TO: THE COMMITTEE AGAINST TORTURE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS UNITED NATIONS OFFICE AT GENEVA 1211 GENEVA 10

ALTERNATIVE REPORTTo the Bulgarian government’s Third and Fourth Consolidated

Reports to the Committee against Torture

PREPARED BY THE BULGARIAN HELSINKI COMMITTEEMEMBER OF THE INTERNATIONAL HELSINKI FEDERATION FOR HUMAN

RIGHTS

7 Varbitsa Street, 1504 Sofia, Bulgaria, tel/fax: +359 2 943 90 60, email: bhc@bghelsinki.org

This alternative report evaluates the Third and the Fourth Consolidated Reports of the Republic of Bulgaria to the Committee Against Torture on the implementation of obligations under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the developments in Bulgaria since 1998 in the field of combating torture and other cruel, inhuman and degrading treatment or punishment. The alternative report draws mainly on the research of the Bulgarian Helsinki Committee1 but makes use of the reports of other human rights organizations too. It does a general evaluation of Bulgaria’s Third and Fourth Consolidated Reports, outlines the positive and the negative developments since 1998 and draws conclusions. A number of materials are annexed to the present report, some of which should be read as its integral part.

1. GENERAL EVALUATION OF THE BULGARIAN GOVERNMENT’S THIRD AND FOURTH CONSOLIDATED REPORTS

The Third and the Fourth Consolidated Reports of the Republic of Bulgaria to the Committee Against Torture (hereinafter “the government report”) tries to trace the developments at the national level in the light of the concluding observations and comments made by CAT on 7 May 1999 following the submission of Bulgaria’s second periodic report. As it becomes clear from p. 41 however, the government report is updated as of 25 June 2000 at the latest, the date on which “the Government of the Republic of Bulgaria hopes for this report to be presented within the established time limits”. As is well known, the final submission took place more than two years later. This however did not affect in any way the content of the report. It contains old and outdated information. Much of it is inadequate, especially when it describes legal frameworks as it draws on laws that were subsequently repealed. The report also describes plans that have already realized and the results in some points even became obsolete. A typical example is the plan, described on pp. 42-43, to reform the Law on Punishment Enforcement. This reform already took place in the spring of 2002.

Nevertheless, the government report offers enough in terms of content, which allows to evaluate the government attitude to issues that arise with regard to the implementation of the Convention. This attitude is, at best, ambiguous. While the government took some measures that impose some restraint on the practice of torture and allow combating torture, it did not respond to a number of concerns and recommendations that the Committee made in May 1999, including the major one, to adopt in domestic law a definition of torture in accordance with Article 1 of the Convention. As a result of this and other failures, torture remains a serious problem in Bulgaria. The government report does not report fairly on a number of issues and exaggerates the significance of some developments, which the government assumes are along the lines of implementation of the Convention obligations.

2. POSITIVE DEVELOPMENTS

1 Bulgarian Helsinki Committee is a non-governmental human rights organization established in 1992. It monitors human rights in Bulgaria and in other OSCE countries and takes legal action for the protection of human rights before Bulgarian and international tribunals. For more information on the BHC see: www.bghelsinki.org.

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There have been in Bulgaria some positive developments in combating and preventing torture and other cruel, inhuman or degrading treatment or punishment. The government report outlines some such developments. These include:

- Reduction of pre-trial detention and imposition of judicial safeguards on detention. With the amendments of the Criminal Procedure Code (CPC) in July 1999 (effective since January 2000) the courts, not the prosecutors, impose the preliminary detention at the pre-trial stage. Courts also have a role in the termination of the preliminary proceedings and victims of crimes, including victims of torture, can participate in such proceedings.

