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# 52014SC0036

**COMMISSION STAFF WORKING DOCUMENT BULGARIA: Technical Report /\* SWD/2014/036 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.[1]

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 sets out the
information and the data which the Commission has used as the basis for its
analysis. This information has been collected from a variety of sources. Since
the beginning of the CVM, the Commission has devoted particular attention to
collecting information and deepening its knowledge of Bulgaria. It has used a
combination of on-the-spot dialogue with key interlocutors, presence in the
Commission's representation, and the knowledge and experience of experts from
other Member States. It has also had the benefit of working closely with a
variety of key Bulgarian judicial and governmental bodies, which have provided
detailed and focused responses to a series of questionnaires. This technical
report summarises main developments since the last report was published in July
2012.

II         Independence
and Accountability of the Judicial System

2.1       The Supreme Judicial Council

2.1.1.   Nomination and election of the
SJC

As the independent governing
body for the judiciary, the Supreme Judicial Council (SJC) plays a key role in
providing leadership and managing the judicial system in Bulgaria. A newly elected SJC began its term in office on 3 October 2012. Its
membership was chosen in accordance with a revised procedure adopted in June
2012 and discussed in detail in the July 2012 CVM report.[2] The 2012 report
noted that there would be a potential for improvement in terms of transparency
under the new procedure, but also pointed out that the opportunity had not been
taken to introduce direct elections for the judicial chapter. [3]

The application of the new rules
seemed to confirm this impression of positive but limited improvement. The
nomination of the 11 members from the quota of the Parliament in September 2012
was based on the new procedure.[4] This allowed for the publication of background
information on candidates, a public hearing in Parliament which was live
streamed and the opportunity for civil society to ask questions. A group of
NGOs drew up a list of seven possible candidates for nominations as well, but
these were not taken forward. The same NGOs also formally submitted an
extensive list of questions to be asked to the candidates, only some of which
were raised during the hearings.

The choice of the 11 members of
the judicial chapter[5] took
place according to the system of election by delegates
first nominated at the local level. A number of concerns were voiced at the
time about whether the local meetings for choosing delegates were conducted
with adequate rules for voting and counting of the vote. It was also noted that
many of the delegates chosen were administrative heads or their deputies.[6] In reaction to concerns about the first
round of the vote, a group of judges developed rules for conducting the final
vote in the meeting of the delegates. These rules, offering further
transparency, were then chosen by the General Prosecutor to be used to elect
prosecutors to the SJC. While the amended rules and procedures used for
electing the new SJC led to a more public exercise, there was limited scope for
questions concerning the integrity and professional capacity of the candidates to
be raised.

2.1.2.   Track record of the Supreme
Judicial Council

The establishment of the SJC in its new structure was
completed at the end of October 2012. The SJC defined a number of priority
areas for its work, which included addressing uneven workload of magistrates,
organisation of competitions for the appointment of magistrates (where the
previous SJC had bequeathed a major backlog (see below)), improving the
criteria for appraisals of magistrates, and establishing a more objective
disciplinary practice (the differing state of progress on these priorities is
discussed below). It also announced the intention to reform the judicial map,
including changes in the structure of the judicial authorities, allowing for
underworked courts and prosecution offices to be closed down or merged.

The SJC has started to take measures
regulating the workload by optimising vacancies across the country – by
cancelling vacant positions in courts, prosecutor’s offices and investigation
authorities with little workload and opening new ones for judges and
prosecutors at courts and prosecutor’s offices with significant and great
workloads (see below). The SJC reports that
a reduction in the magistrates’ workload in the busiest organs has been
achieved, even if this workload continues to be much higher than the national
average. [7]

The specialized
SJC Commission
for Analysis and Reporting the Level of Workload of Judicial Authorities has proposed
a methodology for conducting an empirical study to
assess the weight of different types of cases and a methodology
for assessing the workload of judges, which have been approved by the SJC. The
study will be based on the time judges and prosecutors spend on hearing and
resolving case files and cases. It will be used to determine the number of
judges and prosecutors needed in a given jurisdiction. The first results of
survey questionnaires are expected in early 2014, while the definition of a workload
norm is expected to be ready by September 2014.

On 1 October 2013 the same Commission adopted
draft criteria for the restructuring of Bulgaria’s judicial map and
re-allocating
staff positions and budgetary resources. The SJC has
also developed rules under Article 194 of the Judicial Systems Act for the
secondment of judges.

Relationship with civil society

In December 2012,
the SJC set up a Civil Council, comprised of NGOs and professional
organisations of magistrates which is to assist the SJC with defining and
monitoring its reform strategies. The Council’s agenda and decisions are
published on the SJC website in a special section. All internal SJC acts which
are the basis for reforms are to be discussed in the Civil Council before their
adoption, though some participants have expressed doubts that they have a
genuine opportunity to influence the process. At present, a total of 17
organisations are taking part in the Civil Council which has held a total of 9
meetings since its establishment. One NGO has withdrawn from the Council citing
a lack of cooperation.[8]

2.2       Judicial Independence

2.2.1    Appointments and promotions

Promotions in the judiciary are organised and
decided upon by the SJC. A total of 35 competitions for the
positions of magistrates at all levels via initial appointment, transfer and
promotion were opened by the end of October 2013, for a total of 335 positions. The
SJC reports that from January to June 2013 more than 10 analyses were
prepared showing the possibilities to move vacant positions from authorities
which are working below capacity to authorities which are overloaded, and fill
in the positions via competitions.[9]

One of the key deficiencies identified
in successive CVM reports has been the shortcomings in the appraisal system.[10] The SJC prepared a new draft Appraisal
Methodology in October which it will discuss with judicial authorities and the Civil
Council.  The SJC seeks to put in place a more accurate and consistent
appraisal system.

At the same time, the outcome of key appointment
procedures – especially those for the higher positions within the magistracy – continues
to be the source of controversy. The fact that the media and observers have
been able to predict appointments with accuracy, months before the actual procedure,
casts doubt on the extent of real competition. In addition, successful
candidates can often be shown to have personal or other connections which
undermine the credibility of the process. In some cases, political figures have
made public statements favouring the appointment of particular individuals to
posts in the judiciary, sometimes obliging the candidate to publicly disavow
the connection.

The Constitutional Court

Although the Constitutional Court is not
strictly part of the judiciary, it holds a key function in terms of ensuring
the rule of law and respect for Constitutional norms. When Parliament needed to
elect two seats to the Constitutional Court in September 2012, it adopted rules
similar to the procedure for electing the parliamentary quota of the SJC. Four
nominations were made for the two positions. Two of these nominations drew
almost immediate negative criticism, in one case for a perceived lack of
professional background, in the other because of reports of integrity problems.
These issues were reported to the Legal Committee of Parliament but do not
appear to have featured in the hearings.

Parliament's decision to elect the two candidates who
had attracted such criticism led to immediate national and international
criticism.[11] The
Commission, amongst others, highlighted the need for thorough checks of
allegations of corruption, trade in influence and conflict of interest, and the
shortcomings in this case.  A second hearing by Parliament made little advance
in terms of addressing the allegations. With further revelations appearing in
the media, the Prime Minister and President urged the candidate to step down,
but Members of Parliament defended their decision. On the day of the oath
taking, the Bulgarian President left the ceremony in protest of the candidate assuming
office, stating that he had received information from the Prosecution office on
an investigation into the candidate dating back to 2010.[12] As a result, the Chair of the
Constitutional Court terminated the ceremony.

Parliament initiated a second procedure to fill the
vacant position for the Court. This time, there was only one candidate for the
vacancy, but again allegations appeared of financial irregularities. Parliament
conducted only a formal check of asset declarations and conflict of interest
declarations, rather than a verification of their accuracy. The Prosecution announced
it would launch an inquiry, but the candidate was later cleared in court of any
wrongdoings.

Prosecutor General

In its CVM report of July 2012
the Commission noted that the forthcoming election of a Prosecutor General
would be a particularly important opportunity to offer a good example in terms
of "a transparent, competitive process based on criteria of integrity and
effectiveness."[13] The Supreme
Judicial Council elects the Prosecutor General. New rules were adopted ahead of
the election in December 2012.

For the first time, more than
one candidate took part in the procedure. All three candidates presented
concepts for reform of the Prosecution and had solid professional backgrounds. However,
the proceedings were once again subject to controversy, firstly on the extent
to which the SJC considered allegations of possible tax
evasion by one of the candidates, and secondly on last-minute changes in
procedure.[14]

Inspectorate to the SJC

The Inspectorate was highlighted in the
2012 report as an important institutional advance, though one lacking in
consistent strategic targeting.[15] The Inspectorate
has continued to conduct a series of inspections over the past year (see below),
but its work has been hampered by the fact that the position of Chief Inspector
has not been filled in due time at the end of 2012. [16]
The fact that this delay appears to have been motivated by the difficulty of
finding a majority in Parliament has reinforced concerns that the appointment
would not be made on the basis of a transparent and merit-based nomination
procedure. On 18 December 2013 the Legal Affairs Committee of the National
Assembly finally announced a deadline for nomination of candidates for the post,
but the deadline (27 December) was very short and drew criticism from the
Bulgarian Union of Judges.[17]
Eventually, only one candidate was proposed by the close of the deadline, which
prompted further protests from independent observers.[18]

2.2.2    Political criticism of judicial
decisions

The Commission's July 2012 CVM report
noted that independence had come in question following a series of direct
political criticisms of individual judges.[19]
The report mentioned the example of a dismissal of the President of the Union
of Judges as well as the fact that the SJC had not taken clear action to
protect judicial independence. The individual judge concerned by this case appealed
the dismissal successfully and was reinstated as a judge, although some
disciplinary proceedings are still pending.  Another high-profile example was
the decision by the Ministry of the Interior to name police operations after
judges who had not imposed detention measures on arrested suspects. This
practice was terminated by the Ministry of the Interior during the second half
of 2013.

