Legal Defence of Defendants in the Criminal Process and Its Effect

Legal Defence of Defendants in the Criminal Process and Its Effect January 1998

Legal Defence of Defendants in the Criminal Process and Its Effect

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Basic legal framework Goals, methods and limitations of the study Results Summary Appendix 1: Questionnaire

In 1998 the Bulgarian Helsinki Committee launched a project for drafting a mechanism for setting up a Legal Aid Commission, which included a study of the current state of legal assistance and its effect on criminal process in the Republic of Bulgaria. Funds for accomplishing the project were kindly provided by the Open Society Fund in Sofia. The study is the first stage of a large-scale project for establishing a system of legal aid for indigent defendants.

Basic legal framework Article 30, para. 4 of the Bulgarian Constitution gives everyone the right to legal counsel "from the moment of detention or from the moment of being charged". However, although the Constitution guarantees the right to participation of a defense counsel in the criminal proceedings, it does not guarantee the positive obligation of the state to provide a lawyer to certain categories of people.

Since September 1992 the Republic of Bulgaria has been a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose Article 6, para. 3 (c) gives everyone charged with a criminal offence the right "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". Thereby the European Convention goes further than the Constitution by obliging the state to provide legal defense for indigent defendants "when the interests of justice so require".

This obligation of the Bulgarian state is presumed to be met by two acts of internal law which contain provisions, stipulating that legal assistance be provided to certain categories of people. These are the Code of Criminal Procedure (CCP) and the Attorney Act (AA). Article 70 of the CCP provides for mandatory participation of a defense counsel or defender in all stages of the criminal proceedings in cases where the accused is a minor; the accused suffers from physical or mental disabilities which impede him to conduct his own defense; when the case refers to a crime for which the punishment provided is the death penalty, life imprisonment or deprivation of liberty for not less than ten years; when the accused does not speak Bulgarian; when the interests of the accused persons are contradictory and one of them has a defense counsel, and when the case is tried in absentia. For these categories of defendants the respective authority shall be obliged to appoint as defense counsel a person practicing the legal profession. In these cases lawyer's fees are paid by the state and, more specifically, by the budgets of the respective institutions.

In addition to the CCP, Article 35, para. 1 of the Attorney Act obliges lawyers to provide free legal assistance to poor persons and to persons on alimony. However, no organizational infrastructure has been created at the bar associations for the enforcement of this provision, the state has not provided means for guaranteeing its application, and the widespread conviction among practicing lawyers is that this is a defunct law.

Added to this basic legal framework should be the requirement of the European Committee for the Prevention of Torture (CPT), a body established with the European Convention for the Prevention of Torture, to which the Republic of Bulgaria has been a party since September 1994. In its report as a result of the visit in Bulgaria from 26 March to 7 April 1995, as well as in many reports about other countries, the CPT notes that the effective exercise of the right to access to a lawyer from the moment of detention requires the establishment of a system of legal aid for detainees1. But the Committee was clearly unable to establish to what extent the system in Bulgaria corresponds to its requirements as the information provided at its request by the Bulgarian government2 was extremely insufficient and inadequate.

The current legal framework has repeatedly raised a number of questions in Bulgarian society related to the conformity of Bulgaria's domestic legislation with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as with other international human rights treaties3. They include problems with legislation and, more specifically, with the absence of special provisions for providing legal assistance to indigent defendants in the basic law of criminal procedure, with the severity of the punishments for which mandatory defense is envisaged, with the exhaustiveness of the categories included in the provisions for mandatory defense, etc. Together with this, however, these problems also affect the effect of current legislation, including the relative share of accused and indicted persons being tried without a lawyer, their assessment of the quality of legal defense and, last but not least, the dependence between the participation of a lawyer and the resort to physical violence during and after detention and in the course of the preliminary investigation.

Goals, methods and limitations of the study The present study formulated a number of basic goals:        

To determine the share of accused and indicted, taking part in the different stages of the criminal proceedings without a lawyer; To examine the ways in which a lawyer was hired by the accused and indicted who had one; To reveal to what extent the accused and indicted were aware of and willing to defend their human rights and the right to legal defense in the criminal process; To reveal the reasons for the absence of legal defense of the accused and indicted during the different stages of the criminal proceedings; To reveal the dependence between the severity of the punishments provided by law and the use of legal defense; To show the defendants' assessment of the quality of legal defense; To reveal the dependence between the use of physical violence against detainees in the police and in the investigation and the presence of a lawyer during the preliminary investigation; To show inter-ethnic differences in torture/ill-treatment, as well as in the exercise of the right to legal defense.

