev and Toneva) in the discussion below share the opinion that some of the adopted amendments constitute a serious violation of human rights. This edition of the Obektiv discussion club took place between the chair of the Supreme Lawyers’ Council, Daniela Dokovska, the deputy prosecutor-general, Galina Toneva, and the director of the Centre for Liberal Strategies Legal Program and BHC member, Yonko Grozev. It was held on April 14 at the editorial offices of Obektiv and is published in an abridged version. Separately, we have provided the opinion of the member of parliament Dimitar Lazarov (GERB), member of the National Assembly’s legal committee. He was unable to take part in the discussion but kindly responded in writing to the questions discussed. The topic of the discussion was “Rights protection aspects of the changes to the PPC adopted on March 25”.
One cannot fail but notice the differences in the statements made by the three participants, on one hand, and by Mr. Lazarov, on the other hand. Whether the passionate arguments of Ms, Dokovska and the other two are more convincing that Mr. Lazarov’s formal arguments, is for the reader to judge.
The conversation was chaired by Emil Cohen and its full version is available in the electronic edition of Obektiv.
OBEKTIV: We wanted to have a representative of the legislator in this conversation but the member of parliament Dimitar Lazarov excused himself at the last moment with the need to attend at the same time an extraordinary meeting of the parliamentary legal committee. The topic is “Rights protection aspects of the changes to the PPC adopted on March 25”.
DANIELA DOKOVSKA: I’m concerned that in these changes there is nothing that protects the rights. OBEKTIV: What is your most general assessment of these amendments? What is the benefit from them? Are there any that would hinder, make more difficult or lengthen the penal process? A discussion was held on the most important aspects of the adopted changes. Some of them were reflected in the president’s veto. I assume that there are important things that are currently unknown and cannot be subject to discussion simply because the act has not been published yet. We won’t know the whole truth until the presidential veto is upheld or rejected.
DANIELA DOKOVSKA: The minister of justice declared that this bill was formulated in response to the European Commission report. This is not true. The report mentions only the overcoming of formalism in the pre-trial phase and the acceleration of the proceedings in the trial phase. No part of the report concerns the court phase of the trial. But most of the proposed amendments concern precisely the court proceedings. They show an aspiration to allow maximum ease to the prosecutor, including when he has made severe procedural errors or has acted unscrupulously. I think that this bill was unnecessary and that some of the proposals are damaging for the penal proceedings system as a whole. The defendants’ right to an attorney is being violated with particular severity. This is a trend in the bill. The compulsory involvement of a defense attorney at the Supreme Cassation Court was eliminated.
OBEKTIV: It’s no more compulsory as was in the past, but optional.
DANIELA DOKOVSKA: There is no reasonable explanation why was this done. The cassation instance is a law instance. The compulsory participation of a defense attorney is required because at this instance the citizen is unable to prepare his defense with legal arguments at a satisfactory level. Why doesn’t the legislator want the defendants to be defended before the Supreme Cassation Court and what does the European Commission report have to do with this? I believe that the report was used as a pretext to pass departmental ideas and whims that restrict citizens’ rights and create convenience for the state bodies involved in this process. But the process exists to defend subjective rights and public values, and for the convenience of the state bodies involved in it. This is a vicious approach which cannot produce good results. Many of the changes are chaotic, others are unprofessionally formulated.
OBEKTIV: Mr. Lazarov said: “We are voting on whatever is provided to us by the Ministry of Justice. They have a team of experts. You should ask them, too”.
DANIELA DOKOVSKA: There are changes that will lengthen and hinder the penal procedure. For example, the procedural opportunity for the prosecutor to protest a court’s decision to return the case. We used to have this. It existed for a while but the cases got delayed so much that some of them were terminated due to prescription. This is an unnecessary “procedure within the procedure”. For example, last year the Sofia City Court returned a case for additional investigation by the prosecutor, due to a grave procedural violation. The prosecutor fixed it and re-submitted the case on the following day. Now, he wouldn’t do this but would file a protest and the case will be reviewed by another three judges. And justice is not free! Apart from being delayed, the trial will become more expensive as well.
This act is a step backwards in the development of the penal proceedings system. The legislator shows no concerned even for the empirical data where the experience indicates that this should not be done. It’s a paradox, but the prosecutor is given the opportunity to protest the sentence even when the court has adjudicated what the prosecutor had asked for.
OBEKTIV: I was very perplexed by this. Not to mention justice minister Popova’s arguments in favour of this: the defense should not be the only party allowed to appeal. The other party, the prosecution, should also have the same right to protest. This was a reinstatement of this right.
