Access to Justice Country Report - Part 1 by BG Helsinki

Access to Justice Country Report: Bulgaria Krassimir Kanev and Georgi Mitrev Bulgarian Helsinki Committee

Executive Summary Access to justice in modern societies will be defined by multiple and diverse factors. Legal sociology usually divides those factors into two key groups, legislative and social. Stability and clarity of legal norms; efficient functioning of the legal system; legislatively established system of state help for vulnerable persons and groups etc., belong to the first group. The second group, social factors, covers trust in the system of justice, belief in the systemâ&#x20AC;&#x;s accessibility; social status of the actors; socio-psychological factors encouraging or rejecting groups of citizens from the established system of justice (e.g. stigmas, prejudices etc. in society). With regard to legislative factors, it should be noted that Bulgarian legislation contains a number of provisions on the right to legal protection and to free legal aid as significant constitutive elements of the access to justice. Unfortunately, neither the scope of protection afforded, its implementation in practice, nor its quality are adequate. In addition, certain pieces of Bulgarian legislation and the relevant practices are contrary to explicit international standards in the area of access to justice. These international standards have direct effect in the country by virtue of international agreements to which the country has acceded. From the social factors perspective issues related to accessibility of mechanisms available to people in need of legal protection are of particular concern and deserve significant attention in the area of criminal, civil and administrative justice. Accessibility would, to a great extent, be determined by costs related to the administration of justice and the degree to which individuals belonging to various social profiles could afford these costs. The issue related to legal needs of individuals, which they may, for one reason or another, not be able to meet, is also of particular significance, where precarious financial situations preclude access to justice. No official statistics on access to justice, and in particular on access to legal counsel and the quality of defense are available in Bulgaria. Courts regularly file statistical information on the number of cases brought up, examined, disposed of, appealed, etc. No attention, however, is being paid in the course of this statistical review to those aspects of the access to justice that lend themselves to measurement. Moreover, it should be noted that the budget of the judicial system is constructed such that all expenditures related to legal assistance come under Other Remuneration and Staff Payment heading. Thus, the conclusion is often erroneously reached that access to justice in Bulgaria has not been at all problematic and has not been the object of concern to the branches of Government. Results of surveys conducted by the Bulgarian Helsinki Committee for the period 2001-2002 on access to justice in criminal and in civil cases indicated that in practice legal protection and legal aid are not adequate.. The problems related to the scope, implementation, and quality of mandatory defense, as well as the procedure for appointment of ex officio counsel, proved to be quite serious. Frequent occurrences of procedural violations with regard to appointment have been noted and the existence of corrupt practices in the area may be argued.

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Mechanisms for control over legal protection afforded are not applied, nor are any liability provisions enforced. Guaranteeing the right to access to justice to everyone requires further action and efforts by the state and its agencies and institutions, of various non-governmental organizations, and the Bar Association

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1. Introduction Statistics from March 2001 indicate that the current population of Bulgaria is 7,932,984.1 The number of attorneys at law in the country is 5,880 distributed among 28 local Bar Associations (State Gazette No 5 of 2002, where a list of all registered attorneys-at-law is published. The number of courts in Bulgaria is now 148, as per Index of Judicial Districts in Bulgaria, Union of Bulgarian Lawyers, 1999. Currently no official statistics on access to justice and in particular on the right to access to counsel exist in Bulgaria. For these reasons, in the period 2001 â&#x20AC;&#x201C; 2002 the Bulgarian Helsinki Committee undertook a thorough research project, as part of the Access to Justice Project financed by the European Commission. The project researched access to justice in criminal cases focusing, and on the occasion of several separate studies, access to legal counsel and quality of representation. The first study of a nationally representative sample of public prosecution criminal cases in the courts of first instance took place in August and September 2001. Data was collected on the access to legal protection, its effect and relations to a number of factors inherent to the criminal justice system, and external to it. The researchers were lawyers who had responded to an announcement and were selected through interviews. This made it possible to use members of the legal profession to test peer review as a method of allowing us to get an adequate idea about the quality of performance of lawyers in the cases where they represented their clients. In February 2002, a second study was carried out in deprivation of liberty facilities. This was in the form of standardized face-to-face interviews with detained persons and convicts sentenced to imprisonment. The aim was to collect information on factors which could not have been established by reading criminal cases and to measure the level of satisfaction of clients with the performance of their respective lawyers. In the summer of 2002, an assessment was commissioned among a representative sample of the population with regard to legal needs in the civil and administrative areas. This gave a description of the social profile and needs that individuals would have in enforcing their rights conferred to them by law. Results of the above research indicated that in practice legal protection and legal aid were not adequate and guaranteeing these would require further action and efforts of the state and its agencies and institutions, of various non-governmental organizations, and the Bar Association. The evaluation below of the legal aid program in criminal law and civil law will help to shed light on both the strengths and weakness of the Bulgarian legal aid system, and should help to provide a greater understanding of the need for improvement and the means by which this change may be effected.

2. Criminal law: effective access to the judicial system for the indigent in criminal cases 2.1 Right to counsel The Constitution of the Republic of Bulgaria (CRB), in its capacity of a supreme legislative act, contains some general provisions on the right to legal protection. The latter is further developed within the Criminal Procedure Code and other primary and secondary sources of law.

