CASE OF DIMITAR MITEV v. BULGARIA

1. The case originated in an application (no. 34779/09) 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 a Bulgarian national, Mr Dimitar Kirov Mitev (“the applicant”), on 22 April 2009.
2. The applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimitrova and Ms B. Simeonova, of the Ministry of Justice.
3. The applicant alleged, in particular, that he had been convicted of murder on the basis of a confession made by him to the police immediately after his arrest, under duress and in the absence of a lawyer.
4. On 16 November 2016 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. On 6 February 2017 the President of the Section granted the Bulgarian Helsinki Committee leave to intervene as a third party in the proceedings, in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1972 and is currently detained at Varna Prison.
7. Before the events at issue, he had several previous convictions for theft.
A. Arrest of the applicant and pre-trial proceedings
8. A seventy-five -year-old lady, a neighbour of the applicant ’ s parents, was murdered in her house in Varna on the morning of 18 June 2006, and a number of her personal possessions were stolen from the house. The applicant was suspected of having committed the offence and a search order was issued in respect of him.
9. On the morning of 21 June 2006 the applicant was arrested. He had been hiding in an abandoned house in a neighbouring village. The police report on his arrest stated that he had “slightly” resisted the arrest, and that force had been used in order to take him out of his hiding place (under a bed) and handcuff him.
10. The applicant was taken to the police station in the nearby town of Valchi Dol, where, at 11. 30 a.m., an order for his arrest was issued under section 63 (1) of the Ministry of the Interior Act 2006 (see paragraph 26 below). The applicant signed a declaration stating that he wanted to be assisted by a lawyer and that he had liver and stomach pains, due to “past ailments”, and wished to be examined by a doctor.
11. Later in the day, two police officers from Varna, Z. K. and V. V., arrived in Valchi Dol. They had a conversation with the applicant, during which he confessed, according to him under physical duress, to having committed the murder and described his actions in the days preceding his arrest. In addition, he confessed to having stolen a gun and other personal possessions from another house on an earlier occasion. The confession was written down and was signed by the applicant and Officer V.V.
12. Later on that same day the applicant was transferred to the police station in Varna, where he asked to be examined by a doctor. The examination started at about 8 p.m. The doctor identified bruises and haematomas on the applicant ’ s right elbow, right flank, buttocks and wrists, which had been caused by hard, blunt objects less than twenty-four hours earlier.
13. On 22 June 2006 an investigator brought charges against the applicant in relation to another offence, an unrelated theft, and a prosecutor ordered his detention for up to seventy-two hours. On 23 June 2006 the Varna District Court ordered the applicant ’ s detention on remand in connection with that charge. The criminal proceedings concerning that charge proceeded alongside the proceedings which are the subject of this application, and were completed in March 2007.
14. The murder investigation, to which the investigation into the alleged theft of a gun and other personal possessions mentioned in the applicant ’ s confession to Officers Z. K. and V.V. was joined, continued over the months which followed. The police gathered further evidence and witness testimony, some of which was identified on the basis of that confession. They never found the objects stolen from the victim ’ s house. On 18 December 2006 an investigator brought charges against the applicant in connection with the two offences mentioned above. On that occasion the applicant had a lawyer, retained by him on the same day. The applicant made a brief statement that he was not guilty.
15. On an unspecified date in 2007 the applicant was indicted and taken to court.
16. The Varna Regional Court (hereinafter “the Regional Court”), which examined the case at first instance, held its first hearing on 25 June 2007. It heard the doctor who had examined the applicant on the evening of 21 June 2006 (see paragraph 12 above). She stated that she maintained the opinions expressed in her previous report, and the prosecution and the defence posed no further questions. Officers Z.K. and V.V. were examined as witnesses and recounted their conversation with the applicant on 21 June 2006 and the confession he had made to them. They replied to questions posed by the prosecution and the defence. The applicant ’ s father was examined as well, and he stated that he had visited his son about ten days after his arrest. The applicant had told him that he had been beaten in order to confess, and some traces of this beating had still been visible on him. The Regional Court heard other experts and witnesses.