2.2.3    Case allocation

It appears that the public perception of the
independence of the judiciary remains low.[20]
At different times cases raised in the public debate have touched on the choice
of cases pursued by the police, the investigation phase, and the trial phase. Steps
can however be taken to make the opportunities for the system to be influenced
more difficult. Transparency, clear procedures and a consistent approach to law
and practice all put the spotlight on irregularities and inconsistencies which
need to be explained. In this context, the issue of case
allocation has gained a symbolic as well as a practical significance.

The system of random allocation of cases
in courts is based on IT software accredited and developed by the SJC. Random
case assignment is established in Bulgaria and forms part of the legal
framework of the procedure in all litigation. It is not the only issue to take
into account when allocating cases – the need to ensure a comparable workload
between judges and acknowledge of the benefits of specialisation are also
important. But the risk exists that the system is open to manipulation and it has
been highlighted by observers as a major source of concern.[21] In March 2013, the SJC, together with the
Inspectorate and NGO representatives, carried out inspections of the
implementation of the principle of random case allocation in the Supreme
Administrative Court, Supreme Court of Cassation and Sofia City Court. However,
the report was delayed by the SJC and the Council were unable to agree
conclusions with the NGOs which had taken part.

Several aspects of the Bulgarian system of random
case assignment have been criticised. The checks carried out in the three
courts showed that the software used could be vulnerable to unauthorised
interference, whether in the initial phase of allocation or later through
manipulation of the archive. Limiting the random assignment to the reporting
judge – while the composition of the rest of the panel depends upon the
discretion of the administrative head of the courts – undermines the
effectiveness of random allocation in courts where judging by panels of judges
are the rule, such as in the Supreme Administrative Court. In addition, there
seems to be no uniform protocol covering the way in which the system as a whole
is integrated into administrative procedures, for example allowing the
litigating parties to check on the application of the random assignment system.[22]

The Supreme Judicial Council has
explained to the Commission in November 2013 that it will move forward in this
area in two stages. The first stage would be to adapt the existing software so
that every time an allocation was triggered, a copy would be sent in real time
to a central repository in the Council. This would allow for a trace to be kept
of the use of the system.[23] A
second stage would be part of the e-justice project, with a single system to be
developed by the end of 2014. The Council considered that it was unlikely that
there would be time to consult outside experts on the first stage, but that
this was foreseen for the second stage. In parallel, the Council would also be
developing a common methodology to ensure that the system was used in the same
way in all courts and prosecution offices.

III        The
Legal Framework

3.1.      Penal Code

Revision of Bulgaria's Penal Code has been a
consistent recommendation of CVM reports.[24]
A new Penal Code has been under preparation since 2010. In its 2012 CVM report,
the Commission recommended setting a target for the completion of work on the
new Penal Code, and for its implementation. A new draft has been under
preparation in the course of 2013[25], and the
Ministry of Justice published a draft law for public consultation at the end of
2013. The Bulgarian Government adopted a draft to send to Parliament on 15
January 2014.

The draft new Penal Code is designed to modernise
the criminal justice system, including introducing new crimes in areas like
terrorism and shifting away from custodial sentences for relatively minor
crimes. The new draft also has a stronger focus on combating organised crime. It
has been cited as addressing the recommendations of the Council of Europe
Committee of Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism. Some elements have benefited from the advice of
international experts. The new law may also address some of the shortcomings and
weaknesses in the existing code identified by Bulgaria's Prosecution office (see
below). [26]

3.2.      Judicial Systems Act

Amendments to the Judicial Systems Act are currently
under preparation. The new act foresees that e-justice will be
introduced across the judicial system. It will build on the work of the
SJC to introduce
the concept of “reasonable workload” and of 'individual workload". To this
end, an obligation will be introduced for the administrative head to produce an
annual individual statistical report on the workload of each magistrate and to
submit a report to the SJC. The past 3 years should be taken into account in
the performance appraisal, provision of incentives and disciplinary liability
of the magistrates.

The new law is also to address the issue of competitions
for judicial posts. These would be organised on a more regular basis. In the
cases of closures of courts, prosecution offices and investigation bodies or of
positions inside these bodies, the SJC would open the respective positions in a
different judiciary body of an equal rank, if possible in the same appellate
area and would reappoint without a competition.

On disciplinary proceedings it would
be
obligatory that both the mover of the proposition and the person facing a
disciplinary sanction shall be heard by the SJC. The disciplinary panel would
not
draw conclusions to the detriment of the person who faces a disciplinary
sanction if the magistrate concerned had not been heard. Under the new JSA, administrative
heads would also provide the SJC twice a year with information about failures
to comply with the time limits for issuing decisions and motives.

IV        The
Judicial Reform Process

4.1.      Judicial Reform Strategy

4.1.1.   Update of the 2010 strategy on
judicial reform

After the May 2013 elections the new
Minister of Justice launched a process to review the state of play and update
the existing strategy on judicial reform in Bulgaria. The updated strategy is
being prepared on the basis of inputs received from independent NGOs, which
were asked to propose an updated set of priorities and objectives for the coming
years. The new strategy should cover a broad range of issues including human
resources, workload management, the number and location of courts, prosecutors'
offices and investigatory services (the judicial map). It should also address
the role of administrative heads, the integrity and disciplinary process,
interaction between the prosecution and other institutions during the pre-trial
phase, alternative dispute settlement methods, and the use of experts. The
strategy is to be adopted in 2014 after consultation of the relevant
stakeholders.

While changes in the general legal
framework may in some cases be necessary to ensure the sustainability and
effectiveness of the judicial reforms, a number of issues are of a more
organisational or managerial nature, in the sense that they do not depend on
new legislation but can be resolved in the context of existing legal rules. In
the short term, progress on these types of issues is largely in the hands of
the Supreme Judicial Council, given its wide-ranging powers over the
organisation of the justice system, including the overall human resources
management, recruitment, appraisal and promotion of judges and prosecutors, and
the handling of integrity and disciplinary matters. In these areas previous CVM
reports have identified a number of issues to be addressed.

4.1.2.   Functional review and action
plan of the prosecution

The prosecutors' offices play a central
role in the judicial process. In its report from July 2012 the Commission
recommended that the new Prosecutor General to be elected in autumn 2012 should
have a mandate to reform the prosecution on the basis of an independent
functional audit.[27] Such an
audit of the structure, procedures and work organisation of the prosecution was
carried out and presented by the new Prosecutor General in July 2013. The audit
was designed to provide a comprehensive and in-depth review and identifies a
number of concrete shortcomings in the existing prosecutorial structures.

In response to the functional audit an
action plan for the reform of the prosecution offices has been launched,
covering an 18-month period from September 2013 to March 2015. The action plan
was proposed by the Prosecutor General and approved by the Supreme Judicial
Council in July 2013.[28] It is
generally coherent with the challenges identified in the functional audit and
envisages a comprehensive overhaul of the services which will provide a roadmap
for future action.

One of the features of the audit is that
it identifies both strengths and weaknesses. Positive practices in the
Prosecution include oversight of the quality of the investigation and
prosecutors are considered to be well aware of existing court practice.
Prosecutors actively participate in court proceedings at the first, appellate
and cassation instances. Weaknesses at procedural level include the fact that
there is a long period between the moment a crime is committed and the
initiation of criminal proceedings, which impedes the gathering of evidence.

In terms of management, the audit pointed
to serious concerns over the structure of the central Prosecution office.
Cooperation between different sectors was identified as a problem, with each
department working only on crimes within its competence, without seeking a
common outcome. There were major differences in workload between different
prosecution offices, with a misallocation of resources.

Examples of envisaged measures include:
internal restructuring of the central prosecutors' offices, the national
investigatory service (NIS) and the administration of the Prosecutor General as
well as streamlining the structure of local prosecutors' offices (including the
military prosecutors' offices the number of which are proposed reduced from 5
to 3). This will be complemented with a rationalisation of staff numbers in the
prosecutors’ offices so as to equalise workload, improved appraisal and
disciplinary procedures for prosecutors and improved training. In addition, the
action plan provides for a review of internal and inter-institutional regulations,
better use of ICT, measures to enhance the capacity of the prosecution to guide
investigations, including by strengthening access to in-house expertise, and steps
to improve external communication. The action plan includes a detailed
timetable for completion of the various measures envisaged leading up to the
final deadline of 1 March 2015.[29]

Several measures have already been
launched including plans for the restructuring of the Prosecutor General's
administration and the military prosecutors' offices as well as the setting up
of a specialised unit to investigate corruption charges against magistrates.
The reorganisation of the Prosecutor General's administration involves a
reduction in the number of managerial posts and a general rationalisation of the
organisation. The problem of fragmentation will be addressed by organising the
service into larger units. In order to preserve the possibility of
specialisation, ad hoc joint teams can be created allocating cases to the most
relevant prosecutors.

