CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 12 mai 2017

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BULGARIA   (Application no. 21980/04)                     JUDGMENT     STRASBOURG   12 May 2017       This judgment is final but it may be subject to editorial revision. In the case of Simeonovi v. Bulgaria, The European Court of Human Rights, sitting as a Grand Chamber composed of:   András Sajó, President,   Luis López Guerra,   Mirjana Lazarova Trajkovska,   Angelika Nußberger,   Nebojša Vučinić,   André Potocki,   Paul Lemmens,   Helena Jäderblom,   Ksenija Turković,   Dmitry Dedov,   Robert Spano,   Jon Fridrik Kjølbro,   Yonko Grozev,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Johan Callewaert, Deputy Grand Chamber Registrar , Having deliberated in private on 6 July 2016 and 18 January 2017, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 21980/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Bulgarian nationals, Mr Lyuben Filipov Simeonov and Ms Nelly Nikolova Simeonova and Mr Filip Lyubenov Simeonov (“the applicants”), on 8 June 2004. 2.     The applicants were represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 23 August 2011 a Chamber of that Section declared the application partly admissible, rejecting all the complaints raised by the second and third applicants and some of the complaints raised by the first applicant, Mr   Lyuben Filipov Simeonov (“the applicant”). The applicant’s complaints under Article 3 concerning the lack of medical care in prison, his conditions of detention and the allegedly excessive strictness of his prison regime, as well as the complaints under Article 6 §§ 1 and 3 (c) relating to the lack of assistance from a lawyer for the first few days of his detention, were communicated to the Government. 4.     On 20 October 2015 a Chamber of the Fourth Section composed of Guido Raimondi, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Paul Mahoney, Krzysztof Wojtyczek, Yonko Grozev, judges, and Françoise   Elens-Passos, Section Registrar, delivered a judgment unanimously declaring the application partly admissible and finding a violation of Article 3 on account of the conditions of detention and the prison regime imposed on the applicant, and no violation of Article 6 §§ 1 and 3 (c) on account of the lack of assistance from a lawyer for the first few days of his detention. 5.     On 12 January 2016 the applicant requested the referral of the case to the Grand Chamber under Article 43 of the Convention and Rule 73. The panel of the Grand Chamber acceded to that request on 14 March 2016. 6.     The composition of the Grand Chamber was determined in accordance with the provisions of Articles 26 §§ 4 and 5 of the Convention and Rule 24. 7.     On 20 May 2016 the President of the Grand Chamber gave leave to the non-governmental organisation Association for the Prevention of Torture, based in Geneva (Switzerland) to submit written documents on the right to legal assistance. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 6 July 2016 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   M. KOTSEVA,   Agent , Ms   M. DIMITROVA ,   Agent ;   (b)     for the applicant Mr   J. MCBRIDE ,   Counsel , Ms   S. MARGARITOVA-VUCHKOVA ,   Counsel Ms   N. SIMEONOVA.   The Court heard addresses by Mr McBride, Ms Kotseva and Ms   Dimitrova, and the replies of Mr McBride and Ms Dimitrova to the questions put by the judges. 9.     On 15 July 2016 the President of the Grand Chamber decided to grant the applicant legal aid. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1975 and is detained in Sofia Prison. A.     Criminal proceedings against the applicant 1.     The applicant’s arrest and detention in police custody 11.     On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide. 12.     The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S. 13.     By decision of 9 July 1999 a police officer ordered the applicant’s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee’s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time. 14.     On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next. 15.   On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant’s detention for twenty-four hours from 8 p.m. 16.     On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day. 17.     The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant’s right to the assistance of a lawyer and does not bear his signature. 18.     The applicant affirmed that he had submitted four requests, on 3, 4, 5   and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests. 19.     He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders. 20.     The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant’s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold-up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident. 21.     On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold-up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements: “I have read the charge sheet in the   presence of my officially appointed lawyer, D.   Todorov. I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence. I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.” 2.     Continuation of the criminal proceedings against the applicant 22.     On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims. 23.     On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12   October 1999 he remained silent and stated that he would give evidence at a later date. 24.     On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S. 25.     On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva. 26.     Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence. 27.     On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again. 28.     