DECISION No 10 OF 28 SEPTEMBER 2010 ON CONSTITUTIONAL CASE No 10/2010
It is in compliance with the Constitution and with the principles of fair trial if, when a defendant chooses a counsel for the defense, a stand-in defender is appointed who at any rate is not fully fledged (given the right to attend the procedural acts involving the defendant person and to get acquainted with the lawsuit), yet this stand-in defender will have to plead in full if the defendant asks for or even if the defendant is unwilling, whenever an appointed counsel for the defense fails to appear for the defendant without any valid reason.
The Constitution and international standards do not absolutely preclude basing the indictment and the verdict on the evidence which is given by witnesses who have requested anonymity and which is corroborated solely by proofs that are provided by special intelligence devices as long as the sources of information are different and the charges are definitively proved.
The abolition of texts that allowed the defendant to compel to put the case on trial or to dismiss action does not disagree with the Constitution and with international standards providing it combines with other efficient tools resorted to upon an initiative from the defendant for the close of the pretrial phase criminal proceedings within a reasonable time.
The President and 60 MPs challenged the constitutionality and the compliance with the ECHR (the European Convention on Human Rights, otherwise known as the Convention for the Protection of Human Rights and Fundamental Freedoms) of some of the amendments to the Penal Procedure Code (PPC) that were made effective in May 2010. The Constitutional Court dismissed the challenges on the following grounds as summarized here:
1. On the newly introduced institute ,, stand-in defender” – Art. 94, paras 4, 5 and 6 of the PPC
The stand-in defender shall be appointed in line with the Legal Assistance Act rules as follows: а) in lawsuits for severe crimes; and b) the appointment is of exceptional importance for the conduct of the penal procedure within reasonable term. A stand-in defender may be appointed even if the defendant has already chosen and authorized a defender. In principle the stand-in defender enjoys limited powers: the stand-in defender shall get acquainted with the lawsuit and attend the procedural acts involving the defendant person. A stand-in defender shall assume the full powers of defender: а) with the consent of the defendant; or b) if there is no such consent – when the defense is absolutely obligatory and the appointed defender who is effectively summoned fails to appear for inexcusable reasons.
The institute of ,,stand-in defender” is intended to accelerate the criminal proceedings. It saves time that an assigned defender would need to become acquainted with the lawsuit if and when such has to be assigned in the course of the trial.
The Constitutional Court agreed that the procedure introduced does not bring in different or alternative criminal proceedings. The procedure is intended to deliver right away a lawyer who is competent to advise the defendant in a situation where the defendant cannot be advised by the defender he has chosen. The procedure satisfies the legitimate interest of the society, of the defendant and of the victim to close the trial within a reasonable time without privileging any party to the lawsuit. Therefore, the introduction of the stand-in defender does not affect the Constitution-proclaimed principle of the equality of citizens before the law.
The Constitutional Court unconditionally agreed that the participation of a competent counsel for the defense will help reveal the truth in a competitive trial (Art. 121, paras 1 and 2 of the Constitution ). The ,, stand-in defender” institute does not refute this principle. When a defendant has no defender at all, the possibility for a lawyer to participate in the trial is not limited; in the interest of justice thus a greater possibility is provided and when such а lawyer is authorized, there exist no hindrances for the authorized counsel for the defense to fulfill his obligation – i.e. the defense of the defendant – efficiently and without any difficulties.
The freedom of any person accused of having committed a crime to defend himself through legal assistance of his own choosing is not infringed on (Art. 6, 3, „с” of the ECHR). The Constitutional Court disagreed with the claims that in the pretrial phase the prosecutor might select a defender that suits him and that consequently would undermine the fair trial. It is the respective bar association that names the stand-in defender and not the authority that issues the formal act of appointment. Further, if possible, the bar association should name a defender named by the person for whom the legal assistance is intended.
