CASE OF SIMEONOVI v. BULGARIA

1. The case originated in an application (no. 21980/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Mr Lyuben Filipov Simeonov and Ms Nelly Nikolova Simeonova and Mr Filip Lyubenov Simeonov (“the applicants”), on 8 June 2004.
2. The applicants were represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
3. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 23 August 2011 a Chamber of that Section declared the application partly admissible, rejecting all the complaints raised by the second and third applicants and some of the complaints raised by the first applicant, Mr Lyuben Filipov Simeonov (“the applicant”). The applicant ’ s complaints under Article 3 concerning the lack of medical care in prison, his conditions of detention and the allegedly excessive strictness of his prison regime, as well as the complaints under Article 6 §§ 1 and 3 (c) relating to the lack of assistance from a lawyer for the first few days of his detention, were communicated to the Government.
4. On 20 October 2015 a Chamber of the Fourth Section composed of Guido Raimondi, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Paul Mahoney, Krzysztof Wojtyczek, Yonko Grozev, judges, and Françoise Elens-Passos, Section Registrar, delivered a judgment unanimously declaring the application partly admissible and finding a violation of Article 3 on account of the conditions of detention and the prison regime imposed on the applicant, and no violation of Article 6 §§ 1 and 3 (c) on account of the lack of assistance from a lawyer for the first few days of his detention.
5. On 12 January 2016 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. The panel of the Grand Chamber acceded to that request on 14 March 2016.
6. The composition of the Grand Chamber was determined in accordance with the provisions of Articles 26 §§ 4 and 5 of the Convention and Rule 24.
7. On 20 May 2016 the President of the Grand Chamber gave leave to the non-governmental organisation Association for the Prevention of Torture, based in Geneva (Switzerland) to submit written documents on the right to legal assistance.
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 July 2016 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs M. KOTSEVA, Agent, Ms M. DIMITROVA, Agent;
(b) for the applicantMr J. MCBRIDE, Counsel, Ms S. MARGARITOVA-VUCHKOVA, CounselMs N. SIMEONOVA.
The Court heard addresses by Mr McBride, Ms Kotseva and Ms Dimitrova, and the replies of Mr McBride and Ms Dimitrova to the questions put by the judges.
9. On 15 July 2016 the President of the Grand Chamber decided to grant the applicant legal aid.
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1975 and is detained in Sofia Prison.
A. Criminal proceedings against the applicant
1. The applicant ’ s arrest and detention in police custody
11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide.
12. The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S.
13. By decision of 9 July 1999 a police officer ordered the applicant ’ s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee ’ s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time.
14. On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next.
15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant ’ s detention for twenty-four hours from 8 p.m.
16. On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day.
17. The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant ’ s right to the assistance of a lawyer and does not bear his signature.
18. The applicant affirmed that he had submitted four requests, on 3, 4, 5 and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests.
19. He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders.
20. The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant ’ s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold - up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident.
21. On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold - up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements:
“I have read the charge sheet in the presence of my officially appointed lawyer, D. Todorov.
I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence.
I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.”
2. Continuation of the criminal proceedings against the applicant
22. On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims.
23. On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12 October 1999 he remained silent and stated that he would give evidence at a later date.
24. On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S.
25. On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva.
26. Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence.
27. On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again.
28. On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh.
29. On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.
30. On 17 May 2000 the regional prosecutor ’ s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court.
31. The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.
32. On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant ’ s placement under the “special” prison regime.
33. Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant ’ s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim ’ s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.
34. The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias.
35. The applicant ’ s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re ‑ examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence ‑ gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias.
36. The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.
37. On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter ’ s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered.
38. The Court of Appeal observed that the accused ’ s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused ’ s initial statements, which had been made to an investigator in their lawyers ’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer ’ s allegation that the applicant ’ s initial confession had been extracted from him.
39. The Court of Appeal turned its attention to the applicant ’ s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant ’ s version of events.
40. The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused ’ s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties ’ interests.
41. The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds.
42. The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant ’ s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant ’ s detention in police custody.
43. By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant ’ s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken.
44. Furthermore, in endorsing the Court of Appeal ’ s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused ’ s rights had been fully respected.
B. The applicant ’ s conditions of detention
45. The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27 January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.
1. Burgas Investigation Detention Facility
46. The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.
47. According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees ’ human dignity.
48. The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict ’ s uniform even though he should have been allowed to wear his own clothes, under the prison rules.
49. The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S. ’ s statement (see paragraph 48 above), prisoners were allowed one-hour ’ s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.
50. According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison ’ s activity coordinator.
51. Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population.
52. The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet.
53. The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.
54. Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant ’ s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books.
55. According to a report by the governor of Sofia Prison dated 11 October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7 sq. m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting.
56. Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population.
57. Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions for the execution of life sentences, and compensatory remedies under the 1988 State and Municipalities Responsibility for Damage Act
58. The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of poor conditions of detention were summarised in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 108- 1 35 and §§ 136- 1 46 respectively, ECHR 2014 [extracts]).
B. The right to the assistance of a lawyer in criminal proceedings and information to be provided to detainees concerning their rights
1. The Ministry of the Interior Act and its implementing regulations
59. The Ministry of the Interior Act 1997 and its 1998 implementing regulations allowed the police to arrest persons suspected of having committed criminal offences and detain them for twenty-four hours. Arrestees were entitled to legal assistance from the time of their arrest. The relevant provisions of the Act and the implementing regulations, in the version in force at the time of the applicant ’ s arrest, read as follows:
“(1) The police may detain persons:
1. who have committed criminal offences ...
(4) Detained persons shall be entitled to legal assistance as of the time of their arrest.”
Regulation 54 of the Act ’ s implementing regulations
“(1) A detention order shall be made in respect of the persons mentioned in section 53 (1).
(2) Orders made under (1) above shall mention:
5. the rights secured to the person concerned under section 70(3) and (4) of the Ministry of the Interior Act.
(3) The order must be signed by the police department and the detainee.
(6) A copy of the order shall be presented to the detainee.”
60. At the time of the applicant ’ s arrest domestic legislation did not provide for presenting detainees with a separate document setting out their rights, including the right to legal assistance.
61. On 6 March 2002 the Minister of the Interior issued an internal instruction stating that, immediately after their arrest, detainees had to sign two copies of a statement setting out their rights, including the right to legal assistance.
62. In 2003 Implementing Regulation 54(3) of the Ministry of the Interior Act (see paragraph 59) was amended. The amended regulation provided for the presentation to detainees of a “declaration of rights” which they had to sign, stating, in particular, their intention either to avail themselves of or to waive their right to legal assistance. The new wording of the paragraph was as follows:
“( 3) The detainee shall fill in a declaration indicating that he has been informed of his rights and stating whether or not he intends to use his rights under paragraph (2) (5) (b)-(e).”