DANIELA DOKOVSKA: An expert at the Committee on Legal Issues said the prosecutor should be given the opportunity, for example if he has asked for a lesser sentence, to be able to protest it after that. I find this senseless. It creates a bad image of the prosecution among the people. What would be the reputation of a prosecutor who asks for a conditional sentence and the files a protest that the defendant didn’t get an effective sentence?! This nonsense will cost the state money and will delay the case. Besides, the prosecutor is also given the possibility to amend the charges at any time during the first instance. Until now, this could happen only if there were new facts; now he has the opportunity to amend the charges even if he was aware of the facts from the very beginning! The facts are the same but the prosecutor is given the opportunity to file different charges. The defense has the right to ask for a stay in order to get organized.
An expert at the Committee on Legal Issues aid that there is no decision of the Court in Strasbourg that prohibits such an amendment of the charges. Of course there isn’t, simply because there is no state that allows such amendment of the charges.
OBEKTIV: There are some exotic details, such as that the defendant can now be summoned by phone.
DANIELA DOKOVSKA: If there is an error with the summons, the defendant may be arrested. This is why the law required higher guarantees that the summoning has actually been effected.
Again, this act has been drafted to make it easier for the bodies involved in the trial, without regard to citizens’ rights, trial duration and trial cost.
OBEKTIV: I have the feeling that some prosecutors have gathered and said: “Let’s get rid of what’s in our way”.
GALINA TONEVA: It’s true that the European Commission report doesn’t provide instructions on the direction of the judiciary reform. It states in principle that the judiciary reform has stalled. In the past 20 years, we’ve been only talking about reform but so far it has no been effected. Over the past several months the prosecution started initiatives for a real judiciary reform but they didn’t include what happened with the amendments to the Penal Code and the Penal Proceedings Code. It’s true that the European Commission report doesn’t mention the court phase. It talks about delayed cases. The latest interim report in March once again placed the focus on the delays in the adoption of final judgements.
I agree with the opinion that some of the changes to the PPC do not contribute to the acceleration of the court phase. The possibility to protest court dispositions and decisions will inevitably result in trial delays. I can definitely say that there are cases, although not many, when the returning of the case was not sufficiently motivated by the court. But I don’t think that the whole court phase in this part should have been undermined because of a handful of such cases. I suppose that minister Popova’s evaluation of the changes proposed by the ministry is motivated by the fact that the defendant’s right to attorney reflects to some extent on the defense of the public interest. In this case the idea is through changes to allow an opportunity for justice at the expense of the individual citizen’s right to defense, for example the concepts for the amendment of the charges in the absence of new facts and circumstances. I think that there should have been a more in-depth debate on the amendments, which are really necessary in order to achieve greater efficiency.
OBEKTIV: If the European Commission is accusing us of prolonged court proceedings and insists for the acceleration of the pre-trial and the trial phase and for sentencing within shorter deadlines, then those who formulated the first edition should have taken into account the practical considerations that you both mentioned.
GALINA TONEVA: I agree with this in another capacity. I’ve had the opportunity to see how a trial is being delayed unreasonably due to the desire to prove something that in most cases wouldn’t hold.
YONKO GROZEV: I’m bifurcate about the draft PPC because I think that some of the changes are necessary. The prohibition to use materials obtained through special surveillance means (SSM) in other proceedings is unreasonable and its elimination is necessary. Increasing the number of police officers who can collect evidence in the initial proceedings also seems to be a reasonable measure. From the point of view of more effective preliminary proceedings, I believe that the draft is making such amendments.
At the same time, many of the changes to the PPC fall well within the established traditions in Bulgaria where solutions to purely managerial problems are attempted through the procedural law. This tradition is extremely damaging and counterproductive because it always produces the opposite result. The reason behind this is political: it’s much easier to write the procedural law instead of to conduct reforms at the Ministry of Interior or the prosecution. And in order to have greater competence, better thought charges, well collected evidence, we need a reform at the Ministry of Interior, and that requires political will but it will lead to political resistance. And since such a reform is not being done, we are once again playing with the procedural laws. Making the process so chaotic is a serious drawback over the past years. This is why some of the amendments are subject to deserved criticism.
Why do we have the amendments with regard to the appeals by the prosecution and the possibility to amend the charges? Because of the obvious concern of the authors of the bill that there is no sufficiently effective control over the prosecution, errors and omissions, even conscious omissions, are possible, so there should be an opportunity to have them corrected at a later stage. The problem is with the reporting and the good management at the prosecution but we are not focusing on this; instead, we are amending the procedural code which will cause a series of other problems that we cannot even predict at this time.
The changes were not considered with regard to how we want the trial to look, in order to provide for competition, effectiveness and justice; they were considered from the point of view of the drawbacks of other systems.
