Key facts of the case:
A sentenced person, Mr V.M.B., requested re-opening the criminal proceedings which led to his sentence of three years of imprisonment. He claimed that, among others, the court committed substantial procedural violations, including violations of his right of defence. One part of them was an impugned investigative action of recognition, where Mr B. was not provided with an attorney, although he was not officially accused yet, and thus his rights were violated.
Outcome of the case:
The court found no grounds to re-open the proceedings. The authorities were not obliged to constitute Mr B. as accused before carrying out the investigative action in question. On the contrary, obligating the authorities to accuse a person before doing any investigative action would infringe upon this person's private sphere.
... Art. 219, para. 2 of the Criminal Procedure Code […] does not require the investigative authorities or the prosecutor to accuse a person for their first investigative action. Therefore, the fact that the investigative authority did not do so before carrying out recognition does not justify the claim of the sentenced Mr B that he was deprived of an attorney and fair trial during the pre-trial stage. At this point he did not have procedural capacity and could not have been deprived of a right he did not yet have. It is not pointed out how the absence of an attorney during this procedural action, where he was not accused yet, led to unfavourable consequences for his future right of defence. The defence argument is unclear, regarding which actions in defendant’s favour were omitted and how this ultimately led to a substantial procedural violation. […] The investigative authority may, but is not obliged, accuse the person already at the first investigative action or actions. To claim that not accusing the person as upon carrying out recognition is a substantial violation of procedural rules would mean giving that constitution an absolute obligatory nature, which, by law, it does not have. This would lead to […] unwarranted and often unjustified risk of interference in the private sphere of citizens, which is protected by the Constitution of the Republic of Bulgaria, international standards – Art. 8 of the ECHR, Art. 1, Art. 4 of the Charter of Fundamental Rights of the European Union and the norms of the Criminal Procedure Code, stipulating judicial control over such interference.