On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh. 29.     On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person. 30.     On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court. 31.     The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day. 32.     On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant’s placement under the “special” prison regime. 33.     Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done. 34.     The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias. 35.     The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re ‑ examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence ‑ gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias. 36.     The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused. 37.     On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered. 38.     The Court of Appeal observed that the accused’s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial statements, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him. 39.     The Court of Appeal turned its attention to the applicant’s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events. 40.     The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests. 41.     The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds. 42.     The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant’s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant’s detention in police custody. 43.     By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken. 44.     Furthermore, in endorsing the Court of Appeal’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused’s rights had been fully respected. B.     The applicant’s conditions of detention 45.     The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27   January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held. 1.     Burgas Investigation Detention Facility 46.     The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench. 47.     According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity. 2.     Burgas Prison 48.     The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules. 49.     The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 48 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests. 50.     According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison’s activity coordinator. 3.     Sofia Prison 51.     Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population. 52.     The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet. 53.     The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners. 54.     Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant’s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books. 55.     According to a report by the governor of Sofia Prison dated 11   October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7   sq.   m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting. 56.     Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population. 57.     Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Conditions for the execution of life sentences, and compensatory remedies under the 1988 State and Municipalities Responsibility for Damage Act 58.     The relevant domestic law and case-law concerning the regulations on the execution of life sentences and actions for damages in respect of poor conditions of detention were summarised in Harakchiev and Tolumov v.   Bulgaria (nos. 15018/11 and 61199/12, §§ 108-135 and §§ 136-146 respectively, ECHR 2014 [extracts]). B.     The right to the assistance of a lawyer in criminal proceedings and information to be provided to detainees concerning their rights 1.     The Ministry of the Interior Act and its implementing regulations 59.     The Ministry of the Interior Act 1997 and its 1998 implementing regulations allowed the police to arrest persons suspected of having committed criminal offences and detain them for twenty-four hours. Arrestees were entitled to legal assistance from the time of their arrest. The relevant provisions of the Act and the implementing regulations, in the version in force at the time of the applicant’s arrest, read as follows: Section 70 of the 1997 Act “(1)     The police may detain persons: 1.     who have committed criminal offences ... (4)     Detained persons shall be entitled to legal assistance as of the time of their arrest.” Regulation 54 of the Act’s implementing regulations “(1)     A detention order shall be made in respect of the persons mentioned in section   53 (1). (2)     Orders made under (1) above shall mention: ... 5.     the rights secured to the person concerned under section 70(3) and (4) of the Ministry of the Interior Act. (3)     The order must be signed by the police department and the detainee. ... (6)     A copy of the order shall be presented to the detainee.” 60.     At the time of the applicant’s arrest domestic legislation did not provide for presenting detainees with a separate document setting out their rights, including the right to legal assistance. 61.     On 6 March 2002 the Minister of the Interior issued an internal instruction stating that, immediately after their arrest, detainees had to sign two copies of a statement setting out their rights, including the right to legal assistance. 62.     In 2003 Implementing Regulation 54(3) of the Ministry of the Interior Act (see paragraph 59) was amended. The amended regulation provided for the presentation to detainees of a “declaration of rights” which they had to sign, stating, in particular, their intention either to avail themselves of or to waive their right to legal assistance. The new wording of the paragraph was as follows: “(3)     The detainee shall fill in a declaration indicating that he has been informed of his rights and stating whether or not he intends to use his rights under paragraph (2) (5) (b)-(e).” 