OBEKTIV: At the end of its meeting on March 25, after the opposition left the room, the National Assembly voted to eliminate chapter 26 of the PPC. As you know, according to that chapter the defendant has the right to ask the court to review his case if the pre-trial is not completed within certain deadlines, one or two years. Even the political allies of the majority (the Blue Coalition) opposed to this. Minister Popova defended the elimination of chapter 26 with the following arguments: the Supreme Judicial Council (SJC) has an inspectorate, the Ministry of Justice has an inspectorate, and the Prosecutor General’s Office has an inspectorate. She said that they need to do their job in order to keep the deadlines, while the one- and two-year deadlines under chapter 26 are a great corruption incentive. That is, there is an understanding that other mechanisms need to be strengthened but this has led to a paradoxical result.
YONKO GROZEV: Since we cannot discipline the investigation and make the prosecution effective, we introduced the two-year deadline.
GALINA TONEVA: This is not quite true.
DANIELA DOKOVSKA: The cases weren’t terminated. Bu the deadlines worried the prosecutors and under the threat that the cases may be terminated, they submitted them within the deadline. GALINA TONEVA: That was the logic. You can’t keep a case indefinitely at one phase when you have charged the defendant. I can assure you that this is not an initiative of the prosecution. We compiled statistics. Over the past three years the cases terminated under this procedure have decreased from 56 to a little over 40 in 2009. Their number is insignificant. The reduction shows that this procedure has a disciplining effect.
YONKO GROZEV: This is the problem from the point of view of effectiveness.
Another aspect, from which the amendments to the PPC may be evaluated, is the possibility for a violation of fundamental rights. The amendments don’t repeal the guarantees that the main restrictions still fall within the competence and the judgment of the court. Bu the overall trend towards limiting the right to defense is worrying. On the other hand, the amendments are combined with a clear attack by the Ministry of Interior against the court. In combination, these two are a cause for concern. The unsolved problems of the reform of judiciary management are serious. We don’t have sufficiently strong and clear guarantees for the independence of the court. We have public pressure which is very much channeled by political actors and by the management of the Ministry of Interior, as well as amendments of the PPC which change the balance towards limiting the rights of the defense. How long will the court hold in this situation becomes problematic.
OBEKTIV: The supporters of the amendments of the PPC said at the parliamentary meeting that our penal process tends to give bonuses to the defense. So according to them, these changes are mending the imbalance.
YONKO GROZEV: In my opinion there were no such problems in the PPC. The main changes were not made on the basis of studies of the practice. They are based on perceived problems in the system for which no empirical evidence exists. Then anyone of us can judge as per their own professional experience. For example, I had absolutely no idea that the percentage with regard to chapter 26 was so low. Then why get rid of it?! The total number of these cases is around 30 000 per year!
DANIELA DOKOVSKA: The purpose is to eliminate the disciplining effect on the prosecution. Most of these changes are aimed at tolerating the prosecutor in every respect, but this is not in the interest of the trial, as procedural discipline guarantees the effectiveness of the proceedings.
THE OBEKTIV: The main changes are three: possibility to issue a convicting sentence on the basis of data from SSM and testimony of a witness whose identity is secret; introduction of a reserve attorney; and the elimination of the deadlines. How do they violate human rights?
DANIELA DOKOVSKA: Sentencing on the basis of SSM data and the testimony of a secret witness is a very bold whim. This text is anticonstitutional. It hides a great risk of judiciary errors. Every law is drafted with the idea that the bodies involved in the proceedings are bona fide. Bu the law must also create guarantees against mala fide exercise of competences. In this specific case such guarantees do not exist. When there are two secret evidence means, the source may turn out to be the same. This will result in many convicting decisions of the European Court of Human Rights in Strasbourg because delivering a verdict on the basis of secret evidence is an absurd. The court in Strasbourg questions even the delivery of verdicts based on secret evidence in mafia cases! It is said that the secret witnesses are usually dependent on the police, unreliable. If this is combined with another secret evidence, there are no guarantees that the truth will be revealed. That we don’t provide any opportunity for defense is another issue. The trial cannot be fair when one doesn’t know what the source of the evidence against him is, because he doesn’t have the grounds to refute it.
I wonder whether the people adopting this law are not afraid about themselves. The people at high positions in the state usually think that they are making a law for the others but the law is made for everyone. Sometimes the sense of justice requires that those who have made a law feel its consequences on themselves.
About the reserve attorney. This requirement in the law contradicts basic legal principles. No court and no prosecutor can implement procedural actions if the defendant says “I don’t like this attorney”. If such a court is found, this will be grounds to repeal the judicial act. If the act is not repealed, this will be grounds for a convicting sentence against the state in Strasbourg, because article 6 of the European Convention on Human Rights (ECHR) guarantees that every citizen can choose his defense attorney. Article 14, item 3d of the International Covenant on Civil and Political Rights (ICCPR) stipulates: “To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”. The appointment of a defense attorney here is conditional, if there isn’t one.
This is what happens when legislation is drafted out of stubbornness, because all these things were explained on more than one occasion. We’ve discussed this topic for many months but to no avail.