63. The domestic legislation and regulations introduced in this sphere since that time have incorporated a reference to the “declaration of rights” which detainees must sign after their arrest.
64. At the time of the proceedings in issue, the 1974 Code of Criminal Procedure allowed investigators responsible for criminal cases to order the suspect ’ s detention for twenty-four hours. The detention period could be extended by a prosecutor up to a maximum of three days. The legislative provisions on such detention and the rights conferred on the suspect during detention read as follows:
“(1) The investigator may, even without the prosecutor ’ s authorisation, order preliminary detention for a criminal offence which is subject to mandatory prosecution and for which a preliminary investigation is compulsory where:
1. the person in question was arrested at or just after the time of commission of the offence;
2. an eyewitness has identified the person as the perpetrator of the offence;
3. visible traces of the offence have been discovered on the person ’ s body or clothing or in his place of residence;
4. the person in question has attempted to flee ...”
“(1) The investigator must inform the prosecutor of the detention within twenty-four hours, mentioning the reasons for it.
(2) The prosecutor must immediately confirm or revoke the detention order. Under the circumstances set out in Article 202 § 1, points 1 and 3, where detention has been ordered for a serious crime which is subject to mandatory prosecution, the prosecutor may extend the period of detention up to a maximum of three days.
(3) If, on expiry of the period set out in paragraphs 1 and 2 above, the person concerned has not been charged with an offence, the investigator must release him.
“(1) Individuals who are under a detention order ... within the meaning of Article 202 shall have the following rights: to be informed of the offences of which they are suspected; to make statements; to take action ... to challenge measures taken by the authorities responsible for the preliminary investigation ...
2) As regards the statements ... mentioned in the previous paragraph, the provisions of Articles 73 [and] 87 ... shall be applicable mutatis mutandis .”
65. During the preliminary investigation the suspect is formally notified of the charges against him by means of an indictment. This confers on him official defendant ( обвиняем ) status. From then on the person ’ s statements can be recorded for use in evidence in the criminal proceedings. The defendant has several procedural rights, including the right to the assistance of a lawyer at the preliminary investigation stage. The relevant provisions of the 1974 Code of Criminal Procedure read:
“The defendant is a person who has been charged under the conditions and according to the procedures set out in the present Code.”
“(1) The defendant has the following rights: to know the charges against him and the evidence on which those charges are based, to give statements on the charges, to have access to the case file and obtain the requisite copies of case papers, to submit evidence, to take part in the criminal proceedings, to submit requests ..., to speak last during questioning, to challenge the decisions of courts and preliminary investigation bodies infringing his rights and legitimate interests and to be assisted by a defence lawyer. At the defendant ’ s request, the defence lawyer shall be present during the implementation of the investigative measures.
“(1) The defence lawyer may be a person practising the legal profession.
“(1) Participation by a defence lawyer in the criminal proceedings is mandatory where:
3. the criminal case concerns a crime punishable by the death penalty, life imprisonment or a prison sentence of at least ten years.
(3) When participation by a defence lawyer is mandatory, the competent authority shall be required to appoint a person practising the legal profession as defence lawyer.
(4) The officially appointed defence lawyer shall be excluded from the criminal proceedings if the defendant engages a different defence lawyer.”
“(1) The defendant may, at any stage in proceedings, waive his right to the assistance of a defence lawyer, except in the situation mentioned in Article 70 § 1, paragraphs. 1 to 3.
“(1) The defence lawyer may take part in the criminal proceedings as of the time the person concerned has been arrested or charged.
(2) The authority responsible for the preliminary investigation must inform the defendant of his right to the assistance of a defence lawyer and permit him to contact such lawyer. That authority cannot implement any investigative measures before having fulfilled that obligation.
“(1) Evidence shall be established on the basis of the defendant ’ s statements, the suspect ’ s statements, witness statements, records of the investigative and procedural steps and by other means as laid down in this Code.
(2) Evidence which has not been gathered or drawn up in conformity with the rules of the present code shall be declared inadmissible.
“(1) The defendant shall give evidence orally and directly before the competent authority. The defendant shall give evidence in the presence of a defence lawyer if he so requests. That request shall be recorded in minutes and the defence lawyer shall be invited to attend the questioning.
(3) The defendant may refuse to give evidence.
“(1) The indictment and the conviction cannot be based solely on the defendant ’ s confessions.
(2) Confessions by the defendant shall not release the competent authorities from their obligation to gather other evidence in the course of the proceedings.”
66. Under the established case-law of the Bulgarian Supreme Court of Cassation, if the authorities responsible for criminal investigations fail to formally charge the suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the courts to refer the case back to the preliminary investigation stage and the aforementioned authorities so that they can remedy the omission ( Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК ).
67. By the same token, the absence of a defence lawyer during the charging of the suspect and the implementation of the subsequent investigative measures, when legal assistance is mandatory under the Code of Criminal Procedure, amounts to a major procedural flaw which necessitates the referral of the case back to the authorities responsible for the preliminary investigation ( Решение № 68 от 21.04.1992г. по н.д. № 986/91г. на ВС, I н.о. ). In that situation those authorities are required to repeat the investigative measures in question in the presence of a defence lawyer ( Решение № 604 от 31.10.1991г. по н.д. № 436/91г. на ВС, I н.о .).
68. Under the established case-law of the Bulgarian courts, evidence gathered in breach of the rules set out in the Code of Criminal Procedure, including statements made to the police, has no probative value and is excluded from the case file ( Решение № 179 от 21.11.1997г. на ВКС по н.д. № 182/1997г. ВК; Решение № 361 от 8.07.2003г. на ВКС по н.д. № 123/2003г., III н.о. ; Решение № 518 от 21.01.2009г. на ВКС по н.д. № 435/2008г., II н.о ., НК).
III. RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW
69. Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial. The relevant parts of that provision read as follows:
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...”
70. The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications.
71. The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see Kelly v. Jamaica, 1991, 253/1987, § 5.10., and Borisenko v. Hungary, 2002, 852/1999, § 7.5), including during police questioning (see Gridin v. the Russian Federation, 2000, 770/1997, § 8.5). However, in Levinov v. Belarus (2011, 1812/2008, § 8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14 § 3 (b) of the Covenant had not been infringed by the authorities.
72. As regards the right to be informed of the right to a lawyer, in its concluding observations on the 4 th periodic report concerning the Netherlands ((2009), UN doc. CCPR/C/NDL/CO/4, § 11), the HRC considered that States should give full effect to the right to contact counsel before police questioning and ensure that individuals suspected of criminal offences were informed, on their arrest, of their right to legal assistance.
73. Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. the Russian Federation, 2011, 1304/2004).
74. Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings was adopted on 22 May 2012. The deadline for its transposition into the legislation of the European Union Member States was 2 June 2014. The relevant provisions of the Directive read as follows:
“This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them ...”
“1. This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings ...”
Article 3 Right to information about rights
“1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:
(a) the right of access to a lawyer ...
2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.”
Article 4 Letter of Rights on arrest
“1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty ...”
75. Directive 2013/48/EU of the European Parliament and of the Council on, inter alia, the right of access to a lawyer in criminal proceedings was adopted on 22 October 2013. The deadline for its transposition into the legislation of the European Union Member States was 27 November 2016. The relevant provisions of the Directive read as follows:
“This Directive lays down minimum rules concerning [the right] of suspects and accused persons in criminal proceedings ... to have access to a lawyer ...”
“1. This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings ...”
Article 3 The right of access to a lawyer in criminal proceedings
“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.
2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:
(a) before they are questioned by the police or by another law enforcement or judicial authority;
(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3;
(c) without undue delay after deprivation of liberty;
(d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.
3. The right of access to a lawyer shall entail the following:
(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;
(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;
(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:
(iii) reconstructions of the scene of a crime.
4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons.
Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.
“1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 and 10:
(a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and
(b) the waiver is given voluntarily and unequivocally.
2. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the Member State concerned.
3. Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.”
IV. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)
76. The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment.
77. Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment.
78. Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57-59 of the Chamber judgment.
79. The relevant part of the last report on a visit to this prison, in 2015, reads as follows:
39. At the time of the visit, the closed section of Sofia Prison was holding 816 prisoners for an official capacity of 650. The closed section of Varna Prison was accommodating 422 prisoners for an official capacity of 350. And as for Burgas Prison, at the time of the visit, there were 579 prisoners in the closed section for an official capacity of 371.
In the three prisons, the overwhelming majority of the cells were extremely overcrowded ... The situation at Sofia and Varna prisons remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.
40. The situation was aggravated even more by the fact that material conditions in all the three prisons visited in 2015 still demonstrated an ever-worsening advanced state of dilapidation and insalubrity, despite some last-minute cosmetic efforts observed. Most of the common sanitary facilities at Sofia, Burgas and Varna prisons were totally dilapidated and unhygienic. Moreover, they were accessible to prisoners only during the day; at night the majority of the inmates had to resort to buckets (one for each cell).
The cells were mostly equipped with two-tier and three-tier bunk beds and access to natural light and ventilation was poor. Walls were covered with mould, floors were damaged, and ceilings leaking; cells were infested with cockroaches, bedbugs and other vermin. It should be noted in this regard that no cleaning materials were made available to the prisoners.
Heating was functioning only a couple of hours a day (the delegation measured some 14 o C in cells and 10 o C in in-cell toilets at Sofia Prison ...
It can thus be stated that most parts of these establishments were unfit for human accommodation and represented a serious health risk both for inmates and staff. Despite the repeated criticism, no progress was observed as regards the implementation of the CPT ’ s recommendations made after its visits in 2010, 2012 and 2014. To sum up, in the CPT ’ s opinion, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.
43. Possibilities for purposeful activities in Sofia, Varna and Burgas prisons were very limited. The cells were unlocked during the day (with the exception of the high security and admission units) and most prisoners just roamed the corridors or stayed in their cells watching TV or playing board games with other inmates. All inmates had access to a library and a multi-faith area.
The only activity for most prisoners was daily outdoor exercise, usually lasting one hour at Varna Prison, one-and-a-half hours at Sofia Prison and two hours at Burgas Prison.
44. As regards work, at Sofia Prison, 258 prisoners had jobs (but 120 of the work places were unpaid), most of them on general prison maintenance services. ... Educational activities were offered to 78 prisoners at Sofia and 49 prisoners at Varna Prison. Other activities included language courses and IT classes (with 225 inmates attending at Sofia Prison) ...”
80. On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted):
“1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has carried out ten visits to Bulgaria since 1995. In the course of those visits, delegations of the Committee have visited all but one prison, several investigation detention facilities (IDFs) and numerous police establishments in the country.
2. Major shortcomings have been identified during the above-mentioned visits, especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas.
In its reports, the CPT has many times drawn the Bulgarian authorities ’ attention to the fact that the principle of co-operation between State Parties and the CPT, as set out in Article 3 of the Convention establishing the Committee, is not limited to steps taken to facilitate the tasks of a visiting delegation. It also requires that decisive action be taken to improve the situation in the light of the CPT ’ s recommendations.
The vast majority of these recommendations have remained unimplemented, or only partially implemented. In the course of the Committee ’ s visits to Bulgaria in 2010, 2012, 2014, and 2015, the CPT ’ s delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty.
3. In the report on its 2012 visit, the Committee expressed its extreme concern about the lack of progress observed in the Bulgarian prison system and stressed that this could oblige the CPT to consider having recourse to Article 10, paragraph 2, of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment.
This procedure was set in motion after the March/April 2014 visit; indeed, the Committee ’ s findings during that visit demonstrated a persistent failure by the Bulgarian authorities to address certain fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty. The visit report highlighted a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995, as regards the phenomenon of ill-treatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in IDFs and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and contact with the outside world.
4. The responses of the Bulgarian authorities to the report on the CPT ’ s 2014 visit and to the letter by which the Committee has informed the authorities of the opening of the procedure set out in Article 10, paragraph 2, of the Convention have, to say the least, not alleviated the CPT ’ s concerns. In particular, the responses were succinct, contained very little new information and failed to address the majority of the Committee ’ s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints. Further, most of the information contained in the CPT ’ s report as concerns ill-treatment and inter-prisoner violence was simply dismissed.
The 2015 visit was therefore an opportunity for the Committee to assess the progress in the implementation of its long-standing recommendations and to review, in particular, the treatment and detention conditions of persons held at Sofia, Burgas and Varna Prisons, as well as at Sofia IDF (located on G.M. Dimitrov Boulevard).
Regrettably, the findings made during the aforementioned visit demonstrate that little or no progress has been achieved in the implementation of key recommendations repeatedly made by the CPT.
For these reasons, the Committee has been left with no other choice but to make a public statement, pursuant to Article 10, paragraph 2, of the Convention; it took this decision at its 86th plenary meeting in March 2015.
5. In the course of the 2015 visit, the Committee ’ s delegation received a significant number of allegations of deliberate physical ill-treatment of persons detained by the police; the number of such allegations had not decreased since the 2014 visit but was even on the rise in Sofia and Burgas. The alleged ill-treatment generally consisted of slaps, kicks, and in some cases truncheon blows. The delegation concluded that men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning.
6. Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT ’ s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody.
Detention in the Ministry of Justice ’ s establishments
8. The situation as regards physical ill-treatment of prisoners by staff remains alarming in the three prisons visited in 2015. Many allegations of deliberate physical ill-treatment (usually consisting of slaps, punches, kicks and truncheon blows) were again heard at Sofia and Burgas Prisons and, at Varna Prison, the Committee ’ s delegation was flooded with such allegations. In a number of cases, the delegation found medical evidence consistent with the allegations received.
12. Overcrowding remains a very problematic issue in the Bulgarian prison system. For example, at Burgas Prison, the vast majority of inmates had less than 2 m² of living space in multi-occupancy cells, with the notable exception of the remand section. The situation at Sofia Prison remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.
13. The material conditions at Sofia, Burgas, and Varna Prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee ’ s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.
14. The vast majority of inmates (including almost all the remand prisoners) in the three prisons visited in the course of the 2015 visit still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day.
17. In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above ‑ mentioned long-standing problems. This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change.
18. The Committee fully acknowledges the challenges that the Bulgarian authorities are facing. In the CPT ’ s view, there is a real need to develop a comprehensive prison policy, instead of concentrating exclusively on material conditions (which, as should be stressed, have only improved to an extremely limited extent). Having in place a sound legislative framework is no doubt important. However, if laws are not backed by decisive, concrete and effective measures to implement them, they will remain a dead letter and the treatment and conditions of persons deprived of their liberty in Bulgaria will deteriorate even further. As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights).
The Committee ’ s aim in making this public statement is to motivate and assist the Bulgarian authorities, and in particular the Ministries of the Interior and Justice, to take decisive action in line with the fundamental values to which Bulgaria, as a member state of the Council of Europe and the European Union, has subscribed. In this context, the CPT ’ s long-standing recommendations should be seen as a tool that helps the Bulgarian authorities to identify shortcomings and make the necessary changes. In furtherance of its mandate, the Committee is fully committed to continuing its dialogue with the Bulgarian authorities to this end.”
I. SCOPE OF THE GRAND CHAMBER ’ S JURISDICTION
81. In his memorial submitted to the Grand Chamber and in the course of the hearing, the applicant asked the Grand Chamber to reverse the decision given on 23 August 2011 by the Chamber declaring inadmissible his complaint under Article 3 of the Convention relating to his whole-life sentence.
82. The Government opposed that request. They submitted that it was contrary to the Court ’ s case-law to the effect that the case which was referred to the Grand Chamber was the application as declared admissible by the Chamber.
83. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber ’ s decision on admissibility (see, in particular, K. and T. v. Finland [GC], no. 25702/94, §§ 140 and 141, ECHR 2001 ‑ VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III; Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 235 and 236, ECHR 2012 (extracts); and Murray v. the Netherlands [GC], no. 10511/10, § 86, ECHR 2016 ). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from that principle in the present case.
84. Accordingly, in the framework of the present case, the Court has no jurisdiction to adjudicate on the complaint raised under Article 3 of the Convention concerning the imposition of a whole-life sentence on the applicant.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
85. The applicant complained of the physical conditions of his detention and of the prison regime in the Burgas Investigation Detention Facility and in Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
86. The applicant invited the Grand Chamber to endorse the Chamber ’ s conclusion that there had been a violation of Article 3 of the Convention.
87. The Government submitted no observations on this complaint before the Grand Chamber. However, they pointed out that a wide-ranging programme to reform the Bulgarian prison system was currently being implemented. The programme would ultimately facilitate the application of the European standards on prisoner treatment, including in terms of conditions of detention.
88. The Court notes that the Chamber found that there had been a violation of Article 3 of the Convention (see paragraphs 88-95 of the Chamber judgment). The Chamber stated in particular:
“89. The applicant has been incarcerated since October 1999. Since that date he has been held in three different establishments: the Burgas Investigation Detention Facility, Burgas Prison and Sofia Prison.
90. The Court notes that the parties agree on the inadequacy of the material conditions which prevailed in the Burgas Investigation Detention Facility between October 1999 and April 2000, when the applicant was held there ... The report on the 1999 CPT visit corroborates this finding ...
91. The applicant was subsequently transferred to Burgas Prison, where he remained from 2000 to 2004 ... In the report on its 2002 visit the CPT delegation stated that the wing for life prisoners in Burgas Prison where the applicant ’ s cell was located had recently been refurbished, that the individual cells had an area of 6 m2 each and had adequate ventilation and lighting. The main problem noted by the CPT delegation had been the restricted access to the shared sanitary facilities and the use of buckets as toilets by the prisoners ...
92. On 25 February 2004 the applicant was transferred to Sofia Prison, where he continued to serve his sentence. According to the reports of the 2006, 2008 and 2014 CPT visits to that prison, all the cells in the prison ’ s high-security wing had in-cell sanitary facilities ... According to information presented by the Government, this section of the prison was renovated in 2005 and 2006, and the applicant benefited from a decent-sized individual cell ... However, the report of the CPT ’ s visit in 2014 once again singles out the general dilapidation of the area of Sofia Prison reserved for prisoners serving life sentences, and the lack of daylight and insufficient hygiene in the premises ...
93. The Court notes that throughout his years in prison the manner and method of executing the applicant ’ s life sentence, as determined by the prison regime assigned to him, were highly restrictive. The applicant had initially been assigned a so-called special prison regime: he had spent twenty-three hours a day locked up in his cell, mostly on his bed; his access to the prison library had been limited to the few minutes it took to choose and borrow a book; he had been allowed to attend the prison chapel twice a year, with a ban on meeting other prisoners ... In 2008 his prison regime was relaxed ... However, like all prisoners in his category, he was still kept separate from the rest of the prison population and his cell was kept locked during the day ( ibid .). The successive CPT reports show that the prisoners in the high-security wing of Sofia Prison have very few out-of-cell activities and are kept separated from the other prisoners ...
94. In the light of the foregoing facts and as it noted in the recent judgment in the case of Harakchiev and Tolumov, cited above, §§ 203-214, the Court considers that the applicant ’ s poor conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term in question, subjected the applicant to an ordeal far exceeding the suffering inherent in the execution of a prison sentence. The Court therefore finds that the severity threshold required for the application of Article 3 of the Convention was exceeded in the present case. The applicant was placed in an ongoing situation of infringement of his right not to be subjected to inhuman and degrading treatment.
95. There has therefore been a violation of Article 3 of the Convention.”
89. The Court sees no reason to depart from the Chamber ’ s conclusions. Moreover, it observes that the report of the CPT ’ s last visit to Bulgaria and its public statement of 2015 mention that the poor conditions of detention noted in Sofia Prison persist (see paragraphs 79 and 80 above).
