memorandum by Mr Volontè, rapporteur
Bulgaria became a member of the Council of Europe
in 1992. Upon accession, the Bulgarian authorities undertook a number
of specific commitments, contained in Parliamentary Assembly Opinion 161 (1992)
, which, together with statutory obligations, set the
basis for the monitoring procedure lasting until 2000. In Resolution 1211 (2000)
, the Assembly decided to close the monitoring procedure
and to open a post-monitoring dialogue with the Bulgarian authorities
“on the issues referred to in paragraph 4 [of Resolution 1211
], or any other issues arising from the obligations of
Bulgaria as a member State of the Council of Europe”.
Since then, only one report on the progress made by Bulgaria
has been presented by the Monitoring Committee, in April 2010.Note
This can be explained partly by
the fact that, before the revision of the Rules of Procedure of
the Parliamentary Assembly in 2009,Note
there had been no formal deadline
for the presentation of reports on post-monitoring dialogue. Moreover,
the Chairperson of the Monitoring
Committee was ex officio
on all countries engaged in post-monitoring dialogue. Two former
chairpersons, Ms Hanne Severinsen and Mr Serhiy Holovaty, had visited
Sofia and pursued the dialogue with the authorities.Note
3 Furthermore, in 2007, Bulgaria became a full member of the
European Union. The accession was preceded by an important reform
process aimed at the introduction, implementation and consolidation
of European standards. Important legislation was introduced under
the auspices of the European Union, in co-operation with Council
of Europe legal experts, and it was clear that the country was advancing
in the right direction.
Upon Bulgaria’s accession, the European Commission established
a mechanism for co-operation and verification of progress in the
country (CVM) in order to address specific concerns in the areas
of judicial reform and the fight against corruption and organised
crime. The fifth and most recent report under this mechanism was
published by the European Commission in July 2012.Note
have used the findings of successive CVM reports in the present
5 In order to ensure better co-ordination and co-operation between
monitoring mechanisms of both Organisations, I went to the European
Commission in Brussels on 23 November 2012, where I met officials responsible
for the CVM. We held an interesting exchange of views on the situation
Successive elections, including parliamentary elections in
July 2009 and the presidential election in October 2011, were observed
by the Parliamentary Assembly. The respective reports prepared by
the ad hoc committees to observe the elections were presented and
debated in the Assembly.Note
In the present report, I have also
used the conclusions of these observation teams.
7 I was appointed rapporteur on the post-monitoring dialogue
with Bulgaria in June 2010. I carried out two fact-finding visits
to this country: from 19 to 22 December 2011 and on 26 and 27 September
2012. The purpose of both visits was to collect information about
the developments since the last debate in the Assembly and to assess
not only the progress being made in the implementation of the outstanding
issues as regards the obligations and commitments but also the authorities’
commitment to continue the direction of the reforms and the prospects
for the future.
8 I also used these opportunities to take a closer look at some
concerns expressed by the international community, in particular
with regard to the situation of Roma and other minorities, and some
worrying developments, such as the incident provoked by the Ataka
9 During the visits, I held a wide range of meetings including,
on the one hand, the highest representatives of the legislative,
executive and judicial authorities and, on the other, representatives
of national and international civil society. I used every opportunity
to listen to the latter, including during the Parliamentary Assembly’s
sessions in Strasbourg.
10 In the preparation of the present report, I have also used
the findings and conclusions of the relevant institutions and monitoring
mechanisms attached to the conventions of the Council of Europe
to which Bulgaria is a party. The work of the following bodies has
been taken into account: the European Court of Human Rights (“the
Court”), the Committee of Ministers in its supervisory function
of the execution of the Court’s judgments, the Commissioner for
Human Rights, the Congress of Local and Regional Authorities of
the Council of Europe, the Group of States against Corruption (GRECO),
the Committee of Experts on the Evaluation of Anti-Money Laundering
Measures and the Financing of Terrorism (MONEYVAL), the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT), the Advisory Committee on the Framework
Convention for the Protection of National Minorities and the European
Commission against Racism and Intolerance (ECRI).
11 My general impression is that the Bulgarian Government has
shown and continues to demonstrate a sustained political will and
commitment to achieve the full accomplishment of its obligations
and commitments resulting from membership of the Council of Europe.
Immense legislative work has been completed and some crucial reforms
have been carried out.
12 The Bulgarian authorities have developed very fruitful co-operation
with the European Commission for Democracy through Law (Venice Commission),
which has provided its legal expertise on the most important legislative
acts adopted over the last few years, including the Law on Forfeiture,
numerous amendments to the Judicial System Act and the Election
Code. Furthermore, the Ministry of Justice has closely co-operated
with the Council of Europe’s Directorate of Legal Advice and Public
International Law on the penal code, currently under preparation.
In its opinions, the Venice Commission has stressed the very good
co-operation with the Bulgarian authorities and their receptiveness
to its recommendations. During my visits, the authorities reiterated
their continued intention to use the legal expertise of the Venice
Commission and of the Council of Europe in general
13 In the present report, I will endeavour to assess whether
the reform process is sustainable and irreversible, and in particular
whether it is sufficiently entrenched in Bulgarian society and politics
for the direction of reform to be maintained.
14 Last but not least, I wish to extend my gratitude to the Bulgarian
parliamentary delegation to the Parliamentary Assembly and to its
Secretariat for the excellent organisation of both my visits and
the help they provided in collecting from the different authorities
information which I needed for the preparation of the present report.
15 The last parliamentary elections took place on 5
July 2009, bringing to power a new centre-right party, Citizens
for European Development of Bulgaria (GERB), established in 2006.
It won 39.7% of the votes, securing 116 seats out of a total of
240 and overthrowing the former parliamentary majority led by the
Bulgarian Socialist Party (BSP). Its leader, Mr Boyko Borisov, who
was appointed Prime Minister, chose to form a minority government,
which enjoys the support of other small right-wing parties.
The Parliamentary Assembly set up an ad hoc committee to
observe the elections, which acted as part of an International Election
Observation Mission (IEOM). The IEOM concluded that “the 5 July
elections were generally in accordance with OSCE commitments and
Council of Europe standards; however further efforts are necessary
to ensure the integrity of the election process and increase public
17 The observers noted that the elections provided voters with
a broad choice in a visible and active election campaign demonstrating
respect for fundamental freedoms. However, late changes to the election system,
the lack of legal provisions for free airtime on public broadcasting
channels for those running in the elections, insufficient rules
on financial disclosure in the electoral context, as well as persistent
allegations of vote-buying, negatively affected the election environment.
18 The winning party’s stated priority during the electoral campaign
was the fight against corruption and organised crime; two concerns
which, according to the polls, are perceived by the majority of
Bulgarians as the main obstacles to the economic growth and prosperity
of their country and which is confirmed by the international economic
institutions. GERB insisted on the fact that Bulgaria’s financial
aid from the European Union was cut in 2008 due to the inability
of the government led by the Bulgarian Socialist Party (BSP) to
19 The most recent presidential election took place on 23 and
30 October 2011. It was won by the representative of the GERB party,
Mr Rosen Plevneliev, who won 40.11% of votes in the first round
and 52.58% in the runoff. The second major candidate, Mr Ivaylo
Kalfin from the Bulgarian Socialist Party, received respectively
28.96% and 47.42%.
The election was observed by an ad hoc committee of the Assembly
acting as part of an IEOM, which, in its conclusions,Note
made an overall positive assessment
of the electoral process, but said that further reforms were needed
to address concerns such as pervasive allegations of vote-buying
and unsatisfactory modalities of the election’s coverage in the
21 The victory of the ruling party’s candidate confirmed the
widespread support for the government’s policies implemented since
2009, including for its determination and commitment to guaranteeing
the rule of law and fighting corruption and organised crime.