17. During the next hearing, held on 3 October 2007, the applicant made a statement on the charges. He said that he had not committed the offences, as at the time of the murder he had been at his grandmother ’ s house in another village, and that he had confessed to the offences under duress.
18. On 11 February 2008 the Regional Court examined more witnesses and then the parties made oral submissions. Counsel for the applicant contested the testimony of Z.K. and V.V. in particular, arguing that their examination had been contrary to Article 118 of the Code of Criminal Procedure (see paragraph 31 below). He pointed out moreover that, while the applicant had made a confession to those two officers, he had not repeated that confession when taken before an investigator. At the same time, the confession was one of “ the pillars ” of the indictment, as there was no other evidence showing the course of the events inside the victim ’ s house.
19. In a judgment given on 11 February 2008 the Regional Court convicted the applicant and sentenced him to life imprisonment. On the basis of the evidence collected, it concluded that the applicant had stolen a gun and other personal possessions several days before the murder, and on the day of the murder had entered the victim ’ s house in order to steal food. When she had surprised him in the house, he had attacked her, hitting her with the gun stolen earlier – in such a way that a part of the gun ’ s cock had broken off and fallen to the floor – and with an axe which he had found in the house. After the murder the applicant had run away. A stranger had given him a lift to another village, but the applicant had forgotten a bag containing his clothes and the gun in the stranger ’ s car.
20. In establishing the facts, the Regional Court relied on the following most important pieces of evidence: a metal fragment which had been found under the victim ’ s body and which the experts confirmed to be the missing part of the cock of the gun; traces of the victim ’ s blood found on the handle of the gun found in the applicant ’ s bag; the testimony of the person who had given the applicant a lift in his car and had found that bag; the fact that that person had also recognised the applicant ’ s photo when it had been shown to him by the police; and the testimony of Officers Z.K. and V.V., who had recounted what the applicant had confessed to them with regard to the course of the events in the victim ’ s house. As to the officers ’ testimony, the Regional Court pointed out that it considered it credible, since the confession as recounted by them had enabled the police to continue the investigation and identify further evidence.
21. The applicant lodged an appeal.
22. In his written and oral submissions to the Varna Court of Appeal (hereinafter “the Court of Appeal”), counsel for the applicant contested once again the testimony given by Z.K. and V.V. He argued that the Regional Court had not commented on the evidence showing that the applicant had been beaten in order to make the confession the officers had recounted, pointed out that the confession had not been repeated once the applicant had been taken before an investigator, and relied again on Article 118 of the Code of Criminal Procedure.
23. In a judgment of 30 May 2008 the Court of Appeal upheld the applicant ’ s conviction and sentence, finding that his guilt had been proved beyond reasonable doubt. In addition to the evidence described above, it relied on the testimony of a neighbour of the victim, who had seen a person considered to be the applicant on the roof of the victim ’ s house shortly before the murder. As to Z.K. and V.V., the Court of Appeal pointed out that they had not been investigating bodies within the meaning of the Code of Criminal Procedure, and that their testimony had been assessed in the light of all other evidence. Furthermore, it commented on the exonerating evidence, in particular expert reports finding no fingerprints of the applicant and no traces of his scent in the victim ’ s house, saying that this was not sufficient to refute the accusations.
24. The applicant lodged an appeal on points of law. His counsel contested once again the testimony of Officers Z.K. and V.V., pointing out that the lower courts had not commented on the evidence showing that the applicant had been beaten in order to confess. Moreover, the officers ’ testimony had been given in breach of Article 118 of the Code of Criminal Procedure.