90. Like the Chamber, the Court considers that the applicant ’ s conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term (since 1999), have subjected him to an ordeal exceeding the suffering inherent in the execution of a prison sentence and amount to inhuman and degrading treatment.
91. There was therefore a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
92. The applicant alleged that he had not been assisted by a lawyer for the first few days of his detention. He relied on Article 6 §§ 1 and 3 (c), which reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”
93. The Government contested that argument.
94. Having reiterated the principles emerging from the Court ’ s case-law concerning legal assistance, the Chamber considered that a distinction should be made between the present case and that of Dayanan v. Turkey (no. 7377/03, 13 October 2009) inasmuch as, unlike Turkish legislation at the material time, the relevant Bulgarian legislation did not restrict the right of detainees to be assisted by lawyers of their choosing from the time of their arrest. However, the Chamber noted that the applicant had not actually benefited from this legal safeguard for the first three days of his detention, but stated that it was unable to determine whether that situation had been due to the authorities ’ acting mala fide or the applicant ’ s own passivity.
95. The Chamber lastly concluded that the fairness of the proceedings had not been infringed, for the following reasons: (i) there was no indication in the file that the applicant had been questioned during the first three days of his detention; (ii) all his interrogations had taken place after he had been formally charged on 6 October 1999, in the presence of a lawyer; (iii) no other investigative measure involving the applicant had been implemented during that initial period of detention; (iv) the applicant had confessed to the offences a few days later, when he had been assisted by a lawyer of his choosing and had known that that confession could be used in evidence against him in support of a possible conviction; (v) his conviction had been based not solely on that confession but on a whole body of consistent evidence; (vi) the applicant had amply benefited from his right to defend himself with a lawyer ’ s assistance and the domestic courts had delivered reasoned judgments (see paragraphs 113-116 of the Chamber judgment).
96. The applicant invited the Grand Chamber to conclude that there had been a violation of Article 6 on the grounds that he had not been assisted by a lawyer while in police custody from 3 to 6 October 1999 at noon.
97. He submitted that he had made several requests between 3 and 6 October 1999 to consult a lawyer but that the authorities had rejected them. He stated that he had been questioned during that time, and maintained that his allegations were not ill-founded. He alleged that it would have been quite illogical for the authorities not to attempt to question him during that time, and the lack of any written trace of those interrogations corroborated his allegation that he had been pressured by the investigators to confess.
98. The applicant argued that the fact that he had remained silent when questioned on 6 and 12 October 1999 could not be deemed decisive. He explained that he had not had an opportunity to consult the lawyers before the questioning or to obtain guidance from them. That was also why the fact that he had been assisted by a lawyer of his choosing when he had confessed on 21 October 1999 could not be held against him. The lawyers ’ presence during those interrogations did not mean that they had provided him with any effective assistance.
99. Finally, the applicant affirmed that the right to legal assistance laid down in Article 6 § 3 (c) was autonomous from the requirement of a fair trial enshrined in Article 6 § 1. A finding of a violation or no violation of that autonomous right in the present case depended solely on the answer to the following question: were there any reasons justifying the restriction of his access to a lawyer while in police custody? If there were no such reasons, the fact that the conviction had not been exclusively based on the applicant ’ s confession and the fact that he had had the effective assistance of one or more lawyers for the rest of the criminal proceedings were of no consequence in relation to Article 6 § 3 (c).
100. The Government invited the Grand Chamber to follow the Chamber ’ s example by declaring that in the instant case there had been no violation of the relevant provisions of the Convention.
101. They observed that under domestic legislation the applicant had been entitled to legal assistance as of the time of his arrest, and that it had been the police officers ’ legal duty to inform him of that right. The Government affirmed that in the absence of any proof to the contrary, that obligation had been honoured. In any event the applicant ’ s allegations themselves indicated that he had been aware that domestic legislation entitled him to legal assistance.
102. Moreover, there was no evidence to corroborate the applicant ’ s allegations that while in police custody he had asked to speak to a lawyer and his request had been refused by the authorities. Domestic legislation at the material time had not provided for the preparation of written documents recording the detainee ’ s wish to consult a lawyer or his waiver of that right. Furthermore, the applicant had not, at any stage in the criminal proceedings before the domestic courts, raised his complaint concerning the absence of a lawyer during his time in police custody.
103. The Government further submitted that there was no evidence to support the applicant ’ s allegation that he had been questioned in police custody before being charged. At the hearing before the Grand Chamber the Government added that even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings. At no stage in the proceedings had the authorities referred to any statements given by the applicant between 3 and 6 October 1999 at noon. Furthermore, his conduct during that period had not been taken into account in the ensuing criminal proceedings. During that time the applicant had been arrested, transferred to Burgas, taken to the Burgas detention facility and been subjected to medical examinations. At no stage in the domestic proceedings had he alleged that he had been questioned in police custody, and his observations on the subject before the Court had been inconsistent, contradictory and lacking in detail.
104. Lastly, the Government observed that the right to legal assistance as secured under Article 6 § 3 (c) was one of the aspects of the right to a fair criminal trial guaranteed by Article 6 § 1 of the Convention. They therefore submitted that the Court should seek to establish whether the overall fairness of the criminal proceedings in the present case had been affected by the fact that the applicant had not had the assistance of a lawyer while in police custody. The Government invited the Grand Chamber to uphold the Chamber ’ s finding that the criminal proceedings in the applicant ’ s case had generally been fair. He had been assisted by lawyers of his choosing, a body of evidence had been gathered and the case had been scrutinised by courts at three levels of jurisdiction, which had addressed the arguments put forward by the defence. No statement by the applicant or other piece of evidence that might have been used as a basis for his conviction had been gathered during his time in police custody without a lawyer.
105. In its observations to the Grand Chamber, the Association for the Prevention of Torture emphasised that making legal assistance available as soon as a suspect was detained was one of the fundamental safeguards for the fairness of criminal proceedings. In its case-law the Court had found violations of Article 6 §§ 1 and 3 (c) where confessions obtained during detention in the absence of a lawyer had subsequently been used to convict the person in question (citing Salduz v. Turkey [GC], no. 36391/02, ECHR 2008), but also where the detainees had opted to remain silent (citing Dayanan v. Turkey, cited above) or to deny their involvement in the offences with which they were charged (citing Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009). The bodies responsible for human rights protection within the United Nations system had also emphasised the importance of legal assistance from the first few hours of detention.
106. Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect ’ s right not to incriminate himself where he had not been informed of the charges against him. Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention. Thus, even if the detainee made no statement, the mere absence of a lawyer during the first few hours of detention was detrimental to the fairness of proceedings. That was particularly true in cases where the allegations were extremely serious and where the detainee was in a particularly vulnerable position.