The role of the Inspectorate under the
Prosecutor General's office will also change, ensuring a clear separation
between audits and ethics on the one hand, which will be the focus of the
Inspectorate, and criminal questions on the other, which will no longer be
within its responsibilities. Previously the Inspectorate also handled
preliminary investigations when there was evidence of crimes committed by
magistrates. After an investigation of the Prosecution's Inspectorate, dealing
with corruption investigations against magistrates, its Head was reportedly dismissed
for lack of proper case management and disciplinary proceedings are reportedly
ongoing. It was revealed that there was a large number of investigations under
way with no apparent conclusions, and concerns were raised of undue pressure
against magistrates. Investigations of magistrates will now be carried out by a
joint team of prosecutors and officials from the State Agency for National
Security (see below).

4.2       Integrity in the judiciary

Ensuring the integrity, accountability
and independence of the judiciary is a key objective of judicial reform. This
objective may be pursued at many levels and through a variety of means. Past
CVM reports have underlined, in particular, the importance of effective rules
for appraisal and promotion of magistrates based on merit, well-functioning and
unbiased disciplinary procedures to detect and address irregularities in an
even-handed manner, and recourse to the criminal justice system wherever
criminal behaviour is suspected.[30]
As mentioned above, a number of key appointment procedures have shown that
addressing integrity issues continues to be a challenge for the institutions
involved.

4.2.1.   New unit to investigate
magistrates involving prosecution and SANS

In October 2013 a new specialised
inter-departmental unit comprising personnel from the prosecution and the
national security agency (SANS) was established to investigate crimes committed
by magistrates. The new unit is headed by a prosecutor at the Supreme Cassation
Prosecutor's Office and also has participation from SANS and the City of Sofia
Prosecutor's Office. All cases or signals involving suspected crimes by
prosecutors, judges and investigators will be redirected to this unit. The
investigations will be organised in teams of prosecutors assisted by SANS
investigators. The teams will continue to function throughout the court
proceedings in order to ensure the necessary follow-up and support for the
prosecution.

The new approach is designed to enhance
the effectiveness of investigations by allowing the prosecution to maintain a
higher level of confidentiality in the preparation of cases. The information
channels will be shortened, with the objective of avoiding leaks, i.e. a
situation where the suspected magistrate is in one way or the other alerted to
the investigation being prepared. Such information leakages can potentially
have serious consequences for the outcome of investigations as they may give
the subject of the investigation time to break off the suspected activity and hence
make it more difficult to collect evidence. It is still too early to assess the
impact of the new unit. There will be a need for attention to be given to guaranteeing
accountability of the new structure, given the involvement of SANS.

4.2.2.   Inspectorate to the Supreme
Judicial Council

An important element of the judicial
reform in Bulgaria was the establishment in 2007 of an Inspectorate to the
Supreme Judicial Council. The Inspectorate was given the power to inspect all
judicial bodies, including courts, prosecution offices and investigating
services.

Over the period between June 2012 and
September 2013 the inspectorate carried out inspections of criminal procedures
in 22 district and regional courts and of civil and administrative cases in 30
such courts. In addition, 29 regional and district prosecutor's offices were
inspected. The Inspectorate also carried out inspections of the SCC, the SAC,
the Sofia CC and the SCPO in order to check the system of random case allocation.
Following its inspections, the Inspectorate is mandated to issue
recommendations to administrative heads or the SJC for remedial or possible
disciplinary action.

Acting either ex officio or on
signals from citizens, state bodies or other legal entities, the Inspectorate
to the Supreme Judicial Council seems to have wide discretion in carrying out
its inspections. However, experience so far indicates that the Inspectorate
takes a formal rather than a qualitative approach to inspections. For example,
the Inspectorate will analyse statistics on the compliance with deadlines or
check the application of random case allocation, but it rarely checks the
quality of case files nor does it take into account workload issues in a
systematic manner. As a consequence, the conclusions reached by the
inspectorate in an area like random allocation do not seem to address the
issues in full.  In addition, issues related to the integrity or ethical
behaviour of magistrates are generally not dealt with by the Inspectorate, as
the Inspectorate considers that they fall outside the remit of its competence.
These factors limit the Inspectorate's impact in terms of addressing the wider
shortcomings affecting the judicial system in Bulgaria.

4.2.3.   Disciplinary procedures

The Supreme Judicial Council is the
competent authority for disciplinary procedures against judges and prosecutors.
Disciplinary sanctions vary from reprimands, to reduction in salary to
dismissal. A review of practice shows that the largest group of disciplinary
proceedings are initiated at the request of Administrative Heads (15 cases in
2013). The Inspectorate of the Supreme Judicial Council can also refer cases
for disciplinary action on the basis of its inspections (8 cases in 2013).
Finally, the Prosecutor General and the Supreme Judicial Council itself can
also initiate disciplinary action (3 and 9 cases respectively in 2013).[31]

For the Supreme Judicial Council to
initiate disciplinary proceedings on its own initiative, the case has to be
backed by at least one fifth of its members (i.e. five).[32] The Supreme Judicial Council has
established a practice of monitoring electronic and printed media for stories
indicating unethical behaviour by magistrates. When such stories are identified
the ethics committee of the Supreme Judicial Council may carry out inspections
on its own initiative to verify the existence of a possible violation of the
ethical code or other regulations. Such inspections may then form the basis of
a disciplinary procedure initiated by the Supreme Judicial Council.[33]

All cases are assessed by three-member
disciplinary panels consisting of members of the Supreme Judicial Council (the
defendant has the right to be heard and to submit written evidence), after
which the panel provides an opinion to the full council. The plenum of the SJC
decides on the proposal by a simple majority vote.[34]
The defendant can appeal to the Supreme Administrative Court (SAC). It is often
the case that disciplinary decisions taken by the SJC are overturned by the SAC.
[35]

A review of existing disciplinary cases
over the period 2009-2013 carried out by the Supreme Judicial Council notes a
degree of inconsistency in disciplinary practice over the period and indicates
that the problem is partly connected to the absence of objective standards for
the assessment of workload in the various bodies of the judiciary. The lack of
such standards provides room for subjective decisions in individual cases.[36]

4.3       Effectiveness of the judiciary

Effectiveness of the judiciary encompasses
its independence, efficiency and quality. The efficiency of judicial
proceedings depends on an effective management of the various organisations
that make up the judicial system: courts, prosecution offices and investigatory
services. As the main authority in charge of the judicial system, the Supreme
Judicial Council plays a key role in promoting effectiveness, as do several of
its members in their own capacities, in particular the Prosecutor General and
the Presidents of the Supreme Court of Cassation and the Supreme Administrative
Court.

4.3.1.   Recruitment, appraisal and
promotion

There are recruitment competitions for
junior judges. In addition, there is a separate entry possibility for
candidates with some years of experience as practicing lawyers, based on an
entrance exam. For the latter procedure it has been raised as a criticism that
appointments require neither the completion of training at the National
Institute for Justice nor prior practicing at court (e.g. through an internship
as junior judge). This seems to have created some scepticism about the
procedure in particular with regard to its application at the higher instance
courts. However, as a principle, the possibility for candidates with
other expertise to enter the courts is generally regarded as positive, as is
the change of the procedure to include a formal entrance exam.

As regards promotions, at the beginning
of 2013, the Supreme Judicial Council reinstated the practice of open
competitions for posts in the judiciary and also introduced stricter conditions
for the use of secondments.[37]
Secondment is generally considered to have been used on a scale which
undermines normal appraisal and promotion exercises, transferring judges to
more senior positions without proper appraisal and employing the judges
concerned on an uncertain basis.[38]
The new rules would aim to limit the circumvention of the normal mechanisms of
magistrates’ career development and introduce positive practices to second
judges only when a judicial authority finds it hard to perform its functions in
circumstances when a magistrate is absent. As the JSA provides that secondment
is within the exclusive powers of administrative heads, the SJC cannot declare
the new rules mandatory, but the Council to can set standards which the
administrative heads are expected to observe. Secondments are to be entered in
a Register of seconded magistrates. The Register includes all secondments,
periods and grounds justifying a decision of an administrative head to second a
specific magistrate. A second part of the Register is to be set up which will
include the position to which a magistrate needs to be seconded.

In the area of appraisals the problem
has in the past been a lack of sufficiently clear standards, resulting in a
situation where most magistrates receive the same very good marks, so that
appraisals become useless as an indicator for promotions. A draft for a unified
methodology has been prepared in autumn 2013 and sent in consultation with the
various stakeholders. In the meantime, the Supreme Judicial Council has taken
some intermediate steps, one of which has been the introduction of a more
detailed qualitative analysis by the Nominations and Appraisals Committee of
the Supreme Judicial Council of each case based on additional reference
information and documentation about individual magistrates.[39]
It is too early to assess the concrete results of these steps.

4.3.2.   Workload management and the new
judicial map

One of the main challenges facing the
Bulgarian judiciary concerns the persistent disparities in workload that exist
between the various courts. An excessive workload has an inevitable consequence
in terms of slowing down the judicial process in the large courts situated in
the main cities. Meanwhile other courts – for example the military courts but
also other courts in the rest of the country – have lesser or even very minimal
workload in some cases.[40]
The imbalances reflect in part the difficulties of changing long established
structures, as difficult and unpopular decisions are required on the allocation
of posts between courts and closing down courts with insufficient workload.

In the past there was very limited
progress on this issue.[41]
However, the new Supreme Judicial Council elected in the autumn of 2012 cited workload
management as a priority and initiated a number of steps to address it. In the
short-term the main measure adopted by the Supreme Judicial Council has been to
reinstate the practice of filling vacant posts via open competitions and to
reallocate the about 500 currently vacant positions to the courts in accordance
with an analysis of relative workload.[42]
The process should be finalised by 2014.

The reallocation of the 500 posts is
based on a simple analysis of relative workload in the various courts. However,
in the medium term, the Supreme Judicial Council aims to be able to allocate
human resources in a more systematic way throughout the country based on
objective criteria. Hence the importance of the work on-going to develop a
methodology which would allow work to be fairly and equally allocated among
magistrates and courts in line with a commonly agreed workload norm. [43]

The stated long-term ambition is the
presentation of proposals for a more comprehensive reform of the 'judicial map'
of Bulgaria (i.e. the number and location of courts) in order to create a more
efficient structure. This is a long-term objective as such reforms reportedly require
broader legal changes and have to be based on a comprehensive analysis.[44]
However, a first step is expected to be taken in 2014 with a reform of the
military courts, where it seems that there is a consensus that current
structures are unjustified given recent reductions in the size of the military.
The analytical work has been finalised and a decision is expected in the first
quarter of 2014. The military court reform will be an important test case where
experience can be gathered for later reforms in other courts, including the
necessity of close coordination between reforms of the courts and the
prosecutors' offices.

4.3.3.   Delays in court proceedings

One of the continuing problems
identified in Bulgaria is the frequent delays in the publishing of motivations
for cases. Such delays compromise the effectiveness and transparency of the
judicial process and may undermine access to justice by hampering the
possibilities for effective appeal. The problem is inherently linked to the
issues of workload discussed above but in the short term may also be addressed
through managerial measures in individual courts, or indeed disciplinary
measures.

In 2013 the Supreme Judicial Council
started systematically to review delays in court proceedings based on
information from the Inspectorate and the Ministry of Justice and to give
recommendations on this basis to administrative heads of the respective courts
for the resolution of the problems.[45]
In general, the administrative heads are responsible for monitoring delays in
court proceedings and for carrying out remedial action.

The Supreme Judicial Council has
organised several general meetings to promote dialogue between the various
relevant authorities on delays in the processing of criminal cases. As a
result, the need for further measures has been identified including legislative
changes to reduce the formalism of criminal proceedings and regulate the use of
court experts, training of magistrates in specialised fields such as tax and
corruption crimes, fraud with EU funds, etc.[46]

4.3.4.   Use of witnesses and expertise

The system for using expert witnesses in
Bulgaria is heavily regulated, as the only expert witnesses that are admitted
to speak for the prosecution during the trial phase in court are those included
in an official list at Court. Although the prosecution can use experts to help
the investigation in the pre-trial phase, they cannot be further presented as
admissible evidence in the trial phase.

The ability to present expert
testimonies of a good quality in support of a case is a key element of an
effective trial and the issue of expertise has been raised as a concern. The
qualifications of expert witnesses is especially relevant in corruption,
organised crime and financial crime cases, where the accounting and economic
expertise becomes crucial in order to detect and demonstrate bookkeeping
violations, trace financial flows, detect economic links between companies and
individuals and reveal the ultimate beneficial owner of economic activities.

It also means that, contrary to
procedural rules in other Member States, the prosecution has very limited
freedom on the choice of experts and qualified members of different public
bodies that would be able to provide a high-level expertise cannot be used by
the Prosecution before the Court, except in exceptional cases where a very
specific kind of expertise is not available on a Court list. This constraint of
choices, combined with the limited financial means available to the prosecution
for the remuneration of experts, can put the prosecution at a disadvantage
compared to the defence.

Witness protection

Withdrawal of witness statements as a
result of external pressure, or killings in some cases, is amongst the main
risks in organised crime cases. Taking into account the Bulgarian context in
relation to organised crime, witness protection is therefore of primary
importance. Difficulties of getting witnesses to testify in organised crime
cases is considered to be one of the factors hampering effective action in such
cases.[47]

4.3.5.   Consistency of jurisprudence

Bulgaria needs to align its case-law in
civil and criminal cases. Contradicting legal provisions due to the law-making
process, reluctance to rely on legal interpretation by superior courts and a
preference of applying legal provisions only in the strictest formal sense have
been referred to as contributing to the problem of inconsistent case law.[48]

Some limited organisational measures
have been taken or promoted in order to create the basis for a more coherent
legal practice. For example, at national conference on 4 October 2013 convened
by the President of the Supreme Court of Cassation (SCC), a number of measures
were promoted to ensure more transparent and efficient court proceedings. The
measures include regional conferences to review case law, whereby discrepancies
involving several districts can be brought to the attention of the SCC, as well
as strengthening the communication offices of courts to ensure wider
publicising of court decisions. In June 2013 it became possible to make
searches via the public website of the SCC in the Court’s case law on the basis
of reference data and parameters.

Prosecutors' offices also need to be
aware of the existing case law and strive to bring cases to court that are in
line with it. As part of the action plan for the reform of the prosecution, it
is envisaged to set up an analytical judicial and prosecutorial case law unit
in the Prosecutor's office. If properly staffed such a unit may contribute to a
greater quality of cases in the future.

4.3.6.   E-Justice

E-justice has been recognised by
Ministers of Justice as an important element in the modernisation of the
Bulgarian justice system. Significant efforts are needed to upgrade document
management systems so as to provide effective E-justice solutions for both the
administration and citizens. However, some progress is being made. A project
co-financed by EU funds[49]
aims to improve the Unified Information System for Combating Crime (UISCC) and
integrate the existing information systems into it. The system allows for
real-time tracking of procedural steps taken in in regard to cases, including
the opening of pre-trial proceedings, preparation of acts by prosecutors and
investigators, the trial phase at all the three levels of the court hierarchy,
enforcement and execution of punishments, and analysis of proceedings. The
UISCC will also provide unified statistics on the work and interaction between
different institutions so as to help identify problems and speed up procedures.
The system is being implemented in several stages and is expected to be fully
operational in the course of 2014. In addition, another project currently in
progress with support from the European Social Fund and involving the Supreme
Judicial Council, the Supreme Administrative Court and the Ministry of Justice
aims to put into operation an e-voting system for direct election of members of
SJC from the judicial quota as well as a centralised system for random case
allocation within a unified portal of the e-justice.

4.3.7.   The reform of the Investigative
services

According to the General Prosecution's
analysis, the National Investigative Service (the position of the "sledovateli")
has an extremely low workload compared to other prosecution services (on
average, only 0.4 cases per year are brought to court per sledovatel). The
General Prosecution intends to introduce a caseload comparable to other
services and review their functioning. In the meantime, some personnel have
been detached to the Special Prosecution dealing with organised crime.

4.3.8.   Reform of the Ministry of the
Interior

The reform of the Ministry of the
Interior has been engaged by the new government. Part of this involves the
merger of the special police units on organised crime – CDCOC – and the
security services (SANS), on the basis that corruption and organised crime can
be tackled more effectively in this way (see below).

Other measures have also been taken to
reverse the concentration of power in Ministry of the Interior in order to
concentrate on its core functions – including divesting state owned companies
under the authority of the Ministry in areas like private security – and to
take some steps to limit potential political interferences on sensitive
investigative services (including special investigative means). Another
priority is to redeploy staff from administrative to operational functions (in
effect, to halve the figure of 30% of staff currently engaged in administrative
tasks). The Ministry seeks to be more effective in the fight against property
crime and attacks on persons. Part of the reform also involves increased
transparency (public reporting every 6 months), to help restore public
confidence.

V         Combatting
corruption

Bulgaria is considered to have one of
the highest corruption risks among EU
Member States.[50]
Tackling high-level corruption is one of the core benchmarks of the CVM, and
reports have consistently pointed to shortcomings in terms of the prevention,
investigation, and dissuasion through bringing emblematic cases to justice.[51]
This is also reflected in public opinion surveys which indicate a low level of
trust in public institutions in Bulgaria.[52] Bulgaria
has implemented a number of anti-corruption strategies, but these have not
succeeded in improving Bulgaria's effective track record.