25. In a final judgment of 13 November 2008 the Supreme Court of Cassation upheld the Court of Appeal ’ s judgment. As to the arguments of the defence concerning the testimony of Z.K. and V.V., it observed that the confession as recounted by the officers contained details which could only have been known to the perpetrator of the crimes at issue, and thus could not have been “instigated”. Moreover, allowing Z.K. and V.V. to testify had not been in breach of Article 118 of the Code of Criminal Procedure.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Ministry of the Interior Act
26. The Ministry of the Interior Act, in force between 1 May 2006 and 27 June 2014, provided in section 63(1) that the police could detain for up to twenty-four hours a person suspected of having committed a criminal offence. Under section 63 (5), any such person had the right to legal assistance from the moment of his or her detention.
B. The Code of Criminal Procedure
27. Article 15 § 1 of the Code of Criminal Procedure, in force as of 29 April 2006, lays down the general principle that an accused has the right to defence in criminal proceedings. Article 97 specifies that a person has the right to legal assistance from the moment of his or her detention or the moment when charges are brought against him or her. Article 94 stipulates that the participation of a defence lawyer is mandatory where, inter alia, the case concerns an offence punishable by at least ten years of imprisonment; in such a case, the competent body is required to appoint such a lawyer. Article 55 of the Code, applicable after charges have been brought, lists in detail the rights of the accused, which include the right to legal assistance and to have the defence lawyer present during the implementation of all investigative measures; the right to make statements on the charges ( обяснения ) or to remain silent; the right to present evidence, to consult the case file and to make objections; the right to participate in the criminal proceedings; and the right to appeal against any decision affecting his rights and interests.
28. Article 105 § 2 excludes any evidence which has not been collected in accordance with the rules laid down in the Code.
29. Article 115 of the Code provides that the accused is to give statements on the charges orally and directly before a competent body ( a prosecutor, an investigator or a tribunal). Such statements may be given at any moment during criminal proceedings; alternatively, the accused may refuse to give statements.
30. Article 116 provides that an indictment and a conviction cannot be based solely on a confession by the accused. In addition, a confession does not absolve the competent bodies from their obligation to investigate.
31. Article 117 of the Code provides that witness testimony can be used to establish any circumstance which a witness has perceived. Article 118, on the other hand, bars certain categories of persons from giving testimony as witnesses. These include persons who have participated in the criminal proceedings in another procedural quality, apart from the co-accused, the victim, the civil claimant or civil defendant and any private prosecuting party, and officers of the Ministry of the Interior who have participated in a search and seizure procedure, a reconstruction of an accident or an identity parade (paragraph 1). In addition, investigating bodies which have carried out an investigative action cannot give witness testimony about that action, even if the record taken of the action does not meet the statutory requirements (paragraph 2). Whether police officers who have questioned a suspect informally may later testify as to the content of the statements made by that suspect is an issue which has been addressed by the Supreme Court of Cassation under Article 118 § 2 or Article 115 of the Code of Criminal Procedure (see paragraph 29 above), and has been given conflicting answers. In some cases the Supreme Court has held that such police officers are not investigating bodies within the meaning of Article 118 § 2, and are thus not prevented from giving testimony in the ensuing criminal proceedings (for example, Решение № 486 от 10.03.2015 г. на ВКС по н.д. № 1406/2014 г., I н. о., also referred to in paragraph 40 below). In other decisions the result was the opposite, with the Supreme Court of Cassation analysing the matter from the point of view of Article 115 and not Article 118 § 2, and holding that such testimony was inadmissible as the rights of the suspect had been violated (for example, Решение № 391 от 25.10.2013 г. на ВКС по н.д. № 1220/2013 г., III н. о ., also referred to in paragraph 48 below).
III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)
32. In a report on its visit to Bulgaria in 2006 (CPT/ Inf (2008) 11) the CPT stated the following:
“ 28. Most detained persons interviewed by the delegation during the 2006 visit indicated that they had been asked to declare in writing whether they wished to benefit from the right to contact a lawyer after they had been brought to a police station. However, it was alleged by some detainees that police officers had suggested that they should decline this right as they ‘ did not need a lawyer ’ or had told them that they were not entitled to an ex officio lawyer prior to appearing in court. It became clear during the visit that very few persons who had expressed a wish to meet a lawyer – be it private or ex officio – had been given this opportunity while in police custody.
