Roma and access to justice in Bulgaria

10 April 2001

Krassimir Kanev¹

In September 1997, a Romani man named Mr P.D. was detained in a police precinct in the town of B. Mr P.D. is a middle-aged man with only a primary education. He had been sentenced several times previously for various crimes. Soon after he was detained, he escaped from custody, but several hours later was detained again by police. On the next day, he was charged with three crimes: robbery with physical assault resulting in bodily harm, attempted homosexual rape, and escape from custody. According to the accusation warrant, Mr P.D. took 30,000 Bulgarian leva (approximately fifteen euros in that year) from the pocket of the shirt of Mr F.K. after inviting him to his home and physically attacking him. Then he allegedly attempted to forceMr F.K. to perform fellatio on him, but ceased the assault when Mr F.K. told him that his friends knew where he was. The Penal Code of Bulgaria provides for imprisonment of between five and fifteen years for a robbery qualified by exacerbating circumstances. Persons found guilty of attempted homosexual rape may be punished by imprisonment of between one and five years, and escape from lawful detention carries a possible prison sentence of up to three years.

Mr P.D. denied that he was the perpetrator of the crimes of which he was accused and he later alleged that another person, Mr V.M., who the victim himself initially stated had taken part in the beating, had perpetrated them. Mr V.M. however died during the course of the pre-trial investigation (of causes unrelated to the investigation). Mr P.D. provided a different explanation for the wounds on the face of Mr F.K. to that in the accusation warrant and his account of the behaviour of Mr F.K. is at odds with the one set out in the warrant.

Although Mr P.D. was reportedly aware of his right of access to a lawyer, he lacked the money to hire one. The investigator provided a lawyer, Ms P.H., who asked 10,000 Bulgarian leva (around five euros at the time) from Mr P.D. as a fee. When he said that he did not have the money to pay her, she left, and the investigator did not appoint an ex officio lawyer for Mr P.D. Thus the preliminary investigation was conducted without a defence lawyer’s involvement, and Mr P.D. also did not have legal representation during his trial before the Plovdiv Regional Court, which took place in January 1998. The court found Mr P.D. guilty of all three crimes of which he was accused, and sentenced him to eleven years imprisonment for the robbery, three years and six months imprisonment for the attempt at homosexual rape, and two years imprisonment for escaping from custody. The court also ruled that the second and the third punishment should be served through an integrated sentence of three years and six months imprisonment, but that the first sentence should be served separately. Thus Mr P.D. was sentenced altogether to fourteen years and six months imprisonment as well as to pay 630,000 Bulgarian leva (then around 315 Euro) to Mr F.K. in damages. In addition, the court ruled that Mr P.D. should be banished from his native town for three years after serving his sentence, and that his sentence should be read out on the local radio station as a "public reprimand".

Mr P.D., again without the help of a lawyer, appealed to the Appellate Court of Plovdiv. In his appeal he states: "The judge… ordered me removed from the hearing several times because of my repeated demands for an ex officio defence, and the case was carried out almost in my absence… The accusation against me was complicated... I was unable to deal with it properly without the help of a jurist. I was deprived of my right of defence which would be able to prove the truth and to disprove the prosecutor’s accusations… I did not have the means for such a highly paid defence, so therefore I insisted on an official one which would have been sufficient, as the truth was on my side." In December 1998, the Plovdiv Appellate Court confirmed the sentence of the trial court. It did not even mention in its reasoning Mr P.D.’s complaint concerning his lack of legal defence.

In his appeal to the Supreme Court of Cassation, written by himself, Mr P.D. again claimed that he was not guilty and again raised the issue of his lack of legal representation before the two previous courts. This however did not have any effect — in April 1999, the sentence was again confirmed in full. In its decision, the Supreme Court of Cassation did not consider at all the issue of the lack of legal defence. However, the Court ruled that the law had been followed at all stages of the procedure. After exhausting this last remedy, Mr P.D. filed a complaint with the European Court of Human Rights in Strasbourg. As of April 2001, this complaint was pending before the Court.

The Supreme Court of Cassation was correct — it is possible in Bulgaria, without authorities deviating in any way from the specifications set down in the Code of Criminal Procedure (CCP), for a person to be sentenced to fourteen years and six months imprisonment without the participation of a defence lawyer at all stages of the criminal proceedings. Bulgaria has been a party to the European Convention on Human Rights and Fundamental Freedoms (ECHR) since 1992 and is bound by Article 6, paragraph 3(c), which requires the state party to ensure legal defence in the criminal process free of charge for all persons who do not have the means to pay, “when the interests of justice so require." However, no amendments to bring Bulgarian law into conformity with this provision have to date been adopted. The Constitution provides for the right of all persons to legal counsel from the moment of detention, but this does not include an obligation of the state to provide it for free to poor defendants. Article 70 of the CCP guarantees mandatory ex officio defence at all stages of the procedure in only a very limited number of cases. These include cases in which the accused is a minor; when the accused suffers from physical or mental disabilities which impede him or her from conducting his or her own defence; when the case refers to a crime for which the punishment provided is the death penalty, life imprisonment or deprivation of liberty for not less than ten years; when the accused does not speak Bulgarian; where the interests of the accused persons are contradictory and one of them has defence counsel; and when the case is tried in absentia. For these categories of defendants, the investigator or the judge shall be obliged to appoint a defence counsel, and the lawyer’s fees are paid from the budgets of the respective institutions (investigation departments or courts).

