B Explanatory memorandum
by Mr Frank Schwabe and Mr Zsolt Németh, co-rapporteurs
Bulgaria became a member of
the Council of Europe in 1992. It was subject to the monitoring
procedure sensu stricto
2000. In Resolution 1211
on the honouring of obligations and commitments by Bulgaria,
the Parliamentary Assembly decided to close the full monitoring
procedure and to open a post-monitoring dialogue with the Bulgarian
authorities “on the issues referred to in paragraph 4 [of Resolution 1211 (2000)
] or any other issues arising from the obligations of
Bulgaria as a member State of the Council of Europe”.
Since then, only two reports on the progress made by Bulgaria
have been submitted by the Monitoring Committee: in 2010 and 2013.Note
The current co-rapporteurs, Frank
Schwabe and Zsolt Németh, were appointed in 2015 and 2016 respectively.
We carried out three fact-finding visits to Sofia: in 2015, 2016
and 2018. Furthermore, during two visits to Brussels (in 2017 and
2019) we met the officials responsible for the Co-operation and
Verification Mechanism within the European Commission. We also participated
in Parliamentary Assembly’s presidential and parliamentary election
observation missions in 2016 and 2017 respectively. We presented
to the committee two written information reports on the findings
of our fact-finding visits in 2015 and 2016.Note
3. In 2007, Bulgaria became a member of the European Union. Upon
Bulgaria’s accession, the European Commission established a mechanism
called the Co-operation and Verification Mechanism (CVM) with a
view to addressing outstanding concerns, notably in the areas of
the judiciary, corruption and organised crime. So far, 12 yearly
reports have been published, the last one was adopted on 13 November
2018. We have used the findings of successive CVM reports in the
present report. Moreover, in 2016, five prosecutors from European
Union member States, aided by the Structural Reform Support Service
(SRSS) prepared an independent analysis of the structural and functional
model of the Prosecutor’s Office and an analysis of its independence.
We acquainted ourselves with the findings of this analysis.
Successive elections, including the presidential election
in 2016 and parliamentary elections in 2017 were observed by the
Parliamentary Assembly. The respective reportsNote
by the ad hoc committees were submitted to and debated in the Assembly.
In the present report we used the findings of these observation teams.
In the current report we also relied on the legal opinions
provided by the European Commission for Democracy through Law (Venice
Commission) on the Judicial System Act (adopted in October 2017)Note
and on Amendments to the Electoral
Code (adopted in June 2017)Note
following the Monitoring Committee’s
requests. Furthermore, we used the Report on judicial independence
and impartiality in the Council of Europe member States prepared
by the Bureau of the Consultative Council of European Judges (CCJE)
following the proposal of the Secretary General of the Council of
We also took into account 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. In particular we based ourselves on the report on Bulgaria
prepared by the Council of Europe Commissioner for Human Rights,Note
Fourth Evaluation Round and Compliance Report prepared by the Group
of States against Corruption (GRECO),Note
Second Evaluation Round Report by the Group of Experts on Action
against Trafficking in Human Beings (GRETA),Note
Third Opinion on Bulgaria adopted by the Advisory Committee on the
Framework Convention for the Protection of National Minorities,Note
well as the Fourth Report submitted by BulgariaNote
the Resolution of the Committee of Ministers on the implementation
of the Framework Convention for the Protection of National Minorities
also acquainted ourselves with the report of the European Commission
against Racism and Intolerance (ECRI) on Bulgaria in the framework
of the fifth monitoring cycleNote
ECRI’s conclusions on the implementation of the recommendations
in respect of Bulgaria subject to interim follow-upNote
well as with the reports of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT).Note
7. During our visits, we met the highest representatives of the
legislative, executive and judicial authorities of the country,
including the President, Speaker of Parliament, Prime Minister and
all relevant ministers, leaders of parliamentary political groups,
the Prosecutor General and the President of the Supreme Court. These
meetings created an excellent opportunity for conducting political
dialogue. At the same time, we devoted a lot of time to exchanges
of views with representatives of civil society whose expertise and
first-hand experience largely contributed to our understanding of
the situation on the ground.
8. We believe that the information gathered from such a variety
of sources has enabled us to prepare an objective and well balanced
report in which we endeavour to assess the progress accomplished
by Bulgaria with regard to the functioning of democratic institutions,
and in particular to what extent the reforms undertaken by the authorities
have addressed the concerns expressed by the Assembly in its past
resolutions, whether the reform process is sustainable and irreversible
and whether it is sufficiently entrenched in Bulgarian politics.
9. The preliminary draft report was submitted to the Monitoring
Committee at its meeting on 23 January 2019 and, by the committee’s
decision, sent to the Bulgarian authorities for their comments.
We received the comments on 27 April 2019 and took them into account
in the revised version.
10. Last but not least, we would like to extend our gratitude
to the Bulgarian parliamentary delegation to the Parliamentary Assembly
and to its Secretariat for an excellent co-operation and organisation
of our visits to the country as well as the help in contacting and
collecting information from different authorities.
2 Political context
11. Since the last debate on Bulgaria
in the Assembly, in 2013, the country has undergone a period of political
instability. In February 2013, the then Prime Minister Boyko Borisov,
the leader of the centre-right GERB party, resigned after 14 people
had been injured in clashes with police at anti-austerity protests.
A caretaker cabinet headed by Marin Raikov was appointed by the
then President Plevneliev and tasked with organising early parliamentary
elections. In the elections held in May 2013, GERB narrowly beat
the Bulgarian Socialist Party (BSP) but fell short of a majority.
The Socialists provided parliamentary support for a technocratic
government headed by Plamen Oresharski.
12. In June and July 2013, the country was shaken by massive protests,
first over the appointment of a controversial media mogul, Delyan
Peevski, to head the national security, and when the appointment
was reversed by the parliament, over official corruption. The protests
culminated in a blockade of parliament and clashes with the police.
13. In July 2014, Prime Minister Plamen Oresharski stepped down,
paving the way for a snap election. In October 2014, an inconclusive
early election produced a parliament divided between eight parties.
In November 2014, Boyko Borisov formed a coalition government including
GERB and a centre-right Reformist Bloc.
14. On 6 November 2016, the first round of the most recent presidential
election was held. The two candidates, who qualified to go through
to the second round, Mr Rumen Radev representing the BSP, and Ms Tsetska
Tsacheva representing the governing majority, received respectively
25,4% and 21,97% of the votes. On 13 November 2016, in a run-off,
Mr Radev received 59.3% (2 063 032 votes) and Ms Tsacheva 36.1%
(1 256 485). The option “neither of them” received 4.47%. The turnout
15. The Parliamentary Assembly’s ad hoc committee on the observation
of the presidential election in Bulgaria concluded that the election
was well administered and that fundamental freedoms were respected. The
campaign was competitive and increased public confidence in the
16. The 2016 presidential election was held alongside a referendum
on changes to the electoral system and political party funding.