The CPT recommends that the Bulgarian authorities recall to all police officers the legal obligation to grant access to a lawyer from the very outset of a person ’ s deprivation of liberty.”
33. Similar findings were made in the CPT reports which followed, namely after its visits to Bulgaria in 2008, 2010 and 2014 (CPT/ Inf (2010) 29, CPT/ Inf (2012) 9, CPT/ Inf (2015) 12).
34. 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 (CPT/ Inf (2015) 17). The statement contained the following paragraphs in particular :
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.
18. ... 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).
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
35. The applicant complained in substance under Article 6 §§ 1 and 3 of the Convention that the domestic courts had relied on the witness testimony of Z.K. and V.V., recounting a confession made by him in the absence of a lawyer, as key evidence to secure his conviction. He stated that he had made the confession at issue after the two officers had beaten him “brutally”.
36. The Court is of the view that, taking into account all the circumstances of the case, the complaints above are appropriately examined under Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, read 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;
37. The Government argued that the applicant had failed to exhaust the available domestic remedies, because he had not expressly contested the testimony of Officers Z.K. and V.V. during his trial on the grounds that he had not had a legal representative at the time when he had confessed to them.
38. Furthermore, the Government argued that the applicant ’ s allegations that he had been beaten in order to make a confession were unreliable, and that the injuries observed during his medical examination on the evening of 21 June 2006 had been due to the use of force during his arrest earlier in the day. They claimed that the applicant had made his confession “upon his free will”. Moreover, the applicant had never claimed during the pre-trial stage of the criminal proceedings that he had been beaten, and had never lodged a formal complaint in that regard.
39. The Government contended that the applicant, who had apparently been aware of his rights as a detainee, given his previous convictions, and who had been expressly informed of his right to a lawyer upon being detained in the police station in Valchi Dol, had apparently waived that right, because he had not requested such a lawyer when Officers Z.K. and V.V. had arrived to talk with him.
40. The Government next pointed out that, under domestic law as interpreted by the national courts, the testimony of Z.K. and V.V. was admissible evidence in the criminal proceedings. The Government referred to several judgments where the Supreme Court of Cassation had found such evidence valid. In one of those judgments, given on 10 March 2015 ( Решение № 486 от 10.03.2015 г. на ВКС по н.д. № 1406/2014 г., I н. о. ), the Supreme Court of Cassation had stated in particular that police officers who had had a conversation with a suspect immediately after his arrest were not investigating bodies and were thus not barred from being witnesses. Their testimony concerned facts directly perceived by them, namely the relevant person ’ s initial statement as to his involvement in the offence under investigation. This statement itself could not be used as evidence, as it did not comply with the requirements of the Code of Criminal Procedure.
41. The Government argued that the criminal proceedings against the applicant, taken as a whole, had been fair. In that regard, they raised the following arguments: at the time of the relevant events the applicant had not been underage or otherwise particularly vulnerable; the legal framework had been adequate; the applicant had not complained at the pre-trial stage of the proceedings of a beating by Officers Z.K. and V.V. and the absence of a lawyer during his interview with them; the applicant had had a lawyer throughout his trial, and the defence had had an opportunity to cross ‑ examine in court the officers and the doctor who had examined the applicant after his alleged beating; the applicant ’ s confession had not been directly used as evidence, but only through the testimony of Z.K. and V.V.; the confession had not been decisive in securing the applicant ’ s conviction; the case had been decided by three levels of court; and lastly, public interest had required the effective criminal prosecution of the offences of which the applicant had stood accused.
42. The applicant pointed out that during his trial the defence had on numerous occasions contested the testimony of Z.K. and V.V., arguing that it was inadmissible evidence and stating that the confession they had recounted had been made under duress.