- Improving somewhat the access to legal aid, especially at the trial stage. The amendments of the CPC in July 1999 broadened the scope of free legal aid with the introduction of a clause making indigent criminal defendants eligible for free legal aid. Since then, on the basis of several surveys, the BHC found that this clause reduced the number of criminal defendants who are tried without a layer. Nevertheless, access to legal aid, especially at the pre-trial stage, remains a serious concern.2

- Introduction of some safeguards during police detention. Already in 2002 by an order and since 13 September on the basis of the Instruction No. I-167 the Ministry of Interior obliged its local police headquarters to offer, immediately upon arrest, all detainees to sign declarations that he/she is aware of his/her rights to have a lawyer, to be examined by a medical doctor on his/her own choice and to inform relatives or third parties about the place and the circumstances of his/her arrest. The Instruction also obliged the places of detention under the authority of the National Police to ensure that the detention cells abide by certain material standards, including: access to natural light, appropriate ventilation and facilities for rest during the night. It also imposed certain standards on the conditions in the interrogation rooms and explicitly forbade the presence in those rooms of “suspicious objects”, such as wooden or metal sticks, truncheons, electric cables, imitations of weapons or knives etc.

- Improving some material conditions in the places of detention. These improvements did not significantly affect the humanization of the entire system because they were very slaw and piecemeal. They included transfers of prisoners to more open institutions, closure of some of the worst investigation detention facilities and psychiatric establishments and construction or renovation of new ones.

- Imposition of a judicial control over some disciplinary measures and administrative isolations in the prisons. It was introduced with the amendments of the Law on Punishment Enforcement from June 2002. According to these provisions punishment cells and some of the administrative isolations, those imposed by the local prison administration (but not those imposed by the Directorate of the Execution of Punishments) are subject to judicial control and can be repealed by the courts. Unfortunately, the prison administration interprets these provisions in a sense that the appeal does not have a suspensive effect over the execution of these measures. Thus, much of their effect is in fact annulled.

- Allowing the NGOs to visit places of detention, to review documentation and, in certain conditions, to conduct interviews in private. NGO visits to places of detention are a key to the improvement of the conditions of

2 See below.

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detention in Bulgaria. They also serve as an important safeguard against torture and ill treatment. It will not be exaggerated that, ultimately, the human rights NGO oversight of the system was the decisive factor triggering improvements. The BHC has a regular access to the prisons since 1995. It is able to review documentation and to interview sentenced prisoners in private. BHC also has access to investigation detention facilities and to police stations. There it has some access to documentation related to detention but cannot interview detainees. BHC also visits the psychiatric establishments (hospitals and social care homes for mentally disabled where it has an access to all documentation and conducts private interviews). Since 2003 the BHC has an access to police stations where it can see material conditions of detention and review documentation related to detention.

- Creation of an ombudsman institution. In May 2003 the parliament adopted the law on the ombudsman and this institution is supposed to be formed by March 31, 2004.

It has to be underlined that almost without exception the positive developments were a result of a pressure from domestic and international organizations. Some of the measures taken were a direct result of the activities of such organizations. E. g. the order, introducing declarations in the police stations, was issued at the end of March, 2002, in the wake of the CPT visit to Bulgaria.

3. NEGATIVE DEVELOPMENTS/LACK OF DEVELOPMENTS

A) No specific crime of torture and lack of universal jurisdiction

Despite the Committee’s concern, expressed in its concluding comments in May 1999, as the government report submits, the “new Criminal Code is expected to contain texts to the effect that acts of torture are offenses under criminal law” (p.43). These observations, made as early as in the spring of 2000, are still valid. At present “lecturers and researchers of academic rank” continue to think of how to word texts on torture, an easy task that academics in other countries have fulfilled decades ago. The situation with the resistance of the government to introduce universal jurisdiction is the same. As the government report submits, “such measures have not been adopted” as “for the time being, the idea of a special and differentiated procedure approach to criminal torture requiring special normative standards has not crystalised, both in theoretical and legislative terms, and is not supported” (p.45). At present the situation with the universal jurisdiction has not changed. Such a disregard of the concerns and recommendations of a respected international body is quite indicative. It indicates not only an attitude to international law but also to combating torture. There is little doubt that a clear formulation of a crime of torture will contribute to its effective investigation and punishment. Inability to effectively investigate and punish torture at the domestic level makes it more necessary to exercise universal jurisdiction, as required by Art.5 of the Convention.