Besides these, the study also identified a number of other goals relating to its basic problem, whose attainment was facilitated by the methods used. They include the examination of the extent of contact with family and other relatives after detention, as well as of medical service during detention.

To conduct the survey, a standardized questionnaire was distributed in January and February 1999 (see Appendix No. 1) among 993 respondents - male and female prisoners, comprising a representative sample of all detainees in institutions under the jurisdiction of the Penitentiary Administration which agreed to assist the survey. The total number of detainees in these institutions, including convicts with an effective sentence, accused and indicted on remand, is just over 11,000 persons on the average on any one day of the year. Three categories of participants in the criminal proceedings were thus excluded from the scope of the study: 1.

Detainees in pre-trial detention investigation facilities (former NIS facilities) who

2.

3.

number about 1,000 persons on any one day of the year; Accused and indicted who have not been remanded in custody; Convicts with an effective sentence other than effective imprisonment.

The exclusion of the above-mentioned categories is undoubtedly a limitation of the study. It should be noted, however, that the studied group of convicted, accused and indicted persons in prison establishments is one of the most vulnerable ones from the point of view of its participation in the criminal proceedings both according to the severity of passed or possible sentences, as well as according to their property and social possibilities to ensure effective defense in the course of the trial.

The only more vulnerable group is that of detainees in pre-trial detention investigation facilities, but it is over ten times smaller. In addition, due to the great aggregate they represent, as well as due to the fact that the bulk (nearly 80 per cent) of detainees in the facilities of the Penitentiary Administration were also detained in pre-trial detention investigation facilities during the preliminary investigation, the study can be claimed to be representative of the most vulnerable category of participants in the criminal proceedings.

The questionnaire was distributed in the form of interviews conducted by the psychologists in the system of the Penitentiary Administration. The interview was conducted on behalf of the Bulgarian Helsinki Committee which enjoys particular confidence among prisoners as a result of its programme for the protection of their human rights, realized over a number of years. For this reason, and due to the fact that the Penitentiary Administration is outside the system of criminal action authorities and owing to the special place of prison psychologists in the Administration's system, it may be assumed that the situation in which interviews are conducted by them does not predispose towards greater mistrust, and hence less reliable answers, compared to the situation in which interviews are conducted by outside pollsters. The pollsters were instructed by BBSS Gallup International which also processed the data.

Results The results below are presented on the basis of the answers of respondents, assuming that they are true and that the degree to which they could to some extent be unreliable, unless explicitly specified, is equal for all indicators.

A) Participation of a defence counsel at the different stages of criminal proceedings The picture outlined by the answers of respondents shows that a large share of prisoners participated in all stages of the criminal proceedings without a lawyer (see Chart 1).

Chart 1 Participation of a lawyer at the different stages of criminal proceedings % of respondents answering "no" to the question of whether they had a lawyer 54%

40%

43%

During the preliminary investigation

Before the first instance court

During the appeal (excluding answers of "there was no appeal")

As can be seen from the chart, this share is highest among the accused during the preliminary investigation and lowest among the indicted during proceedings before the first-instance court. But even before the first-instance court 40% of prisoners claim that they did not have a lawyer. Most (73%) of those who had a lawyer during the preliminary investigation either hired him/her themselves or their family or friends did so. Lawyers were appointed ex officio for only 27% of the accused. In this respect it should be noted that the chance for contacts with family or friends during the preliminary investigation seems greatly restricted. As many as 44% of the respondents say that they had no such possibility and an additional 22% claim that they were only able to contact their family or friends

several days after detention.

Asked why they did not have a lawyer, more than half (56%) of the accused who took part without a lawyer in the preliminary investigation cited two main reasons - that they could not afford one, and that they were not legally entitled to an official one. This percentage is higher among representatives of ethnic minorities - 57% of the Turks and 67% of the Roma. A similar reason was cited by the same share (57%) of indictees who took part without a lawyer in the first-instance court. What this means is that the larger part of the most indigent defendants are virtually deprived of the possibility to adequately participate in the criminal proceedings, i.e. with regard to them there is a serious risk of their being unfair.