43. The applicant pointed out that upon his arrival at the Valchi Dol police station after his arrest on 21 June 2006, the only health problems he had declared had been related to “past ailments”. However, on the evening of the same day a doctor had identified numerous injuries on his body. These had been caused during his time at the Valchi Dol police station, where he had had a conversation with Z.K. and V.V. On numerous occasions during the trial, when contesting the testimony of the two officers, the defence had raised this matter with the domestic courts, which had failed to make any comment.
44. The applicant also submitted that upon his arrival at the Valchi Dol police station he had declared that he wished to be represented by a lawyer. Despite that, no lawyer had been present during his conversation with Z.K. and V.V. There had been no compelling reasons requiring such a restriction of his right to legal assistance, nor had the Government referred to any such reasons. The confession made by him in front of the officers, while not admissible evidence, had nevertheless been used against him in his trial through their witness testimony. In the applicant ’ s view, that testimony had been the main evidence proving his guilt.
45. The Bulgarian Helsinki Committee submitted information on the availability of legal assistance for persons detained by the police under provisions currently in force and identical to the ones described in paragraph 26 above. In 2015 only twenty-three out of 44,320 persons detained by the police had had a lawyer, and for 2016 the number was twenty-five out of 48,588 detainees. An earlier study of the Open Society Institute – Bulgaria also showed that access to legal assistance in police detention was very limited, and that often police officers were not convinced of the necessity to ensure that detainees had such assistance. In addition, discussions with lawyers organised by the Bulgarian Helsinki Committee had showed that, even when lawyers came to police stations, they were not allowed to attend the interrogations of their clients.
46. The Bulgarian Helsinki Committee also referred to the results of a survey among 1,357 convicted persons conducted by it at the end of 2016 and the beginning of 2017. More than 70% of the persons interviewed had stated that they had not had a lawyer from the outset of their criminal proceedings. Another survey among twenty-three convicted persons carried out in 2016 showed that none of them had had a lawyer during their first interrogation by the police, and none had been informed of their right to remain silent.
47. According to the Bulgarian Helsinki Committee, confessions by suspects taken into police custody were common. Another survey of 147 criminal files showed that in about two thirds of cases persons suspected of having committed an offence had made self-incriminating statements to the police, in the absence of a lawyer. Often these statements were presented to the courts and included in the case file.
48. The Bulgarian Helsinki Committee next explained that it was common practice for the prosecuting authorities in Bulgaria to rely on police testimony restating confessions made by suspects prior to the formal bringing of charges. The Supreme Court of Cassation ’ s approach to the use of such evidence varied. In some cases, such as the case resulting in the judgment of 10 March 2015 also referred to by the Government (see paragraph 40 above), such testimony was admitted as evidence. In other cases it was found to be inadmissible. Thus, in a judgment of 25 October 2013 ( Решение № 391 от 25.10.2013 г. на ВКС по н.д. № 1220/2013 г., III н. о. ) the Supreme Court of Cassation had held that the testimony of a police officer regarding a confession by the accused had been meant to “replace” that confession itself, which had been made in breach of the procedural requirements. This had thus aimed at “circumventing the law”.
49. Lastly, during the survey mentioned in paragraph 46 above, 24% of the persons interviewed had stated that physical force had been used against them while they had been in police custody.
50. The Government argued (see paragraph 37 above) that the applicant had failed to exhaust the available domestic remedies because, during the trial against him, he had not expressly contested the testimony of Officers Z.K. and V.V. on the grounds that he had not had a legal representative at the time when he had confessed to them. The applicant (see paragraph 42 above) responded that he had on numerous occasions contested the testimony of the two officers, arguing that it was inadmissible evidence and claiming that he had made the confession at issue under duress.
