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 Co-operation and Verification mechanism
Date: 2015-01-28
Institutions: European Commission
Subjects: Bulgaria, conflict of interest, cooperation policy, corruption, exchange of information, judicial inquiry, judicial reform, organised crime, prevention of delinquency













EUR-Lex - 52015SC0009 - EN











|



52015SC0009

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 Co-operation and Verification mechanism /* SWD/2015/0009 final */









Benchmarks to be
addressed by Bulgaria pursuant to Commission Decision of 13/XII/2006
establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight
against corruption and organised crime:
Benchmark
1: Adopt Constitutional amendments removing any ambiguity regarding the
independence and accountability of the judicial system
Benchmark
2: Ensure a more transparent and efficient judicial process by adopting and implementing
a new judicial system act and the new civil procedure code. Report on the
impact of these new laws and of the penal and administrative procedure codes,
notably on the pre-trial phase
Benchmark
3: Continue the reform of the judiciary in order to enhance professionalism,
accountability and efficiency. Evaluate the impact of this reform and publish
the results annually
Benchmark
4: Conduct and report on professional, non-partisan investigations into
allegations of high-level corruption. Report on internal inspections of public
institutions and on the publication of assets of high-level officials
Benchmark
5: Take further measures to prevent and fight corruption, in particular at the
borders and within local government
Benchmark
6: Implement a strategy to fight organised crime, focussing on serious crime,
money laundering as well as on the systematic confiscation of assets of
criminals. Report on new and ongoing investigations, indictments and
convictions in these areas
I           INTRODUCTION
This technical report
provides background information on the data which underpin the Commission's
analysis and assessment. The information has been collected from a variety of
sources. The Commission services are following developments in Bulgaria through a permanent presence,[1]
as well as via contacts of the various Commission services with the Bulgarian
administration. A constructive dialogue has been established over the years
with the Bulgarian authorities responsible for CVM issues, which provides
detailed information on new initiatives and on the outcomes of current policies
in the form of written background material, as well as during frequent meetings
with the Commission services. The Commission also meets regularly with the
various institutions which form part of the Bulgarian judiciary and law
enforcement system in order to discuss with them the initiatives taken and
results achieved. The Commission benefits from invaluable assistance from
independent experts from other Member States in its work and also draws on the
various studies and reports that are available from international institutions
and other independent observers in the field of judicial reform, corruption and
organised crime. 
II
        Independence and Accountability of the Judiciary
An independent judiciary
is a crucial precondition for the protection of the rule of law. The courts
should apply the law in an impartial and predictable manner and not be subject
to political or economic pressure. At the same time, there need to be
mechanisms in place to hold individual magistrates accountable, i.e. to ensure
respect of procedural and ethical norms, prevent conflicts of interest and
apply dissuasive sanctions in cases where judicial powers are misused to
circumvent justice. This is a delicate balance which requires the establishment
of a set of institutions adapted to the particular constitutional context and
legal tradition of each Member State. In Bulgaria, two institutions in
particular have been set up under the Constitution to guard the independence
and accountability of the judiciary, namely the Supreme Judicial Council (SJC)
and the independent Inspectorate that is attached to it (ISJC). 
2.1.      The Supreme
Judicial Council (SJC)
The role and
independence of the SJC is enshrined in the Constitution and the Judicial
Systems Act, which confer on it wide-ranging powers with regard to staff policy
and the general organisation of courts.[2]
The Council is composed of 25 members. The Presidents of the Supreme Court of
Cassation and of the Supreme Administrative Court as well as the Prosecutor
General are ex-officio members. 11 members are elected by the Parliament
among jurists with more than 15 years of experience. The remaining 11 members
are elected by the professions themselves in accordance with a system of quotas:
6 judges, 4 prosecutors and one investigating magistrate. The Minister of
Justice chairs the meetings of the SJC but does not vote.
The Venice Commission
has expressed concern[3]
over the parliamentary quota on the grounds that it could lead to politicisation
of the SJC.[4]
The Commission's CVM report of July 2012 furthermore expressed regret that the
judges' quota had not been chosen by direct election. Although the members of
the SJC are elected in a personal capacity and should therefore act in an independent
manner, the system has given cause for concern among observers as well as
practitioners in Bulgaria about the possibility of undue pressure being
exercised via the SJC.[5]
One member of the Council was dismissed - in a controversial vote[6]
- following a leak to the media of wiretapped conversations between prosecutors
discussing ways to secure votes for the then upcoming election to the SJC.[7]
As regards the judicial quota, the Commission has in the past recommended that
the judicial members of the SJC be elected directly in accordance with a
principle of 'one judge-one vote'. [8] This
principle was considered for the last election of the SJC in 2012, but it was
argued that the necessary technical systems could not be made ready in time.[9]
It was decided at the time to prepare the necessary IT-systems in time for the
next election, to take place in 2017, and this is currently under preparation
as part of a wider e-justice strategy for the Bulgarian judiciary.[10]
Furthermore, the
structure of the SJC has been criticised as accentuating problems by not
separating procedures for judges and prosecutors. The SJC takes its decisions
in plenary and hence decisions regarding judges are taken by a body which is
primarily composed of political nominees and members of the two other branches
of the judiciary (prosecution and investigation service).[11]
The systems do not therefore allow for judges to be assessed by their peers, a
familiar feature of judicial councils in many other Member States. 
An additional issue
regarding the composition of the SJC concerns the representation of civil
society actors, which can lend an important element of wider legitimacy to the
judicial council, one way to offset claims of corporatism.[12]
The SJC does not have an explicit quota for civil society representation, a
feature in a number of other Member States. Instead, a separate council
consisting of the main NGOs and professional associations has been set up,
which plays a consultative role. However, tensions between the SJC and the
Civic Council have developed over time due to claims on the part of civil
society actors that their views are not being adequately taken into account,
resulting in several organisations, including the largest judges' association,
leaving the Civic Council.[13]
The Civic Council is important for instilling an element of accountability and
broader legitimacy in the SJC. Another element is to ensure transparency in the
council's actions. In this domain the SJC has been preparing a communication
strategy as part of a project under the Operational Programme for
Administrative Capacity.[14]
In response to a recommendation in the Commission's January CVM report[15],
the SJC has also adopted a procedure for reacting to media allegations
regarding misconduct in the judiciary, whereby such press stories will be
examined by the SJC ethics committee with a view to determining an appropriate
response. 
The debate on the
structure of the SJC, which has been continuing with various degrees of
intensity over a number of years, was given renewed life in the autumn of 2014
when the Minister of Justice presented a draft update of the Bulgarian Judicial
Reform Strategy for the period beyond 2014.[16] The draft
strategy contains several proposals on the structure of the SJC in order to
bolster the independence of the judiciary, including, for example, the
establishment of separate chambers within the SJC for judges and
prosecutors/investigators respectively to make decisions relating to these
groups, such as for appointments and disciplinary sanctions. The draft strategy
was given particular momentum when it was adopted by the Council of Ministers
as government policy on 17 December 2014 [17] and broadly endorsed
by Parliament on 21 January.[18]
2.2.      Appointments
and disciplinary proceedings
The independence and
impartiality of the SJC is particularly important in regard to decisions on
high-level appointments and disciplinary proceedings, two areas in which there
have been important developments in the course of 2014. 
Appointment of a new
President of the Supreme Court of Cassation
A large number of
high-level appointment procedures were carried out by the SJC in 2014 but the
most important of them was the procedure for the election of a new President of
the Supreme Court of Cassation (SCC). The SCC plays a crucial role in the
Bulgarian judiciary not only as a last instance cassation court but also
(increasingly in recent years) in terms of issuing interpretative rulings on
matters of law. Moreover, as mentioned above, the President of the SCC is an ex
officio member of the SJC and therefore is directly involved in the wider
management of the judiciary. In view of the importance of the post, the
election was highlighted in the last CVM report of January 2014 as an important
test case for the ability of the SJC to carry out high-level appointments in a
fair, transparent and merit-based manner.[19] Following a
failure of the SJC to reach the required majority in the first round the
procedure has been prolonged into 2015. 
The importance of the
Presidency of the SCC - as well as the posts of Prosecutor General (PG) and
President of the Supreme Administrative Court (SAC) - is reflected in the
existence of separate procedures governing the appointment for these posts.
According to Article 173 of the Judicial Systems Act, candidates for these
posts require the support of a two-thirds majority of the members of the SJC in
a vote by secret ballot. The successful candidate is proposed to the President
of the Republic. The President may reject the chosen candidate once, but in a
second round the SJC's vote is decisive. In case a two-thirds majority cannot
be found in the first round, the law states that the election is pursued in
respect of the two candidates who received the largest number of votes. The
procedure is set out in further detail in an internal regulation of the SJC[20],
which contains important additions and clarifications of the procedure. For
example, it is specified in the internal rules that the secret vote required by
the law is to be carried out through an electronic voting system. However, the
electronic voting system installed at the SJC has been criticised for not
adequately ensuring the secrecy of the vote.[21] In addition,
there continue to be instances where the total number of votes given through
the electronic voting system exceeded the number of members present, implying
that some members had voted more than once. 
Another important
element regulated in the internal rules of the SJC concerns the case where no
candidate obtains the required two-thirds majority. In such cases the internal
rules specify that if after repeating the vote a second time there is still no
two-thirds majority for any of the candidates 'the procedure is terminated'.[22]
Already before the election, which took place on 25 September, various Bulgarian
observers predicted that the vote would indeed most likely prove inconclusive.
The concern expressed by some civil society observers was that this result was designed
to postpone the decision on a new President of the SCC until after the general elections
set to take place shortly afterwards, with the implication that the SJC was
showing itself to be open to political influence - or at least a certain degree
of self-censorship. 
In the vote of 25
September the SJC failed to secure a two-thirds majority in favour of any of
the two candidates. It should be noted that in the run-up to the SCC election
there were also several positive developments. Most importantly, the process
had allowed the two candidates to be assessed on the grounds of professional
experience[23]
and integrity. Following consultations with civil society and the professions
in the summer of 2014, the SJC had amended its internal procedural rules to
introduce a possibility for magistrates of the SCC to hold a hearing with the
two nominees in advance of the SJC's decision.[24] This was
welcomed by many observers as contributing to a more open and transparent
process. Other proposals from civil society actors to develop the process, such
as the definition of a job profile against which the candidates could be
assessed, had not been adopted. 
Following the failure
of the election procedure, the SJC launched a new procedure on 20 November
(i.e. after almost two months) with the date of a new vote in the SJC planned
for the end of January 2015. One of the candidates for the first process
re-applied in the new procedure.[25]
Another new candidate (currently working in the Supreme Administrative Court
rather than the SCC) also came forward. At one point he withdrew the
application following a traffic accident, but then decided to re-submit his
candidature.  
Other high-level
appointments
As mentioned, there were
also a large number of other high-level appointment procedures in 2014, such as
in particular the appointment of Presidents of lower courts and heads of
prosecution offices. Appointment procedures have evolved in recent years in the
direction of greater transparency and a more thorough assessment of candidates.
For example, integrity checks are now carried out in advance of appointments,
sometimes leading to rejection of candidates, although doubts have been
expressed by some stakeholders about the quality of these checks.[26]
The procedures also allow for the magistrates of the individual judicial bodies
concerned to organise hearings (in a similar fashion as described above for the
SCC). However, this possibility has apparently not been used so far. This was
explained by some interlocutors by wariness of magistrates about a process
which could prove divisive within individual courts.[27]
The idea that magistrates in Bulgaria tend to step back from entering into open
contest for appointments would seem to be confirmed by the fact that procedures
often feature only one candidate. In spite of recent efforts to improve
procedures, the appointment process still lacks transparency.[28]
Partly in response to
CVM recommendations, analytical work is currently being carried out within the
SJC in order to further improve the basis for assessments, for example by
better accounting for workload and developing a clearer basis for the regular
appraisal of magistrates.[29]

Disciplinary
proceedings 
The SJC is the
competent body when it comes to decisions on disciplinary sanctions on
magistrates. The number of disciplinary procedures has increased somewhat in
recent years after a temporary reduction in 2012.[30]
The conduct of disciplinary proceedings requires safeguards to ensure that they
be handled in a professional and impartial manner. In the past disciplinary
proceedings have given rise to criticism of the SJC's decisions, and many of
these have been successfully challenged in court. Such challenges have a
detrimental effect on the reputation of the proceedings and their deterrent
effect. 
Responding to past
recommendations of the CVM,[31]
the SJC therefore last year initiated a process of analysing the practice in
disciplinary proceedings and the related case law of the Supreme Administrative
  Court, in order to identify possible issues of divergence and develop a basis
for a more consistent approach. The initial analysis carried out in 2013
confirmed the existence of inconsistencies in past decisions. As a next step, a
working group was set up to develop clearer standards and a methodology for
disciplinary proceedings. The draft methodology was finalised in autumn 2014.
Apart from setting out some of the fundamental principles which should be
observed when conducting disciplinary proceedings, the document is mainly
concerned with matters of procedure and to a large extent restates the rules
already present in the legislation. In addition, the SJC has put the emphasis
on improving its own analytical capacity in such cases via the establishment of
a searchable register of disciplinary cases and the planned setting up of a
dedicated unit in the SJC's administration to assist the Council in the
analysis of individual cases. 
The SJC considers that
the various measures taken over the last year have already had a positive
impact in terms of improving the consistency of disciplinary practice. However,
information provided by Bulgaria concerning disciplinary proceedings in recent
years show that the number of successful appeals remains high.[32]
A proper assessment would require a deeper qualitative analysis of decisions in
terms of which types of sanctions are applied in different situations and the
specific grounds for reversals of decisions in court. It is too early to say if
the measures taken will be sufficient to protect the SJC against allegations of
arbitrariness in future decisions. 
The draft judicial
reform strategy includes proposals to establish dedicated disciplinary
commissions for judges and prosecutors respectively composed of magistrates
elected by their peers, and for the authority to pronounce final decisions in
disciplinary proceedings to be vested with the Supreme Court of Cassation
rather than with the SJC.[33]

2.3.      The
Inspectorate to the Supreme Judicial Council (ISJC)
One of the first steps
taken by Bulgaria to address the CVM’s objectives in 2007 was the setting up of
an independent judicial Inspectorate with the Supreme Judicial Council (ISJC).
The ISJC should play a crucial role in protecting the independence and
accountability of the judiciary. It conducts inspections of the various
judicial bodies[34]
and carries out targeted checks in respect of concrete allegations of malpractice.
It also has the potential to systematically collect and analyse information
about the functioning of the entire Bulgarian judiciary – information which can
be used as a basis for proposals to improve the quality and efficiency of
justice.[35]

While the ISJC is and
should be independent of the SJC, the interaction with the SJC is still of
crucial importance for its effectiveness. The ISJC can refer cases of
disciplinary infractions to the SJC for decision and the SJC is empowered under
the Judicial Systems Act to ask the ISJC to carry out inspections. A committee
has been set up within the SJC to maintain a dialogue with the inspectorate.
However, there appears to be an increasing tendency for the SJC to investigate
disciplinary cases on its own, rather than relying on input from the
Inspectorate.[36]

An important aspect of
the independence of the ISJC is the fact that the Inspector General is
appointed by the National Assembly with a two-thirds majority. The objective of
this relatively demanding procedure is to ensure that the Inspector General
enjoys broad political support, giving the ISJC a level of independent
legitimacy which should allow it to avoid politicisation of its work. The
disadvantage of this approach, on the other hand, became evident in 2012 when
the term of the first Inspector General in office ended and the National
Assembly proved unable to muster the required majority in favour of a
successor. The result was initially that the incumbent stayed in the post
awaiting the necessary political decision. Finally in October 2013 she stepped
down, leaving the institution without the strong leadership that the procedure
was designed to provide. 
An attempt to open an
election procedure during the very last days of 2013 gave rise to criticism due
to a very short deadline for the nomination of candidates.[37]
The procedure was subsequently cancelled after integrity issues were raised in
relation to the only person that had been nominated within the deadline. A new
procedure saw the presentation of two candidates supported by the independent
professional Union of Judges. Both candidates were taken forward as official
nominees in the National Assembly, which raised the prospect of an election
process focusing on the merits of two non-political candidates commanding
sufficient respect to be put forward by a professional association. However, in
spite of calls by civil society for the election to be treated as a matter of
priority,[38]
no vote was scheduled in the National Assembly before it was dissolved in July
2014. As a result, the ISJC remains without leadership. However, the National
Assembly has now re-started the procedure with a deadline for nomination of
candidates on 30 January 2015. Reportedly the two candidates in the first
procedure have expressed interest in running again.[39]
After the nomination of candidates, hearings will be organised over the
following two months, followed by a decision stage in the Parliament's legal committee,
which would take another two weeks, so eventually the election can take place
after mid-April at the earliest.
III
       Reform of the Legal Framework
In response to the
CVM, the Bulgarian authorities have set up a permanent monitoring process
regarding the implementation of its procedural codes in the civil,
administrative and criminal law fields. The monitoring has been carried out
with various levels of intensity over the years and has also produced results
in the form of a series of concrete proposals for legislative amendments to the
procedural codes, several of which have been adopted in Parliament. The debate
on criminal procedures also led to a process of reviewing the Bulgarian penal
code, a process which has now been ongoing for a number of years but is still in
progress. 
3.1.      Monitoring
of procedural codes
The procedural laws
governing the judicial process in Bulgaria have been amended several times
since accession. As noted in past reports, the judicial process in Bulgaria is characterised by a high degree of formalism. The legal framework is rather
complex in some areas and has been subject to frequent amendments over time,
without necessarily being part of a wider vision of legal reform. Experts have
observed that courts tend to take a cautious attitude when it comes to
interpreting the law or referring to existing case law as a basis for their
judgements. Procedural requirements are complex and tend to be interpreted in a
strict way, with the risk that proceedings are postponed or reversed due to
technical errors. Partly as a result of these factors, there is a tendency for
cases to be hampered by procedural obstacles and for the system to be burdened
by a high number of appeals. These problems seem particularly important in the
area of criminal justice.[40]

In 2014 a working
group was set up to consider aspects of the criminal procedure code
contributing to drawn out procedures, involving representatives of the SJC, the
Inspectorate under the Ministry of Justice as well as from the academic
community and legal professions. The working group has discussed possible amendments
to expand the possibility for district prosecutors to assign complex criminal
cases to investigating magistrates in the National Investigation Service.[41]
Ways of improving the use of experts at court have also been discussed as well
as ways of focusing the work of the Supreme Court of Cassation on core
activities by relegating decisions on requests for re-opening of criminal cases
to first instance courts. 
In addition to the
above, the Ministry of Justice is considering amendments to the criminal procedure
code and other legal acts in order to: simplify the procedures for interviewing
witnesses and experts via video-conferencing; clarify the rules on recusal of
judges;[42]
simplify court proceedings in complex cases; modify the rules on lay judges;
and amend the legal framework on professional qualifications, financing and
assessment of forensic experts. It remains to be seen what the outcome of these
discussions will be in terms of concrete amendments to the procedural code,
which will also have to be seen in the wider context of a general reform of
penal policy in Bulgaria. 
3.2.      Penal code
reform
An important
initiative of the Government in office in January 2014 was the presentation of
a new draft penal code. The draft had been in preparation since 2009, with
different phases of preparation. The objective of introducing a new code was twofold:
in general, to modernise the criminal code, which dates from 1968, in the light
of international standards and developments in society and technology; and more
specifically, to devise a more effective legal framework for certain specific
problems, such as corruption and organised crime.[43]

In spite of a lengthy
preparatory phase, including several years of committee work drawing on
international experts as well as on local stakeholders, it quickly became clear
that the draft code presented by the Government was not seen as sufficiently
mature for adoption by the National Assembly. Two additional public
consultations were launched by the National Assembly in spring 2014 involving
civil society actors and the legal professions. The consultations revealed
stark contrasts in the views of key stakeholders within the judicial system.
For example, there were substantial differences between the Prosecutor's Office
and the Supreme Court of Cassation. 
The Prosecutor's
Office, on the one hand, is generally in support of a new criminal code.
Although it concedes that some improvements could be made to the current draft,
notably in terms of clarification of the motivation behind the various
provisions proposed, the Prosecutor's Office considers that the existing penal
code is outdated and needs to be replaced as it has been burdened by numerous
amendments over the years, some of which have created mutual inconsistencies
between various provisions and conflicting case law. In some cases, the same
acts can for example be prosecuted under several different provisions of the
law, with different levels of criminal sanctions. The Prosecution therefore
calls for a new ordering of definitions of criminal offences in accordance with
a clear hierarchy of importance to be attached to each crime.[44]
Some criminal offences are outdated and should be abolished or reworded. Others
need to be better defined. Also, the inclusion within a single chapter of
corruption offences related to crimes against public finances, bribery, and
trading in influence would in the view of the Prosecution be an important step
towards a more efficient legal process in regard to such offences.[45]
The Supreme Court of Cassation, on the other hand, is markedly more cautious
about the benefits of the new draft code. Moreover, the current draft is seen
as badly prepared, lacking a clear vision and overall of questionable value.
The SCC has expressed reservations in particular about the complete replacement
of the existing code, which could give rise to legal uncertainty. In the view
of the SCC, a more thorough analysis and debate within the profession is needed
in order to define a clearer penal policy concept before proceeding to the
drafting of concrete amendments. 
Shortly after the
conclusion of the public consultation, the Government stepped down and
Parliament was dissolved. In the absence of a working parliament to carry the
draft proposal forward the interim Government, which had been appointed
essentially with a mandate to prepare for the early elections in the autumn,
set up a working group to discuss the ways forward on the proposal. Hence, it
was effectively left for a future Government to decide on the fate of the draft
law. The assessment of the draft is continuing under the new Government, which
has set up a working group to identify any amendments that it would be urgent
to make in the existing criminal code, which could then be adopted in the short
term. Meanwhile, the issue of a possible broader reform of the criminal law
framework would be carried forward in the framework of a wider debate with the
relevant stakeholders. 
IV        Quality
and Efficiency of the Judiciary
Judicial reform is
about more than changes in legislation. Without effective management of the
courts and the prosecution offices, changes to the legislation can be
ineffective in solving complex problems of efficiency and accountability within
the judiciary. In Bulgaria the day-to-day management of the judiciary is
largely within the authority of the SJC,[46] in addition
to the heads of the individual courts and prosecution offices. On the one hand,
this independent authority provides the judiciary itself with an opportunity to
take the lead and drive the reform process forward without political
interference. On the other hand, it also requires the SJC to act as an agent of
reform, alongside other key actors such as the Prosecutor-General.
Factors affecting the
quality and efficiency of the Bulgarian judiciary include the effectiveness of
systems for the random allocation of cases, consistent application of standards
for appraisals and promotions, the fair distribution of workload between courts
and individual judges and the judicial map,[47] the training
of magistrates, the quality of pre-trial proceedings, and e-justice facilities.

4.1.      Case
allocation 
The allocation of
cases to individual judges is a managerial issue, but it is also an essential
tool to safeguard independence of the judiciary and offset the risk of
corruption. There are well-documented cases where abuse of case allocation has
been used to open the door to partiality in court decisions.[48]
The Bulgarian authorities have responded to this risk with the implementation
of electronic systems for random allocation of cases in all courts. However,
controversy has been continuing with examples of manipulating the system. 
The January 2014 CVM
report explained that the SJC had decided to address the continuing concerns in
a two-step approach. In the first step, a mechanism would be introduced for the
local IT systems to automatically alert the SJC of decisions to allocate cases.
This sought to address the risk of simply repeating the allocation until the
desired result appeared. In a second step, a fully transparent and centralised
IT system would be introduced covering the whole country. This system would be
implemented as part of the wider e-justice strategy. The Commission had also
recommended the development of common binding rules on the handling of case
allocation in courts, the need for outside expertise to check the new system,
and had noted the importance that court leadership should be held accountable
to explain any divergence from random allocation.[49]

During 2014 the alert
mechanism has been implemented as planned so that alerts are now submitted
whenever a decision is made to allocate a case at local level.[50]
The implementation of plans for a nation-wide centralised system for case
allocation is still in preparation. Some related legislative changes of the
Judicial Systems Act were prepared and agreed with the SJC by a previous
government in spring 2014, but were not adopted before the National Assembly
was dissolved. For the moment, the various courts therefore continue relying on
local systems. Various courts have also continued using different procedures
and rules for the practical application of the systems.[51] 

In November 2014, a
major controversy arose over the allocation of cases in the Sofia City Court.
Case allocation procedures appeared to have been by-passed in the allocation of
a high-profile insolvency case. The failure of the system to send the
notification to the central register was initially explained as a result of
problems with the internet connection, but this appeared not to be the case.
The SJC was slow to react, initially denying that there was a problem and
subsequently deciding to carry out additional checks of the software, which
seemed to repeat similar checks which had been made in March 2013. Those
earlier checks had already revealed serious weaknesses in the system, but the
SJC did not appear to prioritise improved security as a result.[52] Around
the same time a scandal also emerged in the public domain regarding another
insolvency case involving a large foreign company. Following the public
allegations of misconduct in these cases judges at the various Sofia courts
publically called for the leadership of the Sofia City Court to be held
accountable for the failings. Disciplinary proceedings against one judge as
well as an inspection of the Sofia City Court are currently ongoing.[53] In
December the SJC has announced the introduction of immediate urgency measures
to improve the transparency of case allocation, subsequently to be followed by
a more developed solution for centralised allocation of cases in a national
system, to be contracted with an independent provider via a public tendering
procedure in the course of 2015.[54]

4.2.      Human
resource management 
An essential
determinant of quality and efficiency in the judicial system is the management
of the human resources of the judiciary. This comprises a number of aspects,
such as a systematic approach to appraisals and promotions, and the provision
of training, and an equitable distribution of workload. 
Appraisals and
promotions
An essential element
of human resource management in the judiciary, the system for appraisals and
promotions affects the motivation of judges and prosecutors. Its fairness and
transparency is important also for the independence of the judiciary, as these
systems can otherwise be perceived as means of pressuring magistrates. In
response to recommendations in the last CVM report[55],
two working groups were set up under the SJC to work on proposals for the
improvement of methods for appraisal and career development of magistrates.[56]
The conclusions of the working groups were taken into account in the
development of the judicial strategy. The strategy includes for example
proposals for an evaluation of practices in connection with magistrates'
acquisition of tenure status, taking better account of workload in appraisals,
and introducing an element of self-assessment and consideration of training
needs in the appraisals. 
Training 
The National Institute
for Justice continued to provide training and to develop its repertoire of
training for magistrates in 2014. Its activities are financed partly by public
funds from the state budget. However, the core budget is only sufficient to
cover the mandatory training of young magistrates required by law and has not
increased in recent years. All additional training activities, including
continuing training, are covered through various one-off grants and programmes.[57]
Nevertheless the institute has been successful in developing a range of new
training offers in close cooperation with various institutions of the
judiciary.[58]
Many assessments have recognised the quality of the training and the efforts
made to adapt the training offer to changing needs
The judicial strategy
sets out a number of proposals for further developments in the training of
magistrates, such as improving initial as well as continued training,
developing mentor programmes, and enhancing the capacity for identifying
training needs in the various judicial bodies. The independence of the
Institute is also seen as an important factor in its effectiveness.
Workload analysis
An important aspect of
human resource management in the judiciary concerns the distribution of
workload among magistrates. This is important, not only in the context of
ensuring a fair basis for appraisals and promotions and motivating magistrates
to devote the required energy to complex files, but also in terms of
independence of individual magistrates. For example, a theme which has been
raised in the context of the analysis of the random case allocation system is
the need to take into account workload, which could in exceptional cases
require the reallocation of a case. 
An ongoing project
under a specialised committee on workload analysis within the SJC aims to
develop objective standards for workload of judges taking into account the
complexity of cases as well as other tasked performed by magistrates. The
various types of legal cases have been identified and a survey was carried out
in the autumn of 2014 among judges within all the different branches and levels
of the judiciary, in order to collect information on the average work
associated with the different types of cases. The results of the survey will be
used as a basis for developing rules for the assessment of workload in all
courts which should be ready for adoption by the SJC during 2015.[59]

A similar process has
been ongoing for the prosecutors and investigators, although in light of the
different nature of the prosecution office compared to the courts a simpler
approach has been chosen, based on a pilot study. The results have been used to
develop a set of rules which will enter into force in 2015. 
4.3.      Judicial map
and e-justice
Some elements of the
judicial reform require a wider consideration at political level as they
involve either legislative changes or need to be coordinated with other
institutions outside the judiciary. This would be the case for example with
regard to a possible reform of the judicial map, which touches upon a number of
links to other parts of the public administration, and the implementation of
e-justice, which requires legislative changes. 
Judicial map
A reflection is
ongoing in Bulgaria on a reform of the overall judicial map, as the court
districts have essentially remained unaltered in recent time and are characterised
by courts with very different levels of workload, with a disproportionate share
of workload in the larger courts.[60]
A first step was taken in early 2014 with the closure of two out of three
regional military courts. Further analysis is ongoing as to the possibility of
further reforming the military courts in order to leave only one covering the
whole country.[61]
The process is expected to continue with a reform of the regional courts in
2015. The preparation of a comprehensive system of workload assessment
standards will feed into the process. In addition, studies were commissioned by
independent experts concerning demographic, social and economic factors
affecting the frequency of cases in courts and factors affecting access to
justice for citizens, which will feed into the process.[62]
Together, the various studies are intended to provide the basis for the
preparation of concrete proposals in the second half of 2015.[63]
More generally, the studies produced in preparation of the reform provide a
rich basis for analysing the judicial system. It is the first time it is being
done in Bulgaria but could ideally become a regular practice. Indeed, the draft
judicial reform strategy includes the proposal that the analytical capacities
of the SJC should be further enhanced in this respect so as to allow for a more
effective administration of the judiciary. 
Ultimately, the reform
effort could involve also the district courts, appeal courts and administrative
courts aiming at a gradual restructuring of the whole judicial map. However,
this will require further analysis[64]
and may also require broader consultations, as the district courts are
currently aligned with the organisation of provincial government. The reform would
therefore be a long-term process which will require continued support also from
political level in order to succeed. Alongside the longer term efforts for
reform of the judicial map, the SJC is therefore also working in the short term
to alleviate the most serious problems flowing from the misallocation of
resources in the system, by gradually adjusting the number of posts in the
various bodies of the judiciary (courts and prosecution offices) in accordance
with a more pragmatic assessment of relative workload. In the course of the
first eleven months of 2014 the SJC closed 123 positions in judicial
authorities with less workload while opening 129 additional positions in more
highly charged authorities.[65]

E-justice
As part of the general
e-government strategy, the Bulgarian authorities adopted an e-justice strategy
in July 2014, following consultations with the relevant stakeholders including
the various parts of the judiciary and NGOs active in the sector. The strategy
sets out a number of objectives for the period until 2020 and assigns
responsibilities to various institutional actors. Related legislative
amendments to the judicial systems act have been prepared by a working group
under the Ministry of Justice, comprising also representatives of the judiciary
and civil society. In the meantime some intermediate steps have been developed
in the various institutions of the judiciary. Most notably, in the prosecution
offices, a Unified Information System for Combating Crime (UISCC) has now been
completed with funds from the Operational Programme for Administrative
Capacity, including a module concerning random allocation of cases. 
4.4.      Reform of
the prosecution
In 2013 a broad action
plan for managerial reforms within the public Prosecutor's Office was presented
by the Prosecutor General and endorsed by the SJC.[66]
The reform is now almost complete, reportedly resulting in a general
streamlining of the prosecutorial offices as well as its connections with other
parts of the public administration and judiciary. The still outstanding
elements of the strategy, aiming at enhancing the independent capacity of the
prosecution offices to carry out investigations and avail itself of expertise
in the course of its investigations[67],
are planned for completion by March 2015. In spring 2014 a number of additional
measures were added to the action plan specifically to address the Commission's
latest recommendations on the fight against corruption and organised crime.[68]

The issue of
prosecutorial reform was reflected in the draft judicial reform strategy
presented by the Minister of Justice, which provides for an independent
international expert examination of the state and effectiveness of the
prosecution service with a view to developing a new organisational model for
it. The proposals in the draft judicial reform strategy were followed up by the
Prosecutor General in the form of an opinion which embraced certain elements of
the reform – it included concrete drafts of legislative amendments to the
judicial systems act aiming to mitigate the extent of internal centralisation
within the organisation, by providing greater autonomy for individual
prosecutors. It also included ideas to enhance the accountability of the
prosecution towards society, by specifying the reporting requirements of the
Prosecutor General in regard to the SJC and the National Assembly, specifically
in regard to the investigation of corruption and organised crime.[69]

Of great importance
for the investigation of corruption related crimes – especially in cases
involving high-level corruption – is the autonomy given to individual
prosecutors within the prosecution service and the degree of hierarchical
control. One important issue frequently noted by experts – both Bulgarian and
foreign - is a general lack of motivation for prosecutors to take a pro-active
approach to investigations[70].
Hence one of the problems that have been identified in the past has been the
relatively passive role of the prosecution in the pre-trial investigation of
complex cases, exacerbating the challenge of securing the close cooperation
between the prosecution office and investigatory services needed for the
effective pursuit of cases.[71]