The referendum was a result of a petition initiated by a television
show presenter and was signed by over 600 000 people (the minimum
required for holding a referendum in Bulgaria is 400 000).
17. In July 2016, the Constitutional Court of Bulgaria had unanimously
rejected three out of six proposed questions of the referendum.
They concerned: 1) whether to introduce online voting in elections
and referendums; 2) whether to reduce the number of members of parliament
from 240 to 120; 3) whether to introduce the election of the heads
of regional directorates of the Ministry of the Interior through
a majoritarian electoral system requiring an absolute majority at
the end of two rounds. The Constitutional Court rejected the question
of reducing the number of members of the National Assembly on the
grounds that such a decision was within the competence of a Grand
18. The three questions that remained for the 6 November referendum
were on the introduction of a majoritarian system to elect members
of parliament; the introduction of compulsory voting; and the reduction of
the State subsidies for political parties and coalitions to 1 lev
(approximately 50 euro cents) per valid vote.
19. On 13 November 2016, Prime Minister Borisov, the leader of
the GERB party which supported Ms Tsacheva, resigned. A caretaker
government was formed. The newly elected President’s term of office began
on 22 January 2017, and two days later President Radev dissolved
the National Assembly and called early parliamentary elections.
20. The early parliamentary elections took place on 26 March 2017.
Five parties and coalitions passed the 4% threshold: Citizens for
European Development of Bulgaria, GERB – 95 seats (32,65 %); the
Socialist Party – 80 seats (27,2%); the Patriotic Front – 27 seats
(9.07 %); the Movement for Rights and Freedoms – 26 seats (8.99%);
Volya (Will) – 12 seats (4.15 %votes). The “traditional” right wing
parties, Union of Democratic Forces (UDF), Democrats for a Strong
Bulgaria (DSB) and the Reformist Bloc did not pass the threshold.
Voter turnout was 54.07%
21. The Assembly observation delegation concluded that the voters
could make a free choice on polling day. Voting was generally well
organised, despite some procedural shortcomings noted during counting.
22. A new government, composed of the GERB and the Patriotic Front
(UP) and led by Mr Boyko Borissov (who became Prime Minister for
the third time), came into office in May 2017.
23. Political dynamics have been determined by the efforts of
a ruling coalition (GERB and UP) to reach and preserve consensus
on policy issues and by the confrontation between GERB and the BSP.
President Radev has added another aspect to this confrontation,
adopting a much more proactive and political approach than his predecessor,
actively monitoring the legislative process and exercising his power
24. Regrettably, since February 2019, the opposition BSP has been
boycotting the work of the parliament. The changes initiated by
the government and introduced by the parliament in February 2019,
including the tightening of the preferential voting system, have
led to these domestic political tensions. The BSP has withdrawn
from the parliament and the unity of the government coalition has
broken down. On 18 February 2019, the Bulgarian Prime Minister declared
that he would make efforts to restore the original preferential voting
limits but his statement did not change the position of the BSP.
These developments may have a negative impact on progress and may
weaken democratic processes in the country;
25. In the first half of 2018, Bulgaria assured the rotating Presidency
of the Council of the European Union. It formulated four priority
areas for its presidency: strengthening co-operation and stimulating
development with the Western Balkans; stability and security with
a focus on migration and border controls; the future of Europe and
young people with an emphasis on economic growth and social cohesion;
and the digital economy as a single digital market.
26. A major development in Bulgaria’s foreign policy was the signature
of the Treaty of Friendship, Good-neighbourliness and Co-operation
with “the former Yugoslav Republic of Macedonia” which constituted
a break-through and a successful end to 18 years of negotiations.
27. The Bulgarian authorities have been asking for membership
in the Schengen Area since Bulgaria’s accession to the European
Union in 2007. According to the European Commission, the country
fulfils the technical requirements expected. The country’s readiness
for Schengen membership has been confirmed by the Conclusions of
the European Council.
28. Bulgaria has the lowest gross domestic product (GDP) per capita
in the European Union, and Bulgarians have the lowest median earning
in the European Union. The result is mass emigration of Bulgarians,
especially those with good education and professional skills, in
search of better opportunities in other countries. According to
official data, 17% of Bulgarian school students choose to continue
university abroad and they usually stay there.
concerns identified in the last report
29. In the last report on Bulgaria,
debated in January 2013, the Assembly welcomed the substantial progress made
by the country towards the fulfilment of its remaining obligations.
It also noted with satisfaction that the Bulgarian authorities had
demonstrated a sustained political will and commitment to fully
honour their obligations and commitments resulting from membership
in the Council of Europe.
30. At the same time, the Assembly noted that despite important
progress in terms of the legislative framework and the crucial reforms
put in place, more measures needed to be taken, in particular with
regard to the independence of the judiciary and the fight against
corruption. Other areas of concern including abuses by law-enforcement
officials, the independence of the media and, more generally, abuses
of human rights were also mentioned.
31. In the following chapters, we will come back to these outstanding
concerns identified in the last report and we will assess the progress
made since then.
of the judiciary
32. The last report on Bulgaria
submitted by the Monitoring Committee to the Assembly, in 2013,
recognised that substantial progress had been made in the area of
the judiciary with respect to its independence since the previous
debate, in 2010. However, it also identified a number of outstanding
concerns, including different aspects of the functioning and composition
of the Supreme Judicial Council (SJC), and the Inspectorate, appointments
to high-level judicial posts and reform of the Penal Code.
33. The judicial reform strategy was adopted by the government
in office in 2014 and was endorsed by a broad majority in the parliament
in 2015. It was planned to be completed in 2020. It remains an overarching framework
for the continuation of the judicial reform process in Bulgaria.
It is clear, however, that political instability in the country
between 2013 and 2017 affected its capacity for reform in a negative
way. While we do not question the current government’s commitment
to continuing in the right direction, its determination to proceed
quickly with legislation, raises justified concerns about the quality
of the process itself as well as about the outcome.
According to the criticism that we heard during our visit
from civil society, important legislative initiatives are not subject
to broad public debate and all stakeholders are not sufficiently
consulted. The underlying risks of hasty proceedings are well illustrated
by the follow-up to the parliamentary initiative of July 2017, when
a package of draft amendments to the Judicial System Act (JSA) was
submitted without prior consultations or public debate. The proposals
gave rise to widespread criticism as potentially undermining judicial independence.
While some of the most criticised amendments (notably those which
would have restricted the access of professional associations of
magistrates to foreign funding) were ultimately withdrawn, some
other, no less controversial amendments, were adopted including
those which introduced obligatory suspension of any magistrate being
put under criminal investigation without right to appeal or requiring
magistrates to declare their membership of professional associations.Note
October 2017, the parliament adopted further amendments addressing
some concerns with respect to the amendments adopted in July. Regrettably,
also these amendments tabled by individual parliamentarians had
not been subject to public debate or consultations.