51. The Court, for its part, observes that throughout his trial the applicant contested the testimony of Officers Z.K. and V.V. He argued that this evidence was inadmissible in the light of the ban under Article 118 of the Code of Criminal Procedure on certain persons giving witness testimony. In addition, he stated that his confession as recounted by the officers had been made under duress, and submitted that he had not reiterated that confession after he had been taken to an investigator (see paragraphs 18, 22 and 24 above). While, indeed, the applicant did not expressly state that he had not been assisted by a lawyer when he had confessed to Officers Z.K. and V.V., the Court is of the view that his complaint has been made in substance before the domestic courts. It notes in this respect that the relevant issue, namely whether the testimony of the two police officers recounting the applicant ’ s confession was admissible evidence, has always been considered by the domestic courts as an issue within the whole framework of the domestic rules of criminal procedure. These rules contain strict standards applicable to the authorities who have the powers to take statements from a suspect, and the taking of such a statement is linked to the bringing of charges against a suspect, informing them of the charges and their rights and providing them with a lawyer. Thus, the question of whether the testimony of the two police officers was admissible evidence and whether they were prohibited from giving evidence under Article 118 of the Code of Criminal Procedure was directly linked to the question of whether the applicant ’ s confession was collected without violating the rights of the accused to remain silent and his right to a lawyer.
52. Accordingly, the Government has not established that the applicant failed to exhaust a remedy which could have been effective in the circumstances.
53. The Court also notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
54. The protections afforded by Article 6 §§ 1 and 3 of the Convention apply to any 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.
55. The applicable general principles under Article 6 §§ 1 and 3 have recently been restated in the cases of Ibrahim and Others v. the United Kingdom [GC] (nos. 50541/08 and 3 others, §§ 249-74, ECHR 2016) and Simeonovi v. Bulgaria [GC] ( no. 21980/04, §§ 110-20, ECHR 2017 (extracts)).
(b) Application to the present case
( i ) Starting point for the applicability of Article 6 in the present case
56. In the present case, the applicant complained in relation to the criminal proceedings against him which concerned a murder committed on 18 June 2006 and a theft committed sometime earlier. Parallel criminal proceedings concerning a different offence were conducted against him at the same time (see paragraph 13 above).
57. The applicant was arrested and placed in police custody on 21 June 2006, in accordance with a search order based on the suspicion that he had committed the murder mentioned above (see paragraphs 8 and 9 above). On the same day the applicant was informally questioned by Officers Z.K. and V.V. in relation to that murder; during that questioning he confessed to having also committed the theft (see paragraph 11 above). On the next day, 22 June 2006, the applicant was formally detained by a prosecutor in the context of the other set of criminal proceedings against him, and charges in relation to the murder and the theft at issue were only formally brought against him on 18 December 2006 (see paragraph 14 above). However, already at the time of his arrest on 21 June 2006 and interview with Officers Z.K. and V.V., the applicant ’ s situation was substantially affected by actions of the authorities in relation to those two offences. Accordingly, it was as of this moment that Article 6 of the Convention, taken in its criminal aspect, became applicable in respect of the criminal proceedings at issue.
(ii) Whether the applicant waived his right to legal assistance and whether there were compelling reasons to restrict that right
58. The complaints raised by the applicant centred on his interview on 21 June 2006 with Officers Z.K. and V.V. and the use during his trial of the confession he had made to them. It has not been disputed that the applicant requested a lawyer before his questioning, but was not assisted by a lawyer prior to or during the interview at issue.
59. The Government argued that the applicant had waived his right to legal assistance (see paragraph 39 above). They relied on the fact that he had allegedly not repeated his request to be assisted by a lawyer after Officers Z.K. and V.V. had arrived to talk with him.
60. The Court has held that in order to be effective for Convention purposes, any waiver of the right to legal assistance must be established in an unequivocal manner and be attended by minimum safeguards. Such a waiver need not be explicit but it must be voluntary and constitute a knowing and intelligent relinquishment of a right (see Simeonovi, cited above, § 115 with further references). The Government have not shown this to be the case. It is significant in that regard that, upon arriving at the Valchi Dol police station, the applicant signed a declaration stating that he wished to be assisted by a lawyer (see paragraph 10 above). There is no indication that he changed his position afterwards. Accordingly, the Court cannot conclude that the applicant waived his right to legal assistance. That right was therefore restricted.
