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| PROF. PETYA SHOPOVA DOCTOR IN LAW BULGARIA CO- DEFENSE IN GERMANY MY EXPERIENCE AS BULGARIAN DEFENSE LAWYER Dear colleagues, I am very happy to see you and talk about my co-experience in Germany with our colleague Mister Wolfgang Ferner. I cold say that since January 2007 to this moment we have been “twin lawyers“ who have shared many emotions and intellectual and professional souvenirs. Our story is the first step in the new European possibilities for defense lawyers. Our client, a Bulgarian citizen, was arrested in Slovenia on 9th December 2006 year on the basis of the European order of arrest. The order of arrest is connected with charging in Germany for crimes in § 146 GCK- gain and distribution of false many on the territories of Bulgaria and Germany. After deportation from Slovenia to Germany a trial started in the Regional Court in Koblenz. We have collected good experience. 1. To enter the trial In Germany processual code (code of practice) has the following possibility – foreigner’s defenders can enter the trial with a reference from a German defender in the same trial. I recieved a reference from colleague Ferner. I also have a recommendation from a Bulgarian Bar Association and a Sofia Bar Association. But there was a problem. And the name of the problem is “prosecutor“. She had an objection, an abstract objection. Prosecutors do not like defenders- more that international defenders team! The judge demonstrated a more friendly position. He has a resolution and it was “yes“, he decided the metter in my favour. The team is ready. 2. Legal base of our activity Apart from the German code practice, the legal base of our activity was the Bulgarian code practice and two conventions – the European Convention of 20th April, 1959 helping crime cases and the European Convention of 29the May, 2000 helping crime cases. The New Bulgarian practice code( 29the April, 2006) is very modern and harmonized with the European norm in criminal trials. There are special norms about international collaborate trials for criminal cases. In the Koblenz criminal trial we tried to use both international and national legal bases, but the court preferred the old classical method ( modus). We had a battle about a suggestion - whether to summon a Bulgarian citizen and official persons as witnesses, about the manner of invocation , about official documents. After the first petition about the invocation of Bulgarian witnesses the court had a negative resolution. After the second petition the court had a positive resolution, but used the old manner, i.e. connections in the Ministry of Justice, which manner is very long. If I do not collaborate with the court, this procedure will last for 2-3 months. The court is not yet ready for direct procedures, which exist in the European Convention 2000 and the Bulgarian code. The Court is not ready yet for direct contacts with courts and other official institutions in the European states - members of EU. 3. Collect the proofs from the client’s country In our activity we have many proofs from Bulgaria. I have collected proofs about the personal abilities of the client from the city mayor, about the financial situation from the accountant and official tax declarations, about contracts. I have collected proofs about personal characteristics of the witnesses of charge (in our trial we have only one witness of charge who is the central person in the trial). In this trial we invocated 4 Bulgarian citizens and a regional police director the from client’s region as witnesses. That was a very hard and complicate activity, but very important. The foreign court did not understand the situation, the people, the life in the defendant’s country. Sometimes the court dies not wish to do so. Co-defense is the possibility. 4. Communication with defendant The co-defense is a possibility to be with the client in private when you are ”trio”. Our many meetings “in trio“were very emotional, productive and important. When the client is a foreigner there is no better possibility than having a colleague who speaks the client’s language, who understands the client’s emotions and knows the client’s country. Our practice is very productive. Our meetings were before or after the court sessions. In our case we had some communication with the client’s wife too, who is very intelligent and this fact is considered good by the court. 5. Relation with court staff (constitution) Relations in court trials are always complicated. The theory and the law foresee that the judges should be distanced from the prosecutor and the defender. But in life rarely there are delicate relations between the judge and the prosecutor. The human rights and presumption of innocence are only good wishes. In fact for defenders it is very complicated to convince the court in one self’s position. We have a different situation – our petitions are either accepted or not. Colleague Ferner was the front-man of our battles. He used all possibilities of the German crime trial.. In very terrible moments we had discussions about an offset presented to/отвод, отвеждане/ the judge. He “heard” us and the court permitted( minded) our requests. An important moment for us was the petitions and pleas. We have professional and psychological compatibility/ съвместимост/ and this fact helps our work. 6. Conclusions Co-defense is very productive, not symbolic. The Defender’s team respected the prosecutor and the court. The psychological situation with the client is very comfortable. The defender from the country court knows the legislation and procedures in our country. The defender from the client’s country knows legalization and situation in our country. The legal documents, including the European Convention has rules about all institutions and citizen, not only about defense and obligation of court to permit co-defense whenever a defender wants it. May be our association should make this proposal to the EU institutions! |
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