The problem seems to
be related, at least in part, to the hierarchical structure of the prosecution
office, which does not promote a culture of individual initiative. The balance
between the autonomy of individual prosecutors and the need for consistency and
managerial control is one faced by prosecution services more generally.
Transparent procedures can help to provide clarity in cases where prosecutors
feel that hierarchical instructions are impeding their autonomy.[72] Some
Member States counterbalance centralisation of powers in a single office with
stronger control mechanisms.[73]
This issue is of particular importance in corruption cases, because the remedy
offered by the legislation (appeal by the victim of the crime) is rarely
triggered in such cases.
Suggested legislative
amendments recently published by the Prosecutor General go in the direction of
increased clarity.[74]
They need to be assessed in the context of a system characterised by high
concentration of powers in the hands of the management of the Prosecution.
Hierarchical structures comparable to those of the Bulgarian prosecution exist
in other Member States' judicial systems. The Bulgarian model adds to this
hierarchical structure a direct control of the General Prosecution over special
units investigating corruption within the magistracy, financial investigation
units (FIU) and the specialised prosecution against organised crime. 
V         Combatting
Corruption
The fourth and fifth benchmarks
of the CVM focus on, respectively, high-level corruption and corruption as a
broader phenomenon within the public administration, including at local level
and at the borders. Corruption undermines the trust in institutions and poses a
threat to the economic and social well-being of a country. It has been one of
the reasons underlying the public discontent that triggered widespread
demonstrations in 2013 and 2014. The continued presence of widespread corruption
as a major problem in Bulgaria is supported by a number of independent surveys
and studies by civil society and international organisations. According to
business leaders and experts surveyed by the World Economic Forum for the
Global Competitiveness Index, corruption constitutes the single most
problematic factor for doing business in Bulgaria.[75] In
the World Bank governance indicators, Bulgaria ranks last among EU members on
control of corruption.[76]
In addition, the European Quality of Government Index highlights significant
regional disparities within Bulgaria in perceptions of corruption and of public
service quality and impartiality.[77]
The 2014 Rule of Law Index of the World Justice Project  ranks Bulgaria as the worst performer in
its reference region of Western Europe and North America in regard to
corruption.[78]
Similarly the Corruption Perceptions Index of Transparency International consistently
shows Bulgaria as one of the EU Member States where perceived corruption is the
highest.[79]
A study recently produced in the framework of the anti-corruption initiative Southeast
European Leadership for Development and Integrity (SELDI) shows that
corruption in Bulgaria has increased dramatically to levels otherwise not seen since
Bulgaria's EU accession.[80]
 These perceptions have been echoed in the latest Eurobarometer study.[81] 
Past CVM reports have underlined
the lack of cases where serious allegations of corruption have led to final
court decisions, and the need for a better coordination of the anti-corruption
effort in Bulgaria. This section summarises action taken by the Bulgarian
authorities to address problems in its anti-corruption system, both in terms of
the prevention of corruption, and in the pursuit of cases of corruption by the
authorities. 
5.1.      Anti-Corruption
Strategy 
In 2009 Bulgaria
adopted an integrated strategy on the fight against corruption and organised
crime which has subsequently been followed up by a series of action plans. A
number of concrete measures were implemented to intensify the fight against
corruption. However, in spite of these measures, the overall approach has been
criticised as fragmented and lacking in overall effectiveness and coordination.[82] Anti-corruption
efforts remain diffuse, with no single institution given the authority and
autonomy to proactively coordinate the fight against corruption, as recommended
in previous CVM reports.  
In response to
Commission recommendations[83],
a review of the anti-corruption strategy was launched in 2013 with the
involvement of civil society and independent experts. As part of the review, an
independent assessment was carried out of the strategy's impact.[84] According
to the Bulgarian authorities the review (not yet published) confirms the
presence of very serious shortcomings in the Bulgarian anti-corruption set-up as
well as in the implementation of the anti-corruption strategy over the past
five years. The new Government is yet to decide on the concrete follow-up to
the conclusions of the independent review but has indicated that it considers
this to be an important priority for the coming months.[85] 
5.2.      Investigation
of corruption cases
In Bulgaria, past experience
indicates that serious barriers exist for the effective investigation and
prosecution of corruption, especially involving high-level officials. A number
of cases have been taken up by the prosecution, often accompanied by wide
coverage in the press, but convictions are rare and, when they happen, tend to
be subject to lengthy appeals. The Commission has had difficulties in
identifying high-level cases which have been brought to final conclusion. 
The recent track
record reported by the authorities shows some development in terms of new
corruption cases being investigated[86]
or brought to court.[87]
In 2014 figures also show a decrease in the share of cases being returned to
the prosecution by courts or ending in an acquittal, although it remains high.[88] A
number of first instance convictions of high or higher level officials have
been issued in cases involving corruption charges.[89] 
In spite of these
recent developments, the general picture remains largely unchanged. While there
may be more corruption cases going to court than previously, the numbers still
appear low in comparison to the scale of issues as recognised both domestically
and internationally.[90]
The new cases are still at the earlier stages of the judicial process, so final
convictions in high-level cases involving serious charges of corruption are all
but non-existent. In cases where EU funds are involved and for which OLAF
carried out an investigation and concluded that there were clear suspicions of
the existence of fraud, it appears sometimes unclear why the judicial
authorities did not initiate, or discontinued, judicial procedures.[91] A
number of legal and organisational challenges are hampering the effective
pursuit of justice in this area. 
A series of measures
have been taken in the context of the ongoing reform of the prosecution offices
to give more priority to tackling corruption, such improving the training and
specialisation of prosecutors and investigators, intensifying the cooperation
with other agencies and state bodies and streamlining internal procedures and
structures. In the course of 2014 additional measures were taken to address the
lack of results in the prosecution of corruption, notably involving a more
intensive supervision of such cases and a closer cooperation with SANS within a
new specialised unit to target corruption a local level. These are discussed
below. The impact of these measures will need to be followed.  
Supervision of
corruption cases within the prosecution
In 2014 the
prosecution took steps aimed at ensuring a stronger surveillance of pre-trial
proceedings in cases involving corruption. One important element of this was
the establishment of a catalogue of corruption crimes which is to be used by
prosecutors in their reporting to senior management. Another measure was the
establishment of specialised units in all appellate prosecutors' offices
focusing on corruption. The appellate prosecutor's offices have been put in
charge of collecting the reports from the lower instance prosecutor offices.
They are then submitting monthly reports to the senior management concerning developments
in all corruption cases, including suspects, classification of the offence,
investigating team, any procedures launched concerning financial verifications,
and the timeframe of the investigation.[92]

The new reporting
requirements are mirrored by rules setting out a system of special supervision of
pre-trial proceedings for corruption cases falling within the definitions of
the catalogue, cases monitored by the European Commission as well as 'other
cases characterised by factual and legal complexity or important for the case
law'.[93]
Each case where pre-trial proceedings are initiated is reported to the
appellate office, where it is assigned to a prosecutor working in the relevant
area, who then provides an opinion as to whether the case needs to be put under
special surveillance.  The decision to put a case under special supervision is
taken by the head of the appellate prosecutor's office, and the prosecutor to
whom it was originally assigned becomes 'supervising prosecutor' on the case. Particularly
important cases may even be assigned for supervision by the Supreme Prosecutor's
Office of Cassation. The special supervision implies in practice that the
prosecutor in the appellate office provides assistance and methodological
guidance to the responsible prosecutor in the pre-trial as well in as the trial
phase. The supervising prosecutor may also handle the case at appeal. 
This more systematic
approach is designed to give greater priority to corruption cases and help
identify systematic factors slowing down pre-trial proceedings. Data provided
by the prosecution for the first months after the introduction of the new
system seem to indicate a certain increase in the speed of pre-trial
proceedings.[94]
The system of special supervision may help address some of the key problems
identified in the past in terms of poorly prepared case files and complex cases
not receiving the necessary attention. The impact will be able to be assessed
in terms of the flow and the success of future cases.
New inter-departmental
unit investigating corruption 
Bulgaria has a number
of different investigatory agencies, including the police, the National
Investigation Service (which forms part of the judiciary and consists of
investigating magistrates attached to the various prosecution offices) and the State
Agency for National Security. As mentioned above, one of the problems hindering
progress of cases has in the past been identified as a poor cooperation between
the prosecution and these agencies. In order to improve the quality of
pre-trial investigations into corruption related crimes the Prosecutor General
in June 2014 created a specialised interagency unit to assist in the
investigation of such cases.[95]

Headed by a senior prosecutor,
the new unit brings together the director of SANS in charge of corruption
investigations, prosecutors and investigators from the Sofia City prosecutor's
office and agents from SANS (including investigating agents). The unit may also
be assisted by experts from the Ministry of Finance, the National Revenue
Agency, the Customs Agency, and the State Financial Inspections Agency as well
as other ministries and state authorities. The unit is housed within the
premises of SANS. It is expected to promote a further specialisation of
prosecutors, investigators and operative agents dealing with corruption cases
as well as to provide a vehicle for a more efficient and confidential exchange
of information between the prosecutor's office and the SANS in particular,
thereby contributing to more effective pre-trial proceedings. It is authorised
to carry out preliminary checks as well as pre-trial investigations concerning corruption
cases as defined in the catalogue referred to above. The unit works on case
files assigned to it by the Prosecutor General and the investigations are
coordinated with the chairperson of SANS. The unit works via the assignment to
specific cases of concrete teams of prosecutors and investigators, which
continue to work throughout both the pre-trial and the trial phase of the
cases. 
It is evidently too
early to assess the impact of this new measure. However, the Bulgarian
authorities consider that the results so far are promising. Several
investigations are ongoing in which the advantages of the new set-up has proven
its worth, including ensuring the confidentiality of investigations, launching
investigations swiftly, and shielding the prosecution of corruption crimes from
political pressure. A future assessment of the effectiveness of the unit will need
to consider the extent to which the first cases against corruption concerning
important figures at the local level[96]
are replicated and followed up by major cases on the national level (a
particular challenge given the small size of the unit concerned). Concern has
also been expressed that potential changes in the organisation of SANS (see
below) might jeopardise the effectiveness of the new model.
5.3.      Investigation
of corruption in the judiciary
Corruption within the
judiciary is an especially difficult and challenging area for law enforcement
institutions. Judicial corruption strikes at the heart of the legal system and
the reputation of the judiciary and therefore has particularly detrimental effects
on the economy and society in general.[97]
The investigation of corruption allegations against magistrates is sensitive
from the point of view of judicial independence: such investigations raise particular
issues of confidentiality and impartiality. At the same time, the investigation
of judicial corruption is crucial for citizens' trust in the judiciary and for
the rule of law.[98]
These challenges led to the establishment in October 2013 of a specialised
interdepartmental unit bringing together specialised agents of the Prosecution
Office, the National Investigation Service, the Ministry of Interior and the
State Agency for National Security (SANS). Headed by the Prosecution Office,
but housed within the SANS, this specialised unit is conducting all criminal investigations
into cases involving crimes involving magistrates, including corruption, and
also supervise the prosecution in the subsequent court trials.[99] The Bulgarian
authorities have reported that the unit has improved the effectiveness of
investigations in this area and it can be seen as the inspiration for the new
specialised unit dealing with corruption among state officials discussed above.
A number of cases are being investigated by the unit and the first cases are due
to be brought to court in the near future.[100]
An important challenge for the unit will be to show that it is able to carry
out impartial investigations into complex cases potentially involving wider
links to powerful economic interests.[101]
 5.4.      Prevention
of corruption 
When analysing the
response to corruption it is useful to distinguish between preventive and
repressive instruments. While criminal law enforcement plays an important role
in sanctioning serious instances of corruption, the criminal justice system
needs to be supplemented with effective administrative mechanisms to prevent
and deter corruption.[102]
An effective corruption prevention strategy requires institutions charged with
raising awareness, promoting best practices, receiving and handling complaints,
carrying out inspections to verify allegations, deciding on disciplinary
sanctions and referring criminal matters to the relevant authorities etc. Another
element is for public administration as a whole to prioritise the need to
organise the public sector in such a way as to make corruption more difficult
in the first place, and more easily detectable in case of transgression, as
well as more generally promoting a culture of professionalism and integrity.
Together with the common sense of public officials themselves, this is the
first line of defence against corrupt practices in the public administration. 
The shortcomings in
the Bulgarian anti-corruption system are not only visible in the criminal justice
system, but also very much concern the preventive side, with issues of
coordination and a lack of clarity in anti-corruption policy.[103] 
Verification of Assets
Bulgaria has a legal
requirement for all high public officials to report regularly to the National
Audit Office on their financial assets. In addition, all officials declare
assets to their respective administrations. The declarations are audited in
regard to consistency with information present in other public registers and
sanctions can be applied in case of misreporting. The registration and
verification of the assets of public officials provides a means of transparency
and accountability. In addition, it could be used to identify risk areas. Apparently,
however, the checks performed by the National Audit Office and within the
various administrations focus primarily on verification of the information reported
into the system by comparison with other public registers. Whenever discrepancies
are found with regard to high level officials, the information is forwarded to
the SANS and National Revenue Agency for further checks. Similar checks are
carried out in the respective services in relation to ordinary officials.  Such
verification is important in itself, but other approaches for the screening of
the declarations, such as for example focusing on unusual changes in wealth
over time, could provide additional means of identifying signs of illicit
enrichment.[104]