61. Restrictions on the right to legal assistance are only permissible if expressly provided for by law, for “compelling reasons”, and in exceptional circumstances; in addition, they must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Ibrahim and Others, § 256, and Simeonovi, § 117, both cited above ).
62. However, under national law there is no provision allowing for a restriction of the right to a lawyer of persons in police custody in exceptional circumstances (see paragraph 26 above) and the Government have relied on no such exceptional circumstances. 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.
63. The Court also notes with concern that the events in the instant case appear to constitute a practice on the part of the authorities. That practice, highlighted by the Bulgarian Helsinki Committee in their third-party submissions (see paragraphs 45 - 46 above), has been criticised for many years by the CPT (see paragraphs 32 - 34 above). For the Court, 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 Simeonovi, cited above, § 131).
(iii) The fairness of the proceedings as a whole
64. The Court must ascertain whether the absence of a lawyer during the applicant ’ s interview with Officers Z.K. and V.V. had the effect of irretrievably prejudicing the overall fairness of the criminal proceedings against him. It has held that, in the absence of “compelling reasons” for restricting the right to legal assistance, it must apply a very strict scrutiny to its fairness assessment. The onus will 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 (see Ibrahim and Others, § 264, and Simeonovi, § 118, both cited above). In Ibrahim and Others (see § 274 of the judgment) the Court set out non-exhaustive list 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.
65. An important factor to be considered in the present case is whether the circumstances in which the applicant ’ s confession was obtained “ cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion” ( ibid ., point (d)).
66. The applicant claimed that he had confessed to having committed the offences of which he was convicted after Officers Z.K. and V.V. had “brutally” beaten him (see paragraph 35 above). While the applicant ’ s allegations were supported by medical evidence, he did not pursue criminal proceedings against the police officers and in the criminal proceedings against him the domestic courts never examined those allegations. This renders a definitive finding by the Court on the applicant ’ s allegations difficult. However, the Court ’ s task, as mentioned above, is to establish whether the circumstances in which the applicant made the confession at issue were such as to cast doubt on its accuracy and reliability. The Court notes in that regard that the applicant was questioned by the police officers investigating the murder outside the procedure prescribed by the Code of Criminal Procedure. Further, after his confession to the two police officers, the investigating authorities proceeded with charging him and putting him on pre-trial detention on an unrelated minor crime (see paragraph 13 above). It was only six months later that the applicant was charged with the murder and questioned in accordance with the procedure prescribed by the Code of Criminal Procedure (see paragraph 14 above). In conclusion, the Court finds that all these circumstances, taken into account, cast doubt on the accuracy and reliability of the testimony of the police officers, relating the applicant ’ s confession.
67. A further factor to be taken into account when assessing the overall fairness of the criminal proceedings is “the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with” (see Ibrahim and Others, cited above, § 274 (b)). In the case at hand, there is no dispute that the applicant ’ s confession as such could not have been used as evidence in the trial, as it was not obtained in accordance with the requirements of the Code of Criminal Procedure. The confession was not made before a competent body (a prosecutor, an investigator or a court – see paragraph 29 above), which could take a statement from a suspect only after providing them with their full rights, including the right to a lawyer. Since the Code of Criminal Procedure provides for the exclusion of evidence collected in a manner incompatible with its rules (see paragraph 28 above), the confession could not be included in the body of probative evidence. However, the effect of allowing the testimony of Officers Z.K. and V.V. was, for all practical purpose, precisely the same – to allow that confession as evidence circumventing all procedural rights of the applicant.
68. In addition, the Court observes that the applicant ’ s confession in the absence of a lawyer was made in the very early stages of the criminal proceedings, and that its significant impact on the further development of those proceedings cannot be ignored. The applicant did not repeat the confession made in front of Officers Z.K. and V.V. during his subsequent interviews with the prosecuting authorities (see paragraph 14 above). On the contrary, during his trial he stated that he had not committed the offences of which he stood accused, and presented an alternative version of the events (see paragraph 17 above).
