TrustHLT/LaCour huggingface dataset:
GR1 (Government): Indeed, the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, to which the applicant referred in his request to the Grand Chamber and subsequent memorial, indicate shortcomings in the implementation of the legal provisions governing access to lawyer during police detention.
GR1 (Government): However, we claim that those findings, while a matter of concern, could not serve as grounds for an automatic conclusion that as a rule, in Bulgaria, each detainee's right to defense and to a fair trial, where such a trial subsequently unfolds, have been violated from the beginning of the proceedings.
GR1 (Government): Mr. President, we admit that in all probability, the applicant did not have access to legal
GR1 (Government): advice during the first three days of his detention.
GR1 (Government): We do not dispose of an explicit proof that Mr. Semyonov had waived that right.
GR1 (Government): Nowadays, almost 17 years after the event, it is impossible to reconstruct with precision their sequence and to honestly support the statement that the domestic legal framework, including its most superior act, the Constitution, which provides for access to legal advice from the moment of the arrest, have been fully implemented in the present case.
GR1 (Government): Having said that, however, the government maintains that the rights of the applicant under Article VI of the Convention were not violated for the following reasons.
GR1 (Government): First, we maintain that judging from all the documents in our possession and the applicant's submissions, Mr. Semyonov was not formally interrogated during the first three days of
GR1 (Government): his detention.
GR1 (Government): Second, the absence of a lawyer during the impugned period did not lead to arbitrary restrictions of the procedural rights of the applicant.
GR1 (Government): Even assuming that some questioning occurred, it was only oral, informal, and had no bearing on the criminal proceedings against him.
GR1 (Government): Third, we maintain that the rights of the defense may be violated where the defendant makes statements or undertakes behavior which has impact on its trial.
GR1 (Government): In any event, however, the state must be given a chance to remedy unjustified restrictions on the right to counsel.
GR1 (Government): Fourth, Article VI, paragraph 3C, does not create a freestanding right of access to legal advice, and the lack of access to counsel must be viewed within the context of the criminal proceedings as a whole.
GR1 (Government): I will now proceed with our first submission.
GR1 (Government): The applicant argues that there are inaccuracies in the statement of facts in the chamber judgment.
GR1 (Government): His representative states in particular that, and I quote, the interrogation of the applicant began on the evening of October 3, 1999, and continued over the following days.
GR1 (Government): End of the quotation.
GR1 (Government): In response to that, the government contend that the applicant was not interrogated in the course of the first three days.
GR1 (Government): The applicant was indeed arrested on October 3, 1999, in Sofia on the strength of a police order issued on July 9.
GR1 (Government): On the same day, October 3, the investigator in Burgas ordered Colonel Botubotev, a senior police officer, in writing to ensure a medical checkup of the applicant and his accomplice, Mr. Sabev.
GR1 (Government): There was no order and no mandate for Colonel Botubotev to interview the applicant.
GR1 (Government): There is no written trace that such an interview with the police or with an investigator took place.
GR1 (Government): The applicant himself admits in paragraph 43 of his memorial to the Grand Chamber that he never signed any document in connection to his questioning.
GR1 (Government): On October 4, the applicant was accommodated in the Sofia investigative detention facility by virtue of a detention order of the investigator in Burgas.
GR1 (Government): He was transferred to Burgas on October 5.
GR1 (Government): His first interview took place on October 6 at noon in Burgas and was held in the presence of counsel.
GR1 (Government): In the light of the above, the government maintained that the time between the 3rd and the 6th of October was used by the authorities for, first, making the necessary arrangements for Mr. Semyonov's transfer to Burgas, second, his actual transfer, third, his medical checkup
GR1 (Government): by two medical professionals in Burgas, and fourth, his accommodation in the Burgas investigative detention facility.
GR1 (Government): We would also like to refer to the rules governing transfer of suspects at the time submitted to the court on June 15, 2016, which require preliminary planning of any transfer, thus indicating that some technological time is necessary before transferring a suspect.
GR1 (Government): Our second submission is that the absence of a lawyer during the impugned period did not lead to arbitrary restrictions of the procedural rights of the applicant.
GR1 (Government): The government maintained that even assuming that some questioning indeed took place, as Mr. Semyonov argues, it was only oral, informal, with absolutely no bearing on the criminal
GR1 (Government): proceedings.
GR1 (Government): The applicant made no incriminating or exculpatory statements.
GR1 (Government): No statements were ever recorded or joined to the file.
GR1 (Government): He did not point to any evidence, and his behavior was in no manner taken into account in the subsequent criminal proceedings against him.
GR1 (Government): Mr. President, it is possible that a conversation, even questioning, took place between the applicant
GR1 (Government): and the police officers or an investigator in Sofia.
GR1 (Government): Such questioning, however, was not objectified in any form.
GR1 (Government): Moreover, the applicant never approached the domestic authorities with a complaint that he had to give statements under duress and in the absence of a lawyer.
GR1 (Government): He never properly complained of inflicted ill treatment during his custody.
GR1 (Government): Finally, on no occasion did the authorities make any references, inferences, conclusions, or statements based on possible submissions, testimony, or behavior of the applicant during the impugned period.
GR1 (Government): The authorities never relied on any hearsay evidence obtained as a result.
GR1 (Government): In conclusion, we claim that despite the absence of a lawyer, the procedural rights of the applicant were not improperly restricted.
GR1 (Government): I will now turn to our third submission.
GR1 (Government): The applicant's representative suggests in his memorial and today that the right to assistance of a lawyer is a freestanding right and the question of whether there has been a violation of it is to be determined by the presence of justified reasons for preventing a detained person to be assisted by a lawyer in the initial interrogations.
GR1 (Government): Such an approach, in essence, excludes an analysis of whether the restriction had any impact on the subsequent proceedings.
GR1 (Government): The government does not agree with this position and maintains that the rights of the defense may be violated when the defendant makes statements or undertakes behavior which have impact on his trial.
GR1 (Government): In any event, the state must be given a chance to remedy unjustified restrictions on the right to counsel.
GR1 (Government): We base our submission on two main points.
GR1 (Government): First, such an approach is in line with the court's case law and second, it stems from the principle of subsidiarity and shrink in the convention system.
GR1 (Government): In support of our first point, we refer to the leading judgment of Söders v. Turkey
GR1 (Government): where the court found in particular that first and foremost, access to a lawyer is needed in case of an interrogation and second, lawyer is indispensable where national law attaches consequences to statements made during that interrogation.
GR1 (Government): Neither of these two conditions is present in our case.
GR1 (Government): Indeed, there is case law which may be interpreted as suggesting an absolute right to legal advice without the need to look into the specific impact on the subsequent proceedings.
GR1 (Government): I refer here to the judgments in the cases of John Murray v. United Kingdom and of Dianon
GR1 (Government): v. Turkey.
GR1 (Government): However, unlike the present case, in these cases, the court found deficiencies in the applicable legal rules.
GR1 (Government): In the first case, due to a deficient legal framework, the applicant was confronted with an unsolvable fundamental dilemma relating to his defense.
GR1 (Government): In the second case, as pointed out by the Chamber, the decisive factor for the court to find a violation was the fact that at the relevant time, the Turkish legislation did not provide a toll for access to a lawyer in the first days of the detention.
GR1 (Government): In the words of the court, a systematic restriction of this kind on the basis of the relevant statutory provisions is sufficient in itself for a violation of Article VI to be found.
GR1 (Government): We would not deny that such a lack of safeguards and the correlated risk to draw inferences from silence or statements made may be taken as creating a negative impact ab initio on the subsequent criminal proceedings.
GR1 (Government): In essence, it can put the defendant in uncertainty and confusion from the beginning of the proceedings as to what behavior to undertake, whereas any behavior will be used to his detriment.
GR1 (Government): As stated before, however, this is not the situation in Mr. Simeonov's case.
GR1 (Government): An adequate legal framework was well in place, the applicant was not formally interrogated, and the national law did not attach any consequences to statements made before the police or an investigator which are not part of an official questioning in the course of criminal proceedings.
GR1 (Government): In respect of our second point, the government submit that in any event, the state must be given a chance to remedy any failure to ensure lawyer during initial interrogations.
GR1 (Government): Such an approach is in line with the principle of subsidiarity enshrined in the convention system.
GR1 (Government): The court has held consistently that it is fundamental to the machinery of protection established by the convention that the national systems themselves provide redress for breaches of its provisions.
GR1 (Government): In the context of criminal proceedings, in such situations, exclusion of evidence or prohibition to draw adverse inferences seem to be a reasonable remedial action in line with the public interest.
GR1 (Government): Another remedial action that comes to mind is termination of proceedings or obligatory acquittal, but in our view, such an approach would be extreme, leading to situations where serious crimes remain unpunished.
GR1 (Government): The Bulgarian legislation provides for exclusion of evidence, and as stated before, no evidence potentially collected in the first three days of Mr. Simeonov's detention were ever used
GR1 (Government): in the criminal proceedings.
GR1 (Government): The remedial nature of the exclusionary rule is also cautiously suggested within the context of the fairness of the proceedings principle in the Directive 2013-48 of the Council and the European Parliament on the right of access to a lawyer.
GR1 (Government): The leading judgment of 1966 of the United States Supreme Court in the case of Miranda v. Arizona is construed on the idea that questioning of a defendant usually happens in a police-dominated
GR1 (Government): atmosphere where there is a high risk that the individual may be improperly subjugated to the will of his examiner.
GR1 (Government): In order to avoid that, the individual must properly be informed of his right to a lawyer and ensured such if requested.
GR1 (Government): Otherwise, the thus collected evidence is inadmissible at trial.
GR1 (Government): The Canadian Supreme Court has adopted the same approach in the leading case of 1994, Bar v. Bartle.
GR1 (Government): Therefore, we strongly underline that there seems to be a consensus among the States with similar human rights protective mechanisms, which is also in line with the principle of subsidiarity of the Convention system and with the Court's case law, that in the context of the fair trial, as a rule, restrictions on the right to counsel must have impact on the trial to be considered unjustified.
GR1 (Government): In any event, the State must be given an opportunity to undertake a remedial action, such as exclusion of evidence, but should not be compelled to terminate the proceedings or necessarily a kit in order to remedy such an omission.
GR1 (Government): This brings me to our fourth and final submission, that in any event, as Article VI, paragraph 3C does not create a freestanding right of access to legal advice, its exigencies must always be viewed within the context of the proceedings as a whole.
GR1 (Government): That is, in the light of all the circumstances of a case and the manner in which the proceedings were conducted.
GR1 (Government): This approach permits each fact, evidence and decision of the authorities to be taken into account without resort to formal and dispositive labels.
GR1 (Government): In our view, it is not without reason that the fathers of the Convention decided to include the right to counsel in Article VI of the Convention as a guarantee of the right to a fair trial.
GR1 (Government): They did not create it in a separate provision as a freestanding right.
GR1 (Government): They did not formulate it as a guarantee against still treatment or arbitrary detention, and did not even discuss such an option, judging from the Travaux Preparatoire.
GR1 (Government): In its case law, the Court has consistently held that the intrinsic aim of the guarantees in paragraph 3 of Article VI is to contribute to ensuring the fairness of the criminal proceedings as a whole.
GR1 (Government): But those guarantees are not a name to themselves.
GR1 (Government): Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings, and not on the basis of the isolated consideration of one particular aspect or incident.
GR1 (Government): In other words, the purpose of those guarantees is to give effect, in a practical way, to the fundamental right to a fair trial.
GR1 (Government): One can see the rationale behind such an approach taken by the Court in the case of Gavgen v.
GR1 (Government): Germany, for example.
GR1 (Government): Criminal proceedings are a complex matter.
GR1 (Government): They strive to reconcile two highly important interests, the interests of the individual to be protected from arbitrary invasions of his liberties by the authorities, and the public interest inherent in revealing and investigating crimes and securing evidence for that purpose.