Administrative
Inspections
One of the most
important administrative instruments for the prevention of corruption in
Bulgaria is a network of inspectorates in the different parts of the state
administration. At the centre of the network, an Inspectorate General under the
direct authority of the Prime Minister is in charge of supervising the overall
implementation of the anti-corruption strategy for the state administration. In
this capacity it performs a number of inspections on its own in addition to
providing guidance to the individual inspectorates within the various other
ministries and state bodies. The inspectorates give recommendations for
improved procedures, initiation of disciplinary procedures, investigation of
conflicts of interest and checks on asset declarations of officials.[105] 
The internal inspectorates
of the State administration have a key role in addressing corruption risks.
However, the system suffers from a number of weaknesses. First of all, their
capacity in terms of staff and resources appears to be limited and they are
vulnerable to turnover of in staff.[106]
The conditions of work in the inspectorates are not sufficiently rewarding to
attract and keep highly qualified personnel.[107]
Interlocutors have also raised as an issue that the concept of internal control
is not adequately recognised in the law. For example, there seems to be a lack
of coordination and common binding guidelines, including on key issues such as
how to carry out risk assessments as a basis for inspections.[108] In
addition, there seems to be a direct political involvement in the vetting of
planned inspections.[109]
This creates an evident risk of politicisation of the inspectorates' work and
further highlights the need for systematic use of risk assessments in
accordance with an approved methodology to guide the inspectorates' activities.
In spite of these possible weaknesses, however, the inspectorates do appear to
make a substantial contribution to helping to promote a culture of ethics and
integrity within the state administration. 
According to the
Bulgarian authorities, the structure and role of inspectorates will be developed
in the context of a new anti-corruption strategy. 
Corruption in law
enforcement institutions
A specialised
inspectorate and an internal security service within the Ministry of Interior have
been in place for some time to address problems of corruption within the police
force as well as possible interference by organised crime groups.[110] The
functions of the two departments overlapped somewhat and were vested with
different degrees of authority. In particular, the inspectorate was in charge
of disciplinary proceedings but did not have the same access to special
investigative methods as the internal security directorate, which in turn was
mainly focusing on investigations involving criminal acts. However, this
distinction can often become apparent only during an investigation. In 2013 the
services were therefore reorganised in order to better coordinate the
anti-corruption efforts within the Ministry.  The reform went into effect on 1
October 2013 and means that the Internal Security Directorate is now the main
corruption fighting body in the Ministry of Interior, vested with both
preventive and investigative functions with regard to all staff. The
Inspectorate in turn retains competence with regard to conflicts of interest[111] and
also carries out systemic checks to identify possible improvements in the
administrative practices for which recommendations can be made to the Minister,
but it no longer gets involved in individual corruption-related cases. Any
reports on alleged corruption among police officers that are received by the
Ministry are now systematically transferred to the Internal Security Directorate.
Whereas the inspectorate has only administrative powers, the security
directorate has actual investigatory powers, so it combines both administrative
(disciplinary) procedures and actual criminal investigations which might lead
to prosecution at the courts.[112]
In addition, it can conduct covert operations using special operational
techniques.[113]
There is an anonymous hotline and website for signals and a new uniform methodology
has been introduced for the assessment of risks in the ministry, which may
provide a basis for a more targeted impact of investigations. The Internal
Security Directorate is also in charge of vetting the staff and works with SANS
for this purpose, notably for cross-checking information.[114]
The concentration of
the anti-corruption effort within a single department of the ministry is
designed to ensure a more effective response. However, its success would also
depend on support from the higher levels of the organisational hierarchy, and
ultimately from political level, as well as the authority to act independently.
The effectiveness of the new structure will also rely on the wider efforts to
be put in place by the Government to step up the wider anti-corruption efforts
in Bulgaria. 
Prevention of Conflicts
of Interest 
The law on the
prevention and detection of conflicts of interest has been amended several
times in the past in order to enhance its effectiveness. In 2011 this led to
the establishment of a Commission for the Prevention and Ascertainment of
Conflicts of Interest (CPACI) which verifies cases of possible conflict of
interest. The establishment of this Commission was an innovative step which
promised a more proactive approach in this important area. However, the
Commission became embroiled in a scandal in 2013 when its Chairman was arrested
and charged with malfeasance and possible trading in influence. The allegations
implied a possible direct political interference in the work of the Commission.

The scandal set off a
parliamentary enquiry into the working methods of the Commission as well as two
legislative initiatives which sought to carry through a general overhaul of the
institution in order to enhance its the effectiveness and accountability. These
legislative initiatives had not yet been adopted when the previous parliament
was dissolved in July 2014.[115]
The further fate of these proposals is uncertain at the current moment. The last
parliament also proved unable to elect a new chairman of the committee, which
therefore continues to function without a clear leadership. The former chairman
was sentenced to 3½ years of prison in spring 2014 and the Sofia City appellate
court has confirmed the sentence. In November 2014 an important piece of evidence
in the case disappeared from the car of a court expert to whom it has been
assigned for analysis. Given the high-profile nature of the case, this sparked
a considerable controversy.[116]

The remaining members
of the Conflict of Interest Commission are continuing to discharge their functions
and are for example trying to take a proactive approach in promoting awareness
among public officials on the issue of conflicts of interest. The commission
has improved its internal rules of procedure, notably by introducing a system
of random allocation of cases, limiting the deadline for ruling on the
acceptance of a signal to 2 months and by extending the rights to remedies for
people under investigation. However, the capacity of the Commission is limited.
Furthermore, it has no independent investigatory powers. While it can verify
cases of conflict of interest, it is up to the prosecution or individual
administrations to investigate possible broader links to corrupt practices via
disciplinary or criminal proceedings.
Public Procurement
One of the areas of
public administration where conflicts of interest and corruption can
potentially pose the greatest problems is public procurement. Irregularities in
public procurement have been identified as a systemic problem in Bulgaria, affecting
the implementation of EU fund programmes[117]
and more widely the interaction between public administrations and private
businesses.[118]
While a number of changes have been made over the years to the legislation to
respond to the problems, these seem not to have diminished the extent of the
challenges faced. Indeed, one of the problems highlighted by experts and
practitioners is the overly complex and rapidly changing regulatory
environment, which has not only contributed to a legal uncertainty but also
poses a severe challenge to the capacity of the many administrative authorities
involved in public procurement. 
A number of agencies
are involved in controlling the use of public procurement in Bulgaria. A Public
Procurement Agency elaborates on legislative proposals to be made by the
Council of Ministers to the Parliament and carries out ex ante checks of
public procurement procedures. Ex post control is handled by the State
Financial Inspections Agency and by the National Audit Office. Appeals are
processed at first instance by the Competition Protection Commission. For EU
funds' audits there is also a specialised executive agency under the Ministry
of Finance. While the system has developed over time and includes most of the
elements needed to ensure a functioning public procurement system, serious
challenges remain in terms of effective implementation and administrative
capacity. The checks performed by different agencies have been criticised as
either superficial in nature or leading to differing results based on
inconsistent interpretations of the legislation. The result is a low degree of
trust in the fairness of procedures, as evidenced by the extensive use of
appeal procedures. 
In order to address
the major problems hampering the management of public procurement in Bulgaria,
a process was initiated in late 2013 involving European Commission services as
well as the competent national authorities to prepare a comprehensive strategy
for public procurement. A general Strategy for the Development of the Public
Procurement Sector in Bulgaria over the period 2014-2020 was eventually adopted
by the Bulgarian Government in July 2014. The strategy includes a range of
measures with concrete deadlines to address the problems faced, including
carefully prepared simplified and codified legislation and centralised
guidelines which aim at the correct transposition of the new EU public
procurement directives, enhanced administrative capacity at the various levels
of the public administration, comprehensive and non-formalistic ex-ante
controls combined with rationalised ex-post controls; the achievement of
greater transparency via gradual introduction of electronic procurement and
more efficient review procedures. The strategy carries the promise of important
improvements, but its effectiveness will be dependent on its successful, timely
and ambitious implementation over the coming years.  
BORKOR 
Another aspect of the
Bulgarian anti-corruption institutional set-up is the Centre for
prevention and counteraction of corruption and organised crime, called "BORKOR".
This analytical unit was set up by the Council of Ministers and has, over a
number of years, enjoyed a large staff and financial resources.[119]  Previous
CVM reports have noted a lack of concrete results from this investment, as well
as a lack of clarity concerning BORKOR's role in Bulgaria's general policy on
anti-corruption and how it can help more operational institutions like the
inspectorates to do their job more successfully.[120] The
Bulgarian Government has indicated an intention to once again review the
functions of the institution in the context of a coming anti-corruption
strategy, possible by intensifying its activities in conjunction with the
internal inspectorates. 
VI        Tackling
Organised Crime
Addressing organised
crime was adopted as a specific benchmark for Bulgaria in light of the
particularly severe situation in the country in this area.[121] There
has been very limited progress in the investigations of emblematic cases
attracting high public attention, including many public killings. Progress has
been slow in spite of a number of measures taken in a number of areas, such as
the setting up of a specialised court and prosecution office to tackle
organised crime cases, and a specialised commission to manage cases concerning
freezing and confiscation of the proceeds of crime. Some of the procedural and
legal problems hampering progress have been mentioned in earlier sections, such
as the excessive formality of court procedures. There is a tendency for cases
to be held up in court due to various tactics which can be applied by the
defence to delay court proceedings[122]
and there is a history of important cases being returned to the prosecution by
the judge during the trial phase due to formal errors in the indictment or
shortcomings in the evidence. Some of these challenges were partly addressed by
successive amendments to the legal framework over the years,[123] but
the problems remain pertinent.[124]

6.1.      Track record
of the specialised court and prosecution 
One of the most significant
steps taken by Bulgaria in this area was the establishment in 2012 of a
specialised court and prosecution for organised crime. After a certain period
of transition these institutions can now be considered to be up and running.[125] Past
CVM reports have noted some weaknesses in the legal set up, such as a rather
broad delimitation of the competence of the specialised court which in
combination with the legal tradition in Bulgaria – based on the legality
principle rather than the opportunity principle[126] –
makes it difficult for them to focus their efforts on the most serious cases.[127] Another
issue identified by the specialised prosecution concerns the deadlines for
bringing cases to court, which are extremely tight and risk undermining the quality
of the preparation of cases as well as limitations on the use of experts in
court proceedings.[128]
In spite of the various challenges connected to the legal framework, the
specialised court and prosecution have contributed to a more speedy process in
organised crime cases and also served to promote a stronger specialisation and
cooperation between the various parts of the law enforcement system on such
cases.[129]

As regards the track
record, figures for the past three years show a gradually increasing trend of
organised crime cases being brought to court. There is also an increase in the
number of defendants, although the number of convictions has remained stable. Due
to the broad definition of organised crime in the Bulgarian legislation a
complete assessment would require a more qualitative analysis of the cases. The
data confirm a continuing tendency for the majority of cases to be concluded
via plea bargains as well as a high proportion of suspended sentences.[130] The
Prosecutor's Office reports that several cases involving serious organised
crime are in the pre-trial phase or have been brought to court in 2014.[131] 
6.2.      Celerity of
trials and effective implementation of sentences
Delays in court
proceedings concerning serious organised crime cases is a major problem in
Bulgaria. In response to recommendations in previous CVM reports[132],
Bulgaria has carried out several studies and seminars to identify the causes of
such delays. In spring 2014 a broad interagency action plan was prepared and
adopted by the SJC with input from all parts of the law enforcement system and
judiciary. The action plan builds on work already undertaken in the General Prosecution
and adds a number of additional elements, including a process for monitoring
problems in the application of the procedural code (mentioned earlier in
section IV), improving the training available for magistrates in new areas
outside traditional legal studies (i.e. with a more practical angle) and the involvement
of investigators in joint training, better coordination of the methods for
summoning persons to appear in court, closer cooperation between prosecution
and investigatory agencies, etc. Many of the elements in the action plan have
the character of ongoing efforts or intentions to make changes in practice, the
implementation of which is difficult to assess, but this does not make them
less relevant. Some outcomes of the action plan are more concrete such as the
legislative proposals concerning the criminal procedure code already discussed
in section IV above. 
Another issue which is
difficult to address via simple one off measures, but which requires a
determined effort and continued attention, is the effective implementation of
court sentences. Once convictions have been handed down, the effective
implementation of sentences is a crucial factor for the dissuasiveness of
sanctions and effectiveness of the criminal justice system. In this respect it
is significant that the annual report of the general prosecution office reports
that 817 convicted criminals were evading imprisonment in 2013 by hiding in
Bulgaria or abroad.[133]
A number of high-level cases have been noted in past reports and the problem
remains.[134]
In such cases, measures of judicial control have appeared to be inadequate. In some
cases of serious criminals facing long-term custodial sentences, sometimes
house arrest has been applied where preventive custody would have seemed more
in line with standard practice. Bulgaria reports that discussions have been
taking place between the Ministries of Justice, Interior and the prosecutor's
office on how to close loopholes, notably by implementing electronic monitoring
("electronic bracelets"). While such measures may be useful in some
cases, they would not be likely to solve the problem of inadequate judicial
control measures being imposed by prosecutors or judges in serious cases of
organised crime.
6.3.      Confiscation
of assets acquired through crime
Asset forfeiture is an
essential element of the fight against organised crime. The Commission for
Illegal Assets Forfeiture (CIAF) operates on the basis of the Act on Forfeiture
of Unlawfully Acquired Assets, which entered into force in 2012. A previous law
still applies to earlier cases. According to the new law, the CIAF shall start
a procedure where a reasonable presumption can be raised that particular assets
have been acquired unlawfully. Such reasonable presumption shall be established
when the examination of the assets of the person shows reason for doubt.
Procedures are
launched on the basis of a notification of:
-
   The Prosecutor’s Office, indicating that a person has been indicted for
certain types of crimes;
-
   A State or Municipal body where an enforceable decision has been adopted
against a person in connection with an administrative violation producing a benefit
to an amount exceeding BGN 150’000, that cannot be forfeited according to
another procedure; or
-
   If a foreign court has convicted the person for a similar offence. 
The examination of the
assets covers a period of 10 years calculated backwards from the date of the
start of proceedings (25 years under the old law). Under the new law the
threshold to determine whether there is a “significant lack of correspondence”
between the assets and the net income is BGN 250,000 (€ 125,000) for the entire
period under examination. The burden of proof is on the CIAF (contrary to the
situation under the old law). 
According to the
information provided by the CIAF, they hold the necessary powers and resources
to conduct a complete and exhaustive investigation of financial flows, also in
cooperation with foreign authorities, so the institutional set up and
capacities look appropriate. However, the final results are marred by obstacles
coming from the new legal provisions, as pointed out in previous reports.[135] Of
particular note is the threshold of BGN 250.000 set by the Law, which appears high
in the Bulgarian context, with the burden of proof being put on the CIAF also
making its task considerably harder. The multiple opportunities
for appeal also limit the effectiveness of CIAF's decision, if precautionary
freezing was not adopted previously. 
The 2014 CVM Report
recommended the Bulgarian authorities to carry out an independent evaluation of
the new law on asset forfeiture and its impact on the capacity of Bulgarian
authorities to effectively fight organised crime by depriving it of its
revenues.[136]
Such an evaluation has not yet been carried out.
6.4.      Witness
protection 
Witnesses withdrawing
their testimonies or failing to come forward constitutes an important stumbling
block in criminal cases, especially when it involves serious organised crime.
More than 150 likely "contract killings" have occurred in Bulgaria
over the past twelve years, and investigations into such cases have rarely been
successful. A number of these killings can be directly or indirectly linked to
investigations into organised crime,[137]
giving vivid testimony to the reality that strong pressures are often applied
on witnesses in such cases. In response to these concerns it was decided in
2014 to reorganise the witness protection programme. While the programme was
previously managed by the Security Directorate of the Ministry of Justice, as
of April 2014 this responsibility has been transferred to a new Bureau for
witness protection under the Office of the Prosecutor General. The Prosecutor
General has authority to accept requests for protection, issued either by the
prosecutor or, if in the trial phase, the judge.[138] 
According to the
Bulgarian prosecution office the new structure will provide stronger safeguards
with regard to confidentiality of information, hence making for a better
protection of witnesses as well as more effective investigations into organised
crime. In connection with the reorganisation, additional resources have also
been allocated to the programme. 
6.5.      Role of SANS
An account of the
fight against organised crime and corruption in Bulgaria would not be complete
without mentioning the role of the State Agency for National Security (SANS).
SANS was established in 2008 as an intelligence agency to provide intelligence
on high-level corruption as well as on serious crime. It plays a complementary
role to the police, as a vehicle for gathering information about criminal
networks, with a special focus on particularly serious criminal activities
which can be considered of relevance to national security. SANS is independent
of the Ministry of the Interior and refers directly to the Prime Minister. As
such it has the capacity to play a more independent role vis-à-vis the
police.[139]

In 2013, shortly after
taking office, a previous Government carried out a major reorganisation of SANS
by transferring to it the Directorate for Organised Crime of the Ministry of
Interior. The reform, which created a hybrid organisation comprising both
intelligence and criminal investigative powers, became the subject of political
and public comment, not least due to the initial appointment of a controversial
political figure to head it.[140]
Putting aside the circumstances surrounding the reform at the time, however, it
is important in itself to consider the effectiveness of the new structure from
the perspective of the fight against serious corruption and organised crime. In
this respect, the Bulgarian authorities explained the reform in terms of more
efficient communication channels between operative intelligence gathering
agents and criminal investigators. Some observers had noted that the previous
structure had required sensitive information to be transferred between the SANS
and the Ministry of Interior via high-level contacts. In the new structure, on
the other hand, information can more easily be shared across the single
organisation. This has been cited as allowing the new SANS to play a more
central and independent role in respect to sensitive cases (involving for
example corruption charges).[141]
The speed with which the 2013 reform took place did initially create serious
organisational and legal problems, effectively halting investigations into
organised crime for a period of several months and creating serious concerns in
partner agencies of other EU Member States. However, in 2014 these challenges
seem to have been overcome and the new structure appears now to be functioning.[142] 
The new integrated
approach to intelligence and investigation of high-level cases in SANS might
allow a higher degree of confidentiality to be maintained to the extent that
information does not have to cross over the Ministry of Interior. However,
certain risks have also been identified. Here the main issue is the integration
within a single institution of two very different functions which normally
refer to very different operational principles: intelligence gathering and
criminal investigations. The new structure entails a risk of blurring the
distinction in practice between objectives pursued in covert intelligence
operations on the one hand and criminal investigations on the other. If this
risk materialises, or if there is a perception that it does, the impartiality
of investigations could be called into doubt. This can be particularly crucial
when it comes to investigations into allegations of high-level corruption,
which can often have important political implications. This would put a
particular onus on safeguards to ensure accountability and transparency of procedures
and the use of evidence in court which has been obtained by SANS. 
The new Government
which took office in November 2014 has announced its intention to move the
responsibility for organised crime back under the Ministry of Interior.[143] The
risk remains that changing the institutional set-up for tackling organised
crime in the wake of political change will create unnecessary instability. The
responsible ministers have indicated that they are aware of the wider concerns
that the reorganisation could give rise to, in terms of yet another period of
instability having a significant negative impact on ongoing investigations and
on international cooperation, as well as on the general morale among the staff
concerned and have expressed a determination to minimise this disruption.   
[1] The Commission has a
CVM resident adviser in Sofia.
[2] According to the
Constitution the SJC shall appoint, promote, demote, transfer and remove from
office judges, prosecutors and investigating magistrates, impose disciplinary
sanctions, organise continuing education, and adopt the draft budget of the
judiciary. The Judicial Systems Act provides more detail on the
responsibilities of the SJC, which include also: determining the number and
geographic delimitation of court districts and the number of magistrates in the
individual courts, organising competitions for new magistrates, determining the
remuneration of magistrates, proposing to the President of the Republic the
nominees for the presidencies of the two supreme courts and for the post as
Prosecutor General, appraising the performance of judges, approving the
information systems of the judicial bodies, and assigning to the Inspectorate
of the SJC to carry out inspections not included in its annual programme. 
[3] Opinion
no. 444/2007 on the Constitution of Bulgaria
(CDL-AD(2008)009)2 See also Opinion no. 515 / 2009
[4] A simple majority in
parliament could in principle determine the composition of the entire
parliamentary quota.
[5] An emblematic case of
alleged politicisation of SJC decisions was the disciplinary dismissal from
office of a judge in 2012 with reference to delays in the completion of written
motivations in some case rulings, a general problem in the Bulgarian judiciary
due to problems with workload. The judge, who was an outspoken public proponent
of judicial reform, appealed the decision of the SJC and was later reinstated
as magistrate by the Court. 
[6] The issue raised was
whether the decision was in line with the law as the two-thirds majority
required under Article 27.6 of the Judicial Systems Act was not achieved. Only
16 members of the Council voted in favour of the motion for dismissal.
[7] The member concerned
appealed the decision to the Supreme Administrative Court (SAC). The Supreme
Administrative Court (SAC) hears appeals in a panel of three judges, the
decision of which can be appealed to a panel of five judges. The SAC first
overturned the decision of the SJC in a three member panel, but subsequently
this ruling was overturned by a five member panel, arguing that the decision
was not sufficiently reasoned. The case is currently again pending before the
three member panel. 
[8] COM(2012) 411 final.
[9] Instead, a system of
indirect elections was followed, which has been criticised for giving
predominant influence to court presidents. 
[10] See section IV below.