B) Severity of the prescribed punishment and use of legal defence The latter conclusion could be confirmed or rejected after examining the degree and the role of a lawyer's participation in the criminal proceedings, depending on the severity of the punishment. If we examine the dependence between the participation of a lawyer in the different stages of the criminal proceedings and the severity of the envisaged punishments we will discover the following interesting dependence (see Table 1).

Table 1 Participation of a lawyer during the preliminary investigation according to the severity of the envisaged punishment % of respondents answering "no" to the question of whether they had a lawyer during the preliminary investigation and before the first-instance court Provisions envisaging up Provisions envisaging from Provisions envisaging to for five years of five to 10 years of over ten years of imprisonment imprisonment imprisonment During preliminary investigation

56

63

35

Before the firstinstance court

46

52

16

It turns out that both during the preliminary investigation, as well as before the first-instance court, the participation of a lawyer does not depend on the gravity of the charges. The largest share of respondents said that they had no lawyer in the category of accused and indicted whose prosecution panels provide for five to 10 years of imprisonment. This is followed by the category of accused and indicted whose panels provide for up to five years of imprisonment and, finally and quite logically if proceeding from the provision of Article 70 of the CCP and the seriousness of the situation facing them, by the category of accused and indicted whose panels provide for more than 10 years of imprisonment. The fact that the participation of a lawyer does not depend on the gravity of the charges can also be interpreted from the point of view of the lawyer's role in the criminal proceedings, i.e. precisely the fact that the accused or indicted had a lawyer, contributed to his being charged or convicted on charges entailing less severe punishment.

The other serious problem is the very large share of prisoners, charged or sentenced according to provisions envisaging over 10 years of imprisonment and who did not have a lawyer before the firstinstance court and especially during the preliminary investigation. In other words, a large part of the accused and indicted, liable to sentences of more than 10 years of imprisonment, participated in the criminal proceedings without a lawyer. This conclusion is also confirmed by observations of members of the Bulgarian Helsinki Committee outside the context of the present study, during their visits to prison facilities. The reason is explained by the fact that in order to appoint an official lawyer pursuant to the procedure of Article 70 of the CCP, the law-enforcement bodies have adopted the lower limit of the punishment prescribed by the CCP for a 10-year term of punishment in the case of provisions which envisage punishments of more than 10 years. In contrast to this, the upper limit was adopted in the present study.

C.) Dependence between the presence of legal defense and the use of illegal physical force The excessive use of physical force by law-enforcement officials in Bulgaria is an old problem of the criminal justice system, raised repeatedly by Bulgarian and international human rights organizations.

In the present study, too, a large number of respondents report torture/ill-treatment during detention, inside police stations and during the preliminary investigation (see Chart 2).

Chart 2 Torture/ill-treatment during and after detention % of respondents answering "yes" to the question of whether physical force was used against them 51%

53%

37%

During arrest In the police station During the preliminary investigation As in previous observations, here too, the risk of illegal physical violence is biggest at the first stage of contact with the criminal justice system, in the police, and progressively diminishes, although still remaining very high, as it moves on through the system.

In this case it is particularly important to note the effect of the separation of the two questions: on the use of physical force during arrest, when circumstances are also conducive to the legal use of it in accordance with Article 78 of the Interior Ministry Act, and the use of physical force inside the police station, when the detainee is under the control of police officers. The figures reveal an almost equal degree of the use of physical force in both cases. This cannot but suggest possibly illegal violence.

When also considering its scale, it becomes clear that we are faced with an extremely serious problem.

Besides the chance for contact with family or friends immediately after detention which, as already noted, is considerably limited in the Bulgarian criminal justice system, a preventive action is also exercised by the possibility for an immediate medical examination by a doctor (including by a doctor of the detainee's own choice). In this respect, too, the answers of the respondents show the Bulgarian system to contain seriously flaws. Some 34% claim that they were not examined by a doctor, whilst another 13% say that they were, but at a later stage, when they had a health problem. Incidentally, it is possible that a large part of the respondents who answered "no" had been detained in pre-trial detention facilities before the entry into force of the "Temporary Instructions for the Organization and Procedure of Medical Attention in the Detention Facilities of the National Investigation Service of February 1997 which require a mandatory medical examination to be carried out when persons are detained. The present study does not offer a possibility to check this, however.

There is a clearly outlined dependence between the participation of a lawyer during the preliminary investigation and the risk of torture/ill-treatment (Table 2).

Table 2 Risk of torture/ill-treatment depending on the participation of a lawyer during the preliminary proceedings % of respondents answering "yes" to the question of whether physical force was used against them When they had a lawyer When they did not have a lawyer During arrest

46

56

Inside the police station

48

57

During the preliminary investigation

29

42

The participation of a lawyer during the preliminary investigation reduces the risk of torture/illtreatment. The decrease, although clearly outlined, is not great however, or at least not in accordance with the preliminary hypothesis of a much greater decrease. Almost half of the respondents who had a lawyer during the preliminary investigation report that they had been subjected to physical force,

including beatings in the police station. This raises the question of the role of lawyers during the preliminarily proceedings as a serious structural problem of the criminal justice system in Bulgaria, as well as of the system of the professional and moral standards of the legal profession.

D) Assessment of the quality of legal defense, as well as the defendants' level of awareness and willingness to defend their rights The respondents' assessment of the quality of legal defense differs. The majority say that, on the whole, the lawyers took part in the investigation and court hearings. The share of lawyers who took part only in some, but not all investigation procedures during the preliminary investigation is larger than the share of lawyers who took part only in some, but not all hearings before the first-instance court. However, this is not linked with the professional or other qualities of lawyers in either place, but with the nature of criminal proceedings at the different stages. The only disconcerting problem from a moral and professional point of view is the relatively high share of defendants (10% of those who had a lawyer) who state that they had not seen their lawyer at all during the preliminary investigation.

One of the hypotheses of the study was that the respondents are poorly acquainted with and not very willing to defend their human rights, as well as their right to legal defense. This hypothesis was largely confirmed. Less than half of the defendants, who said they had been ill-treated, also report that they had filed complaints against the use of illegal physical violence against them in the police and investigation. More precisely, 45% reported use of illegal physical violence in the police, and 37% use of illegal physical violence in the investigation. It was not the object of the study to establish the reasons for this low percentage. Hypothetically, however, based on the BHC's long experience in interviewing victims of illegal violence, two reasons may be cited: first, the lack of confidence in the system of the investigation of complaints of illegal use of force and the fear of reprisal, and second, ignorance of the unlawfulness of ill-treatment - a result of the internalized culture of violence as a characteristic phenomenon of the Balkan society.

Things look a bit better regarding awareness and willingness to defend the right to a lawyer during the preliminary investigation. Here 56% of the respondents who did not have a lawyer state that they have asked the investigator to appoint a defender; moreover, 40% claim that they did so insistently. This percentage is significantly lower in the first-instance court - a total of 36% of the respondents who did not have a lawyer report that they have asked the judge to appoint a defender, 28% insistently. The lower percentage in the first-instance court is probably due to the effect of the preceding refusal by the investigator. Incidentally, with regard to the request to have a defender appointed, as a well as in the answers to the questions of whether the refusal had been duly noted in the record, the probability of unreliable answers is possibly somewhat (although not significantly) larger than among the other answers due to the effect of the subject of the study.

E.) Inter-ethnic differences in the use of physical force and in the exercise of the right to legal defense Inter-ethnic differences in the use of physical force and in the exercise of the right to legal defense are important in order to trace any possible discriminatory effects in the criminal justice system. Table 3 shows inter-ethnic differences in torture and ill-treatment. The figures are representative for Bulgarians, Turks and Roma, the three communities forming the largest groups in prison facilities.

Table 3 Inter-ethnic differences in torture/ill-treatment % of respondents answering "yes" to the question of whether physical force was used against them Bulgarians Turks Roma During arrest

50

52

54

Inside the police

50

54

60

During preliminary investigation

34

34

44

The results fully support the observations of a number of Bulgarian and international human rights

monitors: ethnic minorities run a higher risk of illegal physical violence at all stages of the criminal proceedings. The percentage is highest among the Roma.

