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In line with the government's main priority – the fight against organised crime and corruption – Bulgarian parliament recently adopted several amendments to the Criminal Procedure Code (CPC) that fail to protect the right to fair trial.
Art. 26 of CPC, which contained two provisions allowing the defendants to request that the court review their case upon the expiration of a certain deadline, was repealed.
Provisions for a reserve defence counsel were created with another CPC amendment. The reserve defence counsel takes part in the proceedings from the moment the defendant authorizes a defence counsel. The reserve defence counsel is appointed by the prosecutor or by the court, under the procedures of the Legal Assistance Act. The reserve defence counsel continues his participation in the criminal proceedings when the defendant authorises another defence counsel or gives one up. The appointment of a reserve defence counsel in the trial phase does not contradict the Court's case law on the interpretation of the European Convention on Human Rights. However, the amendments to the CPC provide for such an opportunity in the pre-trial phase as well. In this case, a reserve defence counsel may be appointed by the prosecutor, who himself decides on the necessity of such an appointment and chooses the time for appointing the reserve defence counsel. Given that the prosecutor is one of the competing parties in the trial, in essence he defines the rules under which his opponent is to compete. This would inevitably create situations in which the defence of the defendant in the pre-trial phase would be suboptimal.
Another CPC amendment concerns the possibility of handing down a guilty verdict solely on the basis of data collected by special surveillance means (SSM) and a witness with a secret identity. This amendment makes it possible to hand down a conviction based to a decisive degree on anonymous statements. According to the Court's case law, this is a violation of Art. 6 of the ECHR.
These recent CPC amendments were challenged before the Constitutional Court by the president and a group of members of parliament. In a surprising decision of September 28 2010, the Constitutional Court found the amendments not to contradict the Bulgarian constitution and international human rights treaties.
You can read more on the fair trial problematic in BHC’s annual report and in the sections below.