22 Membership of the eurozone and the Schengen area remain the
principle objectives of Bulgaria’s European policy. In September
2011, the Dutch Government vetoed the Schengen accessions of Bulgaria
and Romania, referring to insufficient results in the fight against
corruption and organised crime, and the decision was postponed.
The question was on the agenda of the meetings of the European Union
Justice and Home Affairs Council held in Luxembourg on 25 and 26
October 2012 and in Brussels on 6 and 7 December 2012.
23 Regrettably, recent years have been marked by a rise in nationalist
ideology and action. In the run-up to the last presidential election,
one of the candidates for the presidential post was Mr Volen Siderov,
the leader of the Bulgarian ultra-nationalist party, Ataka, who
called on his supporters to demonstrate against Muslims. On 20 May
2011, his followers attacked several Muslims who had gathered for
their usual Friday prayers in the main mosque in downtown Sofia,
injuring some of them. It has to be stressed, however, that this
incident was immediately condemned by the authorities, including
Prime Minister Boyko Borisiv. The National Assembly adopted a declaration
“unconditionally condemning the aggressive conduct of the Ataka
Political Party in respect of believers in the centre of the capital
on 20 May 2011”.
The climate of growing hostility towards minorities was also
confirmed by the violence against Roma in October 2011, a sad precedent
in Bulgaria. There were violent demonstrations in Sofia and 14 other
cities, including Plovdiv, Varna and Pleven. Participation was estimated
at half a million, out of a population of 7.5 million. These demonstrations
followed the riots in Katuniza village, which started when the inhabitants attacked
a Roma family accused of the assassination of a youth.Note
25 In the last parliamentary elections in 2009, Ataka gained
9.4% of the votes and won 21 seats, remaining the fourth largest
party in Bulgaria. However, since then, 11 deputies have left the
parliamentary group and it currently has only 10 members.
26 On 18 July 2012, Bulgaria was shaken by a terrorist attack
against Israeli tourists, which took place at the Sarafovo Airport
in Burgas and took the lives of seven people, 30 others being injured.
The investigation, in close co-operation with Euro-Atlantic partners,
is still ongoing. So far, this tragic event has remained an isolated
act of this kind in Bulgaria.
3 Outstanding concerns
identified in the last report
27 In the last report on the post-monitoring dialogue
with Bulgaria, debated in April 2010, the Assembly welcomed the
important measures taken by the authorities with a view to fulfilling
the country’s outstanding obligations and commitments.
28 It recognised the steady progress in the implementation of
the Assembly recommendations; it also acknowledged the reform process
directed towards the introduction, implementation and consolidation
of European standards, which had allowed Bulgaria to join the European
29 However, in its assessment in 2010, the Assembly considered
that, in order to meet the strenuous accession deadlines, some reforms
had been accomplished in haste and had proved to be insufficient
and required further action. In the following chapters, I shall
come back to these outstanding concerns, as identified in the last
report, and assess the progress made since then.
3.1 Functioning of
30 Overall, Bulgaria has made impressive progress in
terms of legislative work with regard to the functioning of the
judiciary since the closure of the monitoring procedure, in particular
over the last five years, following its accession to the European
In its numerous opinions on the judicial system in Bulgaria,
in particular those adopted in 1999, 2002 and 2003,Note
the Venice Commission had
identified a number of concerns having a negative impact on the functioning
of the judiciary and, in particular, its independence, accountability
32 It has to be acknowledged that the Bulgarian authorities have
shown receptiveness to the criticism and have invested substantial
effort in remedying the deficiencies, in particular, the constitutional
amendments of February 2007, aimed at improving the framework for
judicial independence, its impartiality and accountability.
Regrettably, this was one of the rare cases when the Bulgarian
authorities did not seek the expertise of the Venice Commission
prior to initiating the legislative process. The Venice Commission
opinion was delivered at the request of the Monitoring Committee
only after the adoption of the amendments.Note
result, the constitutional amendments did not address several issues
already identified as being problematic in earlier opinions of the
While some of these concerns were subsequently addressed by
the Bulgarian authorities through the introduction of successive
amendments to the Judicial System Act adopted respectively in 2009
problems remained unsolved and were highlighted by the CVM periodic
reports and in the Assembly report of 2010.
35 In its opinion of 2008, the Venice Commission concluded that,
in the context of the judicial system in Bulgaria, a number of issues
with regard to the judiciary, which are generally in conformity
with European standards and in line with constitutional practice
in other European States, called for further improvement, as they
create the risk of undue influence on the judiciary. These concerns,
unaddressed before the debate on the 2010 report on Bulgaria, included
the role of the Minister of Justice in the Supreme Judicial Council
(SJC), the structure of the SJC and the method of appointment of
its members, the “blanket” immunity of judges, the probationary
period of five years for new judges, and the broad powers of the
inspectors, with the risk of their interference in the administration
36 During my visits to Sofia, the question of the role of the
Minister of Justice in the SJC was the subject of my discussions
with many interlocutors, including the Minister herself and representatives
of the judiciary and the legislature. Almost all of them stressed
that the role of the Minister in the SJC should not be overestimated, as
it is limited in that the Minister has the right to chair but not
37 That may be the case, but when combined with other extensive
powers, such as exclusive power to propose a draft budget for the
judiciary and submit it to the SJC for consideration, to make proposals
for appointment, promotion, demotion, transfer and removal from
office and to manage the property of the judiciary, the role of
the Minister remains problematic and may compromise the independence
of the judicial branch.
However, I should point out here that, in contrast to the
Venice Commission opinion, the reports of the European Commission
did not highlight the role of the Minister in the SJC as an area
of concern. In the last CVM report,Note
was stressed that, over the past five years, ministers of justice
had not interfered in the issue of management and careers.
39 To my satisfaction, it seems that the authorities’ position
in this respect has evolved recently. During my last visit in September
2012, I was told that the question of the role of the minister of
justice in the SJC was the subject of further reflection. I trust
that the authorities will follow the Venice Commission’s recommendations
in this respect.
40 The second main concern relating to the structure of the SJC
was not addressed either by the 2007 constitutional amendments or
any later amendments to the Judicial System Act (JSA). Eleven members
(out of 25) are still elected by parliament by a simple majority
of votes. As a result, in all past elections, the members were systematically
elected by the respective governmental majority against the votes
of the opposition.
According to the experts from the Venice Commission, the composition
of the Council, as set out in the Supreme Council Act, is not in
itself objectionable. It could work perfectly well in a settled
democracy, where the administration of justice is by and large above
conflict of party politics, and where the independence of the judiciary
is well established. However, in the specific situation of Bulgaria,
the risk of politicisation of the election procedures cannot be
excluded. This concern has also been echoed by independent experts
assessing the judicial reform for the European Commission.Note
42 According to the critics, the previous selection procedures
for the parliamentary quota of the SJC did not lead to appointments
seen to be determined by the professionalism and integrity of the
candidates. During my first visit to Sofia in 2011, I heard criticism
of the July 2011 elections for vacancies in the SJC from the parliamentary
quota, about the lack of transparency of the procedure and the lack
of public debate on nominated candidates.
43 I discussed this question extensively with different stakeholders,
including the Minister of Justice and other representatives of the
executive, the Speaker of Parliament and other representatives of
the legislature and, last but not least, representatives of the
judiciary, including the President of the Supreme Court, the Prosecutor
General and representatives of the Bulgarian Judges Association.
44 I heard a number of arguments against the introduction of
a qualified majority vote in the election of the parliamentary quota.
Some of them were of a formal nature: such a change would require
a constitutional amendment, and it was highly unlikely that a consensus
for the revision of the constitution would be reached under the
present legislature. But, more importantly, my interlocutors, including
those from the judiciary, did not really see the point in enacting
45 I was surprised to hear the opinion expressed by many interlocutors,
including the Bulgarian Judges Association, that the requirement
of a two-thirds majority in parliament would result in even more
undesirable political bargaining than had been witnessed in previous
elections. Almost all my interlocutors seemed not to see political
consensus and compromise as a positive element of the process.
In their view, the main focus should be on improvement of
the transparency and credibility of the parliamentary quota selection
and nomination procedure. Indeed, the recent efforts of the authorities
and, in particular, amendments to the Judicial System Act, introduced
focused on this issue. The
amended law establishes strict rules for the entire nomination and
selection procedure, based on public involvement and transparency
and providing, among others, for public hearings of nominees.
47 The election under this new procedure coincided with my last
visit in September 2012. While this development is certainly to
be welcomed, I encourage the Bulgarian authorities to return to
the question of the parliamentary majority required for the election
of the parliamentary component. Indeed, the problem related to the
simple majority vote may be well illustrated by the fact that out
of five Supreme Judicial Councils since the establishment of this
institution, only two have completed their full term of office.
By making amendments to the Judicial System Act in the wake of elections,
each new majority in parliament has terminated the term of the SJC
constituted under the previous majority.
48 My interlocutors also argued that the members of the Inspectorate,
which is designed as a subsidiary organ to the SJC introduced by
the 2007 amendments, are elected by a two-thirds majority of the
parliament, and that that is a sufficient safeguard against the
politicisation of the whole institution. Indeed, the establishment
of the Inspectorate and the procedure for its appointment constitute
an important step towards the independence of the judiciary. I will
devote more attention to this in a later part of the present report.
49 The third main concern regarding the judicial system in Bulgaria
identified by the Venice Commission concerns the representation
of judges, prosecutors and investigators in a single body, which
is the SJC. While there is no objection to prosecutors sitting on
an equal footing with judges, as happens in many countries, it is important
to maintain the distinction between them and ensure that they have
no mutual influence on questions of the appointment, discipline
and dismissal of one another. Furthermore, as a matter of principle,
the prosecution should have no involvement in the ultimate administration
of justice, nor in the appointment and functioning of judges, or
in the operation of the court system.
50 My interlocutors argued that the established practice is that
judges constitute a majority within the SJC. Indeed, the judicial
component is composed of six judges, four prosecutors and one investigator,
and the parliamentary component is made up of the same proportions.
However, an established practice cannot replace a constitutional
guarantee. Furthermore, a situation in which a majority of judges
decides on appointments and promotions of prosecutors and investigators
is also undesirable.
51 It is true – as pointed out by my interlocutors in the Ministry
of Justice – that the 2011 amendments to the Judicial System Act
provided that the SJC Standing Committee be made up of two separate
sub-committees: the sub-committee on judges and the sub-committee
on prosecutors and investigators. The Standing Committee is responsible
for proposals concerning the assignment and career development of judges,
prosecutors and investigators, and the fact that it deliberates
in distinctive sub-committees on prosecutors and judges is, in the
Ministry’s opinion, a sufficient safeguard of non-interference.
52 However, the Union of Judges of Bulgaria, representing approximately
50% of all judges in the country, whose representatives I met during
my last visit in September 2012, considers this safeguard as being insufficient.
In their opinion, setting up two sub-committees within the structure
of one commission responsible for performance assessment, without
any effective distinction of the powers of the SJC to decide on appointments,
dismissals, promotion, demotion and disciplinary matters, fails
to address the existing problems. In any case – they argued – the
work of the sub-committees is superfluous as the legally binding
decision is taken by the collective body. Furthermore, the Disciplinary
Committee of the SJC, which has competence to propose sanctions
to be levied on judges and prosecutors, is not sub-divided into
two specialised sub-committees.
The authorities argue that, according to the constitution,
the SJC is a collective body which can only make decisions by a
relevant majority. Therefore, it is impossible to divide it into
two chambers taking decisions separately. The legal experts of the
Venice Commission see no problem in principle with a single judicial council
dealing with the three separate branches of the judiciary, provided
appropriate specialised committees deal with matters pertaining
to the particular branches of the judicial arm so as to ensure that
there is no risk of influence being brought by one branch on the
With regard to the fourth concern raised by the Venice Commission,
I note with satisfaction that the 2007 amendments to the constitution
provided for the civil and criminal immunity of judges, prosecutors
and investigating magistrates to extend only to their official acts
and that, even then, their immunity does not extend to acts which
constitute an indictable intentional offence. Thus, the relevant
recommendation of Assembly Resolution
and the Venice Commission’s recommendations have been
Unfortunately, another recommendation of the Venice Commission
from its 2002 opinionNote
concerning the abolition or shortening of the probationary period
of three years for judges, has not been followed, and the 2007 constitutional
amendments even extended it to five years. Probationary periods
raise in principle serious difficulties for judicial independence,
but if they are foreseen in the law, they should not be longer than
is needed to assess a judge’s competences.
56 This brings me to a more general concern, raised by the Union
of Judges of Bulgaria and some non-governmental organisations (NGOs),
about the independence of the judiciary and the risk of its politicisation. The
representatives I met during my last visit pointed in particular
to the deficiencies in the system of assessing the performance of
judges, prosecutors and investigating magistrates, the lack of clear
and consistent standards for performance assessment and other problems
relating to the career development of magistrates.
57 They referred to a number of judicial appointments which lacked
the necessary level of transparency and credibility, such as an
important senior appointment by the SJC in November 2010. Another
controversial appointment by the SJC of a chairperson of the Sofia
City Court took place in May 2011, when the December amendments
of the Judicial System Act were already in force. As a protest,
two members of the SJC resigned and criticised the appointment decisions
as being pre-determined. Recently, a controversial appointment to
the Constitutional Court resulted in a political scandal before
being cancelled by parliament.
58 The accountability of the judiciary was another area of serious
concern. Several disciplinary cases, including the emblematic case
of the dismissal of Judge Miroslava Todorova, were considered to
be controversial by the Union of Judges. The lack of consistent
disciplinary practice leaves considerable room for arbitrary decisions.
59 Before 2007, cases of disciplinary proceedings against magistrates
were extremely rare. The abolition of the “blanket immunity” recommended
by the Venice Commission was an important step on the way to increasing
the accountability of the judiciary in Bulgaria. The adoption of
the code of ethics in 2009 constituted the next important step forward.
Between January 2007 and December 2011, as many as 179 disciplinary proceedings,
based on violations of the Code of Ethics, were treated by the SJC
and resulted in 137 sanctions, most of which were reprimands and
60 However, there are major concerns about disciplinary proceedings
applied following transgression. Criticism concerned firstly the
lack of consistency in sanctions (notably in cases concerning delays
in motivation of decisions) and, secondly, some emblematic cases
when no criminal proceedings against magistrates were initiated
by the prosecution despite plausible signs pointing to offences.
These problems remain a major factor undermining trust in the independence
of the judiciary.
This concern is closely linked to shortcomings in judicial
practice, which, until recently, remained a systemic problem of
the Bulgarian judiciary, as illustrated by almost 110 unimplemented
decisions of the European Court of Human Rights relating to the
excessive length of judicial proceedings and lack of an effective
remedy. The problem is widespread in criminal, civil and administrative
cases. In May 2011, the Court issued two pilot judgments, Dmitrov and Hamanov v. Bulgaria
and Finger v. Bulgaria
systemic lack of effective legal remedies for unreasonably lengthy
62 The authorities argue that much has been done to address all
these concerns. The Judicial System Act of 2007 has undergone numerous
amendments in line with the recommendations of the Venice Commission experts.