[11] Observers have
suggested that there are cases where members of the prosecutorial quota have
taken a sustained interest in appointments and disciplinary cases involving
judges. 
[12] That is, a tendency
to protect the interests of the professions and institutions which it
represents rather than the common interest. 
[13] The organisations
which have left the Civic Council are the Bulgarian Helsinki Committee, the Bulgarian
Union of Judges, the Bulgarian Human Rights Lawyers, the NGO Center Razgrad and
the Bulgarian Institute for Legal Initiatives. Within the past month two other
organisations joined the Council.
[14] The preparations
include public opinion surveys among all key stakeholders with regard to their
views on the work of the SJC.
[15] COM(2014) 36 final.
[16] The strategy and all
declarations by relevant stakeholders are here: http://mjs.bg/107/
The previous judicial reform strategy was adopted in 2010 and covered the
period until 2014.
[17] The Minister of
Justice, responsible for the draft strategy, was re-appointed by the new
Government in November 2014. 
[18] Some elements of the
strategy appears to have been questioned in Parliament, including the reform of
the SJC. 
[19] COM(2014) 36 final.
[20] Rules for the
election of president of the supreme court of cassation, president of the
supreme administrative court and prosecutor general, as amended with a
decision of the SJC registered in minutes No. 32/10.07.2014. Provided on paper
in English translation to the Commission services in September 2014. 
[21] The concern has been
that it is in practice possible to see how other Members are voting. In
addition, the system itself apparently has never been subjected to an external
IT audit ensuring that in technical terms it is safe from the point of view of
outside interference and monitoring.
[22] Point IV.4 of the
internal rules. Experts consulted by the Commission suggested that such points should
rather be regulated by law rather than the internal rules of the SJC. They also
pointed to other options such as recourse to a lower threshold, rather than
termination of the procedure. The problem has also arisen in respect of other
appointment procedures. In November 2014, when seeking to elect a President of the
Sofia appellate court, the SJC also failed to choose between the two candidates
for the post. This was in spite of a lower threshold for appeal courts than for
the supreme courts, requiring only a normal absolute majority (i.e. 13 votes in
favour). .
[23] Both candidates were
currently vice-presidents of the SCC.
[24] Point II.11 to the
internal rules. 
[25] The other candidate
from the first round was designated as acting chair of the SCC (in her function
as vice-president of the court).
[26] For example, questions
from external observers raising specific concerns already in the public domain
do not always seem to have been taken into account. 
[27] In addition, the
procedure is not regulated by law and the input of the magistrates has an
unclear status. 
[28] In a recent survey
among prosecutors in the Bulgarian public prosecutor's office, only ten per
cent of the respondents agree that competitions for presidents of courts and prosecution
offices are conducted in a transparent way or that the selected candidates are
in fact the best prepared and best suited for the job. Six out of ten do not
agree with the statement that for positions as administrative leaders in the
prosecution system are appointed people with vision and high professional and
moral qualities. See the 2014 survey of 450 prosecutors Attitudes of
Prosecutors for Reforms in Prosecution and Criminal Proceedings by Global
Metrix Ltd. and the Bulgarian Institute for Legal Initiatives. 
[29] See below. The issue
is also taken up in the draft judicial strategy which recommends a number of
measures to develop a more systematic approach to appraisals within the
judiciary. 
[30] The number of
completed disciplinary proceedings fell from 68 in 2009 to 14 in 2012 but
increased again to 23 in both 2013 and 2014 (for 2014 the data cover only until
November). 
[31] COM(2012) 411 final. See
also COM(2014) 36 final.
[32] Whereas there were 9
appeals each in both 2012 and 2013, resulting in 2 decisions being revoked and
one being sent back to SJC for a new decision, in 2014 there were 10 appeals
filed over the first eleven months of the year. This should be seen in relation
to 23 completed cases during that period, in which sanctions were imposed in
only 16 of them. In these cases 3 decisions to apply sanctions have been
revoked by the court. A number of cases are pending. It should be noted that
six of the proceedings this year resulted in decisions not to impose sanctions,
including one case brought by the ISJC where the latter has appealed the
decision not to apply a sanction (included in the 10 appeals cited above). In
another case, no decision was taken by the SJC due to the expiry of the 6-month
limitation period. Source: Information provided by the Bulgarian authorities in
June and November 2014.
[33] The latter would
likely require an amendment to the constitution. 
[34] The ISJC has carried
out inspections in all courts except the Supreme Courts.
[35] In 2014 the ISJC continued
to carry out planned inspections in judicial bodies (both courts and
prosecutor's offices) at regional, district and appellate level. As part of the
inspections, the ISJC performed a quality review of completed case files and
court acts and issued a number of concrete recommendations. Beyond the planned
inspections, on a request by the SJC, the ISJC performed an inspection of the
Specialised Prosecutor's Office for organised crime concerning compliance with
the principle of random allocation of cases and issued recommendations. 
[36] The change in the
relative weight of the SJC and the ISJC in disciplinary proceedings has been
reinforced by amendments to the Judicial Systems Act in 2011 which required the
SJC to set up dedicated committees on ethics and disciplinary matters. However,
the existence of dedicated committees would not in itself preclude reliance by
these committees on the Inspectorate for the preparatory analysis. 
[37] See SWD(2014) 36
final.
[38] See http://www.bili-bg.org/514/news_item.html

[39] According to the
Judicial Systems act nominations are officially made by the Members of
Parliament. However, as in spring it would be possible for civil society actors
to suggest candidates. The Legal Affairs committee adopted amendments to the
procedure to formalise this element in the new election procedure, allowing for
civil society actors to propose candidates for consideration by groups or
members of Parliament. 
[40] In a recent survey
among a representative sample of prosecutors, carried out by a Bulgarian NGO,
two out of three respondents mentioned a too formal process as one of the main
difficulties faced by the prosecution. Op cit. Attitudes of Prosecutors for
Reforms in Prosecution and Criminal Proceedings.
[41] The National
Investigation Service forms part of the judiciary and consists of investigating
magistrates attached to the prosecution offices. It has been criticised as part
of a proliferation of investigatory bodies with overlapping responsibilities
besides the police. It is specialised in certain categories of cases and its
workload is generally considered to be low. Hence the debate as to whether it
would be possible to assign more cases to it.
[42] At present there are
no effective restrictions on the right to request the recusal of a judge, which
has seen to be a regular cause for delays due to unsubstantiated requests. 
[43] The Anti-corruption
committee of the Council of Europe (GRECO) in a recent report identify
continued shortcomings in the Bulgarian legal framework for the countering of
corruption, in particular in relation to the provisions of the criminal code
with regard to cases of active bribery in the public sector as well as active
and passive trading in influence where the advantage is not given to the
particular official but to a third party. See Second compliance report on
Bulgaria (GRECO, October 2014).
[44] For example, the
complexity of the existing code allows for some minor offices to be subject to
more severe sanctions than more serious crimes. 
[45] Source: Supreme Prosecution
of Cassation of Bulgaria. 
[46] The wide remit of
competences of the SJC was outlined above. 
[47] Size and demarcation
of court districts. 
[48] The problems related
to random allocation of cases have been highlighted in several previous CVM
reports. See e.g., SWD(2014)36, pp.7-8; SWD(2012)232, p.19; SEC(2011)967, p.11.
[49] There are for example
cases, such as the need for specialisation in the prosecution, which could
justify a decision to override random allocation.
[50] It is less clear how
the alerts are followed up on central level. In addition, the system has
apparently not entirely ruled out new controversies.
[51] In December the SJC
adopted a draft unified methodology, which has subsequently been published for
comments members of the judiciary.  
[52] Checks made in 2013 also
showed similar serious shortcomings in the random allocation system of the
Supreme Administrative Court.
[53] The trustee appointed
by the court to manage the company under insolvency proceedings in the second
case has been barred from acting as a trustee in such cases after an
investigation by the Ministry of Justice revealed several instances of
malpractice also in past cases. 
[54] An ongoing project under
OPAC already includes development of a centralised solution in the context of
the broader e-justice strategy, but it appears that the SJC has decided to
cancel this element of the OPAC project. 
[55]  COM(2014) 36 final.
[56] The working groups
comprised representatives from a number of judicial instances, including the
supreme and appellate courts, the prosecutor's office, the national investigation
service, civil society organisations and the judicial professions. 
[57] Including EU funds. 
[58] One of the recent
additions to its remit has been joint trainings for magistrates and
investigating police officers. While the main purpose of the institute is to
train members of the judiciary, the joint trainings involving police officers
have been developed with the purpose of improving the skills for cooperation
between the two sides in pre-trial investigations. Cooperation has been
identified as one of the challenges in Bulgaria in regard to criminal cases. 
[59] The results of the
survey will be processed in three focus groups representing the main branches
of the judiciary in the beginning of 2015 after which the workload committee
will determine the final time standards for the different types of cases. Finally,
rules and arrangements will be decided on the measuring of workload across the
courts. 
[60] Bulgaria has 113
regional courts. In addition, there is a district court as well as an
administrative court for each of the 28 provinces, five appellate courts of
general competence, a Sofia City Court and appellate court with special
jurisdiction in certain matters, a specialised court and appellate court for
organised crime, as well as three military courts and one appellate military
court. Finally, there is the supreme administrative court and a supreme court
of cassation. 
[61] The reform was
adopted in 2013 following proposals from the Prosecutor General as part of the
ongoing reform of the prosecution offices, which according to law have to be
structured in accordance with the structure of court districts.  
[62] To take into account
the possible concerns regarding access to justice in remote areas, it will be
reportedly considered to introduce a model of temporary courts, leaving an
office open in such former court districts where courts may be convened at
certain intervals to hear cases. Source: Meetings with SJC in December 2014.
[63] A decision of the SJC
to reform the regional courts would not be the end of the process. First of
all, although it is formally within the exclusive authority of the SJC to
determine the delimitation of court districts, there will nevertheless be a
need to coordinate the reform at a more general political level, as a wide
range of other institutions within the remit of the executive power are aligned
to the courts for practical reasons, including in particular the police
offices, notaries and bailiffs. Secondly, the practical implementation of the
reform can be expected to require careful planning and consultation with the
local stakeholders.
[64] According to the SJC
a proposal for consolidation of the district courts could be ready in 2016 at
the earliest.
[65] Source: Information
provided by Bulgarian authorities in December 2014. 
[66] The action plan took
its point of departure in a functional audit of the prosecution which was
acknowledged by independent experts as a very candid account of the various
weaknesses of the existing structure. 
[67] The prosecution
relies on externally procured experts. There are long delays and quality is not
always sufficient. There could be a need for in-house expertise in certain
areas. The prosecutor's office has recently been allocated additional funds for
the procurement of expertise in relation to some complex criminal
investigations involving the financial sector.
[68] See the discussion in
section V and VI below. 
[69] The opinion also
embraces other elements of the draft strategy, including the idea of a
restructuring of the SJC in two colleges. Position of the public
prosecutor's office on the draft judicial reform strategy, provided in
English translation during meetings in Sofia in December 2014. 
[70] According
to 83% of the prosecutors, performance evaluations fail to give an accurate and
just assessment of their work. A total of 40% think that they were not
correctly evaluated. Op cit. Attitudes of Prosecutors for Reforms in
Prosecution and Criminal Proceedings.
[71] The issue was for
example highlighted in a review of corruption cases performed by the
prosecution office in 2013. It has also been highlighted by independent
experts. 
[72] Almost 13 per cent of
prosecutors surveyed in a recent study consider  that prosecutors 'often'
succumb to hierarchical pressures, whereas 28 per cent consider that it
'sometimes' happens and 38 per cent that it happens 'very rarely'. Op cit. Attitudes
of Prosecutors for Reforms in Prosecution and Criminal Proceedings.
[73] For example, in some
Member States there is a system of court control over the dismissal of cases.
[74] The opinion of the
prosecution office on the draft judicial strategy includes proposals to change
the wording of Article 143 of the Judicial Systems Act to clarify that only 'motivated'
written orders given by a higher standing prosecutor shall binding and that the
prosecutor to whom the orders are directed may appeal them before a higher
standing prosecutor's office. A reporting mechanism to the General Prosecutor,
the SJC or the Inspectorate already exist and have apparently been used on
occasions. A system of random allocation of cases also limits the risks of
undue interference in the distribution of cases. According to the general
Prosecution, attempts to circumvent the system or for a senior prosecutor to
take over would be very obvious and could be subject to disciplinary
procedures.
[75] For the latest issue:
http://www.weforum.org/reports/global-competitiveness-report-2014-2015

[76] Data from 2013: http://info.worldbank.org/governance/wgi/index.aspx#home 

[77] Data from 2013:
Nicholas Charron, Lewis Dijkstra and Victor Lapuente. ‘Mapping the Regional
Divide in Europe: A Measure for Assessing Quality of Government in 206 European
Regions’. Social Indicators Research. https://nicholascharron.wordpress.com/european-quality-of-government-index-eqi/
[78] On the indicator
'absence of corruption' Bulgaria ranks 24 out of 24 countries in Western Europe
and North America. Compared to the group of upper middle income countries
worldwide it ranks 22 out of 29 countries. Finally, it ranks 64 out of the
total 99 countries covered by the survey. http://worldjusticeproject.org/rule-of-law-index

[79] According to the
latest edition, Bulgaria ranks number 69 out of the 175 countries covered by
the survey. It shares the position with Romania, Italy and Greece. See: http://www.transparency.org/cpi2014

[80] Three out of ten
Bulgarians surveyed for the study admit to have given a bribe in 2013 whereas
four out of ten claim to have been asked for one. On several parameters the
situation in Bulgaria appears to be comparatively worse than in several
applicant countries in South Eastern Europe on a number of indicators. For
further details, see Anti-corruption Reloaded, SELDI, 2014, http://seldi.net/publications/publications/anti-corruption-reloaded-assessment-of-southeast-europe
See also Anti-Corruption Policies Against State Capture, Center for the
Study of Democracy, Sofia 2014, p. 18. http://www.csd.bg/artShow.php?id=17172

