The Supreme Court of Cassation returned the case against Orlin V. and Plamen V. for the murder of Evgenia V. in 2021, committed with particular cruelty and in a particularly torturous manner for the victim, to the Supreme Court of Cassation for a new hearing.
The case was initiated upon cassation appeals of the defendants Orlin V. and Plamen V. and the private prosecutors against the decision of the Supreme Court of Cassation, which confirmed the verdict of the Sofia City Court. By it, Orlin V. and Plamen V. were found guilty and convicted of the premeditated killing with the complicity of Evgenia V., committed with particular cruelty and in a particularly torturous manner for the victim. Each of the defendants was sentenced to “life imprisonment“.
According to the Supreme Court of Cassation, the review of the appeal decision indicates that procedural violations were committed. The Court of Appeals excluded from the evidence to be discussed the testimonies of the police officers who recreated the content of the “operational conversations“ held with the defendants. It also refused to evaluate the protocols reflecting the investigative experiments conducted with the participation of the defendants, preceding their involvement as defendants.
The court justified the grounds underlying these procedural decisions with violations of Art. 2, § 3 of Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in EAW proceedings and on the right to have a third party informed upon detention and to communicate with third parties and consular authorities while in custody. It is accepted that both in the course of the interview and during the investigative experiments conducted, the two defendants, by providing incriminating information, turned from witnesses into defendants, but they were not informed of their right to remain silent and of their right to a lawyer.
Despite the position taken, the CAS considered that “the malice of the procedural and investigative actions carried out (the investigative experiments) does not reflect on the testimonies of the witnesses who participated in their conduct“. The Supreme Court of Cassation's reasoning emphasizes that with the fact of the detention of the defendants and the interview with them by the police officers within the framework of the interview, they were already treated as suspects, who were entitled to legal protection, taking into account the crime under investigation.
According to the cassation instance, the position in the attacked decision that the defendants' statements were “extra-procedural” remains unclear in this aspect, despite the fact that they were made in the course of the investigative experiments carried out, directly related to the criminal proceedings initiated, in which at that moment they were already suspected as perpetrators of the crime. The court, assuming that the testimonies of the witnesses constitute a source of evidentiary facts for the incriminating statements of Plamen V., also owed an assessment of whether they constitute a substantial part of the materials that served for his conviction as an accomplice of the other defendant.
„Distancing itself from its obligation to verify the evidentiary reasoning of the first instance, the appellate court uncritically affirmed them, failing to take into account the logic of Directive 2013/48/EU, otherwise accepted as applicable in the case at hand, and to examine whether the violations committed undermine the standard protecting the fairness of the trial. By proceeding in this way, he himself based his conclusions on procedurally vulnerable evidentiary materials, the admissibility of which cannot be confirmed with the arguments presented in the decision“, it is stated in the reasons of the Supreme Court of Cassation.
According to the cassation instance, the validity of the objections cannot be denied that the appellate court did not discuss the differences between the expert opinions accepted by the main court and that of the appellate proceedings regarding the question of whether the stretch film placed (wound) around the victim's head also participated as a means in the mechanism of causing death. In its argument before the appellate court, the defense, among other things, justified its thesis precisely with the indicated expert conclusion of the additional expertise, which is why the absence of a judicial motivation for its non-admission deprived the supported objections of an answer.
The reasons of the Supreme Court of Cassation state that the objections of the private prosecutors, made in their cassation appeal, are also well-founded. In the appeal proceedings, they insisted on aggravating the situation of the two defendants, requesting the imposition of the punishment of “life imprisonment without parole“. “The second instance was obliged to examine the arguments, regardless of whether the factors put forward in the appeal and at the court hearing, assessed by the private prosecutors as significant for substantiating the cumulative requirement under Art. 38, para. 1 of the Criminal Code, could have led to the result they desired“, the supreme judges are categorical.
The judicial panel of the Supreme Court of Cassation summarizes that the procedural activity carried out by the CAS does not meet the standard introduced by the norms of Art. 314 and Art. 339, para. 2 of the Code of Criminal Procedure. The established violations are remediable by conducting new appeal proceedings before the second instance, in which, first of all, the court should carry out a precise analysis and assessment, taking into account all the prerequisites for admissibility, sufficiency, and reliability of the evidentiary materials, on the basis of which to build its factual findings with a degree of persuasiveness according to the requirements of Art. 303 of the Code of Criminal Procedure, also responding to the objections of the parties. If necessary, to conduct an additional judicial investigation.
The decision of the Supreme Court of Cassation was signed with a dissenting opinion by a member of the judicial panel.