5.1.      High-level corruption

Neither Parliament nor
the Government
has presented comprehensive
initiatives to
fight high-level corruption. Some specific steps have been taken though, such
as the creation of a specialised unit
between
the Prosecution
office and the State Agency for National Security (SANS) to investigate crimes committed by magistrates
discussed above.[53] Also, following
legislative changes in June 2013, the competence of the State
Agency for National Security (SANS) has been extended in a number of ways with
regard to investigations into high-level corruption. These changes further
build on steps that have been reported in previous years, such as the
establishment of joint-investigation teams, specialised training, separate
units in the prosecution offices and further specialisation of police
investigators.[54]
Regardless of earlier efforts, the general picture is characterised by a lack
of progress in bringing high-level corruption cases to conclusion in the
courts, such as in a number of cases of former Ministers. More recent examples
of corruption related investigations exist, but it is still too early to assess
the handling of these cases which are still ongoing. The recent analysis of
corruption related cases carried out by the Prosecution pointed to the fact
that corruption cases involving persons in top positions are initiated only
sporadically and usually only after the dismissal of the respective minister or
the Government.

CVM reports have consistently underlined
that an important factor in the effective fight against high-level corruption
is the appointment of individuals with integrity and independence to lead the
relevant - investigating, prosecuting and judicial – institutions, as well as
providing them with a mandate to carry out investigations into high-level cases
in an independent manner. As mentioned earlier, appointments in
Bulgaria have not always been free of controversy. The most
emblematic recent case of a controversial appointment appeared in the context
of a sudden reform of the security sector in June 2013, without a public or a
parliamentary debate. Already, the decision to shift competencies from the
Ministry of the Interior to SANS was an important decision, where justification
only came after the event and where the precipitate decision-making has never
been explained. This was coupled with the particularly controversial
appointment to the leading role of Chair of SANS. The appointment of a partisan
political figure to such a position would always stoke controversy, and in this
particular case all the more so due to the lack of a debate or integrity
checks. The appointment led to nation-wide protests, where the appointment was
seen as illustrating broader problems with the the rule of law. Eventually, the
nominee stepped down and the government acknowledged that the appointment had
been a mistake, but the situation left a legacy of mistrust. Opinion polling
suggested that trust in the National Assembly dropped to 11% in October 2013.[55]

In its 2012 report, in the light of weak
track record on high-level cases, the Commission recommended carrying out an
independent analysis of case failures covering weaknesses in both investigation
and prosecution. In response, the Minister of Justice requested informal input
from French and German experts on the matter. Recommendations were issued,
which Bulgaria is reportedly still studying (see below). As mentioned above, the
Prosecution has also carried out an analysis of reasons for failures in the
investigation and prosecution of corruption. It concludes that a substantial
part of the cases resulting in acquittal have been initiated without
justification and generally should not have been submitted to court. This holds
good mainly for proceedings with a subject of criminal acts with blank elements
in the corpus delicti.[56] In
fact, according to the analysis, the practice of qualifying administrative and
disciplinary violations as general criminal breach of trust offences or
economic offences by unknown perpetrators – without it being sufficiently
clearly defined what exact crime has been committed and therefore on what
grounds the indictment is based – has been the reason for a large number of
acquittals. The Prosecution in its analysis also draws the conclusion that
where failed cases are concerned the impartiality of
the involved magistrates may come into question, and that in some cases there are grounds for concern about political
pressure and other external influence.

Corruption cases of high public interest
have seen little progress. Four cases against a former Minister are ongoing.
One case involving possible illegal wiretapping by Ministry of Interior
officials remain pending after first announcements were made by the
Prosecution. The investigation was announced of a high-ranking official from
the Ministry of Interior on grounds of bribery but he has to date not been
indicted. One Member of Parliament has been indicted for money laundering. The
case against another MP for trading of influence has seen delays. One case of
possible electoral fraud has led to the indictment of one civil servant. One
highly publicized asset forfeiture case is on hold awaiting an interpretative
decision by the Supreme Court of Cassation.[57]

5.2.      The fight against corruption
at all levels

As noted in the
Commission's 2012 CVM report, the level of concern about corruption in Bulgaria
is considerable, with 95% of Bulgarians defining corruption as a major problem.[58] A
number of studies indicate that the situation has not improved since then.[59]
In
the period 2012–13, personal experience of corruption in Bulgaria did not
change, with 14 % of the adult population reporting
experience of corruption transactions at
least once per year. One study argues that bribes have in effect become part of
the price for certain administrative services.[60] There is
evidence that the level of corruption negatively affects the general business
climate of the country.[61] Findings
in the 2013 Special Eurobarometer Survey on corruption confirm the magnitude of
the challenge.[62]

5.2.1.   Anti-corruption strategy

In its last report from July 2012 the
Commission recommended Bulgaria to carry out an independent evaluation of the
national anti-corruption strategy and its impact.[63]
Bulgaria reports that an assessment is now in
progress as part of a broader project carried out for the Inspectorate General
under the Council of Ministers. The project, which is co-financed by OPAC, will
draw on experience from other EU Member States, evaluate measures under the
current Bulgarian strategy, provide an assessment of its impact, prepare
proposals for an improved reporting of internal inspections in the public
administration, analyse the effectiveness of the current system of asset
declarations of public officials and propose a mechanism for processing and
reporting irregularities. It will also prepare proposals for legislative
changes to improve the general system of internal control in the public sector.[64] The deadline for completion of the project
is September 2014. It can be expected that this will result in both legislative
and administrative measures to be followed up by the government and
legislators.

Whereas there is no unanimously accepted
concept of corruption in Bulgarian legislation, the existing provisions
of the penal code do contain the most relevant measures to address corruption.[65] However, corruption crimes still represent
only a very small share of the total number of revealed and punished offences
in Bulgaria. Given the perception of a high prevalence of corruption, also
echoed in expert opinion, this raises questions about the effectiveness of the
system.[66] The
analysis carried out by the Prosecutor's office concluded that, with regard to
corruption, penal policy is falling short, and expectations that improved
provisions in substantial penal law will result in more efficient prosecution
of corruption were not justified. While legal changes may be helpful, analysis
points to the problem lying as much with inefficient practices within the
prosecutorial and investigating services and in wider administrative structures.

The fact
that political changes in Bulgaria generally lead to widespread changes at the
administrative level also tends to have a negative impact on the fight against
corruption. Observers, including law enforcement counterparts from other Member
States, have expressed concern that a series of personnel changes made after
May 2013 had serious practical consequences for the pursuit of organised crime
and corruption. In addition, such changes reinforce a perception that officials
responsible for impartial decisions in the interests of the law are in fact
politically dependent. There haves been a large number of changes in staff,
including in important positions concerning the fight against corruption. [67] The issue of
staff selection and appointments also has a general relevance in the law
enforcement sector in Bulgaria, since the lack of continuity in key posts erodes
acquired experience and institutional capacity.

5.2.2.   Inspectorate General to Council
of Ministers

The Inspectorate General to the Council
of Ministers, acts under the Prime Minister's authority and coordinates
Bulgaria's anti-corruption efforts within the public administration. Current
functions of the Inspectorate General include:

o coordinating
and guiding the work of inspectorates

o developing
a methodology for the evaluation of the inspectorates' work

o drafting
methodological guidance on interaction with specialised competent authorities

o exercising
control functions concerning conflict of interests

o monitoring
corruptive practices in the central government

o assessing
the risk of corruption

In the period January 2012 – June 2013
the Inspectorate General carried out 28 planned inspections and 44 ad hoc
inspections. In addition to the Inspectorate General, there are also internal
inspectorates in the various ministries, so in total 505 planned inspections were
carried out in addition to 1,610 ad hoc inspections. Ad hoc
inspections often take place in response to tip-offs about irregular practices,
e.g. suspicions of corruption or conflicts of interest. In 2012, 488
inspections were carried out to check conflicts of interests. As a result of
these inspections 33 cases were sent to the prosecutor's office for
investigation. Also in 2012, general risk assessments were carried out by 8
inspectorates concerning corruption risks in their respective administrations.
The checks resulted in recommendations concerning improved awareness raising,
corruption risk monitoring, staff mobility and whistle-blowing. The
internal inspectorates perform a central role in controlling corruption risks
in the state administration but still have limited capacity. Work is on-going
to develop the system as part of a project co-financed by OPAC looking at the
Bulgarian National Anti-Corruption Strategy (see above).

5.2.3.   Borkor

In November 2009, Bulgaria adopted an
integrated strategy for countering corruption and organised crime. Successive
Bulgarian Governments have seen the anti-corruption project Borkor as a key
element in this fight against corruption. Borkor has only analytical
responsibilities, it does not have operational powers. The detection of
weaknesses is its main task, and since 2010, this has been defined in terms of
assessing the weaknesses in both the legislative framework and the
institutional environment in Bulgaria.