National Institute of Statistics, Bulgaria, <A HREF=http://www.nsi.bg accessed 15th Nov

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2.1.1 Constitutional guarantees to the right to counsel and right to legal aid First, provisions contained in the Constitution of the Republic of Bulgaria (CRB), in its capacity of a supreme legislative act, need to be examined, as well as some judgments of the Constitutional Court pertaining to this particular issue. The provision of art. 56 of the Constitution proclaims the right to legal protection as a basic universal right of the individual. Its manifestations are the right under art. 30, s. 3 CRB to legal representation of the detained and of defendants in criminal cases, as well as the right under art. 122, s. 1 CRB to counsel at all stages of judicial proceedings. The right to legal protection is wide in scope, however it is a duty of the State, through legislation and enforcement, to secure an effective opportunity for the citizens to protect their rights, which have been violated or threatened, before judicial or administrative authorities. The right to legal protection is not solely limited to trials, it is also enforceable in matters before all state agencies and institutions. The right of citizens to protect their rights through legal assistance provided by counsel is an important element of the general right to legal protection. Therefore, the provision of art. 30, s. 4 CRB is fundamental. It proclaims that there is a right to legal representation from the moment an individual has been detained or charges have been brought against him. In Judgment No 9 of 14th April 1998 in constitutional case No 6 of 1998, the Constitutional Court of Bulgaria indicated that “the right of citizens to organize the protection of their rights through the assistance of a qualified professional – defense counsel – is importantly emphasized where, in order to protect his/her 2 rights, the citizen would need knowledge of the laws, jurisprudence, legal theory, judicial and administrative procedures. Indeed, a citizen might rely on this constitutional right and entrust his defense to an attorney, however in some cases he may decide he would not need such assistance. The right of citizens to legal representation enjoys special constitutional protection in cases where criminal proceedings have been opened, from the moment of detention or once charges have been brought – art. 30, s. 4 CRB. The explicit specification of said right within criminal trial has a particular significance from the perspective of the detained or indicted citizen in view of the necessity for specialized knowledge and skills to organize and conduct a line of defense of his rights and in view also of the importance of these rights.” The provision of art. 122, s. 1 CRB provides for the right of all individuals and entities to legal protection at all stages of judicial proceedings. This right is further developed in art. 14 of the Criminal Procedure Code (Наказателно-процесуален кодекс) (CPC). In accordance with art. 14, s. 1 CPC, the right to legal protection refers not only to defendants, but also to all participants in all stages of criminal proceedings.. Section 3 of this same article sets procedural guarantees for the right to legal protection, and section 4 entrusts the court and pre-trial authorities with a duty to explain to defendants and other citizens involved in criminal proceedings their procedural rights and to provide them the opportunity to effectively exercise these rights. Rights of defendants have been enumerated in art. 51, s. 1 CPC, such as the right to be informed of the reasons for indictment and the bases on which the charges have been brought, to provide explanations related to indictment, to read materials in the case and obtain necessary copies of documents, to submit evidence, and to appeal against decisions of the court and pre-trial authorities that infringe upon their rights and legal interests, etc. Among the rights provided in this section is the right to legal representation, which also allows for defense counsel to be present upon request of the defendant, at all investigative operations 2

For the sake of brevity reference will further only be made to „he‟ or „his‟.

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and activities. This allowance has also been proclaimed as a separate right of the defense counsel, as provided for in art. 75, s. 1 CPC, together with some other procedural rights provided for in view of a party‟s capacity in criminal proceedings. Art. 73, s. 1 CPC incorporates the provision of art. 30, s. 3 CRB – a defense counsel may take part in criminal proceedings from the moment of detention of the individual or once charges have been brought against the individual. The second section of this same provision obligates pre-trial authorities to explain to the defendant that he is entitled to use legal counsel services and to provide him the opportunity to contact such counsel. Pre-trial authorities may not conduct any acts or operations related to investigation until they have performed this particular obligation. Otherwise any and all operations or acts would be invalid, thus generating implications with regard to the validity of the proceedings in their entirety. The provision of art. 269, s. 2, item 3 indicating that court hearings are to be postponed when counsel for the defense fails to appear and his replacement is impossible without harming the legal protection of defendant, is a further guarantee of this protection. A defendant may not be deprived of his lawyer, once he has chosen to be represented in order to protect of his rights and legal interests. The previous version of this same provision allowed postponement of hearings solely for non-appearance of counsel in mandatory defense cases. The Constitutional Court has found this part of the provision unconstitutional. 2.1.2 Right to counsel in criminal proceedings The provision of art. 70 CPC, establishing cases of mandatory defense in criminal proceedings, is crucial to the right to legal protection. It is important to note that cases of mandatory defense in criminal cases, in accordance with legislation in force, coincide with cases of ex officio and free legal representation. Therefore, the regimes of ex officio and free legal representation will be examined below (Section 2.2). As already stated, insofar as the progress of criminal proceedings is at stake, the right to legal protection has been provided for with regard to all stages of trial. In cases of mandatory representation, the counsel should start acting from the moment of detention, or if he is not detained – once charges have been brought. This principle is underscored in Judgment No 604 of 3rd October 1991 in criminal case No 436 of 1991, First Criminal Division of the Supreme Court, Judge-Rapporteur Ms. Savka Stoyanova. It indicates that “having satisfied himself solely to notify defendant he was entitled to have recourse to legal representation within preliminary proceedings and having then completed all investigative activities and operation in the absence of counsel, the official in charge of the investigation allowed a particularly significant procedural omission under art. 73, 75, s. 1, and 87 CPC and restrained the right of defendant to legal protection. This amounts to a violation belonging to the so-called absolute grounds for rescinding a judicial act and the case needs to be remitted for a new examination to the stage of preliminary investigation, consequently all investigative acts and operations need to be carried out in the presence of counsel for the defense…” Detention at pre-trial has been envisaged under: - Art. 152a, s. 3 CPC – up to 72 hours, where it has been imposed by a public prosecutor, and up to 24 hours in cases of imposition by investigative authorities, as an interlocutory measure to ensure appearance of the defendant before court for the purposes of imposition of a measure of restraint in the form of detention in custody. - Art. 202, s. 1 – pre-trial detention of a suspect up to 24 hours. Where an investigator, in the absence of the prior consent of a prosecutor, imposed pre-trial detention, he must inform the suspect of the reasons for detention, offer him the opportunity to provide explanations in compliance with requirements under art. 73 and art. 87 CPC (with PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