63.     The domestic legislation and regulations introduced in this sphere since that time have incorporated a reference to the “declaration of rights” which detainees must sign after their arrest. 2.     Code of Criminal Procedure 64.     At the time of the proceedings in issue, the 1974 Code of Criminal Procedure allowed investigators responsible for criminal cases to order the suspect’s detention for twenty-four hours. The detention period could be extended by a prosecutor up to a maximum of three days. The legislative provisions on such detention and the rights conferred on the suspect during detention read as follows: Article 202 “(1)     The investigator may, even without the prosecutor’s authorisation, order preliminary detention for a criminal offence which is subject to mandatory prosecution and for which a preliminary investigation is compulsory where: 1.     the person in question was arrested at or just after the time of commission of the offence; 2.     an eyewitness has identified the person as the perpetrator of the offence; 3.     visible traces of the offence have been discovered on the person’s body or clothing or in his place of residence; 4.     the person in question has attempted to flee ...” Article 203 “(1)     The investigator must inform the prosecutor of the detention within twenty-four hours, mentioning the reasons for it. (2)     The prosecutor must immediately confirm or revoke the detention order. Under the circumstances set out in Article 202 § 1, points 1 and 3, where detention has been ordered for a serious crime which is subject to mandatory prosecution, the prosecutor may extend the period of detention up to a maximum of three days. (3)     If, on expiry of the period set out in paragraphs 1 and 2 above, the person concerned has not been charged with an offence, the investigator must release him. ...” Article 206 “(1)     Individuals who are under a detention order ... within the meaning of Article   202 shall have the following rights: to be informed of the offences of which they are suspected; to make statements; to take action ... to challenge measures taken by the authorities responsible for the preliminary investigation ... 2)     As regards the statements ... mentioned in the previous paragraph, the provisions of Articles 73 [and] 87 ... shall be applicable mutatis mutandis .” 65.     During the preliminary investigation the suspect is formally notified of the charges against him by means of an indictment. This confers on him official defendant (обвиняем) status. From then on the person’s statements can be recorded for use in evidence in the criminal proceedings. The defendant has several procedural rights, including the right to the assistance of a lawyer at the preliminary investigation stage. The relevant provisions of the 1974 Code of Criminal Procedure read: Article 50 “The defendant is a person who has been charged under the conditions and according to the procedures set out in the present Code.” Article 51 “(1)     The defendant has the following rights: to know the charges against him and the evidence on which those charges are based, to give statements on the charges, to have access to the case file and obtain the requisite copies of case papers, to submit evidence, to take part in the criminal proceedings, to submit requests ..., to speak last during questioning, to challenge the decisions of courts and preliminary investigation bodies infringing his rights and legitimate interests and to be assisted by a defence lawyer. At the defendant’s request, the defence lawyer shall be present during the implementation of the investigative measures. ...” Article 67 “(1)     The defence lawyer may be a person practising the legal profession. ...” Article 70 “(1)     Participation by a defence lawyer in the criminal proceedings is mandatory where: ... 3.     the criminal case concerns a crime punishable by the death penalty, life imprisonment or a prison sentence of at least ten years. (3)     When participation by a defence lawyer is mandatory, the competent authority shall be required to appoint a person practising the legal profession as defence lawyer. (4)     The officially appointed defence lawyer shall be excluded from the criminal proceedings if the defendant engages a different defence lawyer.” Article 72 “(1)     The defendant may, at any stage in proceedings, waive his right to the assistance of a defence lawyer, except in the situation mentioned in Article 70 § 1, paragraphs. 1 to 3. ...” Article 73 “(1)     The defence lawyer may take part in the criminal proceedings as of the time the person concerned has been arrested or charged. (2)     The authority responsible for the preliminary investigation must inform the defendant of his right to the assistance of a defence lawyer and permit him to contact such lawyer. That authority cannot implement any investigative measures before having fulfilled that obligation. ...” Article 85 “(1)     Evidence shall be established on the basis of the defendant’s statements, the suspect’s statements, witness statements, records of the investigative and procedural steps and by other means as laid down in this Code. (2)     Evidence which has not been gathered or drawn up in conformity with the rules of the present code shall be declared inadmissible. ...” Article 87 “(1)     The defendant shall give evidence orally and directly before the competent authority. The defendant shall give evidence in the presence of a defence lawyer if he so requests. That request shall be recorded in minutes and the defence lawyer shall be invited to attend the questioning. ... (3)     The defendant may refuse to give evidence. ...” Article 91 “(1)     The indictment and the conviction cannot be based solely on the defendant’s confessions. (2)     Confessions by the defendant shall not release the competent authorities from their obligation to gather other evidence in the course of the proceedings.” 