The Borkor project is being developed
and implemented by the Centre for the Preventing and Countering Corruption and
Organised Crime. Borkor is presented as "a complex cybernetic model for
centralised planning and development of measures and systems of measures
against corruption." In February 2013, Borkor presented to the Government
a report about the first project for developing a preventive system against
corruption in public procurement. [68] Another
stage would come with a first test run of its IT systems is expected to be
carried out by early 2014. At the same time, an internal debate in the
government about its activities has concluded that the scope of activities of
the project should be broadened, and has entrusted Borkor with the task to make
preliminary analyses of all new legislation, before it enters Parliament. It
remains difficult to assess Borkor, as fully developed and measurable results
are still missing. Certainly in the area of corruption, the Commission has not
been informed of any tangible advances which have resulted from its work.

5.2.4.   Anti-corruption efforts at the
local level

Every regional governor has a council
against corruption, whose functions are to increase awareness on combating
corruption and to assist to the regional government.

Councils are composed of representatives
of public institutions (either technicians or persons holding managerial
positions in bodies such as tax revenue agency, agricultural agency, police)
and civil society at regional level (such as the academic community, trade
unions, and NGOs). Although mainly having an advisory and analytical role, the
regional anti-corruption councils can also receive complaints, which are
submitted to a committee.

In practice, these councils do not have
any possibility to examine administrative irregularities in depth. Apparently
the Councils have no guidelines on how to operate, no expert secretariats, and
no access to the information of other institutions. They essentially act as a
mailbox and spread information to the general public on signals that could
potentially have revealed corruption cases.  There appears to be a lack of
separation between their role in spreading prevention strategies and their role
with respect to individual cases, where clearly they are not organised on the
confidential and professional basis which would be required to take these
forward.

5.2.5.   Conflict of interest (CPACI)

Bulgaria's Commission for Prevention and
Ascertainment of Conflicts of Interest (CPACI) is the core body dealing with
identifying and sanctioning conflicts of interest. CPACI's mandate covers
conflict of interests for individuals holding public offices. It can follow up on
signals or complaints received, on requests by individuals concerned, or act ex-officio.
In practice, most signals that are being followed up by CPACI come from
citizens. Few come from the local administration or are a result of ex-officio
checks. On average, it takes CPACI 4 months to establish whether a conflict of
interest exists.

To date, it has proved difficult for
CPACI to identify conflicts of interest, especially in more sensitive cases.
According to a report presented by Parliament, 146
out of 860 case files remain pending. In 92 out of 103 cases of established
conflict of interest the court has rejected the Commission's findings. There
have also been important cases reported in the media where CPACI has not been
in a position to explain why they were not taken up. Currently,
functioning of the CPACI is even more difficult, as the Chair resigned following
allegations of political influence and one of its members has left to become
Deputy Minister of Justice. The controversy has had damaging effects on the
reputation of the Commission, which is now subject to a parliamentary enquiry
commission. New members to CPACI need to be chosen by the Prime Minister and by
Parliament.

In its 2012 report the
Commission pointed out that the effectiveness of the law on conflict of
interest may be hampered by a rather complex appeal system.[69] When a conflict of interest
has been declared by the Commission, this decision can be challenged at two
instances before the administrative courts. Once the decision is finally
validated by the Court (in average after two years) the Commission can then
launch the sanction proceedings. This decision can also be challenged before the
administrative court, and a second instance exists as well. As a result of this
cumbersome two-tier procedure, 4 court decisions can exist on the same issue
before sanctions may finally be imposed.

5.2.6.   Public procurement

Past CVM reports have identified
public procurement procedures as an important risk area for corruption. The
rules on ex-post checks by the State Financial Inspection Agency and the
National Audit Office were reinforced in 2011. The scope of the ex-ante checks
by the Public Procurement Agency have also been modified to cover EU
co-financed projects and negotiated procedures without prior publication.
However, the limited scope of these ex-ante checks raises questions as to their
effectiveness. In particular, the checks do not cover decisions of
contracting authorities to apply derogations to the application of EU
procurement legislation, nor do they cover the technical specification of the
tenders. More generally, there are doubts about the
effective enforcement of the rules and the consistent application of sanctions
in case of irregularities.

In addition to the above
concerns, frequent legislative changes in combination with a complicated legal
and regulatory landscape means that there are serious problems concerning legal
certainty. These concerns are compounded by the limited administrative capacity
in many parts of the public administration due to a lack of sufficient qualified staff and experts,
high staff turnover and a lack of supporting structures for smaller contracting
authorities. Important delays in the treatment of appeals related to public
procurement also appear to follow from limited capacity in the judicial system.
Although some progress has been achieved in e-procurement the system still has
limited functionalities, and at this stage it is not yet possible to submit
tenders electronically.[70]

VI        Tackling
organised crime

Organised crime continues to be a major
challenge for Bulgaria. With one notable exception,[71]
there has been very little progress on the investigations of over 150 murders
which can be defined as contract killings. The specialised prosecution and
court have not been able to focus on serious organised crime cases.

According to the Ministry of the
Interior, between July and November 2013, police have led operations against
contract killers groups, has dismantled laboratories of synthetic drugs and
cannabis greeneries and were also active against smuggling of cigarettes, drugs
and alcohol. Whilst it does not provide a full picture of Bulgarian's organised
crime, the Europol 2013 Activity Report[72] nonetheless
lists a few cases involving Bulgarian organised crime groups. It also gives
examples of cooperation of Bulgarian law enforcement in the context of Europol.
Independent experts report that after a phase of “pure” criminal organised
activities, with a special impact of violent deeds, organised crime in Bulgaria
would now seem to invest in the legal economy. Strategies focusing on
"traditional" criminal activities and on a widespread number of
isolated individual cases of petty or medium-level corruption therefore risk
missing a dimension of growing importance. Corruption as an enabling factor for
organised crime is also considered to be of particular importance in an
effective response to organised crime.[73]

Earlier CVM reports have put the
emphasis on the need for a comprehensive analysis of shortcomings in the existing
set-up and an independent analysis of problematic cases. Such an analysis was
launched late last year, with the support of experts from other Member States,
but has been the subject of delays and no conclusions have yet been made
public.[74]
Several national initiatives have been completed in order to follow up and
further develop the analytical basis for assessing the causes of case failures.
These efforts have resulted in the identification of a number of shortcomings,
many of which overlap with those identified by the international experts. Bulgaria
reports that the various analyses are currently being evaluated by the Ministry
of Justice in cooperation with the relevant institutions, with a view to
developing an action plan.

6.1.      SANS

The relevance of stability and
effectiveness in the organisation of work against organised crime was
illustrated by the decision to transfer the Directorate responsible for
combatting organised crime (CDCOC) from the Ministry of Interior to the
National Security Agency (SANS). Although involving security services in this
work is not out of line either with previous Bulgarian practice, nor with some
other Member States, no explanation was given at the time and the precipitate
nature of the change created further uncertainty. Subsequent concerns over possible
operational implications, for example in regard to the communication with other
Member States' law enforcement bodies, have reinforced the impression that the
changes were not fully thought through and could have been better prepared.

On 14 June 2013, the
newly elected Bulgarian parliament adopted a new bill on the security sector.
The law merged the Chief Directorate Combating Organised Crime with the State
Agency for National Security (SANS). It will regulate the functions
and activities of the institutions, the interaction and control of their
activity. SANS now deals with organised crime committed by local and
transnational criminal structures, the customs, currency, tax and social
insurance systems, human trafficking, cybercrimes, intellectual property,
counterfeiting of money, payment instruments or official documents and frauds
with EU funds – where these crimes are deemed to have an impact on national
security, a dividing line which does not seem clear. This also means that SANS
investigates high-level corruption. SANS can now also detain and search
persons.

Amendments to the Special Surveillance
Means (SSM) Act were also adopted (effective August 9, 2013), aiming at better
regulating the collection of data and evidence.  A State Agency for
Technical Operations (SATO) was set up as a specialised body with the Council
of Ministers. Under the amendments, SATO is separated from the requesters under
the SSM Act. The previous subordination to the Minister of the Interior is
eliminated. A
National Bureau for Control of Special Surveillance Means is reinstated as an
independent permanent state body, whose members are elected by the National
Assembly.

Experts have noted that SANS now appears
as a “hybrid” institution: on the one hand, it is entrusted with intelligence
powers and, on the other hand, with criminal investigation and police powers. Hence,
there could be a risk of confusion between intelligence and investigation
powers, with the possibility that investigations on organised crime could
potentially become less autonomous and independent. This issue becomes
especially relevant since SANS’ competence now also includes investigations
against judges and prosecutors. Also, the reform of the National Security
Agency reportedly has given rise to some concerns with regard to its possible
impact on operational police cooperation.

The controversy over SANS' new
responsibilities was compounded by the appointment of a new SANS Director.
Clearly, the recommendations of the Commission about appointments based on a
clear procedure which allows a real competition and puts the emphasis on merit
and integrity is highly relevant for such posts (see above). The Commission
made public statements to this end. The appointee stood aside and Parliament
reversed its decision in the wake of these and other reactions. Overall, these
events have left a difficult legacy in terms of confidence amongst the public
and amongst Bulgaria's partners, which the authorities will have to work hard
to overcome, needing to show that the new structure is both efficient and
accountable.