In order to assess the problem of discrimination in the illegal use of physical force, in view of what has been said above regarding the dependence between the use of physical force and the participation of a lawyer during the preliminary investigation, an analysis should also be made of inter-ethnic differences with the participation of a lawyer in the criminal proceedings and especially during the preliminary investigation. These differences are shown in Table 4.

Table 4 Inter-ethnic differences with the participation of a lawyer in the criminal proceedings % of respondents answering "no" to the question of whether they had a lawyer in the different stages of the criminal proceedings

During the preliminary investigation

Before the firstinstance court

During the appeal (excluding answers of "there was no appeal")

Bulgarians

48

35

36

Turks

58

48

51

Roma

64

48

51

The table shows that the participation of a lawyer in all stages of the criminal proceedings is significantly smaller among members of ethnic minorities (Turks and especially Roma). The difference is particularly drastic between Bulgarians and Roma during the preliminary investigation, where the participation of a lawyer is of decisive significance for preventing illegal physical violence.

The above figures should also be considered together with the answers as to the nature of the charge in order to draw a more categorical conclusion about the presence or absence of ethnic discrimination.

It will be seen that Turks and Roma are charged under provisions which, on the whole, provide for lesser punishments (see Table 5). It is important to note that this refers to the maximum prescribed punishments for the respective panels, rather than to the length of the actually passed sentences. The comparison of the former with the latter provides an additional reason to examine ethnic discrimination in the criminal justice system, a task that goes beyond the scope of the present study.

Table 5 The length of punishments prescribed by law according to the ethnic group of prisoners % of respondents who cited the maximum sentence the provision of the Penal Code they are charged envisages within the framework of one of the three categories Bulgarians Turks Roma Provisions envisaging up to five years imprisonment

4

4

4

Provisions envisaging from five to ten years imprisonment

58

62

65

Provisions envisaging over ten years of imprisonment

33

26

25

The less frequent participation of a lawyer in the preliminary investigation among ethnic minorities is undoubtedly part of the reason why they are subjected to illegal physical violence to a greater extent.

Whether any direct discriminatory reasons can also be added to this is difficult to assess on the basis of the present study alone. Nevertheless, the fact that they are prosecuted under PC articles which on the whole provide for lower punishments, compared to the fact that a higher share of them are unable to hire a lawyer because they can't afford one, as well as to the higher risk of illegal use of physical force against them, reveals indirect discrimination as a result of a multitude of social factors which, in turn, reflects seriously on their participation in the criminal justice system.

Summary

The legal defense of indigent defenders is a serious problem of the Bulgarian criminal justice system.

A large number of indigent people participate in all stages of the criminal proceedings without legal counsel. Lawyers participate in the system mainly by being contacted (either by the defendants or by their family or friends) and hired for pay. This excludes large groups of people from the system who cannot afford to pay a lawyer. The biggest ethnic minorities in Bulgaria (Turks and Roma) are excluded to a larger extent than the rest of the population. With regard to the illegal use of physical force, which, because of its wide spread is another serious problem of the criminal justice system, especially in police detention, there are serious reasons to warrant the assumption of the existence of direct discrimination against members of the main minority groups.

The participation of a lawyer in the criminal proceedings has a significant effect on their outcome. It has a bearing on the gravity of the charges and on the risk of torture/ill-treatment and is one of the main guarantees of a fair trial. All this makes the creation of an effective system of legal aid for indigent defendants a matter of priority in Bulgarian legislation and practice. The present situation is in obvious contradiction with a number of provisions of international human rights law.

Appendix no. 1 GENERAL DISTRIBUTION 1. You are: - Accused 8% - Indicted 19% - Convicted with an effective sentence 70% - Don't know/no answer 3% 2. Under which articles of the Penal Code have you been charged or sentenced?

- prescribing up to 5 years imprisonment 4% - prescribing from 5 to 10 years imprisonment 61% - prescribing over 10 years imprisonment 30% - Don't know/no answer 6% 3. Were you detained during the preliminary investigation?

- No 19% - Yes, part of the time 60% - Yes, the whole time 18% - Don't know/no answer 3% 4. If you were detained during the preliminary investigation, were you examined by a doctor?