The Supreme Court has been very restrictive in interpreting Article 70 of the CCP. According to an obligatory interpretation provided in 1978 by the Plenary Meeting of the Supreme Court, the phrase “not less than ten years" should be interpreted to mean that the minimum punishment envisaged in a single penal code article under which a person is accused or indicted should be at least ten years². Thus, the state is not obliged to provide legal defence in cases such as that of Mr P.D., involving accusations which envisage punishments of between five and fifteen years imprisonment. In 1999, a new provision was introduced to Article 70 of the CCP, extending the scope of the obligatory defence to cases in which the defendant is unable to pay the lawyer’s fee, wants to have a lawyer and the “interests of justice so require." This, however, is a vague provision and experience since its introduction shows that it has rarely, if ever, been applied. What the “interests of justice require" is, is to be interpreted by the investigators of the crime. They are supposed to appoint a defence attorney and pay counsel from the budgets of their own institutions. In fact, when the new provision was introduced in 1999, the Supreme Court ruled that the mere request of the defendant to have a lawyer appointed is not sufficient if the defendant cannot show a genuine inability to defend himself or herself.³

In addition to the CCP, Article 35, paragraph 1 of the Attorneys Act obliges lawyers to provide free legal assistance to poor persons and to persons living only from alimony. However, as in the case of the criminal process, no organisational infrastructure has been created at the bar associations for the enforcement of this provision, and the state has not provided means for guaranteeing its application. There is a widespread conviction among practising lawyers that this is a defunct law.

In early 1999, the Bulgarian Helsinki Committee (BHC) conducted a survey among prisoners on legal defence in the criminal process and its effects. The BHC surveyed 993 prisoners — a little less than 10% of their total number. When asked whether they had a lawyer at various stages of the procedure, 54% answered that they did not have one during preliminary investigation; 40% stated that they did not have one during the first instance (trial) court; and 43% reported that they did not have one during appeal. These figures, striking by themselves, are even more noteworthy when we take into account that the respondents who were charged under Criminal Code provisions envisaging five to ten years imprisonment were even more frequently deprived of legal defence (63% of them said that they did not have a lawyer during preliminary investigation) than those charged under provisions envisaging up to five years of imprisonment (56% of them said that they did not have a lawyer during preliminary investigation). Thirty-five percent of those whose charges might put them behind bars for more than ten years said that they did not have a lawyer during preliminary investigation⁴. The survey also clearly indicates that Roma are more likely to go through criminal proceedings without a lawyer than Bulgarians, although they tend to be charged for crimes that result in lesser punishments⁵. Sixty-four percent of Roma, as opposed to fifty-eight percent of Bulgarians, said that they did not have a lawyer during the preliminary investigation.

Absence of legal defence, especially during the preliminary investigation, not only has a serious negative effect on the fairness of the procedure, but it also removes the main preventive protection of defendants against torture and ill-treatment.The survey shows a very high incidence of torture and ill-treatment of criminal defendants, especially during the first hours of detention. Fifty-one percent of them allege that they have been victims of physical abuse during detention and fifty-three percent report that they have been victims of physical abuse in the police station. Just as Roma are more likely to be deprived of a legal defence, they are more likely to face torture or ill-treatment upon arrest; fifty-four percent of Romani prisoners allege that they have been victims of physical abuse during detention and sixty percent state that they have been abused inside the police station.

Access to legal counsel in the criminal process, especially for Roma, is a serious problem in Bulgaria as both the legal framework and enforcement of the provisions therein allow for a gross miscarriage of justice. The national legal aid system has a long way to go to reach even the minimum standards guaranteed by international law. In this regard, Bulgaria is behind not only among countries seeking accession to the European Union, but among other Council of Europe member states too.

Endnotes:

1. Krassimir Kanev is Director of the Sofia-based non-governmental organisation Bulgarian Helsinki Committee.
2. Decision No.6 of the Plenary Meeting of the Supreme Court from 4 May 1978.
3. SC Decision No.546 from 6 October 1999.
4. The report on the survey is available on Internet at: http://www.bghelsinki.org. For the purposes of the BHC study, the upper limit of the sentence envisaged was taken into account. That is, if the charge envisaged 5-15 years imprisonment, the individual at issue was included in the category of those whose crimes foresee 10-15 years imprisonment.
5. Ibid.