69. As concerns, in the next place, whether the contested 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” (see Ibrahim and Others, cited above, § 274 (g)), the Court observes that the applicant ’ s confession, included in the body of probative evidence through the witness testimony of Z.K. and V.V., appears to have been one of the important elements of evidence which secured his conviction (see paragraph 20 above). This is even more relevant in the light of the fact that the body of evidence examined at the trial also contained exonerating evidence, but on balance the national courts found that the accusations had nevertheless been proved (see paragraph 23 above).
70. The Government raised a number of arguments in order to demonstrate that the proceedings taken as a whole had been fair (see paragraph 41 above). They pointed out that: at the time of the relevant events the applicant had not been underage or otherwise particularly vulnerable; the legal framework had been adequate; the applicant had not complained at the pre-trial stage of the proceedings of a beating by Officers Z.K. and V.V. or the absence of a lawyer on 21 June 2006; he had had a lawyer throughout his trial, and the defence had had an opportunity to cross ‑ examine in court the officers and the doctor who had examined the applicant after his alleged beating; the confession had not been directly used as evidence to secure the applicant ’ s conviction, but only through the testimony of Z.K. and V.V.; in any event, the confession had not been decisive; the case had been decided by three levels of court; and public interest had required the applicant ’ s effective criminal prosecution.
71. The Court already responded to some of these arguments. In addition, it reiterates that, in the circumstances of the case, it has to apply very strict scrutiny when assessing the fairness of the proceedings, and that in cases such as the present one, where there have been no “compelling reasons” to restrict access to a lawyer at the early stages of the proceedings, it can only exceptionally find that the overall fairness of proceedings has not been prejudiced by that initial failure to observe the accused ’ s rights (see paragraph 64 above). Thus, while finding that the elements referred to by the Government are relevant, applying the requisite strict scrutiny, the Court concludes that they are insufficient to tip the balance in favour of a finding that the proceedings in the present case were fair.
72. Thus, in view of its findings above : that the applicant was not assisted by a lawyer when making the confession which was subsequently used to secure his conviction for murder; that he was not shown to have waived the right to legal assistance; that the Government relied on no “compelling reasons” to justify the failure to provide him with such legal assistance; and the Government ’ s failure to show that the overall fairness of the criminal proceedings had not been irretrievably prejudiced by the initial failure to provide legal assistance to the applicant, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
73. 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.”
74. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. In addition, he contended that the most appropriate form of redress in the case would be to re-open the criminal proceedings and re ‑ examine the charges against him in line with the requirements of a fair trial.
75. The Government contested the claims. They proposed that the Court conclude that the finding of a violation of the Convention constituted in itself sufficient just satisfaction. In addition, relying on several earlier judgments of the Court, including Dvorski v. Croatia [GC] (no. 25703/11, § 117, ECHR 2015) and Ibrahim and Others (cited above, § 315), they pointed out that it was impossible to speculate as to the outcome of the criminal proceedings against the applicant, and that any finding of a violation of his rights under Article 6 of the Convention would not mean that he had been wrongly convicted.
76. The Court also notes that it does not follow from its finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention that the applicant was wrongly convicted, and that it is impossible to speculate as to what might have occurred had there not been a breach of the Convention; accordingly, it does not consider it necessary to make an award in respect of non-pecuniary damage (see Dvorski, cited above, § 117; Ibrahim and Others, cited above, § 315; and Zakshevskiy v. Ukraine, no. 7193/04, § 133, 1 7 March 2016 ).
77. The applicant also claimed EUR 6,2 7 0 for the work performed by his legal representatives before the Court, and another EUR 1 0 5.83 for translation expenses. In support of this claim, he submitted a contract for legal representation, a time sheet, and a receipt concerning the sum paid for translation. The applicant requested that any amount awarded under this head be paid directly to his legal representatives, Mrs Stefanova and Mr Ekimdzhiev.