3.     Case-law 66.     Under the established case-law of the Bulgarian Supreme Court of Cassation, if the authorities responsible for criminal investigations fail to formally charge the suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the courts to refer the case back to the preliminary investigation stage and the aforementioned authorities so that they can remedy the omission ( Тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/2002 г., ОСНК ). 67.     By the same token, the absence of a defence lawyer during the charging of the suspect and the implementation of the subsequent investigative measures, when legal assistance is mandatory under the Code of Criminal Procedure, amounts to a major procedural flaw which necessitates the referral of the case back to the authorities responsible for the preliminary investigation ( Решение № 68 от 21.04.1992г. по н.д. №   986/91г. на ВС, I н.о. ). In that situation those authorities are required to repeat the investigative measures in question in the presence of a defence lawyer ( Решение № 604 от 31.10.1991г. по н.д. № 436/91г. на ВС, I н.о.). 68.     Under the established case-law of the Bulgarian courts, evidence gathered in breach of the rules set out in the Code of Criminal Procedure, including statements made to the police, has no probative value and is excluded from the case file ( Решение № 179 от 21.11.1997г. на ВКС по н.д. № 182/1997г. ВК   ; Решение № 361 от 8.07.2003г. на ВКС по н.д. №     123/2003г.,III н.о.   ; Решение № 518 от 21.01.2009г. на ВКС по н.д. № 435/2008г., II н.о., НК). III.     RELEVANT INTERNATIONAL AND EUROPEAN UNION LAW A.     United Nations 69.     Article 14 of the 1966 International Covenant on Civil and Political Rights (“the Covenant”) protects the right to a fair trial. The relevant parts of that provision read as follows: Article 14 “... 3.     In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (b)     To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; ... (d)     To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ...” 70.     The Human Rights Committee (HRC) is the body responsible for monitoring the implementation of the Covenant by means of periodic State reports and individual communications. 71.     The HRC considers that legal assistance should be possible not only at the trial stage but at all stages in proceedings (see Kelly v. Jamaica , 1991, 253/1987, § 5.10., and Borisenko v. Hungary , 2002, 852/1999, § 7.5), including during police questioning (see Gridin v. the Russian Federation , 2000, 770/1997, § 8.5). However, in Levinov v. Belarus (2011, 1812/2008, §   8.3) the HRC held that in the absence of any investigative measure during the period when the suspect had had no access to a lawyer Article 14   §   3   (b) of the Covenant had not been infringed by the authorities. 72.     As regards the right to be informed of the right to a lawyer, in its concluding observations on the 4 th periodic report concerning the Netherlands ((2009), UN doc. CCPR/C/NDL/CO/4, § 11), the HRC considered that States should give full effect to the right to contact counsel before police questioning and ensure that individuals suspected of criminal offences were informed, on their arrest, of their right to legal assistance. 73.     Moreover, in a number of cases the HRC has found a violation of Article 14 § 3 (d) of the Covenant owing to the failure to inform the accused of his right to legal assistance (see Saidova v. Tajikistan , 2004, 964/2001, and Khoroshenko v. the Russian Federation , 2011, 1304/2004). B.     European Union 74.     Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings was adopted on 22 May 2012. The deadline for its transposition into the legislation of the European Union Member States was 2 June 2014. The relevant provisions of the Directive read as follows: Article 1 Subject matter “This Directive lays down rules concerning the right to information of suspects or accused persons, relating to their rights in criminal proceedings and to the accusation against them ...” Article 2 Scope “1.     This Directive applies from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings ...” Article 3 Right to information about rights “1.     Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a)     the right of access to a lawyer ... 2.     Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.” Article 4 Letter of Rights on arrest “1.     Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty ...” 75.     Directive 2013/48/EU of the European Parliament and of the Council on, inter alia , the right of access to a lawyer in criminal proceedings was adopted on 22 October 2013. The deadline for its transposition into the legislation of the European Union Member States was 27 November 2016. The relevant provisions of the Directive read as follows: Article 1 Subject matter “This Directive lays down minimum rules concerning [the right] of suspects and accused persons in criminal proceedings ... to have access to a lawyer ...” Article 2 Scope “1.     This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings ...” Article 3 The right of access to a lawyer in criminal proceedings “1.     Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2.     Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a)     before they are questioned by the police or by another law enforcement or judicial authority; (b)     upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c)     without undue delay after deprivation of liberty; (d)     where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that cour