Another example are the amendments to the Administrative Procedure
Code adopted in a hasty manner in mid-2018, despite criticism from
civil society raising concerns over access to justice and overruling
the Presidential veto. They have since been referred to the Constitutional
Court for review of their compliance with the Constitution.Note
36. We express our strong conviction that the sustainability and
irreversibility of reforms lies in, inter
alia, a properly conducted legislative process involving
all stakeholders and broad public debate. Circumventing these preparatory
stages of the reform may result not only in low quality laws but
also create a climate of uncertainty and lack of ownership. In addition,
saving time is illusory as demonstrated above.
That said, we have to acknowledge that, overall, recent reforms
have contributed to undeniable progress in the field of the judiciary
and have addressed the majority of concerns identified in Resolution 1915 (2013)
on post-monitoring dialogue with Bulgaria, thus improving
the independence of the judiciary. As a result of amendments to
the JSA in 2015 and 2016, a key Assembly recommendation was accomplished:
the SJC was divided into judges and prosecutors’ chambers (or colleges),
independently exercising appointment and disciplinary powers with
regard to the judges, prosecutors and investigating magistrates.
In consequence, the Plenary SJC was stripped of most of its
appointing, disciplining and removal powers, which, in accordance
with the Venice Commission recommendations went to the respective chambers.
This was considered by the Venice Commission to be an essential
step forward towards judicial independence.Note
In particular, the Venice Commission
welcomed the fact that judicial appointments, with the exception
of the Presidents of the Supreme Court of Cassation and of the Supreme
Administrative Court and the Prosecutor General, are made by the
respective chambers of the SJC.
39. However, in its opinion, the Venice Commission regretted that
the reform did not aim at full compliance with Committee of Ministers
Recommendation CM/Rec(2010)12 on “Judges: independence, efficiency
and responsibilities”, which states that “not less than half the
members of such councils should be judges chosen by their peers
from all levels of the judiciary and with the respect of pluralism
inside the judiciary”. Indeed, the current composition of the SJC
still does not correspond to this parameter as judges elected by
their peers are in a minority in the Plenary: they have only six
votes out of 25. Even in the Judicial Chamber, judges elected by
their peers represent less than half of all members: out of 14 members
of the chamber six are elected by judges, six are elected by the
Assembly and two are ex officio members.
40. The proportion of judges elected by their peers as compared
to the total number of members of the SJC is important because even
if the Plenary SJC has far fewer powers than before, it still keeps
some important powers vis-à-vis the judiciary. For example, it can
propose candidates for the positions of the Presidents of the Supreme
Court of Cassation and of the Supreme Administrative Court (for
appointment by the President) and it can remove elected judicial
In its latest opinion on the composition of the SJC,Note
Venice Commission also raised a concern relating to the degree in
which prosecutors, and the Prosecutor General in particular, are
still involved in the governance of judges within the SJC. This
could be remedied, according to the Venice Commission, in various ways.
For example, the Judicial Chamber could receive some of the powers
of the Plenary in respect of judges (in particular the power to
appoint/remove two chief judges and to remove elected judicial members). Alternatively,
these decisions could be taken by a “double majority” of the elected
judicial members and all members of the SJC.Note
Therefore, the recommendation concerning the composition of
the SJC still remains valid.Note
43. As a result of the reform, the procedure of election of members
of the SJC has been significantly improved in line with Assembly
recommendations. A key improvement under the new procedures is that
the 11 members of the judicial quota are directly elected by judges
and prosecutors, according to the “one magistrate – one vote” principle.
Furthermore, the election of the 11-member parliamentary quota followed
a new rule of two-thirds majority in the parliament, reflecting
our recommendation based on the Venice Commission’s opinion.
44. The elections to the judicial quota were completed by June
2017. The introduction of an electronic voting system enabled a
very high participation rate and the final outcome, according to
our interlocutors, was generally regarded as representing a fair
result reflecting the preferences of the entire body of magistrates.
The election of the parliamentary quota in the National Assembly
was completed in September 2017. Thanks to the requirement of a
two-thirds majority, successful candidates were elected by a wide
range of parliamentarians including opposition parties. Nominations
were made in June 2017 allowing for public debate on 18 candidatures.
45. During our visit, we nevertheless heard some criticism from
civil society concerning this part of the procedure. Firstly, there
was the impression that the outcome had been predetermined through
prior agreements between the main political parties and did not
reflect objective consideration of candidates’ merits. Secondly,
we were told that the public hearing in the parliament’s Legal Affairs
Committee did not allow sufficient time for addressing all questions
to candidates and that critical questions raised by representatives of
civil society were not examined. These questions were published
on the parliament’s website in compliance with the law.
46. However, the election procedure as a whole marked a significant
improvement as compared to the election of the previous SJC in 2012
and took into account the Assembly’s recommendations. The newly elected
SJC took office on 3 October 2017.
47. One of the main functions of the SJC is the appointment of
heads of courts and prosecutors’ offices. Under the 2016 reform,
general assemblies within each court were given the competence to
nominate candidates for the heads’ positions while the final decision
belonged to the Judicial Chamber of the SJC. However, the Judicial
Chamber may also consider self-nominated candidates or candidates
proposed by the Ministry of Justice. Given earlier reservations
on the composition of the SJC, as well as the Venice Commission’s
recommendation that general assemblies of judges should have the
exclusive power to nominate candidates for subsequent approval by
the Judicial Chamber, this provision remains problematic. The SJC
also selects nominees for the three highest offices in the Bulgarian
judiciary, the Presidents of the two Supreme Courts and the Prosecutor
General and they are then subject to endorsement by the President.
48. One of the first tasks of the new SJC was the election of
the President of the Supreme Administrative Court. The procedure
was launched in July 2017 and the vote took place in the outgoing
SJC in September 2017. A candidate was selected in compliance with
a new more transparent procedure introduced by the amendments to
the Judicial System Act in 2016. However, the President, who should
endorse the appointment, decided to wait for the newly elected SJC
to take office. On 19 October 2017, the new SJC confirmed the candidate
with a large majority.
49. Since then, the SJC has appointed a number of heads of judicial
bodies which seem not to have given rise to major controversies.
Each appointment follows the same transparent procedure, including
a public hearing, the requirement for candidates to submit a concept
paper on the objectives that they would like to pursue in the post,
as well as a declaration of private property and interests. Voting
records are now public. This level of transparency is designed to
allow for public scrutiny and comparison between the merits of different
candidates and marks a clear difference as compared to the situation
under the previous SJC.
50. In March 2018, a procedure on the appointment of a new head
of the Sofia City Court failed to produce a result due to a divided
vote within the Judicial Chamber of the SJC. A second procedure
is ongoing with two candidates for the post. Another ongoing procedure
seeks to fill the post of the head of the Specialised Court for
Organised Crime. Other competitions are in preparation starting
with the Supreme Court of Cassation and cascading downwards so as
to ultimately reach all levels of the judiciary. This is also an
important step forward compared to the previous practice of long-term
secondments used as an alternative to or circumvention of official
promotion of judges.