107. With reference to various European, national and international legal instruments, the third party pointed out that it was widely accepted that an effective right of access to a lawyer required the following: the accused had to be informed in advance of his right to speak to a defence lawyer; access to the lawyer had to be provided as soon as the person was arrested, and at all events before the initial police questioning; the lawyer had to be able to perform all the services necessary for his work, such as being able to hold private talks with his client, discuss all the facts of the case, be present during questioning, put questions and ask for clarifications.
108. The third party reminded the Grand Chamber of the approach used by the Chamber in the case of Leonid Lazarenko v. Ukraine (no. 22313/04, § 57, 28 October 2010), in which the right to a fair trial had been found to have been irretrievably prejudiced by the fact that a confession obtained without access to a lawyer had been used for a conviction, even if they had not been the sole basis for it.
109. Lastly, the third party observed that even if a refusal by the authorities to allow the suspect to speak to a lawyer at the beginning of his detention had not impaired the overall fairness of the proceedings, such a situation could nevertheless amount to a violation of Article 6 § 3 (c).
(a) Applicability of Article 6 in its criminal aspect
110. The protections afforded by Article 6 §§ 1 and 3 apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, §§ 42-46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010; and, more recently, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, ECHR 2016 ).
111. Thus, for example, a person arrested on suspicion of having committed a criminal offence (see, among other authorities, Heaney and McGuinness v. Ireland, no. 34720/97, § 42, ECHR 2000 ‑ XII, and Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010), a suspect questioned about his involvement in acts constituting a criminal offence (see Aleksandr Zaichenko v. Russia, no. 39660/02, §§ 41-43, 18 February 2010; Yankov and Others v. Bulgaria, no. 4570/05, § 23, 23 September 2010; and Ibrahim and Others, cited above, § 296) and a person who has been formally charged, under a procedure set out in domestic law, with a criminal offence (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999 ‑ II, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004 ‑ XI) can all be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention. It is the actual occurrence of the first of the aforementioned events, regardless of their chronological order, which triggers the application of Article 6 in its criminal aspect.
(b) The right to legal assistance and the overall fairness of the criminal proceedings
112. The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53 ‑ 54, and Ibrahim and Others, cited above, § 255).
113. Article 6 § 3 (c) does not therefore secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention. In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others, cited above, §§ 250 and 251). Article 6 § 3 (c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial system, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Salduz, cited above, § 51).
114. Like the other guarantees of Article 6, the right to legal assistance is applicable from the moment that a “criminal charge” exists within the meaning of this Court ’ s case-law (see paragraphs 110 and 111 above) and may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Dvorski, cited above, § 76; and Ibrahim and Others, cited above, § 253).
( c) Waiver of the right to legal assistance
115. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance (see, among other authorities, Dvorski, cited above, §§ 100 and 101, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 90, 2 November 2010). However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see Pishchalnikov v. Russia, no. 7025/04, § 77, 24 September 2009, and paragraph 1 19 below). Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be ( Pishchalnikov, cited above, § 77 in fine). Moreover, the waiver must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A, and Sejdovic v. Italy [GC], no. 56 581/00, § 86, ECHR 2006 ‑ II ).
(d) Temporary restriction of the access to a lawyer for “compelling reasons”
116. The Court also reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. In paragraph 55 of its Salduz judgment (cited above), the Court held as follows concerning the restriction of the access to a lawyer for “compelling reasons” during detention in police custody:
“... the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction .”
117. In its recent judgment in the case of Ibrahim and Others (cited above), the Court specified and fleshed out the criteria laid down in the Salduz judgment. It stated, in particular, that restrictions on access to legal advice were permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2 and 3 and Article 5 § 1 of the Convention in particular. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them ( ibid ., §§ 258 and 259).
118. The Court went on to point out that the absence of “compelling reasons” for restricting access to a lawyer did not lead in itself to a finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention ( ibid ., § 262). In the absence of “compelling reasons”, the Court must apply a very strict scrutiny to its fairness assessment: the Government ’ s failure to point to any compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice ( ibid ., § 265). Where, on the contrary, compelling reasons for restricting access to a lawyer have been established, a holistic assessment of the entirety of the proceedings must be conducted to determine whether they were “fair” for the purposes of Article 6 § 1 ( ibid ., § 264).
(e) The right to be informed of the right to legal assistance
119. In Ibrahim and Others ( ibid ., §§ 272- 2 73), the Court also found that it was inherent in the privilege against self-incrimination, the right to silence and the right to legal assistance that a person “charged with a criminal offence” for the purposes of Article 6 had the right to be notified of these rights. Consequently, Article 6 § 3 (c) of the Convention must be interpreted as also safeguarding the right of persons charged with an offence to be informed immediately of their right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing. Moreover, respect for that right may well influence the validity of any waiver of the right to legal assistance (see paragraph 115 above).
(f) Relevant factors for the assessment of the overall fairness of proceedings
120. Since the fairness of criminal proceedings is assessed in each case with regard to the conduct of the proceedings as a whole, the Court set out a non-exhaustive list in Ibrahim and Others, cited above, § 274, of factors to be taken into account, where appropriate, in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings. Those factors are as follows:
(a) whether the applicant was particularly vulnerable, for example by reason of his age or mental capacity;
(b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with; where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair;
(c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use;
(d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;
(e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found;
(f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified;
(g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case;
(h) whether the assessment of guilt was performed by professional judges or lay jurors, and in the case of the latter the content of any jury directions;
(i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and
(j) other relevant procedural safeguards afforded by domestic law and practice.
2. Application of those principles to the instant case
(a) Starting-point for the application of Article 6 in the present case
121. Turning to the facts of the present case, the Court observes that the applicant had been wanted by the investigating authorities and the police since the beginning of July 1999, when his arrest had been ordered on the grounds that he was suspected of having committed armed robbery and two murders and that he had been on the run for almost three months (see paragraph 13 above). The Court, however, considers that the date of the applicant ’ s arrest by the police on 3 October 1999 should be taken as the starting-point for the application of the safeguards set out in Article 6 of the Convention. The arrest was based on suspicions that the applicant had committed criminal offences, and substantially affected the applicant ’ s situation by enabling the authorities to conduct investigative measures in which he participated. It was therefore on 3 October 1999 that the right to legal assistance provided for in Article 6 § 3 (c) became applicable in the present case.
(b) Whether the applicant waived his right to legal assistance
122. The Court notes that the lack of legal assistance for the applicant while in police custody was a limitation which did not follow from domestic law, since Bulgarian legislation authorised him to have access to a lawyer as of the time of his arrest, on 3 October 1999 (see paragraph 59 above). Thus, if the applicant had asked for leave to speak to a lawyer on 3, 4, 5 and 6 October 1999 (before 12 noon), the authorities would have been under a legal obligation to grant that request.