- Yes, as soon as I was detained 37% - Yes, later, when I had a health problem 13% - No 34% - I was not detained 12% - Don't know/no answer 3% 5. If you were detained during the preliminary investigation, were you given a chance to contact your family or friends?

- Yes, immediately 19% - Yes, a few days after detention 22% - No 44% - I was not detained 12% - Don't know/no answer 3% 6. Did you have a lawyer during the preliminary investigation?

- Yes 43% - No 54% - Don't know/no answer 3% 7. If you had a lawyer during the preliminary investigation, how often were you able to use his services?

- During all investigative actions in which I have taken part 19% - Only in some investigative actions 25% - I did not have a lawyer 47% - I never saw him at all 5% - No answer 4% 8. If you had a lawyer during the preliminary investigation, how did you get one?

- I hired him myself 9%

- My family/friends hired him 28% - He was appointed officially 13% - I did not have a lawyer 47% - Don't know/no answer 3% 9. If you did not have a lawyer during the preliminary investigation, what was the reason?

- I could not afford to hire one, and an official lawyer was not appointed because I am not entitled to one 37% - I did not need one 9% - I did not find a suitable one 5% - I had a lawyer during the preliminary investigation 35% - Don't know/no answer 14% The next three questions were asked only of respondents who answered the preceding question with the first two options: 10. Did you ask the investigator to appoint a defender?

- No 38% - Yes, insistently 40% - Yes, but not insistently 16% - Don't know/no answer 7% 11. Did you ask the investigator to duly note your request for a defender in the record?

- No 50% - Yes, insistently 31% - Yes, but not insistently 7% - Don't know/no answer 13% 12. Was your request for a defender entered in the record?

- Yes 10% - No 48% - Don't know/no answer 43% 13. Did you have a lawyer before the first-instance court?

- Yes 54% - No 40% - Don't know/no answer 5% 14. If you had a lawyer before the first-instance court, how often were you able to use his services?

- During all hearings 39% - Only in some hearings 16% - I did not have a lawyer before the first-instance court 38% - Don't know/no answer 7% 15. If you did not have a lawyer before the first-instance court, what was the reason?

- I could not afford to hire one, and an official lawyer was not appointed because I am not entitled to one 31% - I did not need one 6% - I did not find a suitable one 4% - I had a lawyer before the first-instance court 46% - Don't know/no answer 13% The next three questions were asked only of respondents who answered the preceding question with the first two options: 16. Did you ask the judge to appoint a defender?

- No 54% - Yes, insistently 28% - Yes, but not insistently 8% - Don't know/no answer 9% 17. Did you ask the judge to duly note your request for a defender in the record?

- No 56% - Yes, insistently 23% - Yes, but not insistently 3% - Don't know/no answer 18% 18. Was your request for a defender entered in the record?

- Yes 12% - No 45% - Don't know/no answer 43% 19. Did you have a lawyer during the appeal of the sentence?

- Yes 33% - No 29% - There was no appeal 32% - Don't know/no answer 5% 20. Was physical force used against you during your arrest?

- Yes 51% - No 44% - I was not arrested 2% - Don't want to answer 3% 21. Was any physical force used against you inside the police station after you were taken there?

- Yes 53% - No 41% - I was not taken to the police station 2% - Don't want to answer 4% The next question was asked only of respondents who answered "yes" to the preceding question: 22. Did you personally file a complaint against the use of physical force against you in the police station?

- Yes 17% - Yes, with the investigator 15% - Yes, with the court 13% - No 48% - Don't want to answer 7% 23. Was physical force used against you during the preliminary investigation?

- Yes 37% - No 57% - Don't want to answer 6% The next question was asked only of respondents who answered "yes" to the preceding question: 24. Did you personally file a complaint against the use of physical force against you during the investigation?

- Yes 37% - No 53% - Don't want to answer 10% 25. Sex: - Male 96% - Female 4% 26. Ethnic identity: - Bulgarian 52% - Turk 18% - Roma (Gypsy) 27% - Other (please specify) 2% 27. Where did you live before your detention?

- Sofia 10% - Former district city 30% - Another town 33% - Village 26% 28. Age group: - 14-18 3% - 18-25 19% - 25-35 40% - 35-45 25% - 45-55 10% - over 55 3%

29. Marital status: - Married 43% - Single 56%