Cause and Effect in European Politics and Law

The Court: there is no crime without evidence

Ralitsa Kovacheva, August 8, 2010

The decision of Sofia Court of Appeal to release four, out of five, arrested in the so-called operation “The Killers”, has opened a new front in the war between the executive power and the judiciary. Interior Minister Tsvetan Tsvetanov called the court's decision a "shame" and Prime Minister Boyko Borissov – a “challenge to the state”. He threatened to send the evidence of the case to Europol and the FBI for an opinion. The Prime Minister also hinted that the court's actions were not guided by professional reasons because, he explained, he had read yet 10 days ago that there was an attitude within the court to boycott cases. And since the only way to judge how much weight the positions of both sides have in the dispute, we offer herewith the main points of the reasoning of the court. On behalf of the executive we only have the word of the Prime Minister and of the Interior Minister.

Excerpts from the reasons for the decision of Sofia Court of Appeals to release four people, arrested in “The Killers" operation:

... The principles of a democratic state, as Bulgaria claims of being, require an individual to be taken into detention if the suspicion that a crime had been committed is justified, i.e. if sufficient evidence is being collected, although sometimes a minimum amount but clearly indicating a person’s involvement in the offense which that person is being accused of. Moreover, the law requires such a reasonable assumption to be derived from edible sources of evidence, rather than notes, reports and correspondence, containing information for internal use.

According to the rules of evidence, a subject to proving in criminal proceedings is the collection of these facts and circumstances that must be established in order the case to be solved correctly. These facts and circumstances should be established under the terms and means provided in the Penal Procedure Code (PPC), so that they could be suitable for evaluation in carrying out conclusions about the authorship of the act, the mechanism and manner of its execution.

It is also necessary to note that even third-year-students in law school study the fundamental forms of complicity and even for them it is clear that instigating, aiding and abetting are special forms of complicity, where an instigator and assistant are responsible only for intentional complicity, and when it is established that the offender had performed the act for which they have aided or have induced him.

Regarding the Kalashnikov rifle, found in the house of one of the detainee's:
An extremely important fact is being established by the same expertise, namely that no crime has been committed with the weapon, found in the house of the suspect M.I. The weapon is registered in the country. The expertise, however, indicates that even the cartridges, found at the assassination scene, are not fired from this weapon. In other words, the weapon in the house of the defendant I. is not the weapon, which was used to kill G. and V.

The SIM cards:
The evidence provided for the trial suggest from what mobile phone numbers conversations and texting were being held in the area around the crime scene. There were outgoing and incoming calls and messages from these numbers to other numbers in range. It was also determined that none of these numbers, respectively prepaid cards, were registered to any of the defendants.

It should be noted that some of the numbers, for which records are attached to the case, are registered to individuals who are in some way related to the defendants. With regard to these links, a detailed report is prepared, analysing the overall information received from mobile operators. Although extremely detailed, that report is not a written evidence, according to the philosophy of the PPC (Penal Procedure Code). The information contained in this report is only operational and can only be used as a guideline for pre-trial proceedings bodies, which are required to collect suitable evidence, as provided in the PPC.

The intercepted conversations among these numbers in the night of the killing of Y.G. and B.V were carried out by cells in the region, where defendants M.I., V.K. and P.S. were located. There is no evidence, however, that the prepaid cards were used by the defendants and not by other people in the same area. Moreover, these conversations are not the only ones which were carried out in the same region and in the same time, so that it could be claimed that only the individuals, related to the attack on Y.G. and B.V., were present in this area.

It was also determined that, during the assassination of Y..G. and B. V., the accused P.S. was located in Varna, and the accused K. - in Sofia. These circumstances are derived from the testimony of witnesses and references from mobile operators regarding calls from cards, registered in the names of defendants S. and K.

Even if assumed as credible, the testimony of witnesses B. and K.I., that in 2008 the accused P. had ordered the murder of Y.G., it cannot be concluded that he has any involvement in a crime, committed two years later.

There is also a lack of evidence that the accused P. had instigated the accused S. to commit a crime under Art. 116 of the Penal Code. It should be noted that S. is not even being charged of perpetration, which could help assess whether there is an inducement by P. to S.