B) Recent cases of torture, and cruel, inhuman or degrading treatment or punishment and trends in their occurrence

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Torture, and other cruel, inhuman or degrading treatment or punishment continue to be a serious problem in Bulgaria. Since 1999 the European Court of Human Rights has found two violations against Bulgaria of Art.2 (right to life) of the European Convention of Human Rights in the cases of two Roma men who lost their lives as a result of torture while in police custody. In the case of Velikova v. Bulgaria3 the Court found a violation of Art.2, holding that there was sufficient proof to conclude that the death of Mr. Tsonchev, the applicant’s husband, had been caused during his detention in the police station in Pleven. The Court established a number of flaws in the investigation of the case, related to the inadequate medical certification of the victim and to the conscious omissions of the Prosecutor's Office to collect evidence about the way in which his death had been caused. It also established a violation of Art.13 of the Convention (failure to provide an effective remedy) because of the absence of an adequate investigation into the case by the Bulgarian authorities. The judgement of the court in Strasbourg did not serve as a ground to reopen the criminal investigation in Bulgaria. The persons who killed Mr. Tsonchev, as well as the officials who covered up for them, were not subsequently prosecuted or punished in any way. In the case of Anguelova v. Bulgaria4 the Court found a violation of Art.2 of the Convention in a case of a murder in custody of the plaintiff’s son. Angel Zabchikov, an ethnic Rom, was killed in January 1996 after being detained in a police station in Razgrad. With this decision the Court also found that the authorities did not provide medical assistance in a timely manner, that they did not fulfill their responsibility to conduct an effective investigation into the death of the detained man, and that the police officers responsible for the crime were not brought to justice. The Court also found violations of Art.3 of the Convention because the government did not provide an acceptable explanation for the wounds inflicted on Mr. Zabchikov’s body, of Art.5, because Mr. Zabchikov was illegally detained, and of Art.13, because the state did not provide effective means of identifying and punishing those responsible for Mr. Zabchikov’s death. These judgments, clear in their findings as they were, did not serve as a basis for reopening of the criminal investigations and bringing perpetrators to justice.

The Bulgarian Helsinki Committee systematically monitors torture, inhuman and degrading treatment and punishment for many years and continues to receive credible allegations of torture and other ill-treatment, for the most part during police custody, from a variety of sources – letters from victims, complaints from detainees and prisoners and surveys among samples of prison population on the conditions of detention. BHC is able to verify some of the allegations in the course of its visits to police stations, by reviewing the available documentation, including medical records, and through interviews with defense lawyers, prison administrators and medical doctors.

BHC conducted several consecutive surveys of prison population on their conditions of detention.5 The shares of positive responses of the prisoners to the question of whether physical force was used against them during police detention and while in police custody were as follows:

1999 2001 2002

3 Appl. No.41488/98, Decision from 18 May 2000.4 Appl. No.38361/97, Decision from 13 June 2002.5 These were probably the “anonymous polls” the government report denounces on p.48.

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During arrestInside the police station

51% 49% 31%53% 44% 43%

The trends reveal a slight decrease in the positive responses between 1999 and 2002 but the share is nevertheless alarmingly high.

As a rule, ethnic minorities and especially Roma are in a greater risk of being ill treated. Thus, according to the 2002 survey the share of Bulgarians who reported ill treatment inside police station was 27% while that of Roma was 77%.

In the course of 2003 BHC researchers collected information on the treatment of detainees in different police stations in Bulgaria. Some of the information on concrete cases is enclosed in Annex 1. They reveal a variety of contexts and methods of torture and ill treatment, practiced in different police stations throughout the country. This information was obtained for the most part through interviews with prisoners in the relatively safe prison environment. BHC researchers tried to obtain additional information on the same cases in the course of their visits to police stations.

C) Material conditions in some state establishments

- Prisons

Material conditions in some prisons are rather harsh with overcrowding far beyond acceptable limits. The reform of the Law on Punishment Enforcement from 2002 relieved somewhat the overcrowding in some closed institutions by giving a possibility of re-directing prisoners to transitory (open) type prisons when certain conditions are met. A number of prisons however do not use this possibility refusing to assume responsibility for the transfers and fearing of escapes. The government report states (p.23) that 1500 prisoners are to be transferred to transitory institutions (without mentioning by what date). As a matter of fact, according to a letter by the Director of the “Execution of Punishments” Directorate, by 1 September 2003 the number of inmates in such institution was 1104.6 Some prisons were negatively affected by the re-drawing of the regions from which they accept prisoners. Thus, despite positive legislative developments, the situation in several of them deteriorated. This e.g. is the case with the prisons of Burgas, Plovdiv, Varna and Kremikovci. During the visits of the BHC in these prisons they found cells, in which prisoners had not more than 2-3 sq.m. space per inmate (beds including). In these four prisons some of the cells had three-layer beds, the upper bed being placed very near to the ceiling.