regard to explanations and the participation of defense counsel where mandatory representation rules apply; no explanations may be provided without effective access or appointment of counsel), under art. 88, s. 1, 2, 4 and 5 CPC (with regard to the time and manner of interrogation), under art. 89 â&#x20AC;&#x201C; 91 CPC (with regard to possible confrontations of witnesses, participation of interpreters; with regard to probity of confessions and the obligation to collect further evidence), and under art. 157 CPC (with regard to forceful appearance), as well as to allow defendant to make requests, comments, and objections, and appeal various rulings in detriment to his rights and interests. Articles 70 â&#x20AC;&#x201C; 75 of the Ministry of the Interior Act (MIA) and art. 54 of the Rules and Regulations provide for grounds, cases, and procedures related to police detention. Art. 70, s. 4 MIA is a repetition of a constitutional provision, in the sense that individuals are entitled to legal representation from the moment of their detention. Further guarantees with regard to said right are not explicitly mentioned in this Act. The State also needs to provide the detainee held in custody an opportunity to meet his lawyer in private, i.e., in the absence of prison or police administration. With regard to charges, the provision of art. 209, s. 5 CPC stipulates that when charges are brought, the investigator needs to allow the defendant and his counsel to read the full text of the ruling outlining all the charges and, if need be, to provide additional explanation with regard to those charges. Research conducted by the Bulgarian Helsinki Committee indicates that access of individuals to defense counsel has been largely excluded from various stages of criminal proceedings. This problem is particularly serious at the pre-trial stage. The results of this research are summarized below.

Presence of counsel at various stages of criminal proceedings 32,1

At the pre-trial stage

50,4 53,5

Before the first judicial instance

69,2 62,0

Before the instance of appeal on the merits

71,4 57,6

Before the instance of cassation

70,7 0

A study of criminal cases A study among prisoners and detainees

The difference between ex-officio and contracted defense in the positive response related to availability of defense counsel follows.

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Type of counsel at the various stages of proceedings 90 80 70 60 50 40 30 20 10 0

76.2

71.7

77.9

Ex officio Contracted Relative Unspecified

28.5 21.1

17.6 10.9 0.1 3.3

0.0 3.0

At pre-trial

Before the 1st instance

8.8

8.1 0.0

0.0

Before the second instance

Before the third instance

The study of criminal cases was intentionally conducted so that the sample only included criminal cases disposed of in compliance with the legislation in force prior to January 1, 2000, when there were no provisions allowing the court and investigative bodies at pre-trial to appoint counsel to those who did not have the means to hire one. The question arises of whether the share of accused and defendants who have not had access to counsel would still be high in the presence of the new provisions of the law. Although a precise answer to this question can only be given after conducting a study using similar methodology the following data obtained by the study among prisoners and detainees could be used as a basis for a general assessment:

Absence of counsel in cases initiated before and after 1st January 2000 60 50

54.7

Prior to 1st Jan. 2000

46.7

After 1st Jan. 2000 35.3

40 28.5

30 20 10 0 At pre-trial

Before the 1st instance

During pre-trial and before the first instance court, the share of respondents who said they had been unrepresented is larger in cases initiated after January 1, 2000. This might seem paradoxical, but we should take into account that responses in the study among prisoners and detainees concerning access to counsel for the period prior to January 1, 2000 were given by people serving longer sentences or, in many cases, using the services of mandatory ex officio counsel. The number of such convicts after January 1 2000 is smaller. However, the results clearly indicate that the simple introduction of item 7 in Article 70 CPC in 1999, which provides for the assignment of counsel to indigent criminal defendants by the court, does not at all resolve the problems with access to counsel.