Unfortunately, another long-standing recommendation concerning
the abolition or shortening of the five- year probationary period
for judges has not been addressed. A similar recommendation has
been made by GRECO in the Fourth Evaluation Round Report. During
our meeting in the Ministry of Justice, we were told that this question
was governed by the ConstitutionNote
so it could not be dealt with by the amendments
to the JSA in 2016. We reiterate, however, that probationary periods
raise in principle serious difficulties for judicial independence.
If they are foreseen in the law, they should not be longer than
needed to assess a judge’s competence.
52. At the same time, we were glad to note that another of the
Assembly’s concerns relating to the deficiencies in the system of
assessing the performance of judges, the lack of clear and consistent
standards for performance assessment and other problems relating
to the career development of magistrates has been addressed by the
2016 amendments. As a result, the Plenary SJC, acting on a proposal
by the Chamber of Judges, has adopted the Regulation on the Indicators,
the Methodology and the Procedure for Appraisal of a Judge, Chairperson
and Deputy Chairperson of a Court. This procedure aims to improve
the appraisal of judges before they acquire life tenure, which includes
indicators and standards concerning compliance of judges with the
Code of Ethical Behaviour. The indicators include the additional
check on asset declarations, conflicts of interest, and recusals
in connection with their attestation for life tenure.
53. This was completed by the adoption by the Plenary SJC, in
2017, of the Regulation on the Competitions for Magistrates and
on the Election of Administrative Heads in Judicial Bodies. This
specifies the indicators and methodology required to perform an
appraisal of judges, prosecutors and investigating magistrates.
All forms of appraisal of judges are performed solely by the Appraisal
and Competition Committee to the Judges’ Chamber of the SJC. The
Assembly’s concerns relating to judicial appointments and appraisals
have thus been addressed. As mentioned above, judicial appointments
are made by the respective chambers of the SJC. Moreover, the Venice
Commission welcomed the objective criteria and built-in majority
of judicial nominees on the competition commissions.
54. The question of judicial appointments and appraisals is linked
to the efficiency of the judiciary and judicial practice which was
a matter of concern in the previous report on Bulgaria. The last
resolution addressed the question of delays in issuing the motivation
of decisions and recommended the establishment of a single, effective
system of random, nationwide allocation of cases and clear criteria
for the assessment of the complexity of cases and their impact on
the distribution of the workload. We note with satisfaction that
these recommendations have been implemented satisfactorily.
55. In December 2015, the SJC adopted the Rules for Assessing
the Workload of the Judges, which came into effect in April 2016.
They provide for objective indicators of the legal and factual complexity
of court cases and establish the mode to determine the individual
workload and limits of the normal workload of judges. The “System
for Calculating of the Workload of Judges” was established on the
basis of these Rules. The System is integrated into the “Centralised
System for Distribution of Cases”. In both systems, the absence
of human interference is ensured both in the process of random allocation
of cases and in the process of reporting on individual workload.
We welcome this development, which allows for a fair and equitable
allocation of cases.
As a complementary measure, the SJC has undertaken efforts,
in co-operation with the European Commission’s Structural Reform
Support Service to redistribute the workload of the busiest courts,
mainly in Sofia, to other courts. This has already resulted in concrete
amendments recently adopted in the parliament. Alongside these legislative
initiatives, the SJC has also recently launched several procedures
for the transfer of judicial posts to the major courts in Sofia.Note
57. This brings us to another concern expressed by the Assembly
and relating to the accountability of the judiciary, and more specifically
disciplinary proceedings, which has been addressed in a satisfactory
way. In 2016, the Judicial Chamber of the SJC approved the Rules
for the Organisation and Activities of the Ethics Commissions in
Courts. In case of breach of the Code of Ethics, the ethic commission
should notify the bodies authorised to initiate proceedings (the
court president, the superior administrative head, the SJC Inspectorate and
the Minister of Justice) as well as the Judicial Chamber of the
SJC. According to the amendments, the latter has the power to impose
disciplinary sanctions against judges.
58. Following the amendments to the SJA introduced in 2015, a
subsidiary organ of the SJC, the Inspectorate to the Supreme Judicial
Council (ISJC or Inspectorate), received stronger powers in areas
such as integrity, verification of declarations of interest and
of private assets of magistrates as well as verification of cases
where integrity of magistrates has been put into question. The Inspectorate’s
role was also strengthened with regard to disciplinary proceedings.
The Inspectorate is competent to examine virtually every aspect
of activities of courts, prosecution offices, individual judges
and prosecutors, including internal organisation and working arrangements,
consistency of the jurisprudence, financial situation of magistrates,
their assets, their behaviour in the private sphere, etc.
Before the new law came into force, in October 2016, the Monitoring
Committee requested the opinion of the Venice Commission. In its
the Venice Commission expressed
the view that the current increased powers of the Inspectorate may
represent a danger for the independence of the judiciary. Even if
the formal decision-making power remains with the SJC, entrusting
the Inspectorate with so many new functions, which are often overlapping
with the functions of the SJC, may result in shifting the real power
away from the SJC.
In this context, the method of election of members of the
Inspectorate (the Inspector General and 10 ordinary inspectors)
is of crucial importance. All members of the Inspectorate are elected
by the parliament with a two-thirds majority. While in theory a
need for compromise within the parliament should lead to the election
of neutral figures, in the Bulgarian context all reservations evoked
with regard to the election of the parliamentary quota of the SJC
apply also here. Our interlocutors from civil society complained
that political bargaining has as a result that each inspector is
likely to have some political obligations vis-à-vis one or another party.Note
61. The Venice Commission Opinion makes concrete recommendations
on the procedures for the nomination and dismissal of inspectors
and on the division of competence between the Inspectorate and the SJC.
It also recommends further clarifying the rules on inspection and
62. In response, the Bulgarian authorities in co-operation with
the European Commission’s Structural Reform Support Service, have
elaborated a project aimed at further development of the Inspectorate’s
capacity to deal with integrity issues among magistrates. The project,
implemented by the Council of Europe, was launched at the end of
2018, to be completed in 2019.
63. In the meantime, the Inspectorate has taken up its new tasks.
Since 1 January 2017, all magistrates have to submit a declaration
of their assets and interests. In addition to information on property
and assets, declarations should contain details on participation
in commercial entities, management and control bodies of commercial
entities and non-profit legal entities, any contracts with persons
carrying out activities in a field related to a magistrate’s official
duties. The declaration has to be submitted within one month of
taking up office, annually before 15 May, within one month of leaving
office and within one month of the expiry of one year after leaving
office. The Inspectorate has received and published interest and
assets declarations for more than 4 000 magistrates covered by the
new rules. Proceedings have been launched against magistrates who
have not submitted their declarations.
64. The Inspectorate has been provided with additional resources
to verify analyses of conflicts of interest and personal assets
of magistrates. It has direct access to the electronic databases
of central and local government authorities, the judicial authorities
and other institutions, and can request additional information from
these bodies which have to reply within a month. In addition, the
Inspectorate may require disclosure of data covered by bank and
insurance secrecy as well as tax and social-insurance information.