When a stand-in defender assumes in full the obligations of the defender upon the defendant's consent, there is no doubt that the defendant's freedom to choose the form of defense, i.e. to defend himself in person or through legal assistance of his own choosing is neither taken away nor is it restricted. There is no cogent reason to disregard the defendant's wish to prefer the stand-in defender to the defender he has authorized since the stand-in is familiar with the lawsuit and has the required legal competence.
The hypothesis in which the stand-in defender acts as the defender without the defendant's consent deserves special attention.
The Constitutional Court assumed that the choice of a defender by the defendant does not boil down to signing the power of attorney and paying the attorney fee. Whenever the appointed defender is effectively summoned but fails to appear, the international treaties-set standard does not make it binding to suspend the proceedings as long as an attorney is assigned to substitute. For the sake of the interests of justice in the meaning of Art. 31, para 4 of the Constitution, the national lawmaker went beyond this standard and prescribed that only the non-appearance without any valid reason can justify proceedings involving the stand-in defender, without the defendant's consent at that only in cases where the participation of a defender in the penal procedure is absolutely obligatory.
The defendant's failure to ensure the real presence of the defender he has chosen shall not be detrimental of the rights and interests of others – for instance the accomplices who are liable to criminal proceedings, the victims who establish themselves as civil claimants and the public interest which calls for timely and efficient dispensation of justice. Therefore, whenever an authorized defender does not appear in criminal proceedings without any valid reason, the replacement with a stand-in defender is a proportionate and legally justified measure.
The Constitutional Court disagreed with the claims that the involvement of a stand-in defender as a full-fledged defender constitutes an inadmissible coercion on the defendant to agree to benefit from the legal assistance of an undesirable person. A stand-in is constituted as counsel for the defense without the defendant's consent only when the participation of a defender is absolutely obligatory in the interest of justice. In such cases the defendant's unwillingness to benefit from legal assistance has no legal implication. Moreover, the participation of an assigned defender does not strip the defendant of the right to defend himself in person or through legal assistance of his own choosing providing he makes sure the defender who he has authorized appears before the body that has instituted the criminal procedures.
2. On the amendment to Art. 177, para 1 of the PPC
After the enactment of the challenged amendment, the separate proscriptions that remained in force read that the accusation and the verdict may not be grounded only on the evidence of witnesses whose identity is not disclosed or only on special intelligence devices while the proscription on the combination of evidence from anonymous witnesses and special intelligence devices was abolished.
The Constitution refrains from imparting different force or a preliminarily determined force to the different kinds of evidence and to the instruments of evidence. The only exception is provided for in Art. 31, para 2, which reads that no one shall be convicted solely by virtue of confession. Such an approach is justified as first, it minimizes the risk of miscarriage of justice and, second, it saves the judicial bodies' power to take decisions by inner conviction which is based on objective, thorough and complete examination of all circumstances of the case, and without being restricted by evidence with a preliminarily determined force. There exists no other Constitution-based justification to give preliminarily determined force to the different kinds of the instruments of evidence. In any case the Court shall pronounce the defendant guilty if the indictment is proved in a doubtless manner.
The admissibility and the assessment of evidence are beyond the scope of the ECHR. These matters are solved by the national legislations and the domestic Judiciary. Following the amendments to Art. 177, para 1 of the PPC the Bulgarian legislation plans solutions that will tally with the established international standards of fair trial: t he accusation and the verdict will not be grounded only on the evidence of witnesses whose identity is not disclosed, including undercover agents; by virtue of the challenged new wording of Art. 177, para 1 of the PPC the accusation and the verdict will not be grounded only on the data provided by special intelligence devices. The investigation by an undercover agent is a special intelligence ,, device”, therefore, a guilty verdict may not be pronounced when the data resulting from the agent's interrogation are supported only by other special intelligence devices.
Indeed in an extremely rare hypothesis the accusation may refer to the combination of the evidence of a witness (respectively witnesses) whose identity will remain undisclosed and the data, provided by special intelligence devices from absolutely the same source of information (for instance, in the case of taped telephones it is only the statements of persons whose identity is not disclosed to the parties that are relevant to the subject to prove while these same persons are interrogated as witnesses whose identity will not be disclosed). In that case a criminal court should not render a guilty verdict without any other proofs to support the indictment. However, the exception referred to cannot justify an absolute statutory prohibition against a conviction on the basis of a combination of witnesses whose identity is not disclosed and the special intelligence devices resorted to.