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2.1.3 Right to counsel and right to legal aid in non-criminal proceedings when deprivation of liberty is at stake There are a number of situations where the right to liberty of various categories of individuals is restricted. These situations are not, however, linked to criminal activity and fall well outside the scope of criminal law and process. Juvenile Delinquency Act The Juvenile Delinquency Act (JDA) has been adopted to address acts and omissions of juveniles not subject to criminal prosecution. This act outlines a set of norms related to the organization of state activities for combating such acts, it gives special measures and the relevant authorities that would implement them. The act also provides for, in cases of juveniles sentenced in criminal proceedings, a special regime for serving deprivation of liberty in “correctional homes.” Various authorities and structures have been set up to achieve the goals and objectives of the act, such as Juvenile Delinquency Commissions, Child Pedagogical Facilities, Social and Pedagogical Boarding Schools, Educational Boarding Schools, Temporary Placement Homes for Juveniles, Asylums for Children without Supervision. JDA contains a number of guarantees for the rights of juveniles, such as: – Mandatory presence of at least one of their parents or guardian during the examination of misdemeanors; – Summoning the class master from their schools; which could provide an additional viewpoint on character and previous behavior; – Participation of a public defender in examination of the so-called educational files concerned with infringements committed by juveniles. Where an educational file is to be heard regarding an infringement committed by a juvenile under 14, the public defender is designated by his parents or the legal substitutes thereof, and where the infringement has been committed by a juvenile under 18, he is himself competent to designate a public defender. Where individuals appear without defenders, the panel of the local Juvenile Delinquency Commission hearing the case would appoint ex officio a public defender. JDA is source of numerous problems with regard to the legal protection of juveniles. The primary concern is that no representation by lawyers is allowed before local commissions. The appointed ex officio public defender is an individual who, in practice, would be appointed from among Commission members. Therefore he would, instead of defending juveniles, approach his functions with a prejudice that in turn would render his defense weak and ineffective. The act also specifies the grounds for placement of juveniles in various institutions mentioned above. It is solely with regard to educational boarding schools that the Act has explicitly provided for judicial review, since this type of placement is viewed as a sanction under the act for infringements committed by juveniles. In all other placements, even though criteria for de facto deprivation of liberty formulated by the European Court of Human Rights (ECHR) are met, no judicial review is established. Therefore, no possibility for defense is available. Placement of defendants, at pre-trial, in psychiatric hospitals for the purposes of a forensic examination under the Public Health Act (Закон за народното здраве) The first-instance court is the authority competent to apply the above measure. Where a request has been formulated within pre-trial proceedings, the panel of the court hearing the measure is made up of a judge and two assessors, and where it has been made at the trial stage – the panel to impose the measure is the one hearing the case. The request may be formulated, either by the parties at pre-trial, or by the investigative authorities. Grounds for imposition of this measure are objective justifications for a forensic psychiatric examination of defendant at pre-trial. Such justifications may arise from a psychiatric PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

examination that has been ordered and reported with regard to the mental capacity of the defendant or with regard to his ability to provide explanations related to circumstances within the matters under examination (art. 117, s. 2, items 3 and 4), and where the psychiatric expert examination has not been able to reach an unambiguous conclusion and achieve its goal, since additional psychiatric examination of the defendant, in a psychiatric hospital, was needed. Where the above situation arises at pre-trial, the prosecutor must formulate a request addressed to the court. Where the same situation arises during trial, each of the parties may formulate a request, and the court also may, of its own motion, commence these additional proceedings. In both cases – at pre-trial and during trial – which are the only practical occurrences and have effectively been described in CPC, the court would hear from a forensic psychiatric examination and the defendant himself. Participation of a prosecutor and a defense counsel is mandatory. Only the ruling of the court rendered upon a request at pre-trial is subject to appeal. A 3-day time limit applies. The second-instance court renders its decision in compliance with art. 154, s. 4 CPC. The maximum time limit for conducting an examination in a psychiatric hospital is 30 days, renewable for an additional period of 30 days, following repetition of proceedings under art. 155, s. 2 CPC. There is, however, no separate ground for appeal of a court ruling for placement rendered at the trial stage. The reason for this distinction is that examination is a necessary premise for reaching a decision in the case and therefore a decision of the secondinstance court with regard to applicability of said measure would amount to an early determination on the merits of the case, or in a still less favorable occurrence – once placement is rescinded, the court might entirely be deprived of any possibility of reaching a decision in the case. Placement for compulsory treatment According to art. 61, 62, and 63 of the Public Health Act (Закон за народното здраве), a district prosecutor may propose compulsory treatment on the basis of an inspection and a forensic psychiatric examination. State and municipal authorities, medical institutions, relatives and other interested citizens may address signals and proposals for compulsory treatment to the prosecutor. Where an individual declines, in the absence of any valid reasons, to submit to a forensic psychiatric examination, the prosecutor may rule for a compulsory examination – in an outpatient or inpatient facility. There is a Judgment 3 of the European Court of Human Rights in a case against Bulgaria proclaiming a violation in this stage of the procedure on account of the absence of any medical consultation prior to the prosecutor‟s decision for compulsory inpatient psychiatric examination. Within two weeks following the proposal for compulsory treatment the court hears the case in public, in the presence of the prosecutor and the individual whose compulsory treatment is requested. Where the person fails to appear voluntarily at the hearing, with no valid reasons for his absence, he shall be brought before the court by force. Where he is placed in a medical institution and his state prevents him from attending the hearing, the court will hear him in said medical institution. The court will rule on the proposal of the prosecutor after hearing the individual, issuing a judgment on the basis of the evidence collected. The judgment may be appealed before the regional court within 7 days of its notification. A judgment is carried out by medical authorities who may seek the assistance, if needed, of Ministry of the Interior officials.