[81] Eurobarometer 406.
[82] Though see below for ongoing
effort to streamline work on corruption cases within the prosecution. 
[83] COM(2012) 411 final.
[84] The study was
contracted by the Inspectorate General and funded by the EU Operational
Programme for Administrative Capacity (OPAC).
[85] Meetings in Sofia in
December 2014. 
[86] In the first ten
months of 2014, according to the Prosecution office, pre-trial investigations
were launched against 61 high or higher level public officials, including a
member of parliament, a deputy minister, a deputy governor of the national
bank, four municipal mayors, six deputy mayors, two district heads in a large
regional town, two regional directors of state agencies, one director of a
local environment inspectorate, a regional director of the agricultural fund,
five judges (including two court presidents), a property registry judge, a
notary, two private bailiffs, four investigative police officers, twelve police
officers, seven customs agency officials. 11 public officials were removed from
office in connection with pre-trial investigations. Source: Written material
received from the prosecution office of Bulgaria in December 2014. Some other
high-level cases are in an early stage of investigation, including a case
involving a former Deputy Speaker of Parliament.
[87] During the first ten
months of 2014, 31 high or higher level public officials were referred to the
court, including a chief secretary of the Council of Ministers, a member of
parliament, a chair of a state commission, two municipal mayors, one deputy
mayor, two property registry judges, three private bailiffs, two ministry of
justice officials, two investigative police officers, fourteen members of the
police force, and two customs officials. Source: BG prosecution office. 
[88] A frequent problem in
criminal proceedings in Bulgaria involves cases being returned to the
prosecution by the court due to formal or material errors in the indictment. 
[89] Including a former
minister of interior, a head of a state commission, a regional director in a
state agency, a municipal mayor, and two police officers. Source: BG
prosecution office. 
[90] As an example, reportedly,
there are currently only 2 (two) individuals serving sentences for taking
bribes and 12 individuals serving sentences for giving bribes in Bulgarian
prisons. Source: Bulgaria's Ministry of Justice. 
[91] In
the cases involving fraud to the EU budget which have been dropped, there is no
system in place to give an explanation – except for general explanations such
as the often used "lack of proven intention". OLAF does not receive
information on the procedure applied to reach such conclusions, as there are no
procedures to ensure that dismissals or refusals to initiate cases are
motivated, decisions are recorded, and remedies made available.  
[92] The appellate
prosecutor's offices are also required to report orally every three months on
concluded as well as newly filed cases including any problems encountered in
the investigations and needs for methodological support.
[93] Source: Prosecutor's
office. 
[94] It is not possible to
say if data are also representative of the most important cases.
[95] The unit is modelled
over a similar body that was created in 2013 to assist in the investigation of
crimes committed by magistrates. See below. 
[96] For example, several
cases involving mayors. 
[97] Investors in Bulgaria
complain that undue influence within the judiciary creates an uncertain
business environment. The scale of the problem was once
again highlighted at the end of 2014 when serious allegations of corruption and
possible manipulation of the random allocation of cases led to calls from
within the ranks of the judiciary for the resignation of the leadership of the
Sofia City Court. 
[98] Existing surveys
indicate that Bulgarians continue to perceive corruption to be a widespread
phenomenon in the judiciary, see Anti-corruption Reloaded, p. 76 and 82.

[99] In addition,
administrative investigations can be performed by the judicial inspectorate as
well as by the ethical committee of the SJC, as discussed earlier.
[100] Most notably charges
were recently pressed in an embezzlement case involving 10 defendants,
including two court presidents. 
[101] Several such cases
involving magistrates have become public through media coverage.
[102] A recent study notes
that most corruption transactions have been initiated by the administration,
with the levels of corruption being so high that criminal law enforcement
becomes 'ineffective and inadequate.' Op cit. Anti-Corruption Policies Against State
Capture, p.9.
[103] As mentioned above
this has been a recurrent theme of previous CVM reports and is reportedly also
confirmed by the evaluation of the National anti-corruption strategy currently
being finalised. 
[104] Additional
shortcomings have been noted in previous CVM reports, such as for example the
fact that the register includes only certain classes of assets while excluding
others. These shortcomings remain relevant. 
[105] As described above.
[106] For example, the
Inspectorate General itself had only 13 permanent staff positions in October
2014, of which two were vacant. In addition, there was a significant turnover
in its staff in the course of 2013 and 2014, including the resignation of its
administrative head, who left office in the midst of an administrative
investigation into allegations that she failed to assert effective control over
an inspection, which was not carried out in accordance with the instructions. 
[107] This is particularly
important in sectors characterised by legal or financial complexity in
specialised fields such as the tax administration. 
[108] The Inspectorate
General has developed methodological guidance but this is not binding on the
other inspectorates.
[109] Both planned and ad
hoc inspections are approved by the relevant ministers, for example the Prime
Minister in regard to the Inspectorate General.
[110] In addition, as
discussed above, an external body, the State Agency for National Security
(SANS), was created in 2008 in order to intensify the fight high-level
corruption among senior civil servants, politicians and the judiciary. 
[111] It focuses mainly on
high-level officials whereas conflicts of interest among lower level officials
are dealt with by the relevant management structures in accordance with
specific guidelines.
[112] After the reform the
internal security directorate had 110 staff and carried out 262 inspections in
the first ten months of 2014 regarding possible corruption or other criminal
activity on the part of police officials. 67 disciplinary proceedings were
initiated and 36 disciplinary sanctions imposed. 33 pre-trial investigations
were launched. 
[113] Via the State agency
for special operations (SATO).
[114] The vetting procedure
relies in the first place on the express consent of persons concerned.
Otherwise information is obtained in the basis of a court order.
[115] The proposals
generally went in the direction of past CVM recommendations. In addition to
creating a system of rapporteur-ship on individual files to as to increase
accountability, the legislative proposals would also have streamlined the
appeal procedures which, as noted in past CVM reports, currently allow for up
to four different court rulings on the same case, hence undermining the effectiveness
of the sanctioning mechanism.
[116] An investigation has
been launched into the affair. According to the prosecutor's office the loss of
the notebook will not affect the ongoing court case. However the case raises
important issues of effective safeguarding evidence in the prosecution offices.
In the initial stage of the investigation the notebook of the former chairman
of the Commission had been identified as crucial evidence pointing to possible
wide-ranging political links to the case. The possible tampering with, and disappearance
of the notebook led to another round of speculation as to the possible motives
and potential implications of the theft. 
[117] Payments under
several EU fund programmes were suspended in the course of 2013 and 2014
primarily due to widespread irregularities in public procurement procedures. 
[118] 58% of companies
which had taken part in a public procurement procedure in Bulgaria considered
that corruption had prevented them from winning a public tender or a public
procurement contract over the past three years, according to Flash
Eurobarometer 374 (February 2014). This was the highest proportion recorded
among EU Member States in the survey. The EU 27 average was 32%. 
[119] The Council of
Ministers reports a spending of over 10 M BGN (€ 5 m) for the first three years
since its inception.
[120]
COM(2014)36
final, p.7; WD(2014)36, section 5.2.3; COM(2012)411 final.
[121] C (2006) 6570 final.
[122] For example,
defendants not being able to be summoned as they are not present on the
registered address or the defendants or their lawyers not being able to appear
in court due to illness. 
[123] SWD(2012) 232 final,
p. 10.
[124] Some further
amendments to the procedural code are being considered as mentioned in section
III above. 
[125] Apart from the
gradual building up of the capacity and staff of the new structures, including
the development of expertise within the prosecution office in complex financial
crimes, another important issue concerned the assignment of cases which had
previously been handled by the Sofia court and were now returned for further investigation.
There was a divergence in practice concerning such cases, where some cases were
sent to the specialised office and others to the Sofia office. A ruling of the
Supreme Court of Cassation in 2014 clarified that such cases should go to the
specialised prosecution, resulting in 30 cases being overturned as they had
instead been handled by the Sofia prosecution. These cases are now starting
over at first instance, led by the specialised prosecution.
[126] Under the legality
principle all crimes for which evidence exists should be investigated
regardless of the potential harm caused. Under the opportunity principle on the
other hand, the prosecution has a freer hand in focusing on cases with serious
impacts or where indictment is more likely to be successful. 
[127] In 2014 an analysis
prepared by the Prosecutor's Office in the beginning of 2014 indicates that an
increasing share (and indeed a majority) of cases handled by the specialised
prosecution office did not concern organised crime as such but other cases
which had been placed within its competence. Hence one way of focusing the
activities of the court would be to delimit its competence to organised crime
only. In addition, the definition of organised crime in Bulgarian law (more
than two suspects involved) is also rather wide, leading to some cases being
categorised as organised crime cases even though they do not concern
particularly serious crime. 
[128] These aspects were
also raised by independent experts consulted by the Commission. The prosecution
generally has to rely on experts registered at the courts and the quality of
expertise available is not sufficient in all cases. 
[129] In addition, one
important function of the specialised prosecution and court flows from the
unique character of their territorial jurisdiction, which covers the entire
country. This feature of the specialised court and prosecution allows for cases
to be taken out of their local context where a problem can be that organised criminal
groups are able to exert pressure on local law enforcement authorities and
judicial institutions.
[130] Information from
Bulgarian authorities September 2014.
[131] Two cases against
organised a crime group have been brought to court involving charges of
contract killings, trafficking in human beings, and distribution of drugs, and several
cases are in the pre-trial phase involving charges of kidnapping, robbery,
extortion, large scale drug trafficking and trade in forged identity documents.
[132] See e.g. COM(2014) 36
final.
[133] The 2013 Prosecution
annual report can be found here (in Bulgarian): http://www.prb.bg/bg/documents/godishni-dokladi/godishen-doklad-prb-2013/

[134] For example two well-known
figures of organised crime were able to leave Bulgaria just by the time their
prison sentence was rendered and a high-level drug trafficker, sentenced to a
long term of firm custody in Italy, was initially only put on house arrest in
Bulgaria when surrendered by Italy to face trial in another case.
[135] The Bulgarian
authorities report that the total amount of forfeited assets in 2014 was around
11 Million BGN (€5.5 m), which represents a significant drop in comparison with
2013 where 13 million BGN (€6.5 m) were confiscated (primarily under the
previous legal framework). 
[136] COM(2014) 36 final.
[137] In December 2014 a
witness in a high-profile case against an organised crime group was shot dead
in the open street in Sofia. The witness had reportedly refused to participate
in the witness protection programme.
[138] In cases where the
Prosecutor General considers a request unfounded, the decision is made by a
'Council for Protection' in which sit the Ministers for Justice and Interior, a
representative of the SJC, the President of the Supreme Court of Cassation, the
Prosecutor General, and the Chairman of the SANS.
[139] Also, it is notable
that SANS is the only law enforcement body which can independently use Special
Investigatory Means (SIMs) without delegating the task to the new State Agency
for Technical Operations (SATO). This agency was set up in 2013 to limit the
risk of SIMs being misused for political purposes, following a number of
scandals with illegal wiretapping concerning the Ministry of the Interior. 
[140] COM(2014)36 final, p.8;
SWD(2104)36, p19.
[141] This is for example
reflected in the central role of the SANS in the new unit dealing with
corruption of state officials discussed above, which is even housed within its
premises. The same is true of the unit dealing with crimes committed by
magistrates (see below). 
[142] The Bulgarian
prosecution has commended the investigations are currently being performed by
SANS. Concerns related to international cooperation have also become less
vocal. 
[143] Amendments the
Ministry of Interior Law have already been submitted to Parliament and
amendments to other related laws are in preparation.