123. The parties disagree on whether the applicant requested contact with a lawyer (see paragraphs 97 and 102 above). There is nothing in the file to corroborate the applicant ’ s assertion that he submitted such a request. At the material time Bulgarian legislation did not yet require a detainee ’ s request to consult a lawyer or his waiver of that right to be recorded in writing (see paragraphs 60-62 above).
124. The Court reiterates that in order to assess this evidence, it adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). The Court finds it unfortunate that the applicant ’ s first three days of detention were not properly documented so as to avoid any doubts as to whether the applicant did ask for a lawyer or not (see, mutatis mutandis, Dvorski, cited above, § 105 in fine ). Consequently, several years on from the events at issue and in the absence of any prima facie evidence, the Court is not in a position to ascertain whether the applicant did in fact request a consultation with a lawyer.
125. The Court must nevertheless seek to establish whether in the particular circumstances of the case, the lack of objective evidence that the applicant requested legal assistance while in police custody might point to an implicit waiver of that right.
126. In that regard the Court observes that in a legal system such as that which was in force in Bulgaria at the material time, in which the assistance of a lawyer during detention in police custody requires an express request from the suspect, it is essential that the latter be promptly informed of that right so as to enable him to rely on it (see paragraph 119 above). This is especially important where, as in the present case, the accused is suspected of serious offences and is liable to a heavy penalty. It is in the face of the heaviest penalties that respect for the right to a fair trial must be ensured to the highest possible degree by democratic societies (see Salduz, cited above, § 54). That raises the question whether the applicant was duly informed of his right to legal assistance as of the time of his arrest, as domestic law in fact provided (see paragraph 59 above).
127. In their observations and at the hearing, the Government, with reference to the relevant provisions of domestic law requiring the authorities to inform persons charged with a criminal offence of their rights (see paragraph 101 above), submitted that the applicant had received that information just after his arrest. Yet the case file contains no written trace of such a measure and the Government have not supported their allegation with any further evidence. The Court can only note that the order for the applicant ’ s detention, which mentioned his right to legal assistance, had not been signed by him and that there is no evidence to show that he was issued with a copy of the order after his arrest (see paragraphs 13 and 14 above). It must therefore be assumed that he was never properly served with the order. As a result, the applicant was not verifiably informed of his procedural rights before the date on which he was charged, that is to say 6 October 1999 (see paragraph 21 above).
128. The Court reiterates that the receipt of such information by the accused person is one of the guarantees enabling him to exercise his defence rights and allowing the authorities to ensure, in particular, that any waiver by the accused of the right to legal assistance is voluntary, knowing and intelligent. That information therefore guarantees the effective possibility of exercising that right and – moreover – the validity of any waiver under the Convention (see paragraphs 115 and 119 above). Accordingly, even supposing that the applicant did not expressly request the assistance of a lawyer while in police custody, as provided in Bulgarian law at the material time, he cannot be deemed to have implicitly waived his right to legal assistance, since he had not promptly received such information after his arrest. His right to legal assistance was therefore restricted.
(c) Whether there were “compelling reasons” to restrict access to a lawyer
129. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 117 above).
130. However, the Government mentioned no such exceptional circumstances, and it is not the Court ’ s task to assess of its own motion whether they existed in the present case. It therefore sees no “compelling reason” which could have justified restricting the applicant ’ s access to a lawyer while he was in police custody: there were no allegations of imminent danger to the lives, physical integrity or security of other persons (see, to converse effect, Ibrahim and Others, cited above, § 276). Furthermore, domestic legislation on access to a lawyer during detention in police custody did not explicitly lay down any exceptions to the application of that right (see paragraphs 59 and 64 above). It would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT ’ s 2015 public statement, paragraph 80 above).
131. The Court observes in that connection that such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles (see Stafford v. the United Kingdom [GC], no. 46295/99, §63, ECHR 2002-IV ).
(d) Whether the overall fairness of the proceedings was ensured
132. The Court must seek to ascertain whether the absence of a lawyer while the applicant was in police custody had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against him. The lack of “compelling reasons” in the present case requires the Court to conduct a very strict scrutiny of the fairness of the proceedings. It is incumbent on the Government to demonstrate convincingly that the applicant nonetheless had a fair trial (see paragraph 118 above).
133. In that connection, the Government referred to the following circumstances: the applicant had not been formally questioned in the absence of a lawyer during his time in police custody; no statement that the applicant might have made during that time had been taken into account or subsequently used in evidence against him; his conduct while in police custody had not been taken into account by the prosecuting authorities or the relevant courts; he had at no stage complained to the authorities of having been forced to confess while in police custody; he had benefited from a wide range of procedural safeguards during criminal proceedings which had had all the attributes of a fair trial (see paragraph 103 above).
134. The Court notes that the parties disagree on whether the applicant was questioned in the absence of a lawyer over the period from 3 to 6 October 1999. Drawing on the absence of any document mentioning this point, the Government submitted that even supposing a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings (see paragraph 103 above). The applicant, for his part, stated before the Grand Chamber that he had been questioned and that it would have been illogical for the authorities to have missed such an opportunity to obtain further evidence (see paragraph 97 above).
135. The Court notes in that connection that the version of events set out by the applicant during the proceedings before it has changed as the case had unfolded. In his application to the Court the applicant was very vague on this subject. It was not until he submitted his memorial before the Grand Chamber that he provided a number of more specific details, affirming, for example, that he had made statements while in police custody, and disclosing the content of those statements and the name of the lawyer whom he had asked to contact. The Court also observes that the applicant did not mention his lack of legal assistance while in police custody in the proceedings before the Burgas Court of Appeal (see paragraph 34 above) and that his appeal on points of law referred only marginally to the absence of a lawyer on 4 October 1999 in the context of a separate plea relating to the exclusion of evidence obtained in the presence of his officially assigned lawyer (see paragraph 42 above). Moreover, whereas the handwritten statement of his presumed accomplice, A.S., dated 3 October 1999, was included in the case file (see paragraph 20 above), there is no prima facie evidence for the Court to conclude that the applicant was formally or informally questioned while in police custody.
136. Be that as it may, the Court attaches decisive importance to the fact that during that period of about three days no evidence capable of being used against the applicant was obtained and included in the case file. No statement was taken from the applicant. No evidence in the file indicates that the applicant was involved in any other investigative measures over that period, such as an identification parade or biological sampling. Furthermore, the applicant did not personally allege before the Court that the domestic courts had possessed evidence presented during that period and used it at the trial in order to secure his conviction.