This law has no financial justification. At every meeting of the Committee on Legal Issues I raised the question about the financial justification. It is compulsory under the Law on Normative Acts. Minister Popova said: “We don’t have a financial justification because we don’t need it. We’ve written in the law that reserve defense attorneys will only participate in heavy crime cases and by exception. This will be 5 or 6 cases per year.”
YONKO GROZEV: But how will we know beforehand which these 5 or 6 cases will be?!
DANIELA DOKOVSKA: I don’t believe that a law may be drafted for 5 or 6 cases. In January the state owed the National Bureau for Legal Assistance BGN 1.3 million in unpaid fees for assigned counsels. They claimed they didn’t have the money. I understand that we’re in a crisis but in the judiciary the prosecutors and the judges work for a salary, so there is no reason for the lawyers to work for free. If we start appointing reserve attorneys who will be paid for doing nothing (they will be sitting in the courtroom), this could ruin the whole system of free legal assistance which our European partners consider to be one of the best in Europe.
Since the reserve attorney must take part in every procedural action in the pre-trial phase together with the defendant, respectively in the trial phase, then we’ll have the paradox that the case will be delayed if the reserve attorney fails to present himself, even if the authorized attorney is in the courtroom, despite the fact that the reserve attorney is not needed.
The law is a complex organism. When someone is mocking it, the time comes when the law starts mocking back.
OBEKTIV: It is claimed that the idea for a reserve attorney will have a disciplining effect because the Bulgarian penal procedure is delayed due to conscious absence of defense attorneys. Is this idea sound?
DANIELA DOKOVSKA: The law stipulates that the reserve attorney shall exercise his rights with the defendant’s consent and without his consent when the participation of a defense attorney is compulsory. An opportunity is created for the defense attorney to act contrary to the will of the defendant. Such a defense attorney cannot exist anywhere in the world. If the defendant does not agree that certain evidence be presented in court, how would the defense attorney present this evidence just because the participation of a defense attorney is compulsory?! If the defendant tells the defense attorney not to file an objection, how would the defense attorney file it because the participation of a defense attorney is compulsory?! This is unprofessional and anticonstitutional.
I sympathize with the members of parliament because they get many unfit drafts. This may be due to the lack of capacity at certain departments.
On the other hand, there are no empirical data or studies that would indicate that cases are being delayed due to unscrupulousness of the lawyers. When the Supreme Judicial Council created the term “significant cases”, it formed a commission which checked 17 cases and wrote in its report: “The main reason behind case delays is the mala fide behavior of the lawyers”. We asked the Supreme Judicial Council the list of these cases and checked them ourselves. We found out that only one case was delayed due to unmotivated absence of the lawyers. This did not result in more than one delay because the participation of a defense attorney was not compulsory. We notified the Supreme Judicial Council about the results of our check and received no answer. That the lawyers are delaying cases are just rumors, a convenient position which is not backed by any objective data. When the judiciary is accused, it’s always seeking the reasons outside of itself. The idea for the reserve attorney came from the report of the commission formed by the Supreme Judicial Council.
GALINA TONEVA: I partially disagree with Ms. Dokovska on case delays caused by defense attorneys. This is not the greatest problem of the system but there are quite a few cases that are difficult in terms of number of defendants, number of lawyers, multiple witnesses, etc. While I was a judge, we usually had a schedule of defense attorney’s absences. This went on for years. The reasons are not studied by the court because that’s not its job. They include sick leave, attendance of other hearings, assumed after the commitment for the specific hearing. The important thing is that such a practice exists and we shouldn’t turn a blind eye. However, this is not the usual behavior of defense attorneys. That’s why I don’t think that this was the way to solve the problem. The good option was to amend the Bar Act, to establish disciplining norms for lawyers failing to meet their commitments on specific cases, to identify mechanisms for the provision of subauthorized colleagues, etc. There is a series of mechanisms that guarantee the defendant’s will with regard to who will represent him. There is no argument that we can’t act contrary to the will of the people we defend.
I’m also worried by the financial aspect of the introduction of the reserve attorney. Fear that every prosecutor and every judge will start reinsuring themselves out of fear that the authorized attorney may fail to present himself, the case gets delayed and he may be reproached for not taking the necessary measures. This means that in most of the cases there will be reserve attorneys appointed in advance, who will be paid for not doing anything.
DANIELA DOKOVSKA: We not only don’t have the money to pay them but we don’t have the resources to provide them.
THE OBEKTIV: They will be imposed on the defendant, while the assigned counsel is appointed when necessary in the interest of justice, when the defendant is a minor or poor, etc.
DANIELA DOKOVSKA: The Bar Act contains enough mechanisms that guarantee lawyers’ lawful behavior. When we are told that a lawyer was absent without a valid excuse, we always initiate disciplinary proceedings. This is now being done on a much larger scale than before. We won’t react, however, if a lawyer fails to present himself in court due to sickness. There are 12 000 lawyers in Bulgaria. They get sick, just as judges and prosecutors do. If the prosecution believes that a lawyer is using false sickness documents, it should investigate the lawyer and the doctor and should it find that they have committed a crime we wouldn’t like these people to exercise their profession anymore.
Now, a mechanism is sought in the law to replace the procedural weakness in the investigation of such acts.
GALINA TONEVA: There are, however, planned valid reasons. For example, there is a scheduled hearing of the Court of Appeals for which the defense attorney has confirmed his attendance when the date was set; however, he doesn’t appear in court and submits minutes from another hearing, held in a different city. This cannot be an excuse for the court which has taken the defense attorney’s wishes into account and has set the date, has summoned a huge number of witnesses and then had the hearing fail. Another mechanism should be devised to regulate how such commitments are assumed.
DANIELA DOKOVSKA: There are opposite cases as well. For example, the defense attorney says he can’t appear in court on a given date because he has another hearing but the judge says he doesn’t care. If he doesn’t care about the lawyer, then he should care about his counterpart, the other judge who also wants to hear his case. This is the reaction of judges who don’t want a hearing to be held. The things won’t get better with this PPC.
GALINA TONEVA: I’d like to ask the lawyer colleagues to comment the meaning of having a defense attorney says: “I can’t attend the presentment of the investigation” for two months. I can give you an example with a specific case.
DANIELA DOKOVSKA: You can send a notification. I read the reports from the area meetings of the prosecution and the court and I found out that the main reason for case delays is the submission of evidence collection requests in the trial phase. In many cases, when the defense attorney asks that evidence be collected at the presentment of the investigation, the prosecutor says: “You can file a motion in court”. The fact that the court is delaying cases for evidence collection means that the investigating bodies and the prosecutor have not collected the necessary evidence, and in many cases the defense attorney’s request for evidence collection has unjustly been refused. I will announce the results from these reports publicly.
GALINA TONEVA: This is indicative for the direction that the amendments of the law need to follow.
YONKO GROZEV: In both cases the judgment rests with the court. The court could find time and balance in order to prevent a violation of fundamental rights.
As to how convincing is the evidence collected by SSM and supported by an anonymous witness, this could be subject to judgment in the specific situation leading to irrefutable proof. There is no way for us to predict the circumstances in the specific cases, in order to make this judgment. The problem is whether given the public pressure on the court with regard to the significant and publicly important cases this will actually happen.
About the reserve attorney. The situation is similar. The case law of the European Court of Human Rights in Strasbourg allows the involuntary appointment of a lawyer. Such was the European Court’s decision in the case Croissant v. Germany. There are cases when this court states that the right to fair trial has not been violated and that the appointment of a defense attorney is possible despite the explicit dissent of the defendant. The question is under what circumstances should this be allowed, whether it is absolutely necessary in order to achieve effective proceedings, and whether a two or three-month delay provides sufficient grounds for this. I think that it shouldn’t provide such grounds.
If we provide an opportunity for the appointment of a reserve attorney, that would provide basis for reinsurance, which will be safer for the prosecutor and the judge. Therefore, there is a real risk that the number of such appointments will increase significantly. I see no guarantees in the bill that would have a preventive effect. Furthermore, the budget for legal assistance under the Legal Assistance Act is not a part of the budgets of the two institutions (court and prosecution). This creates a potential for mishaps and it might turn out that this measure is not working: on one hand, the bureau won’t be able to pay, and on the other hand, we’ll have a large number of appointments.
There is no clear and empirically supported proof that the lawyers are the main problem in these cases.
OBEKTIV: Ms. Toneva, what is your opinion on the elimination of the prohibition to deliver a verdict only on the basis of data from SSM and testimony of a witness with secret identity?
GALINA TONEVA: With regard to the secret evidence, I make a distinction between two hypotheses which, unfortunately, is not made by the law. One is on the special surveillance means and the other one on the traditional anonymous witness. So far, no convicting sentence could be passed on the basis of these two sources. The traditional anonymous witness is not anonymous for the court. From this point of view the court has the ability to objectively judge the evidence and based on its internal conviction to decide whether these two sources are sufficient. The court can interrogate the witness and the defense can ask questions, albeit in writing. The court doesn’t have the obligation to pass a convicting sentence. It judges. What would happen if the secret witness is an undercover agent? To me s/he is not a witness. In this case, it is said: “The undercover officer cannot be interrogated as a witness”. In other words, he may remain secret for the prosecutor, for the court, for everyone. But does he exist at all?!
OBEKTIV: There are cases when it is claimed, including in the bill. That the appearance of the undercover agent even as a witness with a secret identity, that is, known to the court, would endanger his life and health. This is certified by his superior.
YONKO GROZEV: But the PPC doesn’t say how we collect evidence from them.
OBEKTIV: They are interrogated by their superior, for example.
DANIELA DOKOVSKA: They are interrogated during the pre-trial proceedings.
GALINA TONEVA: They are not interrogated. That’s how I understand the text after the presidential veto, which should be the final text: “An undercover officer may not be interrogated as a witness when there are sufficient grounds to assume that his or her testimony may result in a clear danger for his/her life and health”. And then: “The head of the structure that secures and implements the investigation through an undercover officer or a person authorized by him or her shall define the possibility of arising danger and shall notify the prosecutor”.
YONKO GROZEV: Then there need to be rules on how this testimony, made in advance, will be used. Otherwise how are we going to take it?!
DANIELA DOKOVSKA: This text expresses the obvious mistrust of the court on behalf of the executive power. This text tolerates arbitrariness. If written testimony is allowed, it will be a significant violation of the procedural law. This would be anticonstitutional because the executive power is guaranteeing the authenticity of a proof that the court cannot verify. This is a profoundly unprofessional text.
A detailed analysis would show lack of capacity, lack of resources for lawmaking.
OBEKTIV: Should it be said in court that there is a witness with a secret identity whose life is in danger but this witness is not known to either the judge or the prosecutor, and that this witness has said certain things, ho would you, the active lawyers, react?
YONKO GROZEV: We would ask that the evidence is not allowed.
DANIELA DOKOVSKA: This is like using an undercover agent but not using the data he has collected. To use the data collected when the court doesn’t even know whether such a persons exists, is absurd.
YONKO GROZEV: I find this provision in the PPC very difficult to understand. PPC tells me how to collect evidence and suddenly a provision appears that tells me how not to collect evidence.
DANIELA DOKOVSKA: Let’s look at the text of article 215, para 2 of the PPC: “In case of an unknown perpetrator, when the respective bodies of the Ministry of Interior deem that sufficient evidence has been collected incriminating a certain person in having committed the crime, they shall submit the materials gathered to the respective investigating body and shall immediately notify the prosecutor.” The word “sufficient” has now been deleted from this provision. I asked: “Why do you want the bodies of the Ministry of Interior to send insufficient data to the investigating body and the prosecutor?” I got no answer. What professionalism are we talking about then?! Slaveykov has said that apart from politics and logics, the law must contain grammar as well.
GALINA TONEVA: In many other texts it was foreseen that the word “sufficient” will be eliminated.
DANIELA DOKOVSKA: The prosecutor general and the prosecution’s representatives who participated in the meeting of the Committee on Legal Issues seem to be singing from different songbooks. The prosecutor general said clearly that there is a need to decriminalize a series of acts. And he is absolutely right because the state is exceeding its sanctions capacity. You can’t punish everything as a crime. Several days later deputy prosecutor general Parvanov expressed support for the idea the failure to pay alimony to become a public wrong and to be persecuted by the state on an equal footing. I asked him: “Can’t you agree with the prosecutor general on this issue? Why is the prosecutor general backing decriminalization and you are asking to statutorily investigate every failure to pay alimony?! You’ll be referred to by the mother because no one knows better than her that she’s not getting the alimony.” He told me: “We’ll be referred to by the officer of the court because she may not want to start a penal case”. Now the prosecution will be overloaded with unpaid alimonies which it will investigate statutorily, although it claims that is already overloaded.
There is no expediency in justice, but the law includes political expediency and logic. Maybe the prosecution wants to increase its discovery rate.
OBEKTIV: In our country the prosecution is centralized and such differences of opinion should not exist.
GALINA TONEVA: I have no idea how it got to this. We haven’t discussed it. But the idea for decriminalization is very sound. Many of the “dead” texts that end with an administrative penalty unnecessarily burden the whole judiciary and bear unnecessarily high costs.
OBEKTIV: A day before it adopted the amendments of the PPC, the parliament adopted the amendments of the Penal Code, the main focus of which was to increase penalty ceilings.
GALINA TONEVA: The difference of opinion with the institutions is much more dangerous than among the individuals.
DANIELA DOKOVSKA: The difference of opinion among the institutions shows a lack of state policy in this field. The Penal Code that was submitted has to be reviewed also in relation to the PPC. In many cases, as those who submitted it openly admitted, the changes are proposed in order to allow for the use of SSM. This is like thinking backwards. Special surveillance means are used in case of heavy crimes; the judgment of the severity of a crime should not be based on the means needed for its discovery.
OBEKTIV: What is the international aspect of this story?
DANIELA DOKOVSKA: I think that there will be many convicting decisions of the court in Strasbourg, although item 61 of the governmental program states that the number of such decisions should be reduced. It’s not such a problem when the convicting decisions arise from errors committed by the bodies in the penal proceedings. But when such decisions are made due to inadequate legislation, they become discrediting.
OBEKTIV: We are in the first places in Europe by failure to comply with decisions of the European Court of Human Rights in Strasbourg in terms of follow-up actions, be it amendments of the legislation or respective investigation and punishment of the people who have allowed human rights violations, etc.
DANIELA DOKOVSKA: In our country legislation is often adopted contrary to the law and contrary to the arguments. Bulgaria was found guilty in two cases because involuntary execution against the state is not possible here. Russia and Greece were also convicted. Now the National Assembly added the municipalities to the state, so you can’t make them give you whatever the court has adjudicated in your favor, for example an amount.
I am glad to let you know that the Supreme Lawyers’ Council has imitated before the ombudsman a procedure to have this text denounced as anticonstitutional. The ombudsman was convinced that we are right and submitted the text to the Constitutional Court.
Bulgaria has been convicted on many occasions because the detention in the notorious cases of minor hooliganism is not subject to appeal. The previous parliament added sports hooliganism to this. The Supreme Lawyers’ Council has the opportunity to react through the ombudsman and in other ways. As to the special surveillance means, we are in a crisis now, it costs a lot of money and very few of them are used in trials.
OBEKTIV: What will happen with the cases at the European Court of Human Rights in Strasbourg? Mr. Grozev, on request by the former minister of justice you drafted a concept for the reduction of the convicting verdicts against Bulgaria in Strasbourg. What happened with that concept?
YONKO GROZEV: In reality, we’re not learning anything from these cases. The decisions of the court in Strasbourg are not adopted in domestic legislation. Almost none of the recommendations made in the concept were accepted.
OBEKTIV: Will some of the amendments in the PPC lead to more cases against Bulgaria in Strasbourg?
YONKO GROZEV: I hope that the Bulgarian court will make sound judgments. GALINA TONEVA: This should not be a hope. This is the right approach. We are no working on the assumption that the bodies are acting unscrupulously.
DANIELA DOKOVSKA: This presumption is only valid for the bodies involved in the penal proceedings. It should be valid for the professional participants in the process. This law is drafted on the presumption that the defense is mala fide and the prosecutor is in principle bona fide.
GALINA TONEVA: I think that the undercover agent means that the prosecutor and the court are considered to be mala fide.
What do you think about the recently adopted changes to the Penal Proceedings Code (PPC)?
This draft is an attempt to meet the requirements of the public for quick, efficient and fair justice. I agree with the conclusions of the European Commission report and with this part of the arguments of the depositor. On the other hand, despite the principle proclaimed in article 7, para 1 of PPC that court proceedings have a central place in the penal procedure, the investigation in the pre-trial phase is still governed by the same strictly formalized rules hat govern the trial phase. In reality, the provision of article 7, para 2 of PPC on the preparatory character of pre-trial proceedings is to some extent wishful and a comprehensive rethinking of the pre-trial phase of the penal procedure is needed.
How would you justify your position in the case of the reserve attorney, the opportunity to deliver a verdict on the basis of only data from SSM and testimony of a witness with a secret identity, as well as in the case of the elimination of the deadlines under the repealed chapter 26 of the PPC? These novelties were criticized a lot.
A. On the statute of the “reserve attorney”. The depositor’s initial proposal for the introduction of a reserve attorney was amended and its application was restricted to the hypothesis of “heavy crimes” and only when the properly summoned authorized defense attorney fails to appear in court without a valid excuse, and not in all cases of absence of the authorized defense attorney, which was the depositor’s initial proposal. I don’t think that the amended text contradicts article 6, item 3 of ECHR which proclaims that “everyone charged with a criminal offence” has the right “to defend himself in person or through legal assistance of his own choosing”, as well as article 14, item 3d of ICCPR which contains a similar text. The citizens and the legal entities have the right to defense at all phases of the procedure. The rules on the exercise of the right to defense and attorney are regulated by law – article 122 of the Constitution. The defendant has the right to defense and attorney according to article 15, para 1 and article 55, para 1 of the PPC. But the defendant’s right to defense is not restricted to the right of attorney only. Together with the possibility to defend themselves personally, which is guaranteed by law, the defendants can exercise this rights through an attorney, too. The selection of defense attorney is provisional, insofar as the PPC allows this: both a person on the bar and a husband, ascendant or descendant relative could serve as defense attorney. Defendants can make their choice on the basis of the personality and the qualities of the selected defense attorney. This provisional character of the right to defense attorney, however, was restricted in both the preceding and the current PPC by the hypotheses in case of grounds for a challenge of the defense attorney and in the case of compulsory defense. With regard to the introduction of the statute of the reserve attorney, rules on its application have been also created, with three cumulative requirements: only when this is of exceptional significance for the implementation of the penal procedure within a reasonable timeline, only in cases involving heavy crimes, and only if the authorized defense attorney has been properly summoned and failed to appear in court without a valid excuse. Article 6, para 3 of ECHR and article 14, item 3d of ICCPR explicitly provide the opportunity for the defendant “to have legal assistance assigned to him” when the necessary conditions are in place, and the hypothesis is seen as an alternative to the right of choice. Should the right to an authorized defense attorney only be regarded as an absolute rule, the only correct conclusion would be that the assigned counsel under the current legislation is also a violation of the right to defense on the same grounds. The defendant’s right of choice for the predetermined reserve attorney is guaranteed by the fact that given eventual disagreement of the defendant, the court wouldn’t appoint the defense attorney nominated by the Bureau for Legal Assistance and would nominate another one. The idea behind the appointment of the reserve attorney is to guarantee the development of the penal procedure within a reasonable timeline and to prevent the abuse of the right to defense. The interpretation that due to the explicit reference the reserve attorney has only rights and no obligations as defense attorney, including with regard to the coordination of the basic lines of defense with the defendant, is wrong. The reserve attorney is a defense attorney as much as the authorized attorney and the assigned counsel. The obligations of the defense attorney and the rights of the defendant stipulated in article 98 and 96, para 2 of PPC are equally valid under all defense hypotheses. The appointment of the reserve attorney doesn’t mean that the authorized attorney’s authorization is suspended or terminated. The amendments of the PPC effected with paragraph 9 of the Amending and Supplementing the PPC Act do not contradict article 31, para 4 of the Constitution, as they are needed in order to provide justice. Should the authorized attorney fail to appear in court without a valid excuse, the procedure is blocked, the court’s activities in summoning the participants in the trial are rendered meaningless and so are the efforts of the court and those of the bona fide participants to prepare for the hearing and to appear in court.
B. With regard to the possibility to pass a convicting sentence only on the basis of special reconnaissance means and secret witnesses, I can say that the evaluation of the evidence is made on by internal conviction (as per article 14 of PPC) based on an objective, comprehensive and complete review of all circumstances pertaining to the case, and last but not least, includes the means of obtaining the evidence. When passing their judgments, the judges work on the basis of the law and the evidence collected on the case, weighted through their conscience and internal conviction. In reality, the deletion of the end of the sentence in article 177, para 1 creates only an opportunity but doesn’t in itself create an obligation for the court to pass a convicting sentence only on the basis of data from SRM and testimonies of secret witnesses. The existing restriction prohibited the passing of a convicting sentence in all cases when both the former and the latter were present, without consideration of the fact that the anonymous witness might have been identified by the defendant or might have been known to another defendant in some way. The PPC provides various opportunities to expose the truthfulness of the testimony of witness with a secret identity, should the defendant and his defense have such arguments. At the same time, looking at the more widely used hypothesis when the identity of the witness is classified on request by the prosecution, then the court has the opportunity to have the competence and the responsibility to judge whether to pass a convicting sentence only on the basis of the evidence gathered through these methods. The identity of the witness is not a secret for the court. According to the explicit provision of article 123, para 5, the court has immediate access to the protected witness and according to article 141, para 1, interrogates him immediately by taking all possible measures to keep his identity secret. The existence of the prohibition, which has now been repealed, is also an inequality. In fact, the PPC doesn’t allow a convicting sentence to be passed only on the basis of confession and SRM. Therefore, there is an inequality between these rules which provide a restriction on the use of the evidence. There is hardly any self-respecting court that isn’t aware that SRM and testimonies of an anonymous witness alone, if they coincide as a source, should not be credited in the evaluation of the evidence which would justify beyond any doubt the court’s internal conviction.
C. With regard to the elimination of the stipulation that if the pre-trial proceedings are not concluded within a certain deadline, the defendant has the right to require a trial, I can say that in the years of the transition a significant number of unfinished pre-trial proceedings against unknown perpetrators were accumulated. The reasons behind such a significant accumulation of cases unfinished by the pre-trial bodies or the prosecution are a different topic. I can’t accept as justified the arguments that by prohibiting the court to evaluate evidence collected after the expiration of the deadline under article 234, para 1, or of the extended deadline under the same article, an opportunity is created to terminate the investigation against the defendant or an opportunity to exclude the penal persecution, without any judgment of why the deadlines were not met. Supreme Cassation Prosecutor’s Office data indicate that n 2009 there were 21 pre-trial proceedings terminated under the rules of chapter 26 of the PPC; this is less than 1% of the pre-trial proceedings against a known perpetrator terminated on the basis of article 24, para 1, item 1 of the PPC. I believe that the necessity for the existence of the chapter does not exist anymore. If all circumstances necessary for the completion of a pre-trial proceeding are established within the second month but the defendant is charged 22 months after its completion, it could hardly be accepted that the investigation has been completed within a reasonable timeline, even though the two-year deadline under article 368 of the PPC has been met. Disciplining the bodies in the pre-trial proceedings and the prosecutor and the disciplinary penalties for irregular behavior with regard to a delayed case is regulated by other legislative acts: the Judiciary System Act, the Ministry of Interior Act, and doesn’t fall in the scope of the tasks under article 1 of the PPC.