The government report claims that the employment possibilities for prisoners will increase with the realization of the investment program (p.22). In fact this did not happen. According to the official information from the “Execution of Punishments” Directorate the shares of employed prisoners in the period 1998-2003 was as follows7:

Year Share of employed prisoners1998 33.8%1999 32%

6 Leter of Mr. Petar Vasilev, Director of the Directorate “Execution of Punishments” to the BHC from 10 September 2003.7 Ibid.

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2000 33%2001 32%2002 32%2003 29%

Traditionally, work has been the major rehabilitative activity in the Bulgarian prisons. Prisoners who work can reduce their prison terms by 1/3 and stay most of the time outside the overcrowded cells. With the reduction of work opportunities rehabilitation fell into a serious crisis. Prisoners who don’t work usually spend most of their time in the cells or in the common corridors if they are open. Apart from the one-hour outdoor exercise, there is little the prisons offer in terms of activities.

The situation of the prisoners sentenced to life imprisonment is particularly harsh. The government report states that “in practice they live under the same conditions as the prisoners sentenced to deprivation of liberty” (p.24). This is not true. Prisoners sentenced to life imprisonment are held, as a rule, under the strictest regime. Very few of them can work. Their cells are substandard as are their opportunities for rehabilitation and socialization. No measures are taken to compensate their bigger isolation from their families, from the community and from the other prisoners.

A serious problem in the Bulgarian prisons is the arbitrary exercise of disciplinary powers by the administration. No due process guarantees are available in any of the proceedings for imposition of disciplinary measures and administrative isolation, including those that can result in the prolongation of the expected term of imprisonment or inflict harsh material or psychological conditions over the inmates, such as putting them into disciplinary cells. With the amendments of the Law on Punishment Enforcement from June 2002 placement in a disciplinary cell and one type of administrative isolation became subject to judicial review. The prison administration interprets these provisions in a sense that the appeal does not have a suspensive effect over the execution of these measures and applies them even if the prisoner has appealed them.

On 11 December 2003 the European Court of Human Rights delivered its decision in the case of Yankov v. Bulgaria.8 The Court found a breach of Article 3 of the European Convention on Human Rights, relating to the disciplinary punishment of a prisoner in 1998, in that the prisoner's hair was fully cut before he was placed in an isolation cell. The Court determined that the measure was equivalent to degrading treatment. It also found a breach of Article 13 of the Convention in that the existing legal arrangement for disciplinary practices at places of detention did not provide an effective remedy before a national authority where rights and freedoms were violated in connection with the administration of such disciplinary measures. No changes in the law and practice followed this decision.

Medical services in the prisons and in the investigation detention facilities are not integrated with the national system. It is under the authority of the Ministry of Justice and the medical professionals in these institutions are employed by that ministry. They are not subject to any supervision by the Ministry of Health.

8 Appl. No.39084/97, Decision from 11 December 2003.

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The Law on Punishment Enforcement from June 2002 requires routine checks and reading of all prisoner correspondence to anybody but to a limited number of government officials, organs of the judiciary and the UN and CoE bodies. Correspondence with their lawyers is also subject to surveillance. The Supreme Administrative Court repealed as unconstitutional such an arrangement in the Ordinance No.2 regulating the situation of remand prisoners. With the amendments to the Law on Punishment Enforcement from June 2002 these restrictions were re-imposed in the law. They have never been challenged with regard to the sentenced prisoners.