GR1 (Government): Both interests are important, and they both may bring bearings on the effective implementation of the Convention.
GR1 (Government): Any temptation, albeit occasionally strong and seemingly fair, to give either of the two interests predominance may result in violations of fundamental rights.
GR1 (Government): The right to effective protection of life and prohibition of ill treatment under Articles 2, 3, and 4, or the right to a fair trial under Article 6 of the Convention.
GR1 (Government): The Government of Bulgaria maintains that a fair balance between the competing interests was observed in the present case.
GR1 (Government): As the Chamber has found, the applicant had a fair trial, and the lack of access to a lawyer during the first three days of his detention did not entail a breach of Article 6, paragraph 3c, in relation to Article 6, paragraph 1 of the Convention.
GR1 (Government): Mr. President, Honourable Judges, for all those reasons, the Government of Bulgaria
GR1 (Government): invite the Court to find that Mr. Semyonov's rights under Article 6 of the Convention have
GR1 (Government): not been violated.
András Sajó (JudgeP): Thank you, Mrs. Dimitrova, and thanks for your submissions.
András Sajó (JudgeP): I now invite the judges of the Grand Chamber wishing to do so to put their questions to the parties.
András Sajó (JudgeP): Yes, the first question will be raised by Judge Serghides.
András Sajó (JudgeP): Please.
Georgios A. Serghides (Judge): Actually, I have a couple of questions to both parties in regard to their recent observations.
Georgios A. Serghides (Judge): And I will start first with the government observations.
Georgios A. Serghides (Judge): At paragraph 6 of your observations, you say that on October 1999, when the applicant was arrested, the authorities conducted a series of investigative measures.
Georgios A. Serghides (Judge): They interviewed the applicants, accomplished witnesses, friends of the suspects, and anyone who could in some manner relate to the events.
Georgios A. Serghides (Judge): Evidential material was gathered in a systematic manner, and I underline the word systematic.
Georgios A. Serghides (Judge): In paragraph 9, you say that on 3rd of October, based on the applicant's submissions – and I don't know what submissions you mean – and the investigators' detention order of the 4th of October, he was taken to a police arrest and then to the Sofia Investigative Detention Facility.
Georgios A. Serghides (Judge): On paragraph 10, you say that on the 4th of October, the investigator in Berkas, the one in charge of the case, issued an order for the applicant's detention for 24 hours.
Georgios A. Serghides (Judge): On paragraph 11, you say that the applicant was examined by the doctor and a forensic doctor.
Georgios A. Serghides (Judge): In paragraph 13, you admit that there was an investigation file.
Georgios A. Serghides (Judge): But despite the above, you say that there was no trace of any interview of the applicants during these three days.
Georgios A. Serghides (Judge): My first question is, how do you explain this?
Georgios A. Serghides (Judge): And the second question is, in relation to this period, do you say categorically that there is no record proving that the applicant was asked any question whatsoever, even to state his name?
Georgios A. Serghides (Judge): And how do you explain the investigator of Berkas to issue an order for detention on 4th of October without the applicant being asked any question?
Georgios A. Serghides (Judge): Now, in relation to – the second question refers to the applicant.
Georgios A. Serghides (Judge): In paragraph 42 of the observations, the applicant argues that it may be that the assistance of a lawyer during the first three days of interrogation would not have resulted in his acquittal.
Georgios A. Serghides (Judge): On the other hand, the government, at paragraph 38 of their observation, underline that the applicant does not argue that any particular statements made by him between the 3rd and the 6th of October were later used in the criminal proceedings.
Georgios A. Serghides (Judge): Based on the above statements, and with a retrospective look, could the applicant be more specific?
Georgios A. Serghides (Judge): I know that you answered the question, but could you be more specific how the lack of a lawyer between the 3rd and the 6th of October had any effect whatsoever on the subsequent proceedings before the domestic courts, on any of the applicant's substantive or procedural rights and on the fairness of the trial as a whole?
András Sajó (JudgeP): The next questions will be asked by Judge Lemmens, please.
Paul Lemmens (Judge): I would like to ask a question to both parties.