Indeed, defendants S. and P. had known each other and had met in Sofia, Samokov and Borovets, which is apparent from the questioning of various witnesses. Only from that acquaintance, however, a conclusion cannot be derived for authorship of the act. It was not determined before, during and after the crime, any conversations to had been held between the two, either personally or via cell phones; there is even no evidence, indicating that P. had deliberately induced S. to commit a crime against Y.G. Furthermore, none of the evidence does not determine that there were any conflicts between the defendant P. and the victim G, contradictions, competition or any other problems, that could have motivated P. to commit such a crime. Even the relatives of Y.G do not speak of such problems.

The above also applies to the charges brought against the accused P.S. With regard to him no facts were established that could lead to the conclusion, that he personally knew Y.G. and that they had insoluble conflicts with each other that could motivate S. to commit a crime against G. On the day of the crime under Art. 116 of the Penal Code, defendant S. was in Varna. There is no fit evidence that he could have instigated in any way defendants K. and I to assist and defendant P. to commit a crime under Art. 116 of the PC. Such a conclusion cannot be derived only on the basis of the printouts of conversations held among several mobile numbers. These printouts do not prove that it was these four defendants that had called from these numbers and had talked among themselves. It should be noted that no prepaid cards with those numbers were found with the accused. But even if we assume that it was the accused that had spoken with prepaid cards with the same numbers, this is not enough to assume that they had committed the offence, imputed to them.

It is not clear from the charges brought against the defendants and all materials collected in the case, how defendants K. and I. had assisted defendant G. P. to commit the act. On the other hand, there is no evidence that G. P. was the direct perpetrator of the crime under Art. 116 of the PC. The Pre-trial authorities have not tried to establish where defendant G.P. was at the time of the crime. There is a lack of evidence, expert testimony or findings that could indicate defendant G.P. as a direct perpetrator of the act. The weapon of the crime is not found, no biological data had been collected at the crime scene, which could be linked to defendant G.P. All this not only discourages the accusation, raised specifically against defendant G.P. but also the accusation against other defendants, since, in the absence of evidence that he was the physical perpetrator of the crime, it cannot be inferred that the other three defendants had respectively instigated or assisted him to commit it.

A bracket should be opened here in order to discuss the conclusion of the court on the psychological expertise presented to the court. The wording of the task of the expert is quite impressive, because it stipulates the following: "Undertake a psychological study of the person G.P.P. in order to establish his complicity with a crime under the pre-trial proceeding № 429/10.” The conclusion of the so-called expertise is also very interesting: "With very high probability it could be claimed that the empirical observations and data from the psychological examination of G.P. attest to his involvement as a direct perpetrator of the murder of Y.G. With great probability it could be claimed that the information shared and confirmed in the reactions and responses of P. with regard to the crime - the murder of Y.G. - is reliable.”

Although the information contained in the so-called psychological report is presented in the form of an expert conclusion, it cannot be perceived as such, because it does not contain any findings based upon specific knowledge, which the court does not possess, but rather upon the personal impressions of the expert about the behaviour of the accused and the assumption what is the reason for his behavior. Therefore in that expertise an attempt is made, in an inadmissible way through, in fact, a witness testimony, to justify the suspicious behaviour of the accused and hence his involvement in the investigated criminal activity. The task of the expertise is generally inadmissible, since it cannot be a subject of expert evaluation, because no psychological knowledge is required to determine whether a person has committed a crime or not. This is a legal question, the answer of which may be given only by the court.

It should be noted as well, that the case is accompanied by written material, entitled "Report on the information, obtained by the application of special investigative techniques”.This report contains a brief reproduction of discussions between various individuals. These materials cannot be considered material evidence, collected by special investigative techniques under the PPC, at least in the form in which they are applied to the case, therefore this court does not deem necessary to discuss them.

Regarding the accusation under Art. 321 of the Penal Code, against defendants S., K., I. and P., that the first had organised and managed, while the other three were involved in an armed criminal group, no evidence is collected that could give grounds to a conclusion in this sense. The only evidence, linking the four defendants, are witnesses' testimonies, as mentioned above, which show that M.I. is the godfather of the child of G.P., P. S. is familiar with V.K. etc. However, there is a lack of evidence of any general intent, in these four defendants, to commit any crime. There is no evidence not only that such a group exists and the defendants were involved in it, but also that this group was armed.

This court, in view of the all the above, has decided that there is no evidence in this case, from which to infer an assumption about the authorship of the act under Art. 115 of the Penal Code, of which Y.P. is accused and of authorship of the acts under Art. 116 and Art. 321 of the Penal Code, which K., S., I. and P. are accused of.