65. The Inspectorate runs online public registers for online alerts
on cases of conflict of interest or false declarations or any other
alleged corruption behaviour on the part of magistrates. It has
also received a number of alerts on the work of magistrates, but
only a few have led to an investigation because the information
was incomplete. The Inspectorate cannot act on anonymous alerts
or alerts which do not provide sufficiently concrete information.
In terms of its own follow-up, the Inspectorate can invite the magistrate
concerned for an interview, but they are not legally obliged to
turn up, and, more generally, it has limited investigatory powers. As
a result, only a very small percentage of received alerts has resulted
in the opening of an inspection and the identification of irregularities.
Even fewer gave rise to disciplinary proceedings.
66. During our visit, we heard criticism from civil society regarding
capacities of the Inspectorate’s efficiency with respect to the
verification of conflict of interest. It also appears that the current
system of alerts has not proved efficient so far.
67. The recent amendments have also introduced the provision which
obliges the SJC to publish an annual report on the autonomy and
transparency of judicial practice and its own practice. The report
is a subject of public debate. This new measure addresses the Assembly’s
68. In conclusion, we recognise that the 2015-2016 amendments
to the SJA and other regulations concerning the functioning of the
SJC have constituted a major step towards Bulgaria fully respecting
its commitments and obligations.
69. With regard to the Prosecutor General, in its latest Opinion,
the Venice Commission raised the question of accountability. It
stated that in order to increase accountability, the JSA should
develop a procedure allowing for effective and independent investigation
into alleged misconduct of the Prosecutor General. Furthermore, functions
and powers of the prosecution service outside the criminal law sphere
should be seriously curtailed. Finally, suspension of judges under
investigation should be subject to an effective control by the Judicial Chamber
of the SJC.
70. With regard to the latter we were told at the Ministry of
Justice that further amendments had been subsequently adopted in
October 2017 to give the SJC some discretion to decide on the merits
in cases not involving offences related to the official responsibilities
of the magistrates as well as to provide for appeal at the Supreme
71. At the meeting with the Prosecutor General during our last
visit to Bulgaria, we were informed about an independent analysis
of the structural and functional model of the Prosecutor’s Office
conducted in 2016 by five independent European Union experts, prosecutors
from the Germany, the Netherlands, Spain and the United Kingdom
under the aegis of the Structural Reform Support Service at the
request of the Bulgarian authorities. During their seven visits
to the country, the international experts interviewed more than
200 people, including magistrates, police officers, attorneys-at-law,
investigative journalists and representatives of civil society.
They produced a report containing a number of recommendations for
judicial practice at the Prosecutor’s Office, courts, SJC, Inspectorate
and Ministry of Justice. As a follow-up action, in 2017, the Prosecutor
General published an Action Plan to Implement the Recommendations
Contained in the Independent Analysis of the Prosecutor’s Office.
A roadmap has been drawn up with the Ministry of Justice.
72. According to the Prosecutor General, implementation of the
recommendations has greatly advanced. Following amendments to the
JSA, every six months the Prosecutor General presents a summary
on the initiation, progress, and closure of files to the prosecutors’
chamber of the SJC, to the Inspectorate and to the Ministry of Justice.
Furthermore, the Prosecutor General submits an annual report to
the Plenary SJC regarding the implementation of the law and judicial
practice at the Prosecutor’s Office and the investigating authorities.
The SJC hears the Prosecutor General and council members may ask
questions in writing, sent by citizens, institutions and non-governmental
organisations (NGOs) in relation to reports. The report is published on
the website of the Prosecutor’s Office. It is also submitted by
the SJC to the parliament. The Prosecutor General is heard by the
Committee on Legal Affairs every three months. In the Prosecutor
General’s opinion all these measures have increased the accountability
of the PG.
73. We were also told that the issue of procedures for accountability
of most senior positions in the magistracy, including a serving
Prosecutor General, in the event of serious allegations of wrongdoing
or criminal acts is under consideration in the working group operating
under the Ministry of Justice tasked with the preparation of proposals
for legislative amendments to the Criminal Code and the Criminal
Procedure Code (see paragraph 83 below).
74. Finally, we were informed that out of concern for transparency
and accountability, the Ministry of Justice has been publishing
every six months, since the beginning of 2017, a report on the progress
on the implementation of the judicial reform strategy. Before being
published, drafts are subject to consultation and discussion with
the participation of representatives of the institutions involved
in the implementation of the strategy, as well as professional and
non-governmental organisations. To this end, a special consultative
body, called the Judicial Reform Council has been established under
the Ministry of Justice. These mechanisms constitute useful complements
to formal stakeholder consultations on new legislative initiatives.
75. The European Union CVM report published in November 2018 positively
assessed the progress made in the judicial reform process, in particular
with regard to the election and functioning of the Supreme Judicial Council
and the Inspectorate. In the conclusions, the European Commission
stated that it expected to conclude the CVM process for Bulgaria
before the end of this Commission’s mandate provided that the positive
trend in Bulgaria is maintained.
76. Representatives of civil society whom we met during our visit
were more cautious in their assessment. While admitting undeniable
progress and improvements towards the independence of the judiciary
they stressed that it was too early to evaluate the full impact
of reforms and implementation of new laws.
77. The foregoing critical remarks are confirmed by the results
of the Eurobarometer poll, which showed that in 2017, as many as
74% of Bulgarians tended not to trust the national justice and legal
system and only 18% have confidence in it. This is the lowest score
in the European Union.
78. In the last report on Bulgaria,
the Assembly urged the Bulgarian authorities to complete the work
on a new penal code, in full co-operation with Council of Europe
legal experts. The then existing legal framework, and in particular
certain provisions of the Criminal Procedure Code and the Criminal
Code, constituted obstacles for judicial authorities in ensuring
effective investigation and prosecution of high-level corruption
and organised crime.
79. In 2016, a package of draft amendments to the Criminal Procedure
Code was prepared by the Ministry of Justice with the support of
the Prosecutor’s Office and other parts of the judiciary, but as
a result of the subsequent internal political developments, they
were not taken further in the framework of the legislative process.
In June 2017, a newly formed government of Prime Minister Borissov
submitted the amendments to parliament, which quickly, in July 2017,
proceeded with their adoption.
80. The new provisions addressed delays in criminal proceedings,
notably by limiting the ability of courts to refer cases back to
the Prosecutor’s Office on formal grounds. Another important change
is the transfer of high-level corruption cases to the jurisdiction
of the Specialised Court and Prosecutor’s Office on Organised Crime. We
will examine this more closely in the next sub-chapter. The amendments
also included other measures aimed at ensuring better enforcement
of sentences, shorter deadlines and more flexibility in the length
of pretrial investigations in complex cases.