6.2.      Asset forfeiture

The forfeiture of assets is a key tool
in the fight against organised crime. A revised Asset Forfeiture law was
adopted in May 2012. The July 2012 CVM report noted that the legislation as
finalised by Parliament raised a number of issues, and would require vigorous
implementation by the Bulgarian authorities at all levels if the law were to be
effective.[75]

It is still too early to assess whether
the new law has made asset forfeiture a more effective tool for Bulgarian
criminal justice.[76]
CEPACA, the body dealing with assets confiscation, expects to have 4 cases
under the new law in court by the end of the year. The combination of a
threshold of 125,000 EUR for the difference between earned and actual wealth –
high by EU standards – and a period of investigation of 10 years, means that
some important cases may fall outside CEPACA's scope is problematic. While
CEPACA can go back 10 years in time, it cannot investigate initial wealth (so
for example income declared 11 years ago cannot be checked). There is no
reversed burden of proof. Furthermore, CEPACA seems overloaded with smaller
cases. CEPACA has to investigate when a person is indicted for certain crimes.
The list is very long and does not allow a concentration on organised criminal
activities. In the meantime, procedures under the old law are also at risk, as the
Supreme Court of Cassation has been asked by the Ombudsman to issue an
interpretative decision on possible conflicting case law related to asset
forfeiture. Consequently, the bulk of on-going court cases are reportedly on
hold pending the decision of the Court. These cases are at risk also because of
statute of limitations. For example, one case related to a highly publicised organised
crime case is on hold.[77]

6.3.      Joint teams

The need for effective structures and
efficient cooperation between police, prosecution and other administrative
authorities has been highlighted in past CVM reports.[78]
The more general use of joint teams between different law enforcement
authorities and administrations is in line with past recommendations, notably
given the complexity of some of the crimes at stake (such as money
laundering).  For example, an agreement was signed in September 2013 setting up
joint teams between the prosecution and CEPACA. It will be used systematically
in the case of money laundering cases but can also be proposed for tax fraud.
According to this agreement:

When a person is brought to justice
as defendant in relation to certain categories of crimes, the
investigating prosecutor shall immediately send a written notification to
the Territorial Director of CEPACA;
Joint teams can be established in
order to enhance the detection of particular property acquired from
illegal activity and tracking its movements.
Mutual exchange of information is
foreseen.

The National Revenue Agency is also part
of joint teams and regular meetings with representatives of the Ministry of
Interior and the Prosecutor’s Office take place in order to discuss cases.
Likewise, the Bulgarian authorities reports that joint teams have been set up
between the police and Customs Agents for investigations launched at the border
by Customs officials where special investigative means were needed, under the
co-ordination of the Prosecutor’s Office. This kind of inter-departmental
co-operation helps to address problems with coordination identified in past CVM
reports. If cases are led by a proactive prosecutor steering the investigation
and co-ordinating the activities of all the agencies involved, this can lead to
progress in addressing difficult cases requiring a range of expertise. It is
still too early to assess the impact of these changes on the concrete progress
of cases.

6.4.      Specialised Court and
Prosecution

The specialised court and prosecution
dealing with organised crime started work in in January 2012. They deal with
all cases of organised crime, but as the July 2012 CVM report pointed out, the
risk is that they cannot thereby prioritise on key strategic cases.[79]
Although the specialised prosecution and court have started functioning[80] it is still too early to assess its impact.
It appears that the prosecution office attached to the specialised court, in
particular, is faced with a heavy caseload, including a large number of relatively
minor cases. The scope of its work seems to be determined in such a way that disproportionate
attention is given to cases concerning minor offences, and the prosecution reportedly
does not have the necessary discretionary powers to prioritise heavy and
complex cases in order to address such cases effectively.[81]

[1] Previous CVM reports
can be consulted at: http://ec.europa.eu/dgs/secretariat\_general/cvm/index\_en.htm

[2] COM (2012) 411 final, page 10-11 on Bulgaria's
refusal to hold direct elections for the SJC.

[3] The next SJC is to be elected according to this
principle.

[4] See the amendments to the
Judicial System Act of 9 March 2012.

[5] Representing judges, prosecutors and investigators.

[6] Bulgarian Institute for Legal
Initiatives, Assessment of appointments in the judiciary and the Constitutional
Court, 17 December 2012.

[7] For example, the workload per
judge in the Sofia Regional Court will have fallen from 102.55 cases heard per
month to 88.54 cases, respectively from 63.17 completed cases to 54.54 completed
cases. In Varna Regional Court, the decrease is from 81.52 cases to 66.54 cases
per magistrate a month; in Sofia City Court, the decrease is from 38.72 cases
to 36.10 cases.

[8] The Bulgarian Helsinki Committee: http://www.bghelsinki.org/bg/novini/press/single/pressobshenie-bhk-napuska-grazhdanskiya-svet-km-vss/

[9] The SJC reports that 141 vacant
positions in the judiciary in courts, prosecutor’s offices and investigation
services which were not overloaded were cancelled and, respectively, 88 new
positions for judges were opened in overloaded courts and courts with medium
workload and 53 in overloaded prosecutor’s offices.

[10] Technical report SWD(2012) 232 final, pages 12-13.

[11] The European Commission, on 30 October and, after
the vote, on 31 October, expressed concern that signals on possible integrity
issues had not been addressed during the hearing by Parliament, underlining the
importance of the highest standards of professionalism and integrity.

[12] The Prosecution did not state what the state of the
investigation was and if action on the matter had been taken since 2010.

[13] COM (2012) 411 final, page 21.

[14] The procedure
prompted a reaction from the Bulgarian Union of Judges questioning its
compliance with the constitution. http://www.judgesbg.org/images/Statement\_Prosecutor\_SJC-27Dec2012-EN.pdf

[15] COM (2012) 411 final, page 7.

[16] The Chief Inspector is elected by a 2/3 majority in
the National Assembly for a term of 5 years. The term in office of the Chief
Inspector lasted until the end of 2012, but pending the election of a new Chief
Inspector, the incumbent stayed in office until October 2013 when she
officially resigned.

[17] In an open letter to
the National Assembly of 26 December 2013 the Bulgarian Union of Judges appeals
for the disclosure of the reasons for determining such a short deadline. At
that point no nominations had yet bene made. See 
http://www.judgesbg.org/images/BJA\_General\_Inspector\_26\_dec\_2013\_EN.pdf

[18] http://www.bili-bg.org/425/news\_item.html

[19] COM (2012) 411 final,
page 6.

[20] See e.g. the latest figures provided by the World
Economic Forum 
http://reports.weforum.org/the-global-competitiveness-report-2013-2014/

[21] For further background, see e.g. Judicial Reform
Review 2013 of the Bulgarian Institute for Legal Initiatives (http://www.bili-bg.org/cdir/bili-bg.org/files/INDEX\_FINAL\_ENGLISH.pdf
) p. 84.

[22] During a mission in September 2013, the Commission
saw a protocol in force in Plovdiv which seemed clear and transparent, but
which was not in use nationwide.

[23] One abuse cited in the past has been that the
system is triggered several times, until the "right result" appears.

[24] See e.g. technical report SWD(2012) 232 final, page
9.

[25] The review of the General Part of the initial draft
of the new Penal Code was completed in the end of 2012. 19 chapters from the Special Part
of the initial draft of the new PC were reviewed and discussed from the
beginning of 2013 until May 2013. Under the new
government, additinal working groups were set up to continue the work.

[26] According to the Bulgarian authorities, the new
draft Penal Code offers a number of new solutions to important penal law
issues. They are of the view that its structure has been improved with a view
to better ordering of the norms and facilitating their systematic comprehension
and interpretation by the law-enforcement bodies. New draft provisions
apparently aim at  speeding up procedures on the apprehension of criminals.
Thedraft  law for the first time lays down a legal definition of 'complicity'
and intends to modernise the concept of recidivism. The rules on forfeiture of
illegally acquired assets reportedly have been amended in accordance with
international commitments. Provisions on expedited procedures have also been
amended with the reported objective to increase the incentive for defendants to
cooperate with the investigation service. Other aspects have sparked criticism
on the grounds of possible restrictions on NGOs and investigative journalism.

[27] COM (2012) 411 final,
page 20.

[28] These decisions do
not appear to have been made public, although the Prosecutor General has
referred to specific elements in recent press articles.

[29] Some of the initiatives contained in the Prosecutor
General's action plan will require decisions at political level (budgetary
measures, judicial map, procedural legislation) or will have to be coordinated
with other bodies (police etc.). However, others are of a more
organisational/managerial nature and fall within the discretionary competence
of the Prosecutor General and the Supreme Judicial Council.

[30] Most recently. COM (2012) 411 final, page 6.

[31] Bulgaria reports that over the period July 2012 to
September 2013 the SJC adopted decisions to apply sanctions in 22 disciplinary
cases, ranging from reprimands to dismissals, demotions and reductions in
remuneration.

[32] It is not clear
whether any objective criteria are used to make this assessment.

[33] Between July 2012 and October 2013 the ethics
committee of the SJC reviewed 15 such stories. In 12 cases it launched an
investigation: 4 cases were terminated following inspection, 2 cases were still
under review, and in 6 cases disciplinary proceedings were initiated. (SJC,
Nov. 2013.)