- Investigation detention facilities

Investigation detention facilities are the worst institution of confinement in Bulgaria in terms of material conditions. In 2000-2001 the BHC did a comprehensive study of the conditions in the investigation detention facilities and published its observations in a comprehensive report.9

Already during its 1995 visit to Bulgaria the CPT observed that “almost without exception, the conditions in the NIS detention facilities visited could fairly be described as inhuman and degrading”.10 In its subsequent reports the CPT observed some improvements in some material conditions but maintained its assessment of the system as a whole. The investigation detention facilities are based in the bigger cities of Bulgaria and hold, at any given date, between 800 and 900 remand prisoners for 3-4 months and some of them for 1-2 years pending their criminal investigation. The conditions under which they are held however, with few exceptions, do not even resemble those of a prison. Of the 75 facilities 10 are underground. In most, even when they are not underground, there is no access to natural light. In only 20 of them there are facilities allowing visits. In the rest, the visits, including those with the detainee’s lawyers, take place in the offices of the investigators. In only 19 facilities there are conditions for outdoor exercise, only 12 of them being at the open air. In the rest the inmates do not enjoy any outdoor exercise and in some they see daylight only when they are called by the investigators for questioning. In the bigger facilities the inmates are examined by a physician or by a feldsher upon arrival. These are usually employees of the Ministry of Justice and not supervised by any medical authority. The smaller facilities do not have any medical personnel on staff.

- Psychiatric establishments

Many psychiatric establishments in Bulgaria are a serious concern in terms of material conditions and treatment of residents. The BHC is in a process of preparing a comprehensive study of the conditions there in the light of the international human rights standards. Enclosed, in Annex 2, is a material that outlines the organization’s major findings.11

9 The Detention Arrests in Bulgaria, BHC, Sofia, 2001 (in Bulgarian), available also at the BHC web site: www.bghelsinki.org. 10 Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995, §61.11 BHC prepared a special report on the institutions for active treatment of mentally ill, Inpatient Psychiatric Care in Bulgaria and Human Rights, Sofia, 2001. It is available at: www.bghelsnki.org. There are also at this web site a number of materials on the social care homes for mentally disabled.

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Material conditions are especially harsh in the social care homes for mentally disabled. In some of the homes people are held in extremely poorly maintained facilities with no lighting, inadequate heating and poor hygiene. They are cared for by unqualified staff. Because most of them are placed in remote areas of the country, access to appropriate medical care is extremely difficult and sometimes lacking. As a result, resident’s conditions deteriorate and the staff resorts to inhuman methods of seclusion and restraint – putting them in seclusion rooms for prolonged periods of time, sometimes weeks; placing them behind iron bars; restraining them with ropes and strait jackets.

Placement for involuntary treatment in the institutions for active treatment continues to be a serious concern. In 2000 the European Court of Human Rights, in the case of Vurbanov v. Bulgaria12 and subsequently on two more cases, found the procedure for placement in a mental hospital to be in a serious contradiction with Art.5 of the European Convention of human rights in that it allows for arbitrary placement for observation that can last for months by a decree of a public prosecutor. No habeas corpus proceedings are possible under this procedure. The legal framework for placement however has not been changed. Moreover, the BHC research found that even these deficient laws are not observed. Until recently a number of institutions used unmodified Electro-Convulsive Therapy (ECT) for treatment of some conditions. Since April 2002 with an instruction of the Ministry of Health the use of unmodified ECT was discontinued.

D) Excessive use of firearms by law enforcement officials

Article 80 of the Ministry of the Interior Act permits the use of firearms in the apprehension of a person, committing or having committed even a minor crime, or for preventing the escape of a person, detained for a committed crime. These provisions, as repeatedly noted by local and international human rights observers, contravene Principle 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, insofar as they permit use of deadly weapons to apprehend suspects even of minor crimes or to prevent their escape after arrest.

For the period 1998-2004 BHC knows of at least 20 cases of shootings by law enforcement officers (police, prison guards and forest guards), in which people lost their lives. These cases are enclosed in Annex 3. Hundreds of other cases of shootings resulted in seriously wounding the victims, sometimes leaving them disabled for life. In most of these cases the law enforcement officers were not prosecuted since the investigation found that they have used deadly force according to the law or were acquitted by the courts. At present there are several cases brought before the European Court of Human Rights, most of which await decisions. On 26 February 2004 the European Court of Human Rights unanimously convicted Bulgaria for violation of Art. 2 and Art. 14 in connection with Art. 2 in the case of Nachova and others v. Bulgaria.13 The case concerns the killing on 19 July 1996 of the applicants' relatives, privates Kuncho Angelov and Kiril Petkov, both aged 21, by a military policeman who was trying to arrest them. For the first time in its history, the European Court of Human Rights ruled that there had been a violation of the procedural and substantive 12 Appl. No.31365/96, Decision from 5 October 2000.13 Appl. No.43577/98 and 43579/98, Decision from 26 February 2004.

