EUROPEAN COMMISSION Brussels, 30.9.2020 SWD(2020) 301 final COMMISSION STAFF WORKING DOCUMENT 2020 Rule of Law Report

Country Chapter on the rule of law situation in Bulgaria Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report













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Abstract Since accession to the EU in 2007, Bulgarian reforms in areas including justice and corruption have been followed by the Commission through the Cooperation and Verification Mechanism (CVM). Judicial reform in Bulgaria has been a gradual process with important implications for judicial independence and public confidence. Challenges remain, in particular on the need to finalise, taking account of the Venice Commission opinion, the reform process commenced in 2019 regarding legal procedures concerning the effective accountability and criminal liability of the Prosecutor General. The composition and functioning of the Supreme Judicial Council and its Inspectorate have also been subject of further debate, leading to new reform proposals. More generally, attacks against the judiciary are reported to increase without proper reaction from the competent authorities. Controversial provisions relating to the automatic suspension of magistrates in case of a criminal investigation, and to the obligation for magistrates to declare their membership in professional organisations, have been repealed. In 2017 and 2018, Bulgaria carried out a comprehensive reform of its legal and institutional anti-corruption frameworks. The reform has led to improved cooperation between the relevant authorities. A number of high-level investigations were launched in the first half of 2020 and charges have been brought in a number of cases. The new reforms provide for public access to the property and interests declarations of senior public office holders which can be considered a good practice. Nevertheless, important challenges remain, as also illustrated by the perception surveys that show a very low level of public trust in the anti-corruption institutions. Lack of results in the fight against corruption is one of the key aspects raised throughout the summer 2020 protests. A solid track-record of final convictions in high-level corruption cases remains to be established. Better and more effective communication as regards the development and implementation of the anti-corruption strategy would be beneficial. It is important that the authorities are provided with sufficient resources in order to be able to fight corruption effectively. A legal framework is in place for conflict of interest, yet concerns exist as regards lobbying, which remains unregulated by law, and the transparency and predictability of the legislative process in the country. Concerning media pluralism, the Bulgarian legal framework is based on a set of constitutional safeguards and legislative measures, such as the Radio and Television Act, which are often not effectively implemented in practice. The Audiovisual Media Regulatory Authority (CEM) is considered as independent and transparent about its activities, but the Authority lacks resources to perform its tasks efficiently. Lack of transparency of media ownership is considered as a source of concern. The legal framework against political interference in the media does not explicitly forbid politicians from owning outlets, and links between political actors and some media outlets have been established. Several media freedom associations report physical or online attacks on journalists. Issues concerning checks and balances include concerns about the limited use of public consultations and impact assessment in the legislative process. Despite their limited resources, the functioning of national human rights institutions has continued to improve. The already narrowed civic space in Bulgaria could be further affected in view of a new draft law on foreign funding for NGOs.



The Cooperation and Verification Mechanism (CVM) was established at the accession to the European Union in 2007 as a transitional measure to facilitate Bulgaria’s continued efforts to reform its judiciary and step up the fight against corruption and organised crime. In line with the decision setting up the mechanism and as underlined by the Council, the CVM ends when all the benchmarks applying to Bulgaria are satisfactorily met. The latest CVM report, adopted in October 2019, recorded that Bulgaria had made a number of further commitments and the Commission concluded that the progress made under the CVM was sufficient to meet Bulgaria’s commitments made at the time of its accession to the EU. As the Commission also underlined, Bulgaria will need to continue working consistently on translating the commitments specified in its report into concrete legislation and on continued implementation. Before taking a final decision, the Commission will also take duly into account the observations of the Council, as well as of the European Parliament. I.Justice System The judicial system of the Republic of Bulgaria includes a total number of 182 courts which are ordinary and specialised. As a general rule, the ordinary courts hear cases in three instances, with the system of these courts comprising 113 regional courts, 28 district courts and 5 courts of appeal. The specialised courts include also military, criminal and administrative courts. The Supreme Court of Cassation is the court of last instance in cases heard by ordinary, military and specialised criminal courts, while for administrative cases, the Supreme Administrative Court is the court of last instance. Outside of the ordinary court system, the Supreme Court of Cassation and the Supreme Administrative Court are the courts of last instance. The judiciary also includes the Prosecutor’s Office, while the Constitutional Court of Bulgaria is not part of it. The Prosecutor’s Office has a unified structure and is headed by the Prosecutor General. The Supreme Judicial Council is the highest administrative authority in the Bulgarian judiciary. It is responsible for managing the judiciary and ensuring its independence. Judges, prosecutors and investigators are appointed, promoted, transferred and dismissed by their respective chamber (Judges’ or Prosecutors’) of the Supreme Judicial Council. The Supreme Bar Council is an independent and self-governing body established by law. Independence A reform concerning the accountability of the Prosecutor General and his or her deputies is ongoing. In the past years, the Prosecution service underwent a series of reforms, which aimed to restructure the service. Despite this progress, in Bulgaria, the combination of the powers and position of the Prosecutor General exerts considerable influence, as the Prosecutor General may annul or amend any decision taken by any prosecutor which has not been reviewed by a judge. Furthermore, he may second prosecutors without their consent, for a period of 3 months within a calendar year, and issue written instructions to them, including in individual cases. The Prosecutor General also has significant powers over the prosecutors who are the heads of offices at district and provincial level. Consequently, all prosecutors and investigators are de facto subordinate to the Prosecutor General. As regards his or her accountability, the Prosecutor General can only be removed from office by a proposal of the Plenary of the Supreme Judicial Council (SJC) to the President of the Republic. While the powers of the Prosecutor General are not unique to the Bulgarian justice system , concerns have been raised due to their combination with the Prosecutor General’s position in the SJC. In the Prosecutors’ Chamber, the Prosecutor General, as an ex officio member and chairman, plays a decisive role in relation to the career and disciplinary proceedings regarding prosecutors. The lack of a possibility for an effective criminal investigation concerning the Prosecutor General and his or her deputies is a long standing issue which has been raised not only by the European Commission but also by the European Court of Human Rights and the Council of Europe. In June 2019, a draft law was tabled to address this issue but serious concerns were raised by various stakeholders. On a recommendation from the Commission, Bulgaria requested an opinion from the Venice Commission to avoid any risk to judicial independence, while still ensuring the effectiveness of the proposed mechanism. In December 2019, the Ministry of Justice published a new draft law which addressed some of the recommendations of the Venice Commission. This new draft law on the matter is now before Parliament , providing for a “special prosecutor” who would be in charge of investigating crimes possibly committed by the Prosecutor General. This special prosecutor would be elected by the Prosecutors’ Chamber of the SJC, on a proposal from three of its members