Paul Lemmens (Judge): It has been argued by the applicant that when the applicant saw a lawyer on the 6th of October, that was Mr. Todorov, the appointed lawyer,
Paul Lemmens (Judge): that he was not able to meet that lawyer before the interrogation by the investigator.
Paul Lemmens (Judge): And I quote from paragraph 33 of the submissions of the applicant, that indeed, all his meetings with lawyers during the pre-trial proceedings were conducted in the office of the investigator, with the latter always being present.
Paul Lemmens (Judge): End of quote.
Paul Lemmens (Judge): I would like to ask whether, according to the parties, this is indeed part of the complaint, because we are now on the 6th of October for the first time in interrogation with a lawyer.
Paul Lemmens (Judge): And if so, whether the government has something to say about the presence of other people during the conversation between the applicant and his lawyer.
Paul Lemmens (Judge): There's something unclear about what this statement means in the context of the whole case.
Paul Lemmens (Judge): And I would like to ask the parties to clarify this.
András Sajó (JudgeP): Judge Grozev, if you'll ask the next questions, please.
Yonko Grozev (Judge): My question is for counsel for the applicant, but the government might comment if they wish so, of course.
Yonko Grozev (Judge): My question is with respect to the argument that the right to access to a lawyer should not necessarily be linked to the overall assessment of the fairness of the trial.
Yonko Grozev (Judge): What would then be the remedy of a finding of a violation, is my question.
Yonko Grozev (Judge): And more specifically, with respect to the reopening of the proceedings, what would be the possible standards in more general terms for reopening and in the specific circumstances of the present case?
András Sajó (JudgeP): President López Guerra, please.
Luis López Guerra (Judge): Just some information from the government.
Luis López Guerra (Judge): The applicant was arrested the 3rd of October.
Luis López Guerra (Judge): He remained arrested for the 3rd, the 4th, the 5th, the 6th of October.
Luis López Guerra (Judge): No lawyer was appointed.
Luis López Guerra (Judge): It seems that no evidence was gathered during these two or three days.
Luis López Guerra (Judge): No case paper shows that the applicant was questioned by the police.
Luis López Guerra (Judge): He was not involved in any other investigative measure.
Luis López Guerra (Judge): No investigation parade or any kind of other biological sampling or anything.
Luis López Guerra (Judge): My question is, what was the reason for this negative situation?
Luis López Guerra (Judge): Why the government decided, or the police decided, to have the applicant arrested?
Luis López Guerra (Judge): Was there any reason for not doing any kind of these investigation activities, appointing him a lawyer or something like that?
Luis López Guerra (Judge): Was there any reason for this lack of activity by the police?
András Sajó (JudgeP): Thank you. Judge Kucsko-Stadlmayer, please.
Gabriele Kucsko-Stadlmayer (Judge): Thank you. My first question concerns the government.
Gabriele Kucsko-Stadlmayer (Judge): The Bulgarian legislation provides and provided already in 1999 the assistance of a lawyer from the moment of the arrest of a suspect.
Gabriele Kucsko-Stadlmayer (Judge): However, as you cited, the CPT report from 2015 still notes systemic deficiencies in the implementation of these provisions.
Gabriele Kucsko-Stadlmayer (Judge): How do you comment on this?
Gabriele Kucsko-Stadlmayer (Judge): Second question, if the applicant had made any confession in the first three days of arrest, as he claims, would he have had the right to challenge its admission before the Bulgarian courts?
Gabriele Kucsko-Stadlmayer (Judge): And my further question concerns the applicant.
Gabriele Kucsko-Stadlmayer (Judge): You complain about the absence of a lawyer in the first three days of detention from 3rd to 6th of October 1999.
Gabriele Kucsko-Stadlmayer (Judge): Why didn't you put emphasis on complaining about this at the domestic level?
Gabriele Kucsko-Stadlmayer (Judge): And a separate further complaint concerns the de facto irreducibility of life sentence from 2001 to 2012.
Gabriele Kucsko-Stadlmayer (Judge): However, as you know, it was declared inadmissible with the court's decision of 23rd of August 2011.