81. In general, the changes are in line with earlier recommendations.
However, civil society and some parts of the judiciary have criticised
the rapid pace of the legislative process which had not allowed
for a proper public debate at that stage. According to them, some
of the amendments raised concern. For example, the acceleration
of procedures and limitations on courts’ ability to send cases back
to the prosecution might lead to unwarranted acquittals as new deadlines
may be sometimes unrealistic.
82. The adopted modifications are now in force. The specialised
prosecution has also received additional resources to deal with
additional workload. In terms of impact, a larger number of referrals
at the early stage of the procedure can be observed. While it may
reflect a more cautious approach of judges, it should be counterbalanced
by a faster pace of proceedings once the preliminary stage is completed.
It is expected that the positive results of the amendments will
be seen in a few months.
83. A range of additional areas for possible legislative changes
to the Criminal Procedure Code and the Criminal Code, contained
in a document called Concept of Penal Policy, are under consideration
in working groups under the Ministry of Justice established in 2017.
It has been drawn up in co-operation with Dutch experts.
84. The issues under consideration with regard to the Criminal
Procedure Code include ex ante checks
and regulations carried out by investigators prior to formal pretrial
investigations, authorisation of special investigatory measures,
the role of witnesses in pretrial investigations, the possible investigative
powers of the State Agency for National Security under the Criminal
Procedure Code and others.
85. With regard to the Criminal Code, a number of issues are subject
to consideration. They include the possible extension of abuse of
office offences to cover the private sector and the need to prove
damages resulting from abuse of office.
86. During the visit, we were informed that alongside the work
of the Ministry of Justice in this respect, the Prosecutor’s Office
had also engaged in the preparation of draft amendments concerning
key provisions of the CPC governing the criteria for bringing cases
to court and the content and format of indictment.
87. It is clear that a comprehensive legal framework for penal
policy is a long-term process which requires multiple level analysis,
consultations and public debate, and we should not insist on speeding
up the process and work of different stakeholders. We commend the
Bulgarian authorities for their co-operation and responsiveness
to the legal experts of the Council of Europe, and we also express
our satisfaction at their commitment to introducing targeted amendments
to improve the investigation and prosecution of high-level corruption
and organised crime.
corruption and organised crime
88. The fight against corruption
is the area in which until recently the least progress has been
made since the last debate in the Assembly, compared to other fields.
High-level corruption has been consistently considered as a major
problem in Bulgaria, as confirmed by the specialised agencies of
the Council of Europe, in particular GRECO, by the European Union
in its successive CVM reports, and by other international organisations.
89. In its 2017 Corruption Perception Index, Transparency International
ranked Bulgaria 71 out of 180 countries with a score of 43 on a
scale from 0 (highly corrupt) to 100 (very clean) as compared to
41 in 2016. The World Bank’s Worldwide Governance Indicators place
Bulgaria’s “Control of corruption” in the 51.4 percentile in 2017.
While it shows a slight improvement over the previous year, it is
still much worse than the 2004 and 2005 scores.
90. According to the 2017 Special Eurobarometer on Corruption
report, 87 % of Bulgarians believe there is corruption in national
public institutions, which marks a rise of 5 % as compared to 2016.
Furthermore, the poll showed that 83 % believe that high-level cases
of corruption are not pursued sufficiently.
91. There has been greater visibility in recent years of high-level
corruption scandals, including, in 2017, the “Tzumgate” case (unofficial
meeting between the Prosecutor General and businessmen involving
threats and seeking favourable treatment in a number of commercial
lawsuits), the “Sudzhukgate” scandal involving a former GERB MP
who used his influence to bypass food safety regulations, eliminate
competitive companies, and persuade the prosecution against investigating
a manslaughter case); the “Military Hospital” case involving a health
minister accused of irregular procurement procedures, and bankruptcy
of the Corporate Commercial Bank, involving a high-ranking official
from the Bulgarian National Bank. Although the prosecution has initiated investigations
in all these cases, there have been no convictions so far. On a
more positive note, it seems that thanks to greater media coverage,
parties have become less tolerant towards its members implicated
in scandals and do not try to cover them up.
92. Some concerns relating to the judicial system are easily identifiable
in the difficulties faced in the fight against corruption and they
have been the subject of Assembly recommendations in the area of
judicial independence. In the previous chapters we dealt with specific
questions on the role of the Supreme Judicial Council as guarantor
of the independence of judges. A new structure of the SJC, its composition,
its appointment of members, its powers, the introduction of a distinct
and transparent procedure for a rigorous and in-depth evaluation
of the qualifications, integrity, ability and efficiency of a judge
for the purpose of acquiring life tenure, and elaboration of objective
and transparent criteria for appraisals and promotions, increased powers
of the Inspectorate including verification of declarations on assets
and non-conflict – all these positive measures addressing our earlier
recommendations have contributed to the fight against corruption.
These measures were also recommended by GRECO in its Fourth Evaluation
Round report on Bulgaria and considered as implemented satisfactorily
in the 2017 Compliance report.
93. Regrettably, some issues with regard to judicial independence
and the potential impact on the fight against corruption have not
been addressed: these include GRECO’s recommendation that the application
of supplementary remuneration within the judiciary be subject to
clear, objective and transparent criteria. In its evaluation report,
GRECO referred to a worrying practice whereby court presidents used
their discretion in awarding year-end bonuses to judges under their
responsibility and to allegations that this had been used to secure
loyalties in courts.
94. The second category of concerns with direct relevance to the
fight against corruption relates to the instruments provided by
the CC and CPC. We have referred to the changes in the penal policy
in more general terms in the previous sub-chapter; here we would
like to focus on more specific issues. In the last report on Bulgaria,
the Assembly called on the authorities to implement the recommendations
made by GRECO, in particular with regard to the clear incrimination
of bribery and trading in influence; broader interpretation of the concept
of undue advantage, and implementation and use of the potential
of the Law on Forfeiture in Favour of the State of Illegally Acquired
Assets adopted in 2012.
In its two Compliance reports and an addendum on Bulgaria
in the framework of the Third Evaluation Round,Note
acknowledged that the recommendation concerning incrimination had
been implemented satisfactorily. In September 2015, the parliament
adopted the amendments to the CC which provide for explicit criminalisation
of both passive and active bribery and trading in influence where
the advantage is intended for a third party. Furthermore, they introduce
criminalisation of bribery of foreign arbitrators.
96. We welcome the fact that Bulgaria has invested considerable
resources in training and raising the awareness of a large number
of judges, prosecutors and law-enforcement officers on issues pertaining
to the bribery and trading in influence and the criminalisation
of non-material advantages. We were also informed during our visit
that the Prosecutor General’s Office had adopted a Unified Catalogue
of Corruption Crimes in line with existing definitions of corruption
in international legal instruments. It is a reference for statistical reporting
and analytical data which the PG is obliged to publish periodically
(see paragraphs 69 and 70).
97. In January 2018, the parliament adopted a new Anti-Corruption
and Forfeiture of Assets Act in line with earlier recommendations.