In particular, the establishment of the Inspectorate, a subsidiary
organ of the SJC, already mentioned above, constituted an important
step in the right direction.
63 The Inspectorate became operational in 2008 and, by December
2011, it had carried out inspections of all the judicial bodies
in Bulgaria. Its reports led to improvements in the celerity of
judicial proceedings and the harmonisation of judicial practice.
They also resulted in a more active role for the administrative
heads and improved the accountability of individual magistrates,
notably through disciplinary action. The Inspectorate can act ex officio or based on complaints
from citizens, State bodies, legal entities or judicial bodies.
It has full discretion to plan its activities. The two-thirds majority
requirement for its election means that it should enjoy the support
of a wider spectrum of political parties represented in parliament.
64 The SJC has sought to ensure a proper follow-up to the Inspectorate’s
recommendations. A special commission was set up to ensure alignment
of disciplinary practice. All recommendations are published on the SJC
website to give visibility to the problems identified by the Inspectorate.
65 The 2009 amendments gave the Inspectorate the right to appeal
disciplinary decisions of the SJC, which has given an extra control
over the fairness and impartiality of disciplinary procedures.
66 In June 2010, the government adopted the Strategy to Continue
the Judicial Reform. It is aimed at increasing public confidence,
improving management and countering corruption in the judiciary.
It was drawn up in partnership with leading non-governmental organisations
and is co-ordinated with the magistrate community.
67 In the same year, new procedures were introduced for appointments
and appraisals of magistrates, notably through decentralised appraisal
commissions. The amended system introduces new appraisal elements,
such as the scoring of magistrates’ integrity and scoring by the
SJC Inspectorate on the basis of inspections performed.
68 The most recent amendments of 2012 have been of particular
importance for the selection of members of the SJC.
69 A number of steps have been taken to improve judicial and
investigative practice. I have already mentioned the work of the
Inspectorate in this respect. Some other measures will be considered
below, in the chapter on the fight against corruption and organised
crime. I should also mention here the amendments to the Judicial
System Act of 2012, which provided for the establishment of a legal
tool within the Inspectorate, attached to the Supreme Judicial Council,
for compensation for damages resulting from delays in the judicial process.
This specialised unit is tasked with the consideration of complaints
against lengthy proceedings and the assessment of their validity.
The procedure also provides for a simplified way of obtaining compensation aligned
with the levels of compensation awarded by the European Court of
Human Rights in its final judgments.
70 In conclusion, the legislative framework has, to a great extent,
already been put in place. What is still lacking is effective implementation
of the legislation and full use of its potential.
71 The SJC has the powers needed effectively to discharge its
managerial functions and to safeguard the independence and accountability
of the judiciary. In particular, it is competent with regard to
the organisation of the justice system, the planning and execution
of the budget, human resources management, and integrity and disciplinary
matters. Thus, it is well equipped to tackle existing problems such
as disparities in workload, systems for appraisal and promotion,
senior appointments conducted by the Council, systems for promoting ethics
and integrity and the application of disciplinary measures.
72 Unfortunately, up to now, the SJC has not used its potential
to the full. It has not developed a human resources strategy which
would encourage independence and integrity. It faces continued criticism
from the public and from within the judiciary. And yet, the appointment
of highly competent judges of unquestionable integrity via transparent
procedures is a necessary precondition for the successful implementation
of the judicial reform.
73 The latest elections to the SJC of September 2012, conducted
according to the new transparent procedure, allow for cautious optimism
as to its future action, but more time is needed to assess the results.
74 Similarly, according to some, the Inspectorate’s work has
not had a decisive impact on remedying the outstanding problems
of the judicial system. For example, it has not contributed in a
significant way to such systemic problems as uneven distribution
of workload across judicial bodies, wide variations in the size
of judicial districts, the establishment of clear criteria for assessment
of the complexity of cases and its impact on the distribution of
the workload. This question is essential for the assessment of judges’
efficiency, and, as a consequence, for their career prospects.
The foregoing critical remarks are confirmed by the results
of the Eurobarometer poll, which showed that 92% of Bulgarians consider
shortcomings in the judicial system to be an important issue for
In his valuable comments on the
present report, a Bulgarian member of the Monitoring Committee,
Mr Yanaki Stoilov, representing the opposition in the Bulgarian
Parliament, pointed to the growing feeling among the Bulgarian population
that the courts are susceptible to political pressure (up from 70%
in 2010 to 81% in 2012), economic pressure (up from 65% in 2010
to 77% in 2012) and pressure by criminal groups (up from 62% in 2010
to 72% in 2012).
In Resolution 1730
, the Assembly called on the Bulgarian authorities to
revise the Penal Code and the Penal Procedure Code, in consultation
with the Venice Commission. CVM reports have also consistently noted
that the Bulgarian criminal justice system suffers from an outdated
Penal Code. The current Penal Code, which dates back to 1968, has
been amended over 50 times and is considered by many practitioners
to be ill-suited for modern-day crimes.
Work on the elaboration of a new penal code began in 2009.
A draft section on general provisions was published for consultation
in January 2012 and work on the specialised provisions has been
pursued. The authorities have been co-operating closely with the
Council of Europe, as recommended in Resolution 1730 (2010)
. During my last visit, it seemed clear that there was
little chance of having the Penal Code adopted by the present legislature.
For this to happen, it would have to be sent to parliament without
further delay, whereas consultations with the Council of Europe
legal experts are still underway.
78 According to a more realistic timetable, the new penal code
will only be debated and adopted by the parliament elected in the
July 2013 elections. I am convinced – and this is the opinion shared
by many interlocutors – that we should not insist on speeding up
the work on the penal code. This legal act is too important to be
adopted in a rush for political convenience. As I said, the Council
of Europe experts are extensively involved in the preparation process.
I am confident that the future penal code will comply with
European standards and in particular that it will exclude defamation
and insult from the criminal sphere, as recommended in Resolution 1730 (2010)
The Penal Procedure Code has been identified as one of the
major factors hampering the effectiveness of criminal justice in
Bulgaria. In Resolution
, the Assembly called on the Bulgarian authorities to amend
the code with a view to streamlining and enhancing the effectiveness
of criminal proceedings. This was done and the amendments were adopted
in 2010. Following the Court’s pilot judgment concerning Bulgaria with
regard to unreasonably long judicial proceedings, additional amendments
to the Penal Procedure Code were introduced in November 2011. I
will come back to this issue in more detail under the chapter on
the execution of the Court’s judgments.
81 In conclusion, it has to be recognised that progress in the
area of the judiciary is undeniable and important measures have
been taken since the last debate in the Assembly, in 2010. They
have considerable bearing on the independence of the judiciary in
Bulgaria. I also have no doubt about the authorities’ commitment
to continuing in the right direction and I am confident that they
will ensure effective implementation of the reforms.
3.2 Fight against corruption
and organised crime
Unfortunately, some concerns relating to the judicial
system are easily identifiable in the difficulties faced in the
fight against corruption. In particular, high level corruption has
been consistently considered as a major problem in Bulgaria. This
is confirmed by the specialised agencies of the Council of Europe,
by the European Union in its successive CVM reports, including the
last one published in July 2012, and by other international organisations.