3. On the abolition of Chapter Twenty-six of the PPC
The procedure abolished allowed the defendant, after a lapse of time of fixed duration, to ask the Court to move the lawsuit from a pretrial to a trial phase. This regulation made it possible to present the indictment to a court of first instance within two to three months or else terminate the criminal proceedings. The procedure was designed and intended to be an efficient tool to ensure ,, a reasonable time” in the pretrial phase of the criminal proceedings. The abolition is not unconstitutional as it does not affect the period for initiating legal action that Art. 31, para 1 of the Constitution provides for. The law-established time frame of pretrial criminal proceedings is in force and enforced. A guarantee that this prescription is observed is Art. 234, para 7 of the PPC reading that a ctions of investigation performed beyond the fixed periods shall not generate legal consequences, and the gathered evidence may not be used before the Court at the pronunciation of the verdict.
The Constitutional Court disagreed with the view that the challenged amendment precludes the efficient protection of a defendant's right to a hearing within ,, a reasonable time” in the meaning of Art. 6 (1) of the ECHR. Regarding the pretrial proceedings bodies, the new PPC of 2005 made it binding to conform unconditionally to the expiry of the procedural periods as provided for. The changes in the Constitution in 2006 and the new Judiciary Act of 2007 provided further legal guarantees for speedier hearing. The abolition of the PPC Chapter Twenty-six does not affect this system of norms. It is motivated by the legitimacy of the objective, in the light of Art. 31, para 4 of the Constitution, to improve legislation in the interest of good justice.
The main weakness of the abolished procedure was that it used a formal, purely quantified criterion to measure the concept “a reasonable time” in pretrial phase proceedings. Indeed as a rule this approach was adequate to the delay of trials for subjective reasons. However, in certain complicated trials the defendant benefited undeservedly – for instance whenever objective difficulties arise in detecting and involving accomplices, in gathering additional evidence, by means of, inter alia, the performance of court orders outside Bulgaria, the defendant's role in the delay of proceedings, etc.
The European Court of Human Rights judges whether the hearing is within a reasonable time on the basis of three criteria: а) the actual and legal complexity of the case; b) the conduct of competent authorities; and c ) the conduct of the right-holder. The prescription of Art. 6 (1) of the ECHR is violated only by delays for which the institutions of the State are to blame. By passage of the rescinded text which is challenged, the legislating authority pursued a constitutionally justified objective which is to guarantee the interests of justice in conformity with the conception of “the entitlement to a hearing within a reasonable time” of the European Court of Human Rights. While in some exceptional cases the new legislation would restrict the defendant's rights, the existing balancing mechanism must be recognized, namely, the abolition of all measures of procedural compulsion after the elapse of the periods that are identical with those of the institute abolished.
The abolition challenged does not create a gap in the legislation that falls short of the requirement of effective remedies before a national authority in line with Art. 13 of the ECHR. The remedies before a national authority are effective if they can prevent, respectively, timely stop the violation or adequately compensate for damages the person whose right has been violated. It is true that when the procedure, now abolished, was introduced in 2003, the country did not hold an effective remedy to guarantee that the pretrial phase criminal proceedings are conducted within a reasonable time. Alternative options were developed in the subsequent period to hear criminal lawsuits in a pretrial phase and within a reasonable time.
A new independent authority was set up in 2007 – an Inspectorate with the Supreme Judicial Council. If approached by the defendant, the Inspectorate is free to take various measures that are capable of accelerating the pretrial proceedings within a reasonable time. Therefore, the abolition of Chapter Twenty-six of the PPC did not generate a legal vacuum which is inconsistent with the international standards of the effective defendant's rights protection.
Председател: Евгени Танчев