site.btaAccused's Appearance Online before Court Examining Pretrial Restraints on their Liberty Ruled Unconstitutional

October 5 (BTA) - Bulgaria's Constitutional Court Tuesday
 handed down a unanimous decision declaring unconstitutional a
Criminal Procedure Code provision enabling a detained accused to
 appear online in the courtroom when the pretrial restraint on
their liberty is examined. The decision was published on the
Court's website.

The Constitutional Court concurred with National Ombudsman Diana
 Kovacheva, who approached it about the matter, arguing that the
 provision inadmissibly restricts the right of persons detained
on criminal charges to a direct physical appearance before a
court.

The Criminal Procedure Code amendment in question was enacted in
 order to ensure physical and social isolation of the accused
and their defence counsel, the court panel and the prosecutor,
responding to the new realities requiring protection against the
 pandemic. The provision, however, is applicable to any case of
declared state of emergency, martial law, disaster, epidemic,
other cases of force majeure, or if the accused and their
defence counsel express consent in writing. The constitutional
judges point out that it is inadmissible to abridge citizens'
rights a priori, and that this can only be done provisionally,
regarding particular rights, and by a specifically adopted law.

The decision notes the importance of the in-person appearance of
 the accused before a judge, arguing that this "exclusively
guarantees their right to personal liberty". The Constitutional
Court refers to a comment by the UN Human Rights Committee,
according to which the physical presence of detainees at the
hearing gives the opportunity for inquiry into the treatment
that they received in custody and thus serves as a safeguard for
 the right to security of person and the prohibition against
torture and cruel, inhuman or degrading treatment. The Bulgarian
 Court further points out that the European Court of Human
Rights has expressly determined that the requirement that a
person has to be brought promptly before a judge or other
judicial officer after having been arrested or detained does not
 provide for any possible exceptions to that requirement, even
where terrorist activities are involved. RY/LG

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