Why are trials being classified?

| Obektiv,

During the discussion on “The Balance between Human Rights and Public Expectations for Effective Penal Justice” you spoke about some very important aspects of our judiciary system. Is the information acquired by special reconnaissance means really secret?

The official answer to the question why trials are being classified is that they involve transcripts of recordings made with special reconnaissance means, which are secret. The current practice is to accept that since the Classified Information Protection Act provides that the information is declassified by the body that has classified it, the court cannot review such a decision and declassify the information. Such a legal analysis, however, is inconsistent with the fair trial guarantees under article 6 of the European Convention on Human Rights. The publicity of the trial is the main guarantee that it will be fair. It is publicity that guarantees that the defendant’s procedural rights won’t be arbitrarily violated, and that should a convicting sentence be issued, it will be based on convincing, irrefutable evidence. Apart from a guarantee for defendant’s rights, trial publicity is also a guarantee for good justice, for the creation of public trust in the administration of justice and a conviction that in the end justice has really been served. The public interest in trial publicity is explicitly stated by the European Court in its case law on article 6 of the Convention. In a case against Azerbaijan the court held a violation of the right to publicity due to the fact that although the trial was not in camera, it took place 40 kilometers away from Baku and without public transportation as the authorities did not provide public transportation for those willing to attend the trial.

Is such classification a violation of human rights to public trial, as a guarantee for fair justice under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and if yes, why is it allowed?

The court’s case law on this text stipulates that the court conducting the trial has to make an independent judgment and justify its decision to hold the trial in camera. This is the main difference with the current practice in our country. The Bulgarian court refuses to make an independent judgment of the necessity to hold the trial in camera, accepting instead that the decision to have the transcripts from the special reconnaissance means classified is binding. The right to public trial is not an absolute one. Even the European Court accepts that in some cases it is admissible and even mandatory to hold the trial in camera. Some classical examples include litigation concerning intimate relations between minors. With regard to secret information, the European Court has pointed out that the state has a legitimate interest in the classification of information when it relates to agents’ operational methods, information collection means, and agent identity. The transcripts from special reconnaissance means do not contain such information. They contain only information about a recorded conversation between two persons. Therefore, in standard cases the existence of such transcripts should not be grounds for trial classification. Of course, prior to filing a complaint with the European Court, the classification needs to be contested in a national court. Whether the media can contest classification is a more complicated issue. Until now, the European Court’s case law is rather more negative, but I believe that it still has room to evolve.

You said that when high ranking state officials make statements such as “sufficient evidence has been collected” they obviously violate the rights of the defendant and the presumption of innocence. Would you give some examples?

The European Court’s decision on the Petyo Petkov case in early January is a very good example. The court held that the statement made by the Bulgarian prosecutor on this case after the first instance acquitted the defendant, that no court could convince him that the defendant was innocent, is a violation of the presumption of innocence under article 6, para 2 of the Convention. Recently Interior Minister Tzvetanov also made a similar statement. The desire of both police officers and prosecutors to deliver results in the fight against organized crime in the current political situation is understandable. However, it is important for us to realize that the real results of the fight against organized crime is expressed in effective convictions and in the end, such statements don’t help achieve such verdicts but hinder them.

“We catch them, they let them go” has become a popular phrase. It is also said that the judges stick too closely to the procedures and the letter of the Code of Criminal Procedure. Would the changes in this Code make it easier for the judiciary system and would the opposition between investigators, judges and prosecutors be overcome?

The government understandably made the effective fight against organized crime its major priority. In Bulgaria, there are significant deficiencies in this respect, we are being justly criticized by our European partners and the current government owes its term to a great extent to this platform. The problem is that the expectations have been accumulating over many years, the impatience and the pressure on the government to deliver results is significant, and achieving penal liability with effective sentences is a long process. Hence the temptation to shorten this long process by “announcing publicly” that the charges have already been proven. In the long term, however, this is not helping but rather becomes an obstacle as it may create serious problems with a later verdict. As to the amendments in the Code of Criminal Procedure, some of them are definitely needed. Allowing the use in other proceedings of recordings made with special reconnaissance means is such a necessary change. Another two changes, appointing a reserve defense attorney and allowing a verdict on the basis of special reconnaissance means and anonymous witnesses, are more problematic, especially given the current situation of greater public pressure on the court. In both cases, the application of such powers is in the end given to the court which will be able to, and should, judge the fairness of the trial as a whole. So we can’t really say that the changes as such constitute a violation of the right to fair trial. What is worrying is rather the lack of a comprehensive reform program for the judiciary. Because even though in some cases defense attorneys really abuse the opportunities to delay the trial, this is by far not among the main reasons behind the situation of lawlessness that we face.