137. It should be emphasised here that the domestic law and the domestic courts ’ case-law provided for the exclusion of evidence obtained in a manner incompatible with the rules of the Code of Criminal Procedure (see paragraph 68 above). In the applicant ’ s case, because he was liable to a life sentence, legal assistance during questioning was also a sine qua non for the admissibility in evidence at the trial of any statement on his part (see paragraph 65 above).
138. In addition, unlike in the cases of John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996 ‑ I) and Averill v. the United Kingdom (no. 36408/97, ECHR 2000 ‑ VI) the failure of the accused to make any statement would have had no impact on the ensuing stages of the criminal proceedings. The applicant could even have benefited from remaining silent if he had not opted to confess at a subsequent stage in the proceedings, when he had already secured the assistance of a lawyer of his choosing.
139. On 21 October 1999, two weeks after he had been formally charged, the applicant voluntarily confessed (see paragraphs 21 and 24 above). In assessing the voluntary nature of that confession, the Court has regard to the fact that the applicant had already been questioned on two occasions, on 6 and 12 October 1999, with the assistance of a lawyer, and that he had remained silent on both those occasions (see paragraphs 21 and 23 above). During both these interrogations, and when he confessed on 21 October 1999, he had already been informed of his procedural rights, particularly the right not to incriminate himself (see paragraph 21 above). At that time, moreover, he was in receipt of the advice and assistance of a lawyer of his choosing (see paragraphs 23 and 24 above).
140. It is not disputed that only the confession made by the applicant on 21 October 1999 was used in order to convict him. No causal link was ever posited, either before the domestic courts or before the Court, between the absence of a lawyer from 3 to 6 October 1999 and the applicant ’ s confession two weeks after the end of that period in the presence of a lawyer of his choosing (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 180, ECHR 2010). Consequently, the absence of a lawyer during the applicant ’ s time in police custody in no way prejudiced his right not to incriminate himself.
141. The Court further notes that the applicant actively participated at all stages in the criminal proceedings: he subsequently retracted his initial statements, presenting a different version of events, and his defence lawyers obtained exculpatory evidence and contested the incriminating evidence (see paragraphs 27, 29, 31, 35 and 42 above).
142. Moreover, the applicant ’ s conviction was not based exclusively on his confession of 21 October 1999, which he made in the presence of the lawyer of his choosing, but on a whole body of consistent evidence, including the statements of a large number of witnesses who had been questioned during the assessment of the case, the results of ballistic, technical and accountants ’ reports and medical and psychiatric opinions, and also on the physical and documentary evidence gathered (see paragraphs 26, 33, 36-41 and 43 above).
143. The case was examined at three levels of jurisdiction, by a regional court, a court of appeal and the Supreme Court of Cassation. All these courts gave due consideration to the evidence available, including the statements of the many witnesses questioned during the assessment of the case, the results of the ballistic, technical and accountants ’ reports and the medical and psychiatric opinions, as well as the physical and documentary evidence gathered. Their decisions, which were properly reasoned in factual and legal terms, also duly assessed whether the applicant ’ s procedural rights had been respected (see paragraphs 31-44 above).
144. In the light of these findings, the Court considers that the Government provided relevant and sufficient evidence to demonstrate that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the absence of legal assistance while he had been in police custody, from 3 to 6 October 1999.
145. In conclusion, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
146. The applicant invited the Court to indicate to the Government, as it had done in the case of Harakchiev and Tolumov (cited above, § 280), measures for the execution of a finding of violation of Article 3 of the Convention owing to the material conditions of detention and the regime applicable to life prisoners.
147. The Government did not state a position on that matter.
148. The relevant part of Article 46 of the Convention reads as follows:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ...”
149. Under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, §§ 254- 2 55, ECHR 2012).
150. The Court reiterates that it set out the following recommendations in its Harakchiev and Tolumov judgment (cited above, § 280):
“The breach of Article 3 of the Convention found in the present case in relation to the regime and conditions of the applicants ’ detention flows in large part from the relevant provisions of the 2009 Execution of Punishments and Pre-Trial Detention Act and its implementing regulations ... It discloses a systemic problem that has already given rise to similar applications (see Chervenkov [v. Bulgaria, no. 45358/04], §§ 50 and 69-70[, 27 November 2012], and Sabev [v. Bulgaria, no. 27887/06], §§ 72 and 98 ‑ 99[, 28 May 2013]), and may give rise to more such applications. The nature of the breach suggests that to execute this judgment properly, the respondent State would be required to reform, preferably by means of legislation, the legal framework governing the prison regime applicable to persons sentenced to life imprisonment with or without parole. That reform, invariably recommended by the CPT since 1999 ..., should entail (a) removing the automatic application of the highly restrictive prison regime currently applicable to all life prisoners for an initial period of at least five years, and (b) putting in place provisions envisaging that a special security regime can only be imposed – and maintained – on the basis of an individual risk assessment of each life prisoner, and applied for no longer than strictly necessary.”
151. The Court observes that in the present case it found a violation of Article 3 of the Convention on account of the applicant ’ s conditions of detention taken in conjunction with his restrictive prison regime and the length of his period of imprisonment (see paragraphs 9 0 and 9 1 above). Those circumstances, as well as the applicable domestic legislation, are identical to those which led the Court to find a violation of Article 3 on account of the material conditions of detention and the prison regime in the Harakchiev and Tolumov judgment, cited above. It therefore considers it appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
152. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
153. The applicant clamed 10,00 0 euros (EUR) in respect of non ‑ pecuniary damage sustained owing to his prison regime and his conditions of detention.
154. The Government made no observations before the Grand Chamber on that matter.
155. In its judgment of 20 October 2015 the Chamber awarded the applicant EUR 8,000 under this head.
156. The Court considers that the applicant sustained non-pecuniary damage owing to the poor conditions to which he was exposed in the custodial facilities in which he was held and the restrictive prison regime to which he was subject. Like the Chamber, the Court considers that he should be awarded EUR 8,000 under this head.
157. The applicant claimed EUR 2,160 in respect of lawyer ’ s fees and 767 Bulgarian levs (BGN) in respect of the other costs and expenses incurred during the proceedings before the Chamber, as well as EUR 6,420 in respect of lawyer ’ s fees, EUR 927.27 in respect of travel expenses and BGN 1,929 in respect of other costs and expenses incurred during the proceedings before the Grand Chamber.
158. The Government made no observations on that point.
159. In its judgment the Chamber awarded the applicant EUR 2,589.50 in respect of costs and expenses.
160. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 8,000 reasonable in respect of all the expenses incurred during the proceedings before the Chamber and the Grand Chamber, less EUR 2,952.52 received from the Council of Europe in respect of legal aid, and awards that sum to the applicant.
161. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Holds, unanimously, that there has been a violation of Article 3 of the Convention;