[34] According to independent experts, the procedure
whereby members of the SJC both initiate and rule on disciplinary cases could
be questioned in regard to Article 6 ECHR, which requires separation between
prosecution and adjudication. Hence, concerns have been expressed that the same
SJC members can sometimes be both proposing and deciding on disciplinary
measures.  Another point of criticism from experts has been that the
participation of prosecutors in the disciplinary decisions concerning judges
may undermine judicial independence.

[35] Concerning appeals from 2012, three SJC decisions
were repealed by the SAC (including 2 dismissals), whereas 5 complaints were
rejected as unfounded and 2 cases were still pending by December 2013. The
number of appeals concerning SJC decisions has fallen from 10 in 2012 to 4 in
2013. Of these four cases the SAC had repealed the SJC's decision in one case,
whereas the other 3 cases (concerning dismissals) were still pending.

[36] This problem has also been raised in previous CVM
reports as well as by many independent observers. See for example the Judicial
Reform Review 2013 of the Bulgarian Institute for Legal Initiatives, which
concludes that: "unification of disciplinary practice with regards to the
same violations is necessary. Its extraordinary diversity and inconsistency at
the moment leave an impression of subjectivism." (p. 78) There are cases
of disciplinary proceedings being used in an apparently arbitrary and
disproportionate manner allegedly to target certain magistrates. One prominent
example widely reported in the media concerned the proposal to dismiss the
President of the Bulgarian Union of Judges in 2012 on grounds of non-compliance
with the deadline for publication of motivations for court sentences in three
cases (Ibid, p. 82).

[37] For two years preceding 2013, no competitions were
held, with the result that posts were mostly filled via secondments.

[38] In principle, the decisions on the secondment of
magistrates are made at the sole discretion of the respective court presidents
and, given the absence of clear criteria and procedure for secondment, the
decision making underlying the choice of those to be seconded and the place to
which they are to be seconded has often been unclear in the past. For a
discussion, see Judicial Reform Review 2013 of the Bulgarian Institute
for Legal Initiatives (http://www.bili-bg.org/cdir/bili-bg.org/files/INDEX\_FINAL\_ENGLISH.pdf
) p. 24

[39] This procedure has reportedly resulted in a large
number of rejected promotions. The magistrates concerned have the possibility
to object, following which the case is referred to the plenum of the Supreme
Judicial Council. From October 2012 to September 2013 there were 30 objections,
of which 15 were upheld by the SJC - leading to a renewed assessment by the NAC
- and 15 were rejected.

[40] The excessive workload in some courts is not only a
problem for the expediency of court proceedings but can also potentially play a
role in weakening the independence and impartiality of the judiciary. This is
because a widespread inability to comply with existing deadlines is effectively
putting judges in breach of their professional obligations, which creates a
risk of disciplinary action being used as a means of pressuring magistrates.
This risk is compounded by the lack of consistency in disciplinary action as
mentioned above.

[41] SWD (2012) 232 final, page 14.

[42] This number includes
promotions and transfers between posts.

[43] Currently, information only exists on the number of
cases relative to the number of personnel and the workload analysis therefore
does not take into account the complexity of cases nor other work performed by
the courts. The workload norm is aiming to remedy these shortcomings.

[44] Bulgaria reports that a preparatory study is in
progress and should be finalised towards the end of 2014.

[45] This practice implements a new provision in
Judicial Systems Act (Article 60m) which went into force in October 2012. The
reviews will take place on a 6-monthly basis.

[46] Information received from the SJC, Nov. 2013.

[47] See below.

[48] Independent experts consulted by the Commission.

[49] Under the Operational Programme for Administrative
Capacity

[50] Center for the Study of Democracy, Corruption and
anti-corruption in Bulgaria (2012-2013), Policy Brief No. 43, November 2013.
According to the Corruption Perceptions Index 2013 published by Transparency
International, Bulgaria ranks second highest among the EU Member States with
regard to the perceived level of corruption. (http://www.transparency.org/cpi2013)

[51] SWD(2012) 232 final,  p. 19.

[52] See e.g. theBulgarian country profile in the World
Justice Project Rule of Law Index 2012-2013, http://worldjusticeproject.org/sites/default/files/WJP\_Index\_Report\_2012.pdf,
p. 71.

[53] Section IV.

[54] SWD(2012) 232 final, p. 20.

[55]
http://alpharesearch.bg/userfiles/file/1013\_Public\_Opinion\_Alpha%20Research.pdf

[56] That is, not
specifying the particular criminal act having been committed.

[57] Concerning EU fraud
cases, OLAF currently has 30 investigations and coordination cases where
Bulgaria is the country involved and Structural and Agricultural Funds are
concerned. These cases are mainly focused on possible irregularities and fraud
with the Public Procurement carried out by certain beneficiaries and to the
existence of conflict of interest between different stakeholders responsible
for the correct disbursement of the EU funds. Furthermore, OLAF is monitoring
39 cases where judicial or financial recommendations for actions have been
addressed to the responsible national authorities.

[58] Flash Eurobarometer 351 of July 2012.

[59] Transparency International, Corruption Perceptions
Index 2013; United Nations Development Programme, Human Development Index;
Center for the Study of Democracy, Corruption and anti-corruption in Bulgaria
(2012-2013), policy Brief No. 43, November 2013.

[60] Center for the Study of Democracy, Corruption and
anti-corruption in Bulgaria (2012-2013), policy Brief No. 43, November 2013.

[61] The 2013 Global
Competitiveness Report lists corruption as the most problematic factor for
doing business in Bulgaria.
http://www3.weforum.org/docs/WEF\_GlobalCompetitivenessReport\_2013-14.pdf  p.
138.

[62] Forthcoming.

[63] COM(2012) 411 final, p. 21.

[64] Source: Bulgarian
authorities.

[65] The current
provisions on bribery and trading in influence provide a fairly sound basis for
the prosecution of various corruption offences, according to the Council of
Europe's Group of States against Corruption (GRECO). http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoEval3%282009%297\_Bulgaria\_One\_EN.pdf

[66] See "Corruption
and anti-corruption in Bulgaria 2012-2013", Center for the Study of
Democracy, Policy Brief No 43, November 2013, p. 10. Only 42 persons were
convicted of bribery in the first half of 2013 representing 0.3 per cent of the
total number of convicted persons.

[67]This
includes changes at the regional level - see Center for the Study of Democracy,
in Latest Political Appointments and the Capacity of Law Enforcement to
tackle Corruption and Organised Crime in Bulgaria, November 2013.,

[68] See http://borkor.government.bg/bg/page/437.
According to information provided by Borkor, object of analysis are around
80,000 cases of public purchasing accomplished in the last five years in
Bulgaria. The study has not been seen by the Commission services.

[69] COM (2012) 411 final, p.
18.

[70] E-procurement can
play an important role in increasing transparency in public procurement
procedures.

[71] A court case against a group accused and in first
instance convicted of organising and carrying out contract killings.

[72]
https://www.europol.europa.eu/sites/default/files/publications/europolreview2012\_0.pdf

[73] Organised crime in Bulgaria is reported to enjoy
political patronage through corruption in public administration, the judiciary,
police and customs. "Study to examine the links between organised crime
and corruption", Philip Gounev and Tihomir Bezlov, Center for the Study of
Democracy, 2010.

[74] According to the Bulgarian authorities, the
analysis identified deficiencies related to a number of areas including:
certifying witnesses; bank secrecy; gathering of evidence; indictment;
coordination and cooperation among investigation bodies and prosecution;
special investigation devices; training, specialisation and qualification of
investigation bodies and prosecutors; problems with professional integrity and
replacement of prosecutors/investigators; international legal assistance; case
postponement/non-appearance of participants in the process, submission of
medical certificates of accused and defendants/difficulties with summons;
returning the case to pre-trial stage due to procedural breaches; delaying the
case to a higher court instance due to a slow drafting of motives for the
sentence by first-instance court/delayed submission thereof; disqualification;
expert examinations; theft of evidence.

[75] COM (2012) 411 final,
p. 13.

[76] Bulgaria reports that the amounts forfeited has
steadily increased over the years from 9 million BGN in 2011, to 12 million BGN
in 2012 and an expected 15 million BGN in 2013. However, these figures refer to
cases under the old rules and cannot be used as an indication of the efficacy
of the new regime.

[77] The question appears to be whether there needs to
be a causal link between criminal offense and conviction. Therefore, the case
may have implications for non-conviction based confiscation.

[78] COM(2011)459final, p. 8-9.

[79] COM(2012) 411 final, p.12; SWD(2012) 232 final, p.
32.

[80] At 15.10.2013 the
Specialised Criminal Court (SCC) included 10 judges on the payroll, as well as
three delegated judges. From 01.07.2012 to 15.10.2013 the court has launched
proceedings on 2,595 cases. 208 persons were tried over the period – including
187 sentenced and 21 acquitted. A total of 107 verdicts of imprisonment were
ruled and have been carried out.

[81] The prosecution
service is in principle obliged to deal with all incoming cases in a
comprehensive way.

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