Our interlocutors during official meetings insisted that the new
law puts in place a comprehensive reform of the legislative framework
for the prevention of conflicts of interest, illicit enrichment and
98. The new law also established a new unified anti-corruption
agency – Anti-Corruption and Forfeiture of Assets Commission – in
charge of verifying conflicts of interest and private assets of
high-level officials, investigating allegations of corruption among
such officials, establishing safeguards for the prevention of corruption
and setting up procedures for the seizure and confiscation of illicit
assets. This addressed another recommendation formulated by the
Assembly in the previous report calling on the Bulgarian authorities
to establish independent institutions in the area of anti-corruption
with the authority and obligation to make proposals, to intervene
in a proactive way and to ensure independent monitoring in line
with the European Commission’s recommendations
99. The new agency is based on a merger of five already existing
institutions, including the commission for illegal forfeiture of
assets, and has taken over their staff and resources. It is competent
to assist the prosecution in investigations of alleged high-level
corruption. While it does not have independent powers of criminal investigation,
it has extensive competence to carry out surveillance and intelligence
measures within its remit. It is responsible for the verification
of personal interest and assets declaration of about 15 000 high-level officials,
including ministers, mayors and key civil servants. It is also the
main agency responsible for the seizure and confiscation of illicit
assets. The law provides that it will be accountable before the
parliament and will publish an annual report.
100. At the same time, by means of an ordinance adopted in June
2018, the government has updated and clarified the legal framework
for the internal inspectorates of the State administration, including
new increased powers regarding the verification of interest and
asset declarations for public employees. The amendment to the Law
on Public Administration was adopted in October 2017. The new rules
also provide for a stronger co-ordination role of the chief inspectorate
under the Prime Minister’s office and for clearer rules for the
work and qualifications of inspectors. Additional human and material
resources have been allocated to inspectorates.
During our visit, the agency was already fully operational
and all our interlocutors from the Ministry of the Interior, the
Ministry of Justice and the Prosecutor’s Office seemed confident
that it will constitute a major step in the fight against corruption.
We also noted, however, some criticism from civil society concerning
weak protection of whistle-blowers as well as the fact that the
management of the agency was to be elected by a simple majority
in the parliament which might lead to politicisation. The law was
vetoed by President Radev before being overruled by the parliament.
The President’s argument was that the bill would not be effective enough
and might be used to persecute political opponents.Note
102. A key challenge for the new agency will be to effectively
manage the broad remit of its responsibilities, including prevention,
activities linked to investigation and the forfeiture of assets.
The ultimate criteria of its efficiency will be its final decisions
in high-level corruption cases and a number of convictions. In 2016,
the Prosecutor’s Office carried out a review of completed corruption
cases in order to identify obstacles to successful prosecution.
In conclusion, some measures have been undertaken and legislative
proposals have been formulated.
103. During our visit we were informed that in the first half of
2018, a significant number of high-level officials including one
minister, two deputy ministers and several mayors had been charged
with corruption offences. A member of parliament, three ministers,
two deputy ministers and several mayors were indicted in court.
A number of cases have resulted in convictions, including six cases
involving mayors. Furthermore, a number of large-scale investigations
104. This brings us to a more general question of a mechanism for
public reporting on progress in high-level corruption cases. Bulgaria
established, in 2017, a mechanism for public reporting on progress
in high-level organised crime cases which are in the public domain.
A positive development in this respect was the establishment of
a public website at the Supreme Court of Cassation presenting information
on ongoing court proceedings. The General Prosecutor has to report
on investigations and indictments and the Supreme Court of Cassation
and Ministry of Justice on convictions and enforcement of sentences.
105. We also look forward to the concrete outcome of the discussions
carried out in working groups under the Ministry of Justice (see
paragraph 83) addressing other issues in the penal policy relevant
for high-level corruption. In 2018, they reached conclusions on
a number of questions which it has been decided did not necessitate
a legislative follow-up and could be addressed by means of administrative
measures. They included, for example, the content and format of
indictments or involvement of management in decisions on concrete
cases within the Prosecutor’s Office.
106. There are still ongoing deliberations on a number of crucial
issues such as the threshold for initiation of pretrial proceedings
and use of preliminary inquiries. As mentioned above, the question
of accountability of the Prosecutor General is also under discussion
and we are confident that proposed solutions will address the Venice
Commission’s concerns formulated in document CDL-AD(2018)018.
107. Finally, the Assembly recommended in 2013 that the authorities
conduct a full analysis of the deficiencies in investigatory procedures
with a view to remedying the situation, and on the basis of past experience,
improve the performance of the police, the prosecution and the courts.
We already touched upon the issue of judicial procedures and amendments
to the CPC and CC in more general terms in chapter 3.2. We also
mentioned an analysis of the structural and functional model of
the Prosecutor’s Office by the European prosecutors and the follow-up
given to their recommendations (see paragraphs 71-72).
108. Finally, during our visit in the parliament, we were informed
of specific measures aimed at the fight against corruption at parliamentary
level. Following GRECO’s recommendation, in October 2016, the parliamentary
Rules of Procedure were amended with a view to ensuring effective
transparency of the legislative process and enhancing interaction
with civil society and other interested parties. The amendments introduced
specific sanctions for breaches of ethical rules and established
a procedure for their imposition.
109. In order to raise awareness of the ethical rules, the parliamentary
Committee on Anti-Corruption, Conflicts of Interest and Parliamentary
Ethics is obliged to give advisory opinions to MPs on the implementation of
ethical standards of conduct. Any individual or legal person can
file a complaint with the committee or report an infringement. The
decisions linked to disciplinary proceedings against an MP are published
in the parliamentary Public Registry. Of course, MPs are also covered
by the mandate of the Anti-Corruption and Forfeiture of Assets Commission.
110. With regard to the fight against organised crime, consecutive
CVM reports have noted significant progress. This was confirmed
during our visits at the Ministry of the Interior where we received
relevant statistical data on trafficking and smuggling. Here again,
the authorities are to be commended for the establishment of a system
providing transparency on the reporting of progress in organised
crime. Concerning corruption in general, including at local level
and borders, according to CVM and GRECO reports, Bulgaria has taken
steps to address earlier recommendations.
111. According to GRECO’s most recent report of July 2017, Bulgaria
has implemented 12 out of 19 recommendations addressed to the authorities
and noted a significant progress. The most recent CVM report also
commends Bulgaria for the progress made over the last year in the
field of corruption and expects that the monitoring procedure will
be closed before the end of the current Commission’s mandate.
112. Basing ourselves on all this information, we believe that
important progress has been made in the fight against corruption
in the last year. The new anti-corruption law and other improvements
of the legal and administrative framework for the investigation
and prosecution of corruption provide all the necessary tools to law
enforcement and now it is important to show concrete results and
build a solid track record. We hope that transparency and accountability,
which seem now to be integrated in the work of all stakeholders,
will contribute to further progress in this area.