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aspects of the guarantee against racial discrimination, contained in article 14 (prohibition of discrimination) of the ECHR in conjunction with article 2, which protects the right to life.

E) Expulsions of aliens

Treatment of aliens considered unwanted has been a subject of a serious concern for a number of local and international organizations, including the UNHCR. Although the government established a comprehensive framework for consideration of asylum applications, in reality the access to the procedure proved to be quite problematic for many and especially for the third world asylum seekers for three reasons: the illegal expulsions of aliens; the arbitrary expulsions of unwanted foreigners as a “threat to national security” and restrictive interpretation of the concepts of a “safe third country” and a “safe country of origin”.

BHC documented many cases of expulsion of aliens in violation of the national legislation forbidding returns to countries where their life and security will be threatened. Border police often expel summarily people who try to illegally cross the border without giving them access to the asylum procedure and to legal assistance. When some of them manage to enter the country, they are sometimes caught and returned back to their country of origin. This was e.g. the case of two Iranian Christian converts, a husband and a wife, who were caught on the streets of Sofia in August 2003. They managed to apply for asylum, but were nevertheless brought to the Iranian embassy and after a short “briefing” there, on 28 August, were returned to Iran.

The Bulgarian Law on Foreigners envisages a possibility for expulsion of any foreigner who is considered a “threat to national security” with an order of the National Security Service. These orders are not motivated and are not subject to judicial review. On this basis many “unwanted” foreigners were expelled from the country as a “threat to national security” and some were returned to their countries of origin where their safety was at risk. With its decision on the case of Al-Nashif v. Bulgaria14 from 20 June 2002 the European Court of Human Rights held that this legal framework enables violations of a number of provisions of the Convention. It however remained unchanged and was used also after the Al-Nashif judgment.

Bulgaria considers “safe third countries” and “safe countries of origin” states that produce grave violations of human rights against well defined groups of people. Thus, according to the latest government’s list of these countries, Russia is considered a “safe third country” and thus all the asylum seekers, including Chechens, are subject to immediate return. Among the “safe countries of origin” are Turkey, China and Ethiopia among others.

F) Impunity – lack of recognition and effective investigation

Contrary to what the government report claims15, impunity towards officials who committed torture or otherwise abused people is still widespread and continues to

14 Appl. No.50963/99, Decision from 20 June 2002.15 “The Bulgarian legislation has established a sufficiently prompt and impartial system providing guarantees that any criminal torture will be brought to justice.” (p.48)

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hamper effective prevention and punishment of torture and other cruel, inhuman and degrading treatment and punishment. The silence after the Velikova and Anguelova judgments represents a typical official attitude. Many perpetrators of acts of torture remained unpunished both before and after the judgments.

The government report contains confusing and contradictory statements with regard to the government’s attitude towards the existence of torture in Bulgaria. On the one hand, it claims that “the problem of police violence and particularly violence against gypsies (sic!) is not typical” (p.49). The report denounces the NGOs that “pursue some aims and interests of their own” and “do not always supply a well balanced information to international institutions” (p.47-48).16 On the other hand, the government enlists measures “to effectively counteract and find a complex solution to that problem” (p.49). It does not however make clear how, in lack of a crime of torture in the Penal Code, the system can be “sufficiently prompt and impartial” in bringing torturers to justice.