Varbanov v. Bulgaria, 5 October 2000

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There are some special provisions regarding criminal procedures for individuals with physical or mental disabilities. Besides mandatory representation in cases where defendants suffer from physical or mental disabilities preventing them from presenting an adequate defense, the following have been provided for the additional protection of such individuals: - The possibility for civil action to be brought by the public prosecutor. Art. 47, s. 1 CPC allows the prosecutor to file a civil action in the interest of individuals who, on account of being under age or suffering from mental or physical disabilities, may not be able to defend their rights and legal interests; - Social welfare services and legal assistance, free of charge, for those suffering from mental disease and various dependencies, to be provided by state and municipal medical institutions in accordance with art. 40 of the Public Health Act. Right to counsel for convicts sentenced to imprisonment The prison structure of Bulgaria has three main categories: prisons, labor correction facilities attached to the prisons, and pre-trial detention centers. The last are mainly used for arresting individuals at the pre-trial stage of proceedings. Art. 37, s. 1 of the Sentence Execution Act allows prisoners to file petitions and complaints and to appear in person before the prison, labor correctional facility or prison commuting facility Governors, to raise points of concern to them before the latter and to advance points in their favor as regards internal disciplinary proceedings. The second section of Article 37 provides for rules relating to petitions and complaints. These are to be immediately forwarded to the relevant authorities. Those in sealed envelopes addressed to the National Assembly, the President, the Council of Ministers, the Ministry of Justice, the Ministry of the Interior, the prosecution offices, courts, investigation services, as well as to human rights authorities and bodies of the UN and the Council of Europe may not be inspected by the prison administration. Foreigners By virtue of art. 3, s. 1 of the Criminal Code (CC), the criminal code is applied to all individuals who have committed a crime on the territory of Bulgaria, irrespective of their nationality. Therefore, foreign nationals may appear as defendants in criminal cases. According to art. 26, s. 2 CRB “foreigners residing in Bulgaria enjoy all the rights and have all the obligations under this Constitution to the exception of the rights and obligations laid out in the Constitution and other legislation that require a Bulgarian nationality”. This means that the right to legal protection for foreign nationals is guaranteed to the same extent as it is for Bulgarian nationals. The same applies to legal aid. Special provisions are also contained in CPC with regard to foreigners. For instance, under art. 105, s. 1 of the Judiciary System Act (Закон за съдебната власт) (JSA) the language of the court needs to be Bulgarian. The second section of this article provides for appointment of interpreters by the court where a party to the proceedings does not have sufficient command of the Bulgarian language. Expenses for translation in criminal cases are borne by the relevant court. Art. 70, s. 1, item 4 also provides for mandatory representation where the defendant does not have sufficient command of the Bulgarian language. In order for an ex officio counsel not to be appointed, defendant must clearly state he does not wish to have a lawyer. The Foreign Nationals in Bulgaria Act (Закон за чужденците в Република България) provides for legal assistance to foreign nationals under the age of 18. Art. 28a, s. 2 provides that the State Child Protection Agency temporarily provides legal assistance and representation, where necessary, to foreign nationals under 18 who have legally entered the country unaccompanied by parents or guardian, or accompanied, but left behind and not protected by the Refugee Asylum Act. The State Child Protection Agency also provides material support and care to meet their basic needs. PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

The program for legal protection of refugees and migrants of the Bulgarian Helsinki Committee offers free legal aid to asylum-seekers and individuals who have been granted humanitarian status or temporary protection as migrants, in the exercise and protection of their rights. The program is derived from principles of both Bulgarian and international law, and provides legal protection before administrative authorities (i.e. the Agency for Refugees with the Council of Ministers, the police, local authorities and social welfare services) and before the Bulgarian courts, the European Court of Human Rights, and other international or foreign judicial bodies., The program provides legal services in cases of violations of basic rights and freedoms guaranteed by the Bulgarian Constitution and international human rights treaties. Legal aid covers consultations, information, legal briefs and representation. 2.2 Eligibility criteria for granting legal aid in criminal cases 2.2.1 Substantive criteria In Bulgaria the appointment of ex officio counsel in criminal cases has been provided for in Art. 70 CPC. Defense is mandatory only in the cases enumerated in items 1 â&#x20AC;&#x201C; 7 of this article. When defense is mandatory, as specified in article 70, the relevant authority is under the obligation to appoint as counsel a practicing lawyer. In cases arising under items 4 and 5 of article 70, participation by counsel is not mandatory if the defendant states he does not wish to have a lawyer. Enumerated circumstances for which defense is mandatory (Article 70 of the CPC): (1) Juvenile Defendants (aged under 18) It should be noted that as a result of jurisprudential developments (e.g. Judgment No 365 of 18th November 1994 in criminal case No 846 of 1993), even though a defendant may have committed a crime while a minor, once he reaches the age of majority, he will no longer be eligible for legal aid. In practice, it often happens that an ex officio counsel is appointed to juvenile defendants at the pre-trial stage. Some of these defendants reach majority before the indictment is submitted to the court, and are therefore not represented by ex officio counsel at the first judicial instance. (2) Defendant suffers from physical or mental disabilities preventing him from assuming his own defense Once it has been determined that defendant is unable to provide his own defense on account of mental/physical disabilities and an ex officio counsel has been appointed, the latter should be given the opportunity to attend and take part in all procedural activities involving the defendant. By establishing mandatory appointment of an ex officio counsel to defendants with physical or mental disabilities, the lawmakers have sought to safeguard the right to legal protection from the moment charges are brought through the completion of the criminal proceedings. (3) Cases for which the punishment may be life imprisonment or deprivation of liberty of at least 10 years Article 70, item 3 of the CPC has been widely interpreted to require the appointment of ex officio counsel only for cases involving crimes for which the punishment is at least 10 years. This particular provision and its interpretation are in blatant contradiction with ECHR standards4, i.e. whenever deprivation of liberty is at stake the interests of justice require 4

See ECHR Judgment of 10th June 1996 in the case of Benham v. UK which indicates that where the punishment for a crime is imprisonment, the interests of justice would generally require legal representation by a lawyer PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

mandatory legal representation. A possible sentence of three-months imprisonment would trigger the right to free legal aid. In Bulgaria, however, there is a minimum of 10 years imprisonment before the right to legal aid is triggered. (4) Defendant does not have sufficient command of the Bulgarian language Jurisprudence of the Bulgarian courts on this subject is consistent. In Judgment No 68 of 20 th March 1981 in criminal case 26/81, the Second Criminal Division of the Supreme Court indicates that where the defendant does not have sufficient command of the Bulgarian language the court is under the obligation to appoint an interpreter. “an interpreter is appointed not only for the purposes of interrogation, but also to ensure the rights to legal protection, equality of arms and publicity of trial. The court, having not appointed an interpreter, has deprived him [defendant] of the possibility to gain an adequate idea of procedural activities and be able to correctly defend his rights and legal interests.” In addition, the Court ruled that participation of counsel was mandatory. “Hearing is postponed where counsel for the defense fails to appear, if his replacement is impossible without detriment to legal protection.” In this particular case, the “defendant, along with his co-defendants and witnesses, has been interrogated in the absence of counsel. The court has therefore deprived him of the opportunity to rely on and use the qualified services of his attorney in providing for his defense at trial. No express statement by him is found within the case evidencing his withdrawal of counsel powers to act or his wish not to have a lawyer. If defense counsel has failed to appear at hearing and has not been replaced, the court is under the obligation to postpone hearing. Besides, the court has not acted in compliance with the provision of art. 70, s. 1, item 4 CPC whereby participation of counsel at hearing is mandatory if defendant does not have sufficient command of the Bulgarian language”. Some have interpreted art. 70, s. 1, item 4 to mean that if an individual is a Bulgarian national, it is assumed that he speaks Bulgarian. Thus the scope of the provision is restricted without proper justification solely to foreign nationals5. However, it is clear that those Bulgarians belonging to ethnic minority groups are harmed by this interpretation of article 70. For example, the Turkish ethnic minority in Bulgaria often have an insufficient command of Bulgarian and are therefore not be able to form an adequate idea of procedural developments, have equality of arms, or realize their full right to legal protection. (5) Interests of co-defendants are conflicting and one of them has a lawyer Conflicting interests of co-defendants are found when they have not acted as co-perpetrators. In practical terms this means that it is necessary that the court determine that the several codefendants have conflicting interests, so that an ex officio counsel is appointed to those who do not have one. Otherwise it would be possible for a defendant to be put at a disadvantage if one or more defendants are represented and another is not. (6) Cases heard in the absence of the defendant Where the case is heard in the absence of the defendant his interests must be represented by defense counsel. Previously, this provision only applied to the trial stage, however at present defense is mandatory in all stages of the procedure if the defendant is absent. (7) The defendant cannot afford to hire a lawyer, wishes to have one and the interests of justice so require. This last element of art. 70, s. 1 CPC is of particular significance, since economic difficulties are among the main obstacles to effective access to justice. Resolution 78(8) of the 5

S. Judgment No 42/28.10.1985 General Assembly of the Criminal College in criminal case No 35/85.

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Committee of Ministers of the Council of Europe on free legal aid and legal counsel indicates that nobody should be impeded, for economic reasons, from protecting his rights before a court competent to rule in civil, commercial, administrative, social or taxation matters. In Judgment No 171 of 26th March 2002 of the Supreme Court of Cassation in criminal case No 57 of 2002, Third Criminal Division, it has been asserted that “the necessity for a defense counsel and, therefore, the obligation of the court to provide one, outside the scope of these circumstances [items 1-6 under art. 70 CPC], arises in presence of several circumstances, namely: 1) defendant cannot afford to hire a lawyer; 2) he wishes to have one, and 3) the interests of justice so require. [In the present case, in view of the criminal act under art. 196, s. 1, item 2 CC, participation of counsel in the proceedings had not been mandatory according to the procedural norm stated above. This means the court has not been under the obligation to provide a lawyer to the defendant, unless the latter had made a request in this sense. It is only following an express statement from the defendant that an obligation under art. 70, s. 3 CPC arises for the court, i.e. to appoint counsel for defendant following the relevant procedures (sending a letter to the local Bar Association requesting an ex officio lawyer be designated, and appointing him/her in a separate ruling). This is precisely what the first-instance S.( anonymity of court, that‟s why it‟s the S. court!!!?) district court has done. The defendant had made a request for an ex officio counsel before the court. It should be noted that participation of the ex officio counsel (appointed following the terms and conditions under art. 70, s. 3 CPC) in some stages of criminal proceedings does not oblige subsequent judicial instances of review to automatically apply this provision and provide counsel for the defendant in the absence of a request by him. For the above considerations, having examined the case in the absence of ex officio counsel, the appellate instance may not be held in procedural failure for restricting the procedural right to legal protection of defendant B. S. Such failure would only be found in the presence of an express request made by the defendant and an ill-founded refusal of the court to apply the provision of art. 70, s. 1, item 7.” In judgment No 475 of 15th November 2001 of the Supreme Court of Cassation in criminal case No 411 of 2001, Second Criminal Division, it has been indicated that “In accordance with art. 70, s. 1 CPC defense is mandatory where defendant can not afford to pay for an attorney, but wishes to have one, and the interests of justice so require”. It has noted further that: “During examination of the merits at first instance, the defendant appeared in person. He expressly stated his wish to have an ex officio counsel, having declared he was in financial difficulty and had not been able to find the funds needed to contract with a legal representative. He also submitted evidence in support of his statements, namely that his wife and he had both been registered as unemployed with the local Labor Office, that his family was entitled to monthly family allowance for three children, as well as special-purpose monthly benefits. Upon receiving such a request, the court has been under the obligation to assess its merits and, if it had deemed it ill-founded, the court should have outlined its reasoning and refused to grant the request. As noted in the minutes of proceedings from 16 th May 2000, when the hearing commenced, the only reasons given for refusal contradicted the provision of art. 70, s. 1, item 7 CPC. According to this provision, representation is mandatory in cases in which the defendant cannot afford to pay the lawyer, wishes to have one, and the interests of justice so require. The interests of justice, and not only the ones of the defendant, are of decisive importance with regard to the appointment of a lawyer in the presence of the other criteria. In any event it may be argued that the defendant always has an interest in receiving qualified professional assistance of a lawyer. In the present case his interest arises from the gravity of the offense and the potential punishment, as well as from the fact some of his co-defendants had been represented. The interests of justice require the appointment of an ex officio counsel who could take part in the hearing and provide his legal protection. Having refused to appoint an ex officio counsel, the first-instance court has infringed upon his right to legal protection...” PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

2.2.2 Financial criteria To prove their inability to cover expenses related to legal representation, individuals must submit evidence: material status declarations, certificates by competent state authorities, as well as any other relevant documents, which the court may deem appropriate. 2.2.3 Other eligibility questions Profile of defendants in the findings from research conducted by the Bulgarian Helsinki Committee Taking into consideration social factors having an impact on access to justice of criminal defendants in Bulgaria, the research of the Bulgarian Helsinki Committee was based on a carefully developed framework of analysis that was intended to assess the impact of ethnicity, age, education, and social status of defendants on justifications for charges, measures for restraint and, more generally, the percentile distribution of individuals with regard to the above characteristics in various groups, regarding their access to justice. It has been found, according to the study of the public prosecution criminal cases, that 6.8% of the accused and the defendants are women. This reflects the percentage among those sentenced for the period under study in the sample. The data are also confirmed by the National Institute of Statistics. Among those deprived of liberty, women accounted for 3.8% of the general sample. The difference reflects the fact that women are more often sentenced to punishments differing from the effective deprivation of liberty and that those punishments are shorter in duration. Ethnicity of the Accused, Defendants and Sentenced Persons In percentages:

Ethnicity of the accused 80

70,8 Bulgarians 56,3

Turks Roma

Other

24,8 20

17,2

16,8 10,9

1,7

1,5 0 Criminal cases

Convicts and detainees

Study

Although the percentage of Roma is much higher in both samples than their share in the population, this percentage is actually lower than the actual numbers in reality. In the research on public prosecution criminal cases they are also represented with a relative share lower than their real relative share because not all cases in the study had the 1-CC statistical form available. In cases where there was no such form, the researchers were instructed to mention Roma or other ethnicity only if there were other data available on that case, allowing for a similar identification (such as, for example, name). In case of an absence of such data, Bulgarian ethnicity was recorded for persons with Bulgarian names, and Turkish ethnicity for persons with Muslim names. In the research process among those deprived of liberty ethnicity PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

was determined according to the self-identification of the respondent. It is well known that under such circumstances a considerable number of people who are considered to belong to Roma communities prefer to identify themselves as Bulgarians or Turks. Age of the accused, defendants and sentenced persons In percentage, compared to the total sample of the different age groups:

Age of the accused 60

51.7

14-18

46.0

19-30

31-40

29.0

26.9

41-50

16.5

9.2 6.8

5.4

Over 50

5.3

3.3

0 Criminal cases - sentenced to effective imprisonment

Detainees and convicts

Study

The study of the criminal cases showed that the share of those under age was higher than that in persons deprived of liberty, which is normal considering that persons under age receive shorter punishments. The study of criminal cases showed a higher number of persons in the 19-30 year-old age bracket compared to that among persons deprived of liberty. The cause for this was the incidence of recidivism which is a strong factor affecting the length of sentence in the higher age groups. Education of the accused, defendants and sentenced persons In percentage compared to the total sample:

Education of the accused 60 Higher

45,1

42,6

High school

35,6

Primary 27,9

25,1

Basic

18,2

20 3,6

2,0

0 Criminal cases

Convicts and detainees

Study

The data clearly shows that the lower the education, the greater the probability of passing a sentence of deprivation of liberty on the accused. PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

Social status of the accused, defendants and sentenced persons By selected indexes in percentage compared to the total sample

Social status of the accused 60

51,0

Unqualified worker

45,5

Qualified worker Enterpreneur/Manager

20,1

14,7 15,5

14,4 7,4

Unemployed

5,4

0 Criminal cases

Convicts and detainees

Study

The share of the unemployed is lower and the share of the unqualified workers is higher among defendants in criminal cases compared to those in prisons. This may be due to a system error, as those deprived of liberty may refer to jobs that they have had or to their level of education, rather than to their actual social status. In response to another question in the research among those deprived of liberty, 57% of the respondents seemed to have been jobless by the time they had committed the act for which they had been sentenced. 41.8% of the persons covered by the criminal cases research had families, compared to 38.5% from the research among those deprived of liberty, despite the fact that the latter were older. This demonstrates the negative influence of the deprivation of liberty on marriage. The same effect has been confirmed by the higher percentage of the divorced among those deprived of liberty (14.1%) compared to those with criminal cases (8.4%). Measure of Restraint (in total and according to ethnicity of the persons) Percentage within each ethnic group.