and with a majority of eight out of eleven votes, for a fixed-term mandate of seven years. He or she would enjoy procedural independence when supervising an investigation against the Prosecutor General and his or her deputies, but would remain subordinate to the Prosecutor General for other activities. Certain elements in the appointment procedure and the investigative powers of the “special prosecutor” have raised concerns and it would be important that the draft law takes account of the Council of Europe recommendations. On 18 December 2019, the Government asked the Constitutional Court whether the supervision of legality by the Prosecutor General, a power which is enshrined in the Constitution, also applies to the investigations against him or her. This request indirectly challenged the constitutionality of the draft legislation. On 23 July 2020, the Constitutional Court ruled that the Prosecutor General cannot exercise supervision of legality over prosecutors who investigate him/her. This ruling will enable Parliament to resume its work. However, the ruling does not solve the concerns related to the appointment procedure of the envisaged special prosecutor and to the fact that he or she would remain subordinate to the Prosecutor General for activities other than the investigation against the latter and his or her deputies. A further consultation of the Venice Commission on the draft law would give reassurance about the effectiveness of the new accountability mechanism. Despite the progress made, the composition and functioning of the Supreme Judicial Council has been subject of further debate. Notwithstanding previous reforms and progress, the situation of the SJC has been identified as a source of concern by the Council of Europe and various stakeholders. As regards the composition, the abovementioned reforms have provided for a more balanced structure of the SJC. However, the overall number of judges elected by their peers does not amount to a majority. Furthermore, the Prosecutor General plays a decisive role in the Prosecutors’ chamber and has also an influence on the plenary and potentially the Judges’ chamber , as the law provides that lay members elected to the Judges’ chamber by Parliament may theoretically also come from the ranks of the prosecutors. This has been raised by the Venice Commission as a source of concern because prosecutors, and the Prosecutor General in particular, are still significantly involved in the governance of judges. The overall structure of the SJC could limit its ability to safeguard judicial independence against pressure by the executive, the legislature, the judiciary, including the office of the Prosecutor General and the SJC itself. The risk to judicial independence is evidenced by the number of judges subject to attacks, targeted criticism based on the content of their rulings or the recent rhetoric used by public figures. On 14 August 2020, the Prime Minister announced a plan for a new Constitution which would include a reform of the composition of the Supreme Judicial Council and of its Inspectorate; it would also include a change in the appointment procedure and the length of the mandate of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Prosecutor General. It is important that any such reform should take account of the Council of Europe recommendations. The level of perceived judicial independence in Bulgaria remains low. Only 37% among the general public consider it to be ‘fairly or very good’, and among companies it also remains average, with 45% considering it to be ‘fairly or very good’. The regime for additional remuneration and promotion of magistrates raises concerns. In the current system, a magistrate can receive additional remuneration according to criteria set by the SJC, can become irremovable after five years of service, and can be promoted after passing a competition. The additional remuneration criteria has been raised as an issue by the Council of Europe concerning the rules set in 2018-19 by the SJC because they give broad discretionary powers to the Presidents of courts. In the same context, the long period necessary to acquire a life tenure may also raise concerns about judicial independence. In addition, following a recent amendment to the Judicial System Act (JSA), members of the SJC can be automatically promoted to a higher-ranking position at the end of their mandate. This has raised concerns in light of Council of Europe recommendations and may affect judicial independence taking into account the structure of the legal order set by the Constitution in Bulgaria, as indicated by the Supreme Court of Cassation. As a result of those concerns, the JSA was very recently further amended and currently provides that the appointment to a higher position is subject to a number of conditions. Amendments to the Judicial System Act (JSA) have been put in place. In February 2020, the automatic suspension of magistrates in case of a criminal investigation against them has been withdrawn. Previously, the relevant chamber of the SJC was obliged to suspend without any assessment the magistrate in question. The provision of Article 230 of the JSA has been repealed in compliance with a decision of the Constitutional Court and responds to the expectations of the European Commission and the recommendations of the Council of Europe. Further amendments to the JSA concern the obligation of magistrates to declare membership in professional organisations. The former requirement for judges, prosecutors and investigating magistrates to declare their membership of professional associations to the Supreme Judicial Council had raised concerns over the freedom of association. According to amendments, the declaration is no longer required. Nonetheless, the register of magistrates participating in professional associations is still available on the website of the SJC and has allegedly been used by public figures to pressure judges. A motion for a reform of the Inspectorate to the Supreme Judicial Council has been proposed. Under the current regime, the Inspectorate scrutinises the activity of the judiciary, carries out checks on the integrity and potential conflicts of interest of magistrates, and proposes the opening of disciplinary proceedings regarding magistrates to the SJC. The Inspectorate consists of an Inspector General and ten Inspectors, who are independent and elected by the National Assembly. The risk of political influence has been previously raised by the Venice Commission. Following the project “Support for the enhancement of the capacity of ISJC” , the Inspectorate itself made a motion for an amendment of the JSA that would require the Inspector General and the Inspectors to be proposed by other bodies, such as the plenaries of the Supreme Cassation Court and the Supreme Administrative Court or the General Meetings of magistrates and professional organisations, rather than the members of Parliament. Nevertheless, the Inspectorate is currently working on the basis of a mandate that has expired , under the principle of continuity. Aside from the composition of the Inspectorate, concerns have been raised by stakeholders in relation to the activity of this body. Concerns have been raised that under the provision that allows the Inspectorate to propose disciplinary proceedings for magistrates , the SJC and the Prosecutor General have been informing the Inspectorate to trigger an inspection, which resulted in pressure on individual judges. Quality Access to justice requires improvement. There are calls for lowering the threshold for legal aid accessibility , exempting legal aid recipients from court fees , lowering the amount of court fees to initiate proceedings and improving the digitalisation in the judiciary. In the current state of the legal aid system in Bulgaria, even a person whose income is at or slightly below the Eurostat poverty threshold is not entitled to legal aid. Particular attention has been drawn to the significantly high level of court fees in the area of administrative justice. As regards digitalisation, while it is not possible to submit a case online, it is possible to transmit summons and to monitor some cases. In addition, the use of and follow-up on the results of surveys conducted among court users are limited. A comprehensive view on the situation regarding e-justice will be available at the end of 2020, when the ongoing project “Development of a Model for Optimization of the Judicial Map of Bulgarian Courts and Prosecutor’s Offices and of a Unified Information System for Courts” is supposed to be completed. The COVID-19 pandemic has illustrated the shortcomings of the judicial system in the area of e-justice. Following a decision of the Judges’ chamber of the SJC , the processing of court cases was temporarily suspended for one month during the state of emergency, except for urgent cases.

Financial and human resources raise concerns. It appears that authorities, among which the Prosecutor’s office, and the Specialised Criminal Court experience issues related to lack of human or financial resources, despite the reported investment made by the Government in the justice system over the past years. Efficiency The lack of data regarding civil and commercial 1st and 2nd instance courts still hinders the monitoring of the efficiency of justice. The process of collecting statistical data through aggregate statistics does not allow for a breakdown of litigious and non-litigious civil and commercial cases (1st and 2nd instance) and does not permit a proper evaluation of the overall efficiency of the judicial system. However, there are two positive developments. When it comes to the length of proceedings at the Supreme Court of Cassation, Bulgaria is performing well in comparison to the other Member States. Furthermore, the performance of administrative courts regarding the lenght of proceedings shows improvement. The estimated time for resolving administrative cases at all instances have been improving over the past years. II.Anti-corruption framework In 2017 and 2018, Bulgaria carried out a comprehensive reform of its legal and institutional anti-corruption frameworks. Through the merging of several existing structures, the reform established the Commission for Counteracting Corruption and Illegal Assets Forfeiture (hereinafter the Anti-corruption Commission). The competence for high-level corruption cases was transferred to the Specialised Criminal Court while the investigation of such cases is carried out under the supervision of the Specialised Prosecutor’s Office. The current anti-corruption strategy covers the period 2015-2020 and a new strategy for 2021-2027 is under preparation. The fight against corruption has been declared a main priority of the Government in its 2017-2021 programme . At the same time, protests that erupted in summer 2020 show discontent in society with the lack of progress in effectively fighting corruption. The protests led to the resignations of five ministers in July and September 2020. In the latest Transparency International 2019 Corruption Perceptions Index, Bulgaria scored 43/100 and was ranked last in the EU and 74th globally. 80% of Bulgarian respondents to the latest Eurobarometer survey on corruption are of the opinion that corruption is widespread in their country (EU average: 71%) while 85%of companies consider corruption to be widespread (EU average 63%). Similarly, 51% of businesses considered corruption to be a problem when doing business in the country. 28% of respondents state that they feel personally affected by corruption in their daily lives (EU average 26%), while 63% do not think that there are enough successful prosecutions to deter people from corrupt practices (EU average 36%). Finally, only 13% of companies responded that people and businesses caught for bribing a senior official are appropriately punished (EU average 31%). The National Strategy for Preventing and Countering Corruption covers the period 2015-2020. The implementation of the strategy is monitored and coordinated by the National Council on Anti-Corruption Policies. The latest report on the implementation of the strategy for the period until 31 January 2019 notes the continuous upgrading of the institutional framework, the improved authority of the inspectorates and anti-corruption trainings of public administration. The Council reports that it launched consultations on the evaluation of the implementation of the 2015-2020 strategy and the development of the new strategy for 2021-2027. The Council’s website does not provide functional access to information as regards the current members of the council or its activities, including its meetings or discussions. Furthermore, a new Code of Conduct for Public Administration was adopted in April 2020. The new code puts an emphasis on anti-corrupt behaviour in the administration. The legal framework to fight corruption is largely in place, but challenges remain. Corruption and related crimes are regulated in the Special Part of the Bulgarian Criminal Code. The overall implementation of the Council Framework Decision 2003/568/JHA on combating corruption in the private sector can be considered satisfactory. Only natural persons can bear criminal responsibility in Bulgaria. Legal entities can only be subject to administrative (non-criminal sanctions) pursuant to the Administrative Offences and Penalties Act. The complex and formalistic Bulgarian system of criminal procedural law has been highlighted by different reports and analyses over the years as an obstacle to the effective investigation and prosecution of high-level corruption. This has also been raised by the Anti-Corruption Fund Foundation, which pointed out that the formalism of the criminal proceedings prevents the development of innovative and original investigation strategies. The contribution of the national authorities highlights several deficiencies in the legal framework, including the encouragement of bona fide procedural behaviour by excluding criminality or imposing lighter sentences in the cases where the persons committing a bribery offence voluntarily report it and cooperate with the investigating authorities. The institutional framework has recently been consolidated. Through the merging of several structures, the 2018 Act on Counteracting Corruption and on the Forfeiture of Illegally Acquired Property (hereinafter ‘the anti-corruption law’) established the new Commission for Counteracting Corruption and Illegal Assets Forfeiture. The Anti-corruption Commission has a broad remit of responsibilities. The chairperson of the Anti-corruption Commission, his or her deputy and the three members are elected by simple majority in the National Assembly. Stakeholders have raised concerns about this election procedure, noting that it creates possible risks for the political independence of the Anti-corruption Commission’s work. Amendments to the Criminal Procedural Code in 2017 transferred the jurisdiction for high-level corruption cases, committed by senior public office holders, from the remit of the Sofia City Court to the Specialised Criminal Court. The investigation of such cases is carried out by investigating magistrates from the investigation department of the Specialised Prosecutor’s Office. Outside of these cases, the detection and investigation of corruption offences committed by persons who are not senior public office holders falls under the competence of the Ministry of Interior. The Anti-corruption Commission has faced a number of challenges since its establishment. A series of highly publicised scandals took place in the spring of 2019, involving the purchase of private properties at below market value by high-level officials. The Anti-corruption Commission did not find any evidence for conflicts of interests. The scandal, referred to as ‘Apartmentgate’, led to the resignation of a number of high-level officials, including the former chairman of the Anti-corruption Commission. The latest annual report of the Anti-corruption Commission highlights challenges in the area of human resources with 100 empty vacancies out of 477 staff in total (representing more than 20%) . This could have a potential impact on the effectiveness of the Anti-corruption Commission. The authorities indicated that measures have been taken to remedy the situation. The latest Eurobarometer survey shows that only 18% of Bulgarian respondents trust the Anti-corruption Commission to deal with a case of corruption, a decrease of 4% compared to previous years. The reforms are beginning to show first results but challenges remain. In 2019, 553 inspections were assigned by the Prosecutor’s Office to the Anti-corruption Commission, compared to 343 in 2018. In 450 cases, the work was completed and the results have been reported back to the prosecutors, with evidence for a committed criminal offence in 83 of the cases. The most recent annual report of the Anti-corruption Commission notes improved cooperation in the automatic electronic exchange of data with other public institutions. Several outstanding challenges for the investigative authorities have been highlighted, including the need to hire competent and highly-qualified specialists for the purposes of the criminal proceedings, as well as a significant imbalance in the workload of prosecutors and investigators of the Specialised Prosecutor’s Office. A solid track record of final convictions in high-level corruption cases remains to be established. The statistics on the investigation and prosecution of corruption offences show that, in 2019, there were 486 accused persons put on trial for corruption offences (508 in 2018, 582 in 2017 and 614 in 2016). The Supreme Court of Cassation’s 2019 annual report shows that convictions were upheld in 20 out of 28 corruption-related cases, among which seven public office holders were convicted. A recent report by a Bulgarian anti-corruption watchdog analyses the progress of several high-level corruption cases and highlights that only a few have resulted in final convictions. The above-mentioned report also shows that there were no final convictions in high-level corruption cases in 2018 and 2019. Moreover, 78% of respondents to the latest Eurobarometer survey are of the opinion that high-level corruption cases are not pursued sufficiently (EU average 68%) and 72% are of the opinion that Government efforts to fight corruption are not effective (EU average 55%). It is particularly noteworthy that 77% of businesses responding to the Eurobarometer survey think that it is unlikely that corrupt people would be fined or imprisoned by the courts. The Internal Security Directorate investigates offences committed by officials of the Ministry of Interior and conducts integrity tests. Over the course of the past six months, the Directorate has played a key role in a number of operations for the arrest of high-level law enforcement and customs officers accused of bribery. The investigative activities of the Directorate in 2019 included the processing of 562 reports for alleged criminal offenses, including corruption crimes committed by officials from the Ministry of Interior, compared to 172 in 2018. It also carried out 81 pre-trial investigations for police misconduct, compared to 98 in 2018. Most of the judgments on corruption-related cases delivered by the Supreme Court of Cassation in 2019 concerned the offering/giving/demanding/receiving of bribes to/by officers from the Ministry of Interior (ten convictions out of 28 corruption cases). Notably, 61% of respondents to the Eurobarometer are of the opinion that bribery and abuse of power for personal gain are widespread among law enforcement and customs authorities. In 2012, Bulgaria put in place a civil confiscation regime. The procedure is initiated by the Anti-corruption Commission when a person is charged with crimes listed in the anti-corruption law. The person’s property is inspected for a period of 10 years in retrospect and the Commission has to identify a ‘significant discrepancy’ between the lawful net income of the suspect or accused person and the value of his or her property. The civil confiscation procedure is independent from any criminal proceedings and enables the confiscation of a person’s property without a prior conviction for a criminal offence. Article 148 of the Anti-corruption Law lays down the general method of appraisal of unlawfully acquired assets. Stakeholders have raised serious concerns that the civil confiscation cases are not conducted in an independent and impartial manner. By June 2020, there were 309 final court judgments confirming the confiscation of assets of a total value of BGN 133,133,611.25 (approximately EUR 68,273,646). The Anti-corruption Commission verifies declarations of assets and interests by senior public office holders and ascertains conflicts of interest. The anti-corruption law defines the term ‘senior public office holder’. The declarations of the senior public office holders are accessible via the Register of Senior Public Office Holders. The anti-corruption law enables senior public office holders to request that the information of their spouses or de facto cohabitants and their children below the age of 18 is not made publically available. In 2019, the Anti-corruption Commission carried out checks on 8,573 senior public office holders. In 2019, the Commission adopted 162 decisions on conflicts of interests (140 in 2018). Fourteen of those decisions identified a conflict of interests (28 in 2018) and sanctions amounting to BGN 173,511 (approximately EUR 88,980) were imposed. Office holders at the regional and local level also fall within the scope of the anti-corruption law. . Recent legislative amendments enhanced the role and functions of the General Inspectorate and the inspectorates in the ministries. Their competencies include the exercise of control and checks as regards conflicts of interest and the content of the mandatory asset declarations, submitted by civil servants, advisors and experts and the alerting of the prosecution authorities in the cases where evidence is found for a committed offence. The inspectorates also assess corruption risks and propose measures to limit them. The 2019 annual activity report of the inspectorates illustrate their increasingly active role as regards conducting checks and ad-hoc inspections (following alerts by citizens, organisations or institutions). Lobbying is not regulated in Bulgaria. There are no specific obligations for registration of lobbyists or reporting of contacts between public officials and lobbyists. A recent analysis by the National Centre for Parliamentary Research covering the period April 2017 to December 2019 shows that nearly 37% of the adopted legal acts modify other acts by amendments, including in the transition and final provisions of the amending act. In some cases, the amendments concern legal acts which are completely unrelated to the amending act. Stakeholders have expressed serious concerns that this practice not only impacts negatively on the transparency of the legislative process in the country, but could in some cases be a sign of irregular lobbying. The anti-corruption law introduced measures to ensure whistleblower protection and encourage the reporting of corruption. The persons entrusted with examining the alert are obliged not to disclose the identity of the whistleblower, not to make public any facts and data of which they have become aware in connection with the examination of the alert and to safeguard the written documents entrusted thereto against unauthorised access by third parties. The Bulgarian Institute for Legal Initiatives pointed out that a possible weakness of the existing regime is that it does not allow the submission of anonymous alerts. The Anti-corruption Fund raised similar concerns as regards the requirement that the whistleblower discloses their personal identification number.



III.Media Pluralism

The Bulgarian legal framework concerning media pluralism is based on a set of constitutional safeguards and legislative measures, such as the Radio and Television Act . The Access to Public Information Act regulates access to public information and the re-use of public sector information. A Public Information Access Platform was launched in 2019, streamlining the application process and ensuring that the information published in response to an application becomes accessible to all citizens. The regulator for audiovisual media services, the Council for Electronic Media, is vested with powers in compliance with the Radio and Television Act. The Council for Electronic Media (CEM) is an independent body composed of five members: three members are elected by the National Assembly, and two are appointed by the President of the Republic of Bulgaria. The term of office of the members is 6 years. The composition of CEM rotates every two years from the quota of the National Assembly and every three years from the quota of the President . The independence of the CEM has been assessed as being at low risk. According to the Media Pluralism Monitor (MPM 2020), the duties and responsibilities of CEM are clearly defined by law, and the authority is transparent about its activities. However, it is widely recognised that CEM lacks resources to perform its tasks efficiently and is financially dependent on the State for the allocation of the necessary resources . The revised Audiovisual Media Services Directive (AVMSD) sets out a range of specific guarantees for the independence and effectiveness of national media regulators . A draft Act amending and supplementing the Radio and Television Act was prepared by a working party set up within the Ministry of Culture to ensure transposition of the revised AVMSD. As regards self-regulation, Bulgaria also has a media ethics committee. The Bulgarian National Council for Journalistic Ethics Foundation (NSW) was established in 2005 as a non-profit legal entity for performing activities in the public interest. The purpose of the Foundation is to establish and maintain a self-regulatory system for print and electronic media in Bulgaria on the basis of the Bulgarian Media Code of Ethics, adopted in 2005. The NSW processes complaints by citizens and organisations against print and electronic media about violations of media ethics. Lack of transparency of media ownership in Bulgaria is considered as a source of concern. The CEM maintains and regularly updates a public register of linear and non-linear media services, as well as a list of undertakings distributing Bulgarian and foreign programmes. In November 2018, the Compulsory Deposit of Copies of Printed and Other Works Act was amended to require media outlets to provide information about their owners and all funding received, including the names of donors. Some observers considered that this placed an excessive burden on small, independent media outlets, funded mainly through donations (e.g. crowdfunding) and could discourage private individuals from supporting such outlets. The law has also been criticised because it does not oblige media to disclose certain other sources of income, such as Government funding beyond funds received through contracts with relevant contracting authorities. In practice, according to stakeholders and MPM 2020, many outlets do not comply with the law, and the disclosed information is not always easily accessible to the public. A report published by the European Centre for Press and Media Freedom (ECPMF) following a joint fact-finding mission held in 2018 points to several issues linked to transparency of media ownership. Furthermore, the report following the visit of the Commissioner for Human Rights of the Council of Europe in Bulgaria in November 2019 indicated that the provisions on ownership disclosure continue to be implemented only partially. Furthermore, transparency is not ensured in many cases, as media outlets tend to register under proxies or offshore companies. State advertising reportedly plays an important role in the country’s media landscape, especially at local level. MPM 2020 reports that in Bulgaria, there are no regulatory safeguards for fair and transparent distribution of state advertising. Stakeholders also report that the regulatory framework governing political advertising does not extend to social media. It appears that distribution of state advertising expenditure is not based on clear and non-discriminatory criteria. Stakeholders also report that sometimes, EU funds are allegedly used by local authorities to strengthen their control of local newspapers and TV channels . The legal framework against political interference in the media does not explicitly forbid politicians from owning outlets. It is reported that the ownership of several media outlets is closely linked to political actors in Bulgaria, even if not officially owned by them. Stakeholders report that the political climate is not favourable to independent media, and that many media owners prefer to be close to the Government in order to avoid being marginalised. Moreover, national and local media in all sectors are subject to systematic political control, and the majority of the leading newspapers in the country follow an editorial policy favourable to the Government. In addition, a large number of Bulgarian journalists characterised political interferences in the media as “common” and “widespread”. During the Covid-19 pandemic, the Parliament tried to change the Criminal Code in order to criminalise disinformation. The State of Emergency Act initially adopted on 20 March 2020, included amendments to the Criminal Code providing for a prison term of up to three years and fines of up to BGN 10 000 (about EUR 5100) for disseminating “untrue information about the spreading of an infectious disease”. Although there was no definition of false information, citizens were threatened with the imposition of heavy fines and imprisonment. In this light, experts, journalists and citizens would be forced to engage in self-censorship. However, the President vetoed that provision citing the impact on freedom of speech. Subsequently, on 23 March 2020 the Parliament adopted the law without the controversial provision. Bulgarian law provides the main legal safeguards for the protection and activities of journalists and media. The right to freedom of expression is protected by the Constitution. The Access to Public Information Act regulates access to public information and the re-use of public sector information. Stakeholders report that the law has proved to be a powerful tool for investigative journalists and citizens alike. A Public Information Access Platform was launched in 2019, streamlining the application process and ensuring that the information published in response to an application becomes accessible to all citizens. However, obtaining access to public information remains difficult in Bulgaria, despite an increasing number of open public data sources. It appears that some independent journalists and publications have been forced to use access to information requests in order to communicate with certain institutions. In February 2019, the Bulgarian Parliament passed amendments to the Personal Data Protection Act. Although the General Data Protection Regulation (GDPR) foresees exceptions covering the work of journalists, they were not incorporated in the new Bulgarian legislation, which also established sanctions for media. Legal and media experts criticised the Act for its potential chilling effect on journalistic investigations. On 15 November 2019, the Bulgarian Constitutional Court declared the relevant provisions of the Act unconstitutional. Attacks on journalists are frequently reported. In particular, stakeholders denounce smear campaigns against independent and investigative journalists who are exposing corruption cases. In 2019 and 2020, eight alerts regarding attacks on journalists, harassment of journalists and other media actors as well as abusive lawsuits were registered for Bulgaria on the Platform to promote the protection of journalism and safety of journalists of the Council of Europe. A series of similar threats and attacks have also been reported until recently. Media freedom associations claim that journalists and media owners face politically motivated charges with a view to silencing critical reporting. MPM 2020 reports cases where the State is allegedly threatening media independence by way of political, administrative and judicial pressure. The Council of Europe Platform to promote the protection of journalism and safety of journalists as well as Mapping Media Freedom also report such alleged cases. Threats to journalists linked to their online activities are reported too. It has been noted that the most vulnerable targets are critical and investigative journalists. There are court cases launched against journalists for posting critical information on social media. IV.Other Institutional Issues related to Checks and Balances Bulgaria is a representative democratic republic with a directly elected President, a unicameral National Assembly and a Constitutional Court in charge of constitutional review of laws. The National Assembly has a final decision-making power when adopting laws. Bulgaria has two national human rights institutions. First, the Ombudsman is an independent constitutional body, elected by the National Assembly and tasked with the promotion and protection of human rights and fundamental freedoms. Second, the Commission for Protection against Discrimination is a body that implements policies in the spheres of gender equality and non-discrimination. The establishment of a post-monitoring mechanism is ongoing. As reported in the Cooperation and Verification Mechanism (CVM) report of October 2019 , the Government has decided to establish an additional, more comprehensive mechanism for domestic monitoring centred in a Coordination and Cooperation Council (‘post-monitoring council’). The aim of the Council is set to be the assessment of Bulgaria’s progress in judicial reform, fight against corruption and organised crime in an independent, transparent and objective manner. The new body would receive information from a broad range of relevant institutions and would also include a Civic Council with representatives of civil society and professional associations of the judiciary. The activity of the Council would start once the CVM comes to an end. The Bulgarian authorities started the selection process for the so-called Civic Council that gathers NGOs from various fields related to the functions of the Council. However, the result of the selection regarding civil society representatives has been cancelled and a new procedure has been launched. The use of public consultation and impact assessment is limited. Bulgaria’s regulatory process is considered to be lacking predictability and stability due to frequent changes of the legislation. For example the public procurement law alone was amended eleven times in 2018. Furthermore, the Judicial System Act (JSA), adopted in 2007, has already been subject to 51 amendments. In addition, the ‘legal technique’ observed in the anti-corruption chapter with the amendment of legal acts through other legal acts bypasses the requirements for public consultation and impact assessment. Moreover, there is a trend, noticed by stakeholders, in the procedure for adopting laws in which amendments introduced between the first and second reading in the National Assembly can create significant changes without the relevant public debate. A state of emergency, followed by a new emergency regime, were used to face the COVID-19 pandemic. On 13 March 2020, Parliament announced a state of emergency for the duration of one month , which was later extended with another one month , to tackle the pandemic. This decision gave extensive powers to the Government in order to take all necessary measures to deal with the emergency. On 12 May, an amendment to the Health Act was adopted which introduced a new emergency regime (‘emergency epidemic situation’). On 13 May, the Council of Ministers, on a proposal by the Minister of Health, decided to declare an emergency epidemic situation for the duration of one month, which was later renewed several times and is currently declared until 30 September. This new emergency regime was reviewed by the Constitutional Court which decided on 23 July that the regime is compliant with the Constitution. The Ombudsman is now an A accredited body in accordance with the UN Global Alliance of National Human Rights Institutions (GANHRI). The Ombudsman is a supreme independent constitutional body that is elected publicly and transparently by the National Assembly for a period of 5 years. The latest amendments to the Ombudsman Act from 2018 vested in the institution the power to receive and deal with complaints and reports of violations of citizens’ rights and freedoms, concerning state and municipal authorities and their administrations, persons entrusted with the rendering of public services, as well as private entities. In exercising this power, the Ombudsman can also make proposals and recommendations for the promotion and protection of the citizens’ rights and freedoms from private entities. In addition to the Ombudsman, the Commission for Protection against Discrimination is an independent specialised state body which examines complaints and reports and issues related to discrimination. Financial and human resources issues have been underlined as shortcomings in both institutions. The new draft rules on increased transparency of foreign funding for NGOs raise concerns. The already narrowed civic space in Bulgaria could be further affected in view of a new draft law tabled on 3 July 2020. This draft law would impose new obligations on non-profit legal persons which receive more than BGN 1000 (about EUR 500) from foreign donors except for the EU itself. The draft provides that directors and members of the governing bodies of the organisations would be requested to provide asset declarations and that this information will be stored in a register. Stakeholders raised concerns about the draft law, including as regards its compliance with EU law. It is important that any such envisaged amendment be in line with EU law requirements.



Annex I: List of sources in alphabetical order.* * The list of contributions received in the context of the consultation for the 2020 Rule of Law report can be found at (COM website).

Anti-Corruption Commission (2019), 2019 Annual report on the activity of the Anti-corruption Commission for counteracting corruption and forfeiture of illegally acquired assets. Anti-Corruption Committee, Register of senior public office holders. https://register.caciaf.bg/ . Anti-Corruption Fund, contribution for the 2020 Rule of Law Report. Anti-Corruption Fund and Konrad Adenauer Stiftung (2020), Anti-corruption institutions: activity without visible results. https://acf.bg/en/godishen-monitoringov-doklad-na-akf-za-20-2/ . Association of European Journalists (2017), Bulgaria: report on the state of journalism and freedom of speech in 2017. https://www.aej.org/page.asp?p_id=622 . Bulgarian Institute for Legal Initiatives Foundation (2015-2017), Media monitoring and analysis of attacks on courts during the period of 01/01/2015 – 01/07/2017. Bulgarian Institute for Legal Initiatives Foundation (2017-2019), Media monitoring and analysis of attacks on courts during the period of 01/08/2017 – 30/11/2019. Bulgarian Institute for Legal Initiatives Foundation (2020), Overview, inventory and cataloging of legislative initiatives and changes related to the judicial reform in Bulgaria. http://www.bili-bg.org/cdir/bili-bg.org/files/Анализ_1.5_Категоризация_на_данни_fin.pdf . Bulgarian Institute for Legal Initiatives Foundation contribution for the 2020 Rule of Law Report. Bulgarian Media Code of Ethics - http://mediaethics-bg.org/ . Bulgarian Prisoners' Association for Rehabilitation contribution for the 2020 Rule of Law Report. Centre for Media Pluralism and Media Freedom (2020), 2020 Media pluralism monitor. https://cmpf.eui.eu/media-pluralism-monitor/mpm-2020 . CEPEJ (2020), Study on the functioning of the judicial systems in the EU Member States. CIVICUS monitor – Bulgaria. https://monitor.civicus.org/country/bulgaria/ . Civil Liberties Union for Europe contribution for the 2020 Rule of Law Report. Constitutional Court of the Republic of Bulgaria (1993), Case No. 18/1993. Constitutional Court of the Republic of Bulgaria (2010), Decision No. 13/2010 on Case No. 12/2010. Constitutional Court of the Republic of Bulgaria (2019), Case No. 15/2019. Constitutional Court of the Republic of Bulgaria (2020), Decision 10/2020 on Case 7/2020 Council of Europe, Platform to promote the protection of journalism and safety of journalists: Bulgaria. https://www.coe.int/en/web/media-freedom/bulgaria .

Council of Europe: CCJE Bureau (2019), Report on judicial independence and impartiality in the Council of Europe member States. Council of Europe: Commissioner for Human Rights of the Council of Europe Dunja Mijatović (2020), Report following her visit to Bulgaria from 25 to 29 November 2019 CommDH(2020)8. https://rm.coe.int/report-on-the-visit-to-bulgaria-from-25-to-29-november-2019-by-dunja-m/16809cde16 . Council of Europe: Committee of Ministers (2010), Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities. Council of Europe: Committee of Ministers (2016), Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the protection of journalism and safety of journalists and other media actors. Council of Europe: Committee of Ministers (2019), Interim resolution CM/ResDH(2019)367. Council of Europe: Committee of Ministers (2019), Supervision of the execution of the European Court’s judgments CM/Notes/1362/H46-6. Council of Europe: Venice Commission (2010), Study No. 494 / 2008 on the independence of the judicial system – part I: the independence of judges. Council of Europe: Venice Commission (2017), Opinion no. 855 / 2016 on the judicial system act (CDL-AD(2017)018). Council of Europe: Venice Commission (2019), Opinion on draft amendments to the Criminal Procedure Code and the Judicial System Act concerning criminal investigations against top magistrates (CDL-AD(2019)031). Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities L 303/69. Directorate-General for Communication (2020), Flash Eurobarometer 482: businesses’ attitudes towards corruption in the EU. Directorate-General for Communication (2020), Special Eurobarometer 502: corruption. ECtHR, judgment of 5 February 2010, Kolevi v. Bulgaria ECLI:CE:ECHR:2009:1105JUD000110802. European Centre for Press & Media Freedom (2020), Mapping Media Freedom: Bulgaria – newspaper editor left unconscious after being attacked by masked men. https://mappingmediafreedom.ushahidi.io/posts/23231 . European Centre for Press & Media Freedom (2020), Mapping Media Freedom: Bulgaria. https://mappingmediafreedom.org/country-profiles/bulgaria/ . European Centre for Press and Media Freedom (2018), Bulgaria: media ownership in a captured state. https://www.ecpmf.eu/monitor/fact-finding-mission/ . European Commission (2019), Commission staff working document Bulgaria: technical report accompanying the document report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification mechanism SWD/2019/392 final. European Commission (2019), EUPACK 2019: Public administration characteristics in Bulgaria (not published yet). European Commission (2019), Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism COM(2019) 498. European Commission (2019), Report from the Commission to the European Parliament and the Council assessing the extent to which the Member States have taken the necessary measures in order to comply with Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector COM(2019) 355 final.

European Commission (2019-2020), The EU justice scoreboard. European Commission (2019), Commission staff working document: Country report Bulgaria 2019 accompanying the document communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank and the Eurogroup 2020 European Semester: Assessment of progress on structural reforms, prevention and correction of macroeconomic imbalances, and results of in-depth reviews under Regulation (EU) No 1176/2011 SWD(2019) 1001 final/2. European Commission (2020), Commission staff working document: Country report Bulgaria 2020 accompanying the document communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank and the Eurogroup 2020 European Semester: Assessment of progress on structural reforms, prevention and correction of macroeconomic imbalances, and results of in-depth reviews under Regulation (EU) No 1176/2011 SWD(2020) 501 final. European Network of Councils for the Judiciary (ENCJ) (2019): Independence and Accountability of the Judiciary – ENCJ Survey on the independence of judges, 2019. https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/Data%20ENCJ%202019%20Survey%20on%20the%20Independence%20of%20judges.pdf . European Regulators Group for Audiovisual Media Services – ERGA (2016), Report on the independence of national regulatory authorities. https://ec.europa.eu/digital-single-market/en/news/erga-report-independence-national-regulatory-authorities . European Social Fund (2016-2020), Development of a Model for Optimization of the Judicial Map of Bulgarian Courts and Prosecutor’s Offices and of a Unified Information System for Courts. http://2020.eufunds.bg/en/1/0/Project/BasicData?contractId=IwpyI6fyBUY%3D&isHistoric=False . Inspectorates created pursuant Art. 46 of the Public Administration Act (2019), 2019 Annual activity report. Government of the Republic of Bulgaria (2015), National strategy for prevention and countering corruption in the Republic of Bulgaria 2015-2020. http://www.strategy.bg/StrategicDocuments/View.aspx?lang=bg-BG&Id=956 . Government of the Republic of Bulgaria, Public information access platform. https://pitay.government.bg/PDoiExt/ . GRECO (2020), Fourth evaluation round – second compliance report on Bulgaria corruption prevention in respect of members of Parliament, judges and prosecutor. Group of Bulgarian lawyers (informal group of activists) contribution for the 2020 Rule of Law Report. International Social Justice Commission contribution for the 2020 Rule of Law Report. Internal Security Directorate (2018), Report on the implementation of the anti-corruption plan 2018. Internal Security Directorate (2019), Report on the implementation of the measures of the anti-corruption plan 2019. Management Program of the Government of the Republic of Bulgaria for the period 2017-2021. www.strategy.bg/StrategicDocuments/View.aspx?lang=bg-BG&Id=1240 . National Assembly of the Republic of Bulgaria (2020), minutes of the meeting of the parliamentary committee on legal affairs. https://www.parliament.bg/bg/parliamentarycommittees/members/2577/steno/ID/6005 . National Centre for Parliamentary Research (2020), Research of the legislative activities of the 44th National Assembly of Bulgaria. http://www.strategy.bg/Publications/View.aspx?lang=bg-BG&categoryId=&Id=301&y=&m=&d =. National Council for Journalistic Ethics, Media ethics. http://mediaethics-bg.org/ . National Council on Anti-Corruption Policies (2019), Report on implementation of the national anti-corruption strategy 2015 – 2020 for the period until 31 January 2019. Plenary of the Supreme Court of Cassation (2020), Request from the Plenary of the Supreme Court of Cassation to the Constitutional Court. http://www.vks.bg/novini/2020-05-27-iskane-KC-ZSV-2020.pdf .

President of the Republic of Bulgaria (2020), Statement made by President Rumen Radev on the occasion of the adopted by Parliament State of Emergency Measures Act. https://m.president.bg/en/speeches-and-statements5437/izyavlenie-na-prezidenta-rumen-radev-po-povod-prietiya-ot-parlamenta-zakon-za-merkite-i-deystviyata-po-vreme-na-izvanrednoto-polozhenie.html . Reporters Without Borders World Press Freedom Index. https://rsf.org/en/ranking . Reuters Institute and the University of Oxford (2020), Digital news report 2020. http://www.digitalnewsreport.org/survey/2020/bulgaria-2020/ . Supreme Court of Cassation (2019), 2019 Annual report of the activity of the Supreme Court of Cassation. http://www.vks.bg/analizi-i-dokladi.html . Supreme Judicial Council (2018-2019), Rules for Determining and Disbursement of Supplementary Remuneration. Supreme Judicial Council (2019), Position of the Bulgarian Supreme Judicial Council. http://www.vss.justice.bg/page/view/9671 . Transparency International (2020), 2019 Corruption Perception Index. UN Economic and Social Council: Committee on Economic, Social and Cultural Rights (2019), Sixth periodic report submitted by Bulgaria under articles 16 and 17 of the Covenant, due in 2017. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fBGR%2f6&Lang=en . UN Human Rights Office of the High Commissioner: Special Rapporteur on the independence of judges and lawyers (2019), Report of the Special Rapporteur on the independence of judges and lawyers. Vilnius Institute for Policy Analysis (2020), Journalistic exemption under the European data protection law. https://vilniusinstitute.lt/wp-content/uploads/2020/01/VIPA_Bitiukova_2020_v4_f.pdf . Virtual country visit to Bulgaria in the context of the 2020 Rule of Law Report.

Annex II: Country visit to Bulgaria The Commission services held virtual meetings in June 2020 with: ·Association of European Journalists ·Association of Prosecutors ·Bulgarian Institute for Legal Initiatives ·Bulgarian Judges Association ·Centre for the Study of Democracy ·Commission for Anti-Corruption and Illegal Assets Forfeiture ·Council for Electronic Media ·Supreme Court of Cassation ·Inspectorate to the Supreme Judicial Council ·Institute for Market Economics ·Media Democracy Bulgaria ·Ministry of Justice

·Ministry of the Interior ·National Council on Anti-Corruption Policies ·Office of the Deputy Prime Minister ·Office of the Prosecutor General ·Open Society Institute ·Specialised Criminal Court ·Supreme Judicial Council ·Union of Publishers * The Commission also met the following organisations in a number of horizontal meetings: ·Amnesty International ·Civil Liberties Union for Europe ·Civil Society Europe ·Conference of European Churches ·EuroCommerce ·European Center for Not-for-Profit Law ·European Centre for Press and Media Freedom ·European Civic Forum ·Free Press Unlimited ·Front Line Defenders