As a matter of fact, the statistics provided by the government report, unclear and confusing as it is, is an indication of impunity. The statistics provided by the Ministry of Interior on p.34-35, indicate, if anything, a sharp decline in the number of registered complaints and a strikingly low level of investigations. It appears that in the period 1997-2000 only 29% of the complaints had been investigated and still less, 20% - forwarded to the Military Prosecutor’s Office. Of the 48 investigated cases 37, or 77%, had been investigated in 1997 and all the others – subsequently. With such a low investigation and prosecution rates, it’s no surprise that complaints also decline in number. For the sake of curiosity, the only case the government report cites in 2000, that of the torture by police officers of Yuri Lenev, is still under investigation.

G) Legal aid – inadequate

Access to a lawyer is one of the key safeguards against torture and other ill treatment, especially during preliminary investigation. The costs of legal services in Bulgaria however are too high to be covered by most of the criminal defendants, especially in a situation of selective targeting of the system towards the poor and the social outcasts. Thus, providing a comprehensive system of legal aid for indigent criminal defendants is of an utmost importance. The situation in Bulgaria in that regard was and continues to be among the worst in the region.

The Bulgarian Code of Criminal Procedure (CCP) that is still in force was passed back in 1974. It underwent numerous changes but on the access to legal aid the original system remained untouched up to 1999. The Constitution guarantees the right to access to a lawyer from the moment of detention or of the pressing of the charge. Art.70 of the CCP offers a framework for providing free legal aid to some categories of defendants but it proved to be too narrow. According to this provision the participation of a lawyer is obligatory in cases when:

- the defendant is a minor;- the defendant suffers from physical or mental disabilities preventing

him/her from conducting his/her own defense;- the charge envisages deprivation of liberty for more than 10 years;

16 All the cases, in which the European Court of Human Rights found violations of Articles 2 and 3 of the Convention were filed with the assistance of the human rights NGOs.

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- the defendant does not have sufficient command of the Bulgarian language;

- the interests of co-defendants are conflicting and one of them has a lawyer;- the defendant is tried in absentia.

In these cases ex officio lawyers are appointed by the body investigating the case at the pre-trial stage (police or investigators) or by the trial court only for the trial proceedings.

This legal framework leaves many criminal defendants without legal representation at both stages. It also fails to guarantee good quality legal services and produces a lot of dissatisfaction among the users. This was clear from the individual cases the BHC came across and from reports by defense lawyers. At present there are several cases of criminal defendants at the European Court of Human Rights in Strasbourg awaiting resolution. In one of them the person was sentenced to 14 years of imprisonment without a lawyer at any stage of the proceedings.

In 2001 BHC conducted two surveys to determine the scope of exclusion from legal representation and the quality of legal aid in the criminal procedure. The first survey on a nationally representative sample of public prosecution criminal files in the courts of first instance took place in August and September 2001. A total of 1891 criminal files disposed of between 1 January 1996 and 31 December 1999 in 109 first-instance courts were studied by qualified lawyers on a basis of a standardized questionnaire. In addition, in February 2002 a second survey was carried out in the prisons of Bulgaria. A total of 1001 prisoners, a representative sample, were approached with a standardized face-to-face interviews. They were both detained persons awaiting trials and convicts sentenced to imprisonment. The aim was to collect information on factors which could not have been established by reading criminal files and to measure the level of satisfaction of clients with the performance of their respective lawyers.

Both surveys produced striking results (see graph). It showed that more than 2/3 of the criminal defendants were not being represented by a lawyer at the pre-trial stage and almost one half of all were tried at first instance without a lawyer. The exclusion from legal aid affected disproportionally ethnic minorities and especially Roma. The survey in the prisons indicated a significant degree of dissatisfaction with the ex officio lawyers.

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Since January 2000 the Bulgarian government introduced an additional provision to Art. 70 of the CCP, which is phrased along the lines of Art.6.3c of the European Convention on Human Rights. According to this provision free legal aid is to be granted to the defendants, who cannot afford to hire a lawyer, wish to have one and the interests of justice so require. Subsequent jurisprudence of the courts established that all three conditions should be given cumulatively. The scheme of delivery of legal aid however was not touched – ex officio lawyers were to be delivered by the investigative bodies and by the first-instance courts. The introduction of this provision improved the situation somewhat but failed to resolve the problem. The provision leaves a significant degree of discretion to the bodies appointing lawyers to determine “the interests of justice”. BHC conducted two consecutive surveys in the prisons in 2002 and 2003. They indicated that at the pre-trial stage the effect of the provision was minimal. The situation was better at the trial, the judges being much more willing to appoint lawyers than the police or investigators. At that stage however there were also defendants who faced imprisonment and yet were not represented by a lawyer. In the course of almost four years following the introduction of the new provision, the courts failed to establish a clear and uncontroversial jurisprudence interpreting the “interests of justice”. Thus the need to establish a comprehensive legal and institutional framework that meets Bulgaria’s international obligations to provide legal aid for indigent criminal defendants is as pressing as ever.