Measure of restraint 80

71,0

67,8

Signature

68,8

Bail

59,6

Home arrest Custody

31,1 22,3

9,1

9,0

8,9 0,1

22,2

19,2

0,0

6,7 0,0

0,7

Turks

Roma

0 General distribution

Bulgarians

PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

2.2.4 Legal aid for victims of crimes Bulgarian law provides that victims of crimes may take part in criminal proceedings as private prosecutors and civil claimants. CPC provides for a number of rights for such individuals, including the right to legal representation or to hire a lawyer. There is, however, no duty on the part of the authorities of the proceedings to appoint ex officio a representative where the private prosecutor and civil claimant can not afford to hire a lawyer. There is therefore no provision similar to art. 70, s. 1, item 7 CPC, that grants legal aid to victims of crimes. 2.3 Other cases Apart from the described cases, no other possibilities for receiving free legal representation exist. 2.4 Procedures for granting legal aid Officials have a number of obligations to explain, ensure and provide assistance with regard to effective exercise of defendants‟ rights. Failure to meet these obligations amounts to a procedural failure and leads to deficiencies in the related activities. Individuals who are eligible for mandatory representation under art. 70 CPC must be informed of their right to ex officio counsel and the court must appoint them one. In cases of mandatory representation, irrespective of statements of the individuals to the contrary, the court or authorities at pre-trial must appoint counsel for the defense on its own motion. Cases where statements of individuals have some effect with regard to representation are referred to as “optional” cases of mandatory defense, in the sense that if defendant by an explicit statement waives his/her right to counsel, absence of counsel will not be in violation of the procedural rules.. These cover the lack of sufficient command of the Bulgarian language and cases of contradictory interests of co-defendants. However, in all circumstances where an individual has hired a lawyer to represent him before court, the participation of ex officio counsel is no longer mandatory and the ex officio counsel is eliminated from the hearing. Ex officio counsel is appointed by the court at the trial stage of proceedings, and at pre-trial by investigating authorities or the prosecutor. A practicing lawyer is appointed as counsel. A number of problems arise with regard to ex officio representation. Infringements occur with regard to appointment of counsel by certain panels of the courts or by relevant authorities at pre-trial. According to Ordinance No 2, establishing rules for lawyers and the professional responsibilities of lawyers, a court may appoint ex officio only a lawyer who has been approved by the Council of the local Bar Association. The issue of the quality of legal representation is a very serious concern that will be discussed below (section. 2.6). No express rules have been provided for appealing the appointment of a particular ex officio counsel. The only possibility is for the individual to designate a contracted attorney, which would annul the participation of ex officio counsel in the proceedings. The lack of legal representation in cases where it is mandatory amounts to a procedural failure that may result in the rescission of the judgment made under such circumstances. In cases of mandatory representation, appointment of counsel would be made ex officio. An express request of the individual for appointment of counsel is only needed under art. 70, s. 1, item 7 CPC (See Judgment No 509 of 14th November 2001 of the Supreme Court of Cassation in criminal case No 463 of 2001, Second Criminal Division). The request of the defendant for appointment of an ex officio counsel must be supported by written evidence submitted PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

following the instructions of the court, if his financial status can not be established from data contained in the case. 2.5 Scope of legal aid Legal aid covers all operations and activities of counsel for protection of the rights and legal interests of the individual. This includes consultations, legal briefs, his activity during all kinds of investigative operations at pre-trial, appearance at court hearings, appeals of judicial decisions and acts of pre-trial authorities, etc. No limitations to the scope of legal aid have been enumerated in the law. 2.6 Application of the legal aid norms in practice The first study conducted by the Bulgarian Helsinki Committee covered 1,357 public prosecution criminal cases, the size of this sample being determined on the basis of official statistical data on the average annual workload of the courts. The study covered 109 of the 127 first-instance courts in Bulgaria. The second study, of detainees and prisoners, covered a representative sample of 1,001 individuals in 26 of the 35 facilities for imprisonment. Results have indicated an extremely high degree of preclusion of criminal defendants from access to counsel, both ex officio and contracted, at all stages of criminal proceedings. In regards to the current system of legal aid, not only is it too restrictive, but the level of dissatisfaction among users is quite significant. The following is a summary of some general indicators outlining the problematic aspects regarding access to justice for indigent criminal defendants, as found in research undertaken by the Bulgarian Helsinki Committee.

Distribution of cases according to the instance of review at which they ended 6.3%

First

15.7%

Appeal on the merits Appeal on points of law 78.0%

 78% of the public prosecution criminal cases closed at first instance with no further appeal;

 15.7% closed at second instance;  6.3% closed at cassation. Gravity of charge and types of sentences A) Gravity of charge The research on criminal cases shows that 40% of all indictments are for minor offences (with deprivation of freedom for less than five years being a proposed punishment), while the remaining 60% are for felonies with the potential punishment of imprisonment exceeding five years. The gravity of indictment varies according to ethnicity, education and employment (see “Profile of the accused, defendants and sentenced persons” above ). PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE

B) Amendments in the initial indictment and re-submitting cases for further investigation  In 83.9% of the cases there was no amendment of the initial indictment  When there was an amendment, in 6.6% of all cases it was due to facts leading to an even graver indictment. In 4.5% of the total number of cases it was due to facts leading to an identical or lighter indictment  In 26.4% of the cases, the prosecutor sent the case back for further investigation  Only in 3.2% of all cases did the reporting judges send the case back for further investigation.

C) Types of outcome of criminal proceedings Types of outcome of criminal proceedings 23,4

Effective deprivation of liberty

46,1

Conditional deprivation of liberty Sentenced to punishment lighter than the deprivation of liberty

18,6 3,8

Acquittal Exemption from criminal liability and imposition of an administrative penalty

5,2 0,4

Public reprimand

2,4

Termination of criminal proceedings 0

According to the study of public prosecution criminal cases, the total average duration of the imposed deprivation of liberty is 48.5 months (or nearly 4 years). The punishment is longer than the average value of the real duration of deprivation of liberty, especially for the persons in correction centers of the open or semi-open type. According to interviews with prisoners and detainees, the average duration of deprivation of liberty is said to be 78.7 months or about 6 years which, too, is longer than the average length of the real period of deprivation of liberty.

end of part 1

PROJECT ON PROMOTING ACCESS TO JUSTICE IN CENTRAL AND EASTERN EUROPE