In its 2011 Corruption Perception Index, Transparency International
ranked Bulgaria 86th out of a total 183 countries, with a score
of 3.3 on a scale of 0 (highly corrupt) to 10 (very clean). The
Eurobarometer poll has shown that 96% of Bulgarians consider corruption
to be a major problem in their country.Note Note
83 In economic terms, corruption significantly lowers the quality
of the business environment and reduces the competitiveness of Bulgarian
84 It should be recognised that the authorities visibly increased
their efforts to combat corruption after Bulgaria’s accession to
the European Union. This was also the main declared policy goal
of the parliamentary majority which came to power in 2009. Since
then, Bulgaria has put in place numerous instruments to allow the prosecution
of corruption-related offences, including the strengthened law on
conflict of interests, adopted in November 2010, and has developed
a comprehensive administrative framework and prevention measures. The
new penal code, currently under preparation in co-operation with
Council of Europe legal experts, will further improve the legislative
However, further legal improvements in the criminalisation
of corruption were recommended in the last report of GRECO, published
in November 2010.Note
There is a need
to clearly incriminate bribery and trading in influence in the various
situations when the beneficiary of the undue advantage is a third
person. Moreover, despite legal changes introduced in 2002, the
concept of undue advantage is interpreted too narrowly in practice
as implying a material benefit which has a market value.
86 Unfortunately, the results achieved demonstrate that the fight
against corruption, in particular at a high level, has not been
entirely successful. This low efficiency is confirmed by the lack
of results in terms of final court rulings. While, in recent years,
there has been some increase in the number of final convictions
in cases relating to corruption in general (some 100 to 200 cases
a year), there have been very few final and enforced verdicts concerning
87 This regrettable situation can be explained, to a great extent,
by two main reasons: firstly by deficiencies in investigatory procedures
and, secondly, by the weakness of judicial practice.
With regard to the former, the main concern identified by
the European Union is the lack of independent institutions in the
area of anticorruption with the authority and the obligation to
make proposals, to intervene in a proactive way and to ensure independent
monitoring. The existing institutions are subordinated to the executive
and thus have limited freedom to initiate action. They also suffer
from insufficient capacity to conduct complex financial investigations.
The very limited scope of investigation indictments is another problem.
The analysis of some of the emblematic corruption cases by the experts
of the European Commission in 2011Note
serious shortcomings in the collection of evidence, the protection
of witnesses and the general lack of investigation strategies, comprehensive
financial investigations and securing of assets. Co-ordination within the
prosecution and between the prosecution and the police was also
89 With a view to remedying the situation, separate units for
the fight against corruption have been set up within the prosecution.
In 2012, joint investigation teams, composed of magistrates and
police on high-level corruption, were set up. Specialised training
was provided. An internal specialised network of prosecutors for counteracting
corruption was established and systematic co-operation with the
European Union on technical assistance (either through bilateral
or EU-funded projects) was put in place. It is too early, however,
to assess the impact of these measures on the quality of investigations.
90 Judicial practice is another concern. Court practice is permissive
and excessively cautious, overly attentive to procedures at the
expense of delivering justice. On the other hand, many emblematic
cases have suffered from procedural errors. A number of acquittals
in cases involving high-level corruption, fraud and organised crime
have exposed serious deficiencies in judicial practice in Bulgaria.
91 Regrettably, they have not been properly analysed or followed
up by the leadership of the judiciary, the Supreme Judicial Council,
the General Prosecutor and the President of the Supreme Court of
Cassation. Long and unjustified delays in proceedings are also very
detrimental to the process. This highly unsatisfactory situation
may well be illustrated by the emblematic cases of fraud concerning
European Union funds. Investigations into alleged corruption and
abuse of office by magistrates have received a particularly weak response
from the judiciary.
92 However, some progress in the fight against corruption can
be noted. Over the last five years, Bulgaria has adopted several
anti-corruption strategies and action plans and a number of different
State institutions have been involved in their implementation. The
much increased involvement of civil society in the fight against corruption
is certainly a positive development. Over the years, civil society
itself has become more engaged and better equipped to monitor the
situation and send alerts.
93 As mentioned above, amendments to the Penal Procedure Code
introduced in 2010 and a strict monitoring of high-level cases by
the SJC have had a positive impact on judicial practice. An important
step in the right direction is the reform of the judicial structures
that deal with cases of organised crime. A specialised criminal
court and prosecution office were established in January 2012.
94 Furthermore, since the last Assembly debate in 2010, the Bulgarian
authorities have pursued plans to strengthen asset forfeiture in
line with recommendations by the Council of Europe and the European
Union. A new legislative act was prepared in co-operation with the
Venice Commission but it was rejected by the parliament in July
2011. At the request of the Bulgarian authorities, the Venice Commission
provided opinions on several drafts.
95 Finally, a revised draft Law on Forfeiture in favour of the
State of Illegally Acquired Assets was adopted in May 2012. It introduced
a non-conviction based civil forfeiture and thus enables the State
to recover not only assets derived from criminal activities, but
also all assets “illegally acquired” by a person, without requiring
a criminal conviction.
96 The law in its final form was diluted in order to facilitate
its passage through parliament. For this reason its effectiveness
will depend to a great extent on the way it is implemented by the
newly established independent Commission for Forfeiture of Unlawfully
97 The weaknesses in the public procurement system are considered
to be an important source of corruption. Bulgaria improved its legislation
in this field by introducing changes to the relevant law in 2011
and 2012. It is of crucial importance now that these changes are
98 In November 2010, Bulgaria adopted a reinforced law on conflict
of interest. Unfortunately, the commission in charge was established
only in June 2011 and, for over a year, the law was not properly implemented,
which led to a lack of follow-up to allegations of conflict of interest
in an important case involving a senior judge in early 2011.
99 In this context, concerns must be raised regarding weaknesses
in asset declarations and verification of politicians, magistrates
and senior civil servants. The present system is undermined by a
number of shortcomings. Firstly, the declarations cover bank accounts
on 31 December each year and do not include the maximum balance
or movements throughout the year. Secondly, the declared value of
real estate may not correspond to the real value and is not verified.
Furthermore, there is no prioritisation of checking certain categories
of officials and no procedure to investigate suspicious cases. The
non-married partners of the people concerned are not obliged to
declare their assets. More generally, false declarations are not
effectively sanctioned and discrepancies are not followed up. This
is regrettable as a well-functioning asset declaration and verification
system can be an effective tool to prevent corruption.
The fight against corruption is closely linked to the fight
against organised crime and the deficiencies of the former have
an inevitable impact on the latter. Organised crime continues to
be an important challenge for Bulgaria. According to Europol, Bulgarian
organised crime groups are active throughout Europe and “specialise”
mainly in human trafficking and credit card fraud.Note
In December 2011, the Group of Experts on Action against Trafficking
in Human Beings (GRETA), the Council of Europe specialised body
to fight trafficking, published a report on BulgariaNote
which it concluded that both the legal and institutional framework
constitute an adequate basis for tackling the problem.
102 Here again, as in the fight against corruption, the main concerns
are linked to the weaknesses of criminal investigations and in judicial
practice. Controversial acquittals, frequent return of cases to
prosecution by courts, and adjournments in courts for questionable
reasons, such as uncorroborated absence due to illness, well illustrate
these weaknesses. The limited number of final rulings is the best
illustration of the problem.
103 However, a number of important cases are now on trial and
should be decided by the end of 2012. A specialised court established
earlier this year should contribute to the further improvement of
the situation. As a result of the establishment of specialised units
in prosecutors’ offices, there has been important progress in terms
of the decrease in the number of cases referred back from the prosecution
to the police, and the reduction of the length and the increased
quality of investigations.
104 Amendments to the Ministry of Interior Act of 2009 and 2010
led to important institutional changes in this Ministry with an
impact on both the quality and speed of the pre-trial stage. The
number of investigative police officers was substantially increased
(from 2 000 to 8 000). Appropriate training was stepped up. A special independent
police structure was also set up.