For more on the access to legal aid in Bulgaria see Annex 4.

H) Inspections to places of detention

Inspections to places of detention, conducted regularly by an independent body, vested with effective monitoring powers, are a crucial element in every system of prevention of torture and other ill treatment. There is no such system functioning in Bulgaria. The body that is supposed to supervise all “compulsory measures” is the Prosecutor’s Office. The prosecutors however do not conduct anything that is worth

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naming an inspection. They rarely visit places of detention, do not talk with detainees on their conditions of detention, do not write any reports and their findings are never made public.

The only achievement in terms of supervision of places of detention is the possibility of the NGOs to monitor the system. These visits however were restricted recently with the changes of the Law on Punishment Enforcement from 2002. The law prohibited private interviews with not-sentenced prisoners without the permission of the respective prosecutor, a possibility the NGOs enjoyed before it entered into force.

NGO monitoring is dependent on the good will of the government, which, as the present report shows, it is not always available. In May 2003 Amnesty International requested a permission to visit some investigation detention facilities without talking with the inmates. It was however denied permission by the Director of the Execution of Punishments Directorate.

I) Lack of appropriate investigation in cases of rape

On 4 December 2003, the European Court of Human Rights found a breach of Article 3 of the Convention in the case of M.C. v. Bulgaria.17 The case concerned the rape of a 14-year-old girl where the alleged perpetrators had not been prosecuted on the grounds that there had been no evidence of the victim's physical resistance to the assault, such as torn clothing or bruises. The Court ruled that the requirement of such evidence made by the investigation and the prosecution authorities had deprived the victim of an adequate remedy for what had been a grave assault on her personal inviolability. The Court also ruled that by focusing the rape investigation on the victim's resistance, the government had acted in breach of its obligation, pursuant to Article 3 of the Convention, of ensuring adequate investigation of all acts of inhuman or degrading treatment. No changes in the law and practice in Bulgaria followed as a result of this decision.

4. SUMMARY AND CONCLUSIONS

For the past five years the government took some measures to combat torture and improved material conditions in some state institutions, for the most part under international pressure. These measures however are insufficient and torture, cruel, inhuman and degrading treatment and punishment continue to be a serious problem in Bulgaria. Torture takes place mostly in police detention and there the basic prerequisites to prevent it are lacking. It takes a variety of forms and is spread throughout the country. Investigation and punishment of acts of torture are inadequate and this creates an atmosphere of impunity.

Material conditions in some state institutions for involuntary confinement amount to inhuman and degrading treatment. This is the case in most of the investigation detention facilities and in many psychiatric institutions but also in some other institutions. The behavior of the staff and the regime in some psychiatric institutions result in inhuman and degrading treatment of their residents. Inspections in these

17 Appl. No.39272/98, Decision from 4 December 2003.

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institutions are inadequate and do not prevent torture, inhuman and degrading treatment and punishment.

The Ministry of the Interior Act allows for excessive use of firearms by law enforcement officers and contravenes international standards. Shootings result in deaths and injuries of many victims every year.

Bulgarian authorities continue to expel aliens to countries where their life and safety are at risk. This takes place through violation of the national law and through enforcement of legal provisions that contravene international standards.

ANNEXES:

1. Recent cases of torture and other ill treatment from different police departments.

2. State, Human Rights and Mental Health in Bulgaria, NYLSJ, Vol.21, No.3, 2002.

3. List of cases of people shot dead by law enforcement officers during 1998-2003.

4. Access to Justice Country Report: Bulgaria, in: Access to Justice in Central and Eastern Europe: Country Reports, PILI, Interights, BHC and PHFHR, Budapest etc., 2003.

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