113. Bulgaria has the worst press
freedom status in the European Union. In 2018, Reporters without
Borders (RWB) ranked Bulgaria 111th (out of 180 countries) in the
world. Countries such as Ghana, Mongolia or Kyrgyzstan are ahead
of Bulgaria. The situation has been deteriorating systematically
over recent years as illustrated by earlier rankings: in 2010 Bulgaria
was 70th, in 2011 – 80th and in 2017 – 109th.
114. One of the main concerns and obstacles to press freedom in
Bulgaria is concentration of ownership and lack of transparency.
Bulgarian legislation does not provide for specific thresholds in
order to prevent a high degree of ownership concentration. Insufficient
data on media ownership and market shares do not allow for an accurate
evaluation of the actual state of cross-media concentration in the
115. According to Reporters without Borders, 80% of print media
are regrouped in the New Bulgarian Media Group which is controlled
by one person, politician and businessman Delyan Peevski. His newspapers
are mainly pro-government. The Group is also the main stakeholder
of the only press distribution company.
Radio and television stations need a licence from the Council
of Electronic Media (CEM), an independent body with a budget approved
by the parliament. Several international organisations and studies
have criticised the arbitrariness of the issuing of licenses by
The appointment of members of the regulatory
authority for commercial and public broadcasting is entirely political
and shared between the President and the parliament. There was a
lack of transparency in the appointment of the General Director
of the Bulgarian National Television (BNT) and then in other appointments
in lower management.Note
117. The existing laws against political interference in the media
do not explicitly forbid politicians to own outlets. At the same
time the legislation does not adequately protect independent editorial
118. In its last resolution on the post-monitoring dialogue in
Bulgaria adopted in 2013, the Assembly called on the authorities
to adopt legislation obliging the broadcast media to disclose the
names of their actual owners, as had been already the case for the
print media. The relevant law was adopted on 1 November 2018. However,
civil society points out that laws dealing with transparency of
media ownership are not, or only partially implemented. The current
system of registration does not ensure transparency as most outlets
are registered under offshore companies, anonymous companies or
119. In March 2018, the Committee of Ministers adopted Resolution
CM/Rec(2018)1 on media pluralism and transparency of media ownership,
which updates standards to ensure a pluralist media landscape, transparency
of media ownership, diversity of media content and inclusiveness
in public service media. It sets standards which, we hope, Bulgaria
will include in its future legislation.
120. According to the Association of European Journalists, another
serious problem of the media environment in Bulgaria is State influence
over media outlets, exerted through the advertising budgets of European
Union operational programmes in exchange for favourable media coverage.
Over the past few years, the economic crisis has reduced sales and
advertising making all media more and more dependent on State support.
The government’s allocation of European Union funding to certain
media outlets is conducted with a complete lack of transparency,
without competition and without applying the law on public procurements.
In a television interview, a Deputy Prime Minister threatened
to cut all European financing to the BTV media group and the Nova
broadcasting group (the largest privately-owned TV stations in Bulgaria),
accusing them of manipulating public opinion and misrepresenting
the authorities’ actions.Note
122. However, the core problem is the intimidation and use of the
prosecution as an instrument of pressure. Undue pressure on journalists
results in self-censorship. The threats and pressure to which journalists
are subjected from small, local media are of particular concern.
123. In October 2017, a lawmaker from the ruling coalition and
a Deputy Prime Minister intimidated the same journalist in two separate
interviews by implying that he would share the fate of his former
partner, dismissed earlier that month after a series of political
attacks. Protests in defence of the journalist have forced the lawmaker
to resign, and the Deputy Prime Minister to make a statement, but
unfortunately this is not an isolated case.
124. In recent years, there have been reported several cases of
direct political interference in media. The most flagrant example
was that of investigative journalist, Dilyana Gaytadhzieva, who
had been directly threatened and after publishing her findings,
she was made redundant without further explanation.
125. According to a survey conducted by the Association of European
Journalists (AEJ), over two thirds of the 200 Bulgarian journalists
interviewed admit that most of the interference comes from politicians,
and 92% indicate that interferences are common and widespread.
126. Such a situation affects the quality of public debate. It
also impacts on judicial independence resulting from targeted attacks
on judges in some media and difficulties in finding effective redress.
More generally, a poor media environment does not privilege accountability
of those in power.
127. On the other hand, we consider unfounded protests concerning
another emblematic case. In September 2018, two journalists were
detained for a few hours by the police. They had been trying to
make a film about the burning of documents relating to corruption
(misuse of European funds). The story gained international exposure.
We raised this question with the Minister of Justice and the Deputy
Minister of the Interior. They both assured us that the detention
was a result of miscommunication; the journalists had not informed
the local police of their planned presence. Otherwise, co-operation
with these two journalists and the media they represented had always
been very good. A representative of the Association of European
Journalists whom we met later, confirmed this explanation.
128. Furthermore, violence against journalists is on the rise,
such as the attack on Khristo Geshov, producer of the television
programme “On Target”. Another journalist Georgi Ezekiev of Zov News recorded threats that he
had received; investigations have been opened in both cases. In
2017, 10 cases of intimidation were registered by the AEJ. We noted
with satisfaction the reaction by Prime Minister Borissov who commented publicly
that “the bullies must be punished with the full force of the law”.
In the most recent tragic development, in October 2018, an
investigative journalist, Victoria Marinova, was brutally murdered.Note
7 December 2018, we received a letter from the Chairperson of the
Bulgarian Delegation providing us with updated information on the
progress of an investigation into the murder and the ongoing judicial
procedure. The enforcement authorities had identified a suspect
on the basis of DNA tests and other evidence as being a 21-year-old
Bulgarian citizen who in the meantime had moved to Germany. The German
Court granted a request for extradition. Currently, the suspect
is undergoing psychiatric exams and the Court hearing will take
place within four months. The Bulgarian authorities assume that
the assault has a criminal basis.
130. The Bulgarian authorities should comply with provisions of
Committee of Ministers Recommendation CM/Rec(2016)4 on the protection
of journalism and safety of journalists and other media actors.
131. On a positive note, a long-standing recommendation of the
Assembly concerning decriminalisation of defamation has been fulfilled
and a relevant provision has been included in the Penal Code.
The series of amendments introduced
to the Electoral Code between 2014 and 2016 improved a number of
concerns raised by the Venice Commission in its earlier opinions
issued in 2013 and 2014. This was recognised in the most recent
Venice Commission Opinion on the Electoral Code adopted in June
improved, inter alia
finance provisions and their oversight, voter registration and provisions
on media coverage during the campaign.
133. However, a number of issues remained unaddressed. Furthermore,
certain amendments introduced between 2014 and 2016 raised some
134. The Venice Commission’s 2017 opinion contained the following
recommendations: improving voter registration and the compilation
of voter lists; reducing restrictions of suffrage rights for citizens
serving prison terms regardless of the severity of the crimes committed;
ensuring the right of Bulgarian citizens holding dual citizenship
to stand for elections; reconsidering the restrictive conditions
for election observers; harmonising various