105 In conclusion, there is still much to be done, in particular
with regard to the full implementation of the existing legislation
and independent analysis of case failures. The Supreme Judicial
Council will need to show a strong commitment to reform by translating
the new laws into practice in order to effectively strengthen the management
of judicial bodies in close co-operation with the Ministry of Justice,
professional associations and civil society.
106 More specialised training is needed. It should particularly
focus on improving the investigatory capacity necessary to effectively
tackle corruption and organised crime, notably as regards complex
economic and financial investigations.
107 In its last monitoring report, the European Commission decided
not to close the monitoring procedure. It made a number of recommendations
and will assess their fulfilment at the end of 2013. For its part,
GRECO has addressed 20 recommendations to the authorities; their
fulfilment will be assessed later this year. In their comments on
the present report, the authorities informed me of a number of measures
adopted recently addressing the deficiencies in the investigation
procedure and to combat human trafficking. I am confident that they
will contribute to an improvement in the situation in this area.
3.3 Abuses by law enforcement
108 The last report on post-monitoring dialogue, presented
by my predecessor in 2010, raised the question of human rights abuses
by law enforcement officials, and in particular police brutality
and ill-treatment, and called on the Bulgarian authorities to set
up systematic human rights training, in particular at the police academy
and in officers’ schools, and to take concrete measures to eradicate
impunity and the lack of accountability for such abuses.
The non-execution of 25 cases concerning deaths and ill-treatment
which had occurred under the responsibility of law enforcement officials,
and the subsequent lack of effective investigation into such abuses, was
one of the reasons that Bulgaria was referred to as a State with
“major structural problems” causing repetitive violations of the
European Convention on Human Rights and “extremely worrying delays”
in the implementation of the Court’s decisions in Mr Pourgourides’
report on this issueNote
presented by the Committee on Legal
Affairs and Human Rights.
110 The Velikova v. Bulgaria group
of cases comprises 19 cases concerning deaths and ill-treatment
and the Nachova and others v. Bulgaria groups
six cases regarding excessive use of fire-arms. In most of those cases,
the State was found to have failed to conduct an effective investigation.
111 I acknowledge that a number of positive developments in this
respect can be noted. Firstly, at the level of legislation, an amendment
to the Interior Ministry Act on the use of weapons, adopted in May
2012, is an important step forward. It contains important provisions
regulating and restricting the use of force, other implements such
as batons, handcuffs and stun guns, as well as weapons.
112 A Standing Committee on Human Rights and Police Ethics has
been set up in the Interior Ministry with the task, inter alia, of implementing and
disseminating the decisions of the European Court of Human Rights. It
also supervises a number of projects (such as “Civil monitoring
of the police”) and training programmes.
113 The Code of Ethics of Civil Servants has been adopted by the
Interior Ministry; the violation of its provisions is raised to
the level of a disciplinary offence. Control over the implementation
of the Code is ensured by the Inspectorate and the Human Resources
Directorates of the Ministry as well as the Permanent Commission
on Human Rights and Police Ethics. The following data, provided
by the authorities, may illustrate the efficiency of these measures:
between 1 January and 15 August 2012, there were 22 complaints about unjustified
use of weapons or auxiliary devices such as truncheons, handcuffs,
etc., physical force or other abuses. As a result of inquiries and
disciplinary proceedings, 14 employees faced various disciplinary measures.
114 Special training courses are in place for employees entitled
to use force in carrying out their duties. Training is also organised
at the Ministry of Justice as a part of joint European Union projects.
115 I would also like to highlight here the introduction of the
amendments to the Penal Code on additional qualifying circumstances
with “racist and xenophobic motives” with regard to serious crimes.
Furthermore, Bulgaria has pursued police reform.
116 However, according to the Committee of Ministers of the Council
of Europe, which is competent for supervising the execution of Court
judgments, further progress is necessary. In particular, proper
investigation of individual cases should be carried out, procedural
safeguards during police custody should be ensured, civil society
monitoring mechanisms should be promoted, and further training and
awareness-raising measures should be developed. In their comments,
the authorities stressed that, as a result of measures introduced,
the number of complaints about misconduct by the police has decreased
over recent years.
Earlier this year, the CPT published a report on its visit
to Bulgaria in October 2010.Note
The CPT welcomed an
instruction aiming at setting up special police rooms, equipped
for full electronic recording of questioning. It recommended, however,
that police officers be trained in acceptable interview techniques,
the drawing up of a code of conduct of police interviews, and improvements
in the screening for injuries and their reporting to the competent
of judgments of the European Court of Human Rights
The number of pending cases before the Committee
of Ministers as of 31 December 2011 was 344 of which 228 were clone
cases. When we compare this number to 2010, we can see that some
improvement has been made. However, the Committee on Legal Affairs
and Human Rights, in its periodic report on the implementation of
judgments of the Court, included Bulgaria in a group of nine States
in which major structural problems give rise to extremely worrying
119 The most serious problems with regard to the execution of
the Court’s judgments arise in three areas: deaths and ill-treatment
occurring under the responsibility of law enforcement officials
and the subsequent lack of effective investigation into such abuses;
the excessive length of judicial proceedings and lack of an effective remedy;
violations of the right to respect for family life due to deportation/orders
to leave the territory.
120 The first issue was dealt with in the previous chapter. With
regard to the second problem, the excessive length of judicial proceedings
and lack of an effective remedy, I tackled it under the heading
“Functioning of the judiciary” of the present report. The third
problem will be examined in the chapter on minorities. I note with satisfaction
that positive developments can be observed in all these areas of
Furthermore, in Resolution
, the Parliamentary Assembly addressed a recommendation which
called on the Bulgarian authorities to introduce, within the National
Assembly, specific mechanisms and procedures for effective parliamentary
oversight of the implementation of the judgments of the Court on
the basis of regular reports by the responsible ministers.
122 I am pleased to acknowledge that, in September 2012, the National
Assembly adopted a law providing for the introduction of an obligation
for the government to submit to parliament an annual report on the
number and nature of judgments and information on the implementation
of the Court’s decisions.
3.5 Independence of
123 According to assessments by international organisations,
such as Reporters Without Borders and Freedom House, over the past
few years Bulgaria has seen a steady decline in the level of freedom
of the media. It was ranked 70th in 2010 and 80th a year later in
the press freedom index published every year by Reporters Without
Borders, below Armenia (77th) or Bosnia and Herzegovina (58th).
Both the press and the electronic media markets are diverse.
However, the problem is the centralisation of the media, controlled
by few centres of power. The decline in advertising revenues in
the late 2000s, as a result of the overall economic downturn which
hit Bulgaria in 2009, has further contributed to the consolidation of
the media market, particularly in the print press sector, as well
to the recent wave of withdrawals of some foreign investors.Note
125 The most striking case is that of the New Bulgarian Media
Group, which controls several dailies and weeklies as well as cable
television channels. The group’s relations with the political and
financial worlds are not transparent. It is alleged that public
or State-controlled companies have deposited very large amounts
of money in the bank which is controlled by the group. At my request,
the authorities provided me with their position on these allegations.
According to them, there is no evidence of any link between the
money deposited and the group.
Both electoral campaigns, the parliamentary one in 2009 and
the presidential one in 2011, highlighted structural problems of
the freedom of media in Bulgaria, well illustrated by “ordered information”
for sale without appropriate indication, scarce pluralism, and low
transparency of the campaign media coverage. These conclusions were
contained in the reports of the ad hoc committees to observe the
elections and the OSCE report accompanied by recommendations.Note
127 In October 2010, the parliament adopted a new bill obliging
the print media to disclose the names of their actual owners. However,
no such provisions exist for the broadcast media.
128 Although there is no official system of press subsidies in
Bulgaria, indirect subsidising through State advertising is widely
seen as having a negative impact on the independence of the media.
129 Public service broadcasting is seen as “State television”
rather than “public television”, the main reason being the system
of financing directly from the State budget instead of through the
licence fee system. The relevant provision of the Radio and Television
Act (1998), which clearly provides for the establishment of licence
fees, has never been implemented. Its editorial independence is
questioned, although the current situation cannot be compared with
the early 90s, when the Head of the Bulgarian National Television
and his team were changed with each change of government.
130 The appointment of members of the regulatory authority for
commercial and public broadcasting, that is the Council for Electronic
Media, which is, inter alia,
responsible for issuing licences, is entirely political and is shared
between the parliament and the President.
131 Insult and libel are punishable under the present Penal Code.
The law provides only for financial penalties and excludes imprisonment.
However, those convicted acquire a criminal record which can be
a great hindrance in their professional and private life.
132 In recent judgments, Kasabova v.
Bulgaria (Application No. 22385/03) and Bozhkov v. Bulgaria (Application
No. 3316/04) (who were found guilty of defamation and were made
to pay huge sums in compensation for their statements in articles
published in the Bulgarian press and directed against four administrative
experts involved in the admission procedure to specialised secondary
schools in Burgas), the Court found that Bulgaria had violated Article
10 (freedom of expression and information).
recommended that “sanctions against journalists should be
brought out of the sphere of criminal law and awards for damages
limited to reasonable amounts, taking into account that journalists
should abide by the principle of respect for privacy, in conformity
with Article 8 of the European Convention on Human Rights”. In consequence,
the Assembly called on the Bulgarian authorities to amend Articles
146 to 148 of the Penal Code to exclude defamation and insult from
the criminal sphere. I am confident that the new penal code that
is under preparation in co-operation with Council of Europe legal
experts will comply with European standards in this field.
3.6 Rights of people
belonging to minorities
134 According to the 2011 census, the population of Bulgaria
was 7.3 million, of whom 5.6 million (84.8%) were Bulgarians, 588
000 (8.8%) were Turks, 325 000 (4.6%) were Roma, 49 000 (0.7%) declared
themselves as others (Russians, Armenians, Vlachs, Macedonians,
Greeks, Ukrainians, Jews and others). Non-governmental sources estimate
that there are some 700 000 Roma in Bulgaria. According to the authorities, this
large discrepancy with the census results from the fact that many
Roma identify themselves as Bulgarians or Turks.
Bulgaria ratified the Framework Convention for the Protection
of National Minorities in 1999 and, since then, it is subject, as
all other parties, to the monitoring mechanism of the convention.
The most recent report on the implementation of the convention was
published in January 2012.Note
It recognised a number
of positive developments in the area of minority protection and
pointed to several persisting concerns. Overall, the situation seems
to be satisfactory.
136 The legal and institutional framework for the protection of
minorities was established by the adoption, in 2004, of the Protection
against Discrimination Act and the creation, in 2005, of a Commission
for the Protection from Discrimination, responsible for the implementation
of the Act.
The commission receives complaints from individuals, makes
rulings on infringements, issues binding instructions on the application
of the anti-discrimination legislation, decrees measures to be taken
to terminate established infringements and applies pecuniary fines.
In his 2010 report on Bulgaria,Note
Council of Europe Commissioner for Human Rights commended the work
of the commission, which, according to his assessment, is duly carrying
out its protection role, and observed that civil society in Bulgaria
considered the implementation of the Protection against Discrimination
Act to be successful.
138 The National Council for Co-operation on Ethnic and Demographic
Issues, under the responsibility of the Council of Ministers, is
the main national body for the consultation and co-ordination of
State policies regarding persons belonging to ethnic, religious
and linguistic minorities. Numerous NGOs and minority associations
are represented in the Council. Again, in his 2010 report on Bulgaria,
the Commissioner for Human Rights expressed appreciation of the
work of the Council. However, he recommended to the authorities
to further reflect on the membership and structure of the Council
so that it allows all minorities to be represented and NGOs to be
selected on the basis of clearly defined criteria, in line with
good administrative practice. While in 2010 as many as 28 NGOs were
represented in the Council, in 2012, they were 44. Unfortunately,
until now, the Bulgarians of Macedonian origin and Bulgarian-speaking
Muslims (Pomaks) are still not represented in the Council. According
to the information received from the authorities, they had not filed
a request for representation.
139 Co-operation between the authorities and organisations representing
national minorities, notably through the National Council, has considerably
developed over the last few years.
140 Persons belonging to national minorities continue to participate
actively in political life in Bulgaria (The Movement for Rights
141 In the last few years, the authorities have developed a number
of programmes and strategies aimed at the implementation of the
National Action Plan 2005-2015 on Roma Inclusion.
142 Despite all these undeniable achievements and efforts, some
concerns still remain. Problems can be noted with regard to the
implementation of some provisions of the Framework Convention, in
particular those concerning the personal scope of application due
to the non-recognition of the existence in Bulgaria of the Pomak
and Macedonian minorities. However, recognition by the State as
a minority is not a prerequisite to qualify for the protection of
the Framework Convention and therefore the authorities should be
urged to engage in a dialogue with persons belonging to groups interested
in the protection offered by the Framework Convention.
143 In their comments, the authorities drew my attention to Resolution
CM/ResCMN(2012)2 on the implementation of the Framework Convention
for the Protection of National Minorities in Bulgaria, which recognised
the inclusive approach of the Bulgarian authorities regarding the
personal scope of application of the Framework Convention.
Furthermore, despite numerous programmes aimed at improving
the socio-economic status and social inclusion of Roma, the Roma
population continues to be confronted with discrimination and Roma
are frequently the victims of racially motivated offences. I have
already mentioned aboveNote
cases of violence against Roma which took place in 2011.
145 In his last report on Bulgaria, the Commissioner for Human
Rights refers to a number of concerns with regard to the human rights
of Roma. Access to adequate housing is problematic for Roma who
live in sub-standard conditions. Forced evictions remain a concern.
Access to social rights, including health care and employment, is
still unequal as compared to other sectors of the population. In
this context, education is of essential importance.
146 Roma families are still victims of campaigns organised not
only by private citizens but also by the authorities. For example,
30 Roma family houses in the city of Maglizh were completely destroyed
by huge construction vehicles without any prior warning. In Katunitsu,
a hate campaign under the slogan “Roma get out of our city”, and
including acts of arson, was carried out by right-wing extremists
and hooligans. In both these cases, there was no significant reaction
from the authorities. Furthermore, the police department has not always
acted in a significant way – such as by creating a “cordon sanitaire”
to prevent an aggressive public campaign by one political party
demanding the death penalty for the Sinti and Roma people. Both
the administration and the police departments must show clear signs
of fighting any form of racism when dealing with the large minority
of Roma people. They must protect this minority according to European
standards and conventions.
147 In the last resolution on Bulgaria, the Assembly called on
the authorities to publicly condemn hate speech by certain political
leaders against minorities and take concrete action to foster tolerance
and mutual respect, encourage exemplary behaviour by political leaders
in this respect and ban openly racist language.
148 I mentioned above a deplorable incident of an attack on Muslim
people praying in front of the main Sofia mosque which took place
in May 2011. The reaction of political leaders, including the Prime
Minister and parliament, who unanimously condemned the attack, was
to be commended.
149 It is also worth noting that amendments to the Penal Code
adopted in April 2011 introduced possible punishment in jail from
one to four years for writers and journalists who instigate hatred,
discrimination and violence. In 2011, a Co-operation Memorandum
was signed between the Ministry of the Interior and the OSCE/ODIHR
on the issues and crimes caused by hatred. Specific training and
co-operation programmes have been set up.
Another problem concerns the insufficient number of television
and radio programmes which are currently broadcast in minority languages.
Furthermore, according to the Second Opinion of the Advisory Committee
on the Framework Convention for the Protection of National Minorities
on Bulgaria, the situation with regard to the use of minority languages
for topographical indications and in dealings with the administrative authorities
has not improved in Bulgaria since the first monitoring cycle in
151 Here I would like to recall that, in its last resolution on
Bulgaria, the Assembly called on the authorities to sign and ratify
the European Charter for Regional or Minority Languages (ETS No.
148). This has not been done so far, but I raised the question with
several interlocutors, notably in the Foreign Ministry, during my
last visit and, to my great satisfaction, I learnt that talks were
under way between the Ministry and the secretariat of the convention
with a view to finding modalities which would enable the speedy
signature and ratification of the charter by Bulgaria.
152 One of the commitments entered into by Bulgaria upon accession
concerned the claims of the former prisoners of Belene Island, which
should be considered in accordance with the Bulgarian Act on Political
and Civil Rehabilitation of Persons Repressed during the Totalitarian
Regime. For many years, the members of the Muslim minority who were
forcibly placed in the Belene Island camp have sought compensation.
On 11 January 2012, the Bulgarian Parliament adopted a declaration
condemning the assimilation process against the Muslim minority,
including the so-called “Revival Process” and urging the country’s
General Prosecutor and judicial authorities to make sure that the
lawsuits against the alleged masterminds of the campaign be brought
to a conclusion. This should facilitate progress on issues concerning
the victims of those practices. Members of this minority, who were
forcibly placed in the Belene Island camp, are still seeking compensation.
153 Upon accession, the Bulgarian authorities committed themselves
to quickly finding, in co-operation with the Turkish authorities,
a solution for pending pension issues in respect of those who were
forced to emigrate to Turkey in 1989. The agreement, signed in 1999
between Bulgaria and Turkey, is the basis for the payment of pensions.
I have received detailed information on the implementation of this
agreement. However, the issue of pension rights of ethnic Turks
now living in Turkey as a result of the “Revival Process” remains
unresolved in a number of cases, with the premiums paid and time
spent in Bulgaria not being accounted for. As many victims are now
elderly, finding a solution is a matter of urgency.
3.7 Electoral code
called on the Bulgarian authorities to hold consultations
with the Venice Commission with a view to revising the Electoral
Code. The conclusions of the election observation mission from the
Assembly during the parliamentary elections in 2009 pointed to some
legal deficiencies in the electoral law, in particular concerning
party financing, the use of public facilities, financial disclosure
in the context of the electoral campaign, the need to introduce
effective enforcement mechanisms, the need to establish a permanent
Central Electoral Commission, and the need to improve access to
the media. Moreover, GRECO, in its last report on Bulgaria, published
in 2010, made a number of recommendations concerning legal regulations
on party financing and the use of public facilities during electoral
155 The majority of the above recommendations were taken on board
in a new Election Code, adopted by parliament on 19 January 2011.
In particular, specific recommendations of GRECO concerning the
clear rules on fundraising events, donations, use of public means,
transparency and improved accountability, reporting, control and
possible sanctions were included.
The Venice Commission, which provided a legal opinion on the
praised its sound legal basis and high quality. It identified, however,
further possible improvements in areas where public trust is much needed
as sensitivities may be high. This is the case specifically with
regard to the remedies available for challenging decisions and actions
of election commissions and the results of elections. Furthermore,
it suggested possible better legal arrangements in areas concerning
minorities (such as the possibility of using a mother tongue during
campaigning), provisions regulating campaigning in the media, the
possibility to recount ballots and the definition of the rights
and responsibilities of observers.
157 The presidential election of October 2011 was held on the
basis of the new Electoral Code. This was recognised by the international
observers as a clear step forward, although some concerns during
the electoral campaign were still identified. They included the
following questions: contestants equal access to the media and the
improvement of a level playing field for all concerned; clearer
distinction by the media concerning editorial and paid political
advertisements; greater transparency in the work of the Central
Electoral Commission; improvement of arrangements for out-of-country
158 I call on the Bulgarian authorities to address these concerns
in time for the forthcoming elections in the summer of 2013.
3.8 Local and regional
Bulgaria signed and ratified the European Charter
of Local Self-Government (ETS No. 122) in 1995 and since then, as
all other parties, has been subject to the monitoring procedure
of the Council of Europe Congress of Local and Regional Authorities
with regard to its implementation. The last report of the Congress was
presented in September 2011.Note
160 The Congress noted with satisfaction that Bulgaria generally
complies with the provisions set out in the charter, and that local
democracy has improved noticeably since the Congress’ previous report
in 1998. The Congress considered the level of reception of the charter
in Bulgaria’s domestic system as being satisfactory.
In Resolution 1211
, the Assembly expressed the opinion that the 28 newly
established districts should be given directly elected councils
in accordance with the charter. This has not been done: the 28 districts
or regions (oblasts)
are referred to in the report of the Congress have not been given
directly elected councils.
162 However, the report concludes that “consideration is being
given to the development of a regional level”. While the relevant
laws in force comply with the principles of the European Charter
on Local Self-Government, the authorities are engaged in a dialogue
with the Congress on the clarification of the Bulgarian Government’s regional
163 In the present report, I have tried to evaluate the
situation in Bulgaria and key developments with regard to the fulfilment
of the country’s obligations and commitments and to make an analysis
and overall assessment of the progress made since the opening of
the post-monitoring dialogue in 2000, and in particular since the presentation
of the last report on the country in 2010.
164 I welcome the progress made by Bulgaria in implementation
of the Assembly’s recommendations and, more generally, in the successful
introduction of democratic standards in its domestic legislation.
In particular, the installation of a legal framework for the legal
and judicial systems and the development of tools for the fight against
corruption and organised crime should be commended. The existence
of impartial, independent, effective and corruption-free administrative
and judicial systems is indispensable for the proper functioning
of democratic institutions and the whole democratic process.
165 Progress in other crucial areas, such as eradication of abuses
by law enforcement agents or the implementation of decisions of
the European Court of Human Rights, is also to be noted.
166 However, some important challenges still remain. Sustained
implementation is still required. The necessary sustainable and
lasting improvements of the legal and judicial systems will require
a committed and coherent approach by all the relevant actors and
broad-based political support and resolve.
167 The Bulgarian Government has shown determination and commitment
in driving the reform process. It has to be acknowledged that, at
key moments, the Bulgarian authorities have demonstrated a strong
political will to pursue the path of democratisation with a view
to achieving lasting and sustainable reform. This unequivocal and
sustained political will is necessary to successfully complete the
process. I would also like to point to the very good co-operation
by the authorities with the Council of Europe and its Venice Commission, including
in the framework of the post-monitoring dialogue. This may also
be translated by wide support in Bulgaria to pursue the reform strategy.
168 My assessment was confirmed during the visit I made to the
European Commission in Brussels, where I spoke to the officials
responsible for the Co-operation and Verification Mechanism (CVM).
They fully share my opinion that the sustainability and irreversibility
of the reforms is now a key issue, and that the Bulgarian authorities
have shown a strong political will to achieve these goals. The European
Commission is following the situation in the framework of the CVM
and will submit its report at the end of 2013.
169 I am confident that Bulgaria will follow the right path. In
conclusion, I therefore wish to submit a proposal to terminate the
post-monitoring dialogue with this country. In my capacity as rapporteur
on Bulgaria, which, according to the rules I will continue for one
more year, I will closely follow the developments in the country, and
report back to the Monitoring Committee if necessary.