STOYKOV v. BULGARIA - 32723/12 (Judgment : Right to a fair trial : Fifth Section Committee) [2020] ECHR 189 (27 February 2020)

JUDGMENT STRASBOURG 27 February 2020 This judgment is final but it may be subject to editorial revision. In the case of Stoykov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President, Lәtif Hüseynov, Anja Seibert-Fohr, judges, and Milan Blaško, Deputy Section Registrar, Having regard to: the application against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Milen Bozhidarov Stoykov (“the applicant”), on 7 May 2012; the decision to give notice to the Bulgarian Government (“the Government”) of the complaint concerning the fairness of the criminal proceedings against the applicant and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 4 February 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The case concerns a complaint that the criminal proceedings against the applicant for robbery were unfair because the domestic courts convicted him on the basis of evidence extracted under duress. THE FACTS 1. The applicant was born in 1985 and is currently serving an imprisonment sentence in Stara Zagora Prison. He was represented before the Court by Ms P. Stoilova, a lawyer practising in Kazanlak. 2. The Government were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. An armed robbery was committed on 7 February 2009 in the city of Stara Zagora and a large sum of money was stolen from the premises of a company. The ensuing investigation led the police to the applicant and two other men. 5. In the morning of 26 February 2009 police officers forcibly entered the applicant’s flat and took him away. During the next hours he was severely ill-treated. The treatment inflicted on him has been described in the Court’s judgment given in an earlier case brought by the applicant (see Stoykov v. Bulgaria , no. 38152/11 , 6 October 2015). 6. Later on the same day the applicant was charged with aggravated robbery. After that he was taken before a judge, where he gave testimony, in the presence of a lawyer, confessing to having committed the offence at issue together with two accomplices. He described in detail the preparation they had undertaken and their respective actions on the night of the robbery. 7. The ensuing criminal proceedings have been described in detail in the Court’s judgment in a case brought by one of the applicant’s co-accused (see Kormev v. Bulgaria , no. 39014/12 , §§ 11-22, 5 October 2017). 8. In particular, during the trial the applicant withdrew his confession, saying that he had been forced by the police into making it. The defence’s position after that was that he was not guilty. 9. In a judgment of 15 May 2010 the Stara Zagora Regional Court convicted the applicant of aggravated robbery and unlawful possession of firearms and sentenced him to sixteen and a half years’ imprisonment. 10. The Stara Zagora Regional Court relied on numerous pieces of evidence, including the applicant’s confession made on 26 February 2009. It held in that regard that it had not been established beyond doubt that the applicant had been ill-treated at the time of his arrest and before making the confession, and that in any event this did not entail the untruthfulness of his statements or their inadmissibility as evidence. The facts exposed by him were corroborated by the remaining evidence and he had spoken of circumstances which he could not have been aware of had he not been involved in the robbery. His confession before a judge had been made “voluntarily, without any physical or psychological violence whatsoever”. 11. The applicant’s conviction and sentence were upheld on 21 April 2011 by the Plovdiv Court of Appeal. It held that the Stara Zagora Regional Court had correctly assessed the evidence and that the rights of the defence had been respected. As to the applicant’s confession, it pointed out that it had been made before a judge, with all procedural guarantees. It considered that, once the applicant had “decided to confess his guilt” in the beginning of the criminal proceedings, the mere fact that he had retracted that confession later on did not have to be interpreted “to the detriment of the accusation”. 12. In a final judgment of 17 November 2011 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that the lower courts had adequately responded to the argument that the applicant’s confession of 26 February 2009 had been made under duress. RELEVANT LEGAL FRAMEWORK 13. Under Article 422 § 1 (4) of the Code of Criminal Procedure, criminal proceedings are reopened when a judgment of the European Court of Human Rights establishes a violation of the Convention which is of particular importance for the case. Reopening is to be ordered by the Supreme Court of Cassation, upon a request by the convicted person (Article 420 § 2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant complained, relying on Article 5 § 1 (a) and Article 6 §§ 1 and 2 of the Convention, that the criminal proceedings against him had been unfair because the domestic courts had convicted him on the basis of his confession made under duress. 15. The Court is of the view that the complaint falls to be examined solely under Article 6 § 1 of the Convention, which, in so far as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Submissions by the parties 16. The Government referred to the arguments of the national courts, who had given reasons for considering the applicant’s confession of 26 February 2009 valid evidence. The Government were furthermore of the view that the confession at issue had not been of a particular evidential value, seeing that the applicant’s conviction had been based on numerous other pieces of evidence. 17. The applicant disagreed. He referred to the Court’s previous findings on the same criminal proceedings in the cases of Stoykov and Kormev (cited above). He argued that his confession had been the main evidence relied on to secure his conviction. B. Admissibility 18. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. C. Merits 19. The Court refers to the first case brought by the applicant where, examining the ill-treatment inflicted on him on 26 February 2009, it found a breach of the substantive aspect of Article 3 of the Convention, qualifying the ill-treatment at issue as torture (see Stoykov , cited above, §§ 54-61). It found in addition a breach of the procedural aspect of Article 3, noting that the events of 26 February 2009 had never been completely elucidated by the national authorities (§§ 65-74 of the judgment). 20. The Court refers, next, to the case of Kormev (cited above, §§ 85‑91), brought by one of the applicant’s co-accused in the criminal proceedings described above. In that case it found that the severity of the treatment inflicted on the applicant in the present case had inevitably influenced his decision to make a confession during the interrogation before a judge in the evening of 26 February 2009, which meant that that confession had been extracted through torture. The Court found further that the confession had been relied on as valid evidence by the national courts in their judgment convicting the accused, and that this automatically rendered the criminal proceedings unfair for the purposes of Article 6 § 1 of the Convention. 21. The Court sees no reason to reach a different conclusion in the case at hand, which concerns an identical complaint - that the criminal proceedings, found to be unfair in respect of Mr Kormev, had also been unfair in respect of the applicant, on the ground that their convictions were based on evidence extracted under duress. 22. The Government argued that the evidence at issue had not been of a particular evidential value and that the applicant’s conviction had been based on ample additional evidence (see paragraph 16 above). Identical arguments had been raised in Kormev (cited above, § 76), and the Court pointed out that the use of evidence obtained in violation of Article 3 in criminal proceedings always raised serious issues as to the fairness of such proceedings. It reiterated that incriminating evidence obtained as a result of torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value, and that such reliance automatically rendered the respective criminal proceedings unfair (ibid., § 81, with further references). 23. Lastly, as in Kormev (cited above, § 88), the Court points out that an approach such as that of the national courts, accepting the applicant’s statements made under duress as valid evidence mostly on the ground of their truthfulness, could potentially be seen as giving the investigating authorities a carte blanche to inflict ill-treatment on suspects and witnesses in criminal proceedings in order to obtain statements which, on the condition of being truthful, could be used as evidence in court. The Court cannot accept such an approach, which could potentially allow the national authorities to circumvent the guarantees offered by Articles 3 and 6 of the Convention. 24. The foregoing considerations are sufficient to enable the Court to conclude that the criminal proceedings against the applicant, in which the national courts relied on evidence extracted through torture, were not fair within the meaning of Article 6 § 1 of the Convention. 25. There has accordingly been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 27. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage. 28. The Government contested the claim, considering it exaggerated. 29. The Court cannot speculate as to the outcome of the proceedings against the applicant, noting that the finding of a violation of Article 6 § 1 of the Convention does not imply that the applicant was wrongly convicted (see, among other authorities, Dvorski v. Croatia [GC], no. 25703/11 , § 117, ECHR 2015). The Court is thus of the view that the finding of a violation of the applicant’s right to a fair trial constitutes in itself sufficient just satisfaction in respect of non-pecuniary damage (see also Kormev , cited above, § 96). The Court notes in addition that Article 422 of the Code of Criminal Procedure allows for the possibility to reopen criminal proceedings where it has found a violation of the Convention which is of particular importance for the case (see paragraph 13 above). B. Costs and expenses 30. The applicant claimed in addition EUR 350 for his legal representation before the Court and EUR 125 for translation. In support of this claim he presented a time-sheet and an invoice showing that he had paid his lawyer 700 Bulgarian levs (BGN), the equivalent of EUR 358, and another invoice showing that he had paid BGN 255, the equivalent of EUR 130, for translation. 31. The Government urged the Court to award the costs and expenses claimed in so far as they had been actually incurred. 32. The Court considers that the costs and expenses above were actually and necessarily incurred by the applicant and that they are reasonable as to quantum. It thus awards the entirety of the sums claimed, namely EUR 475, to which should be added any tax that may be chargeable on the applicant. C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 475 (four hundred and seventy-five euros) in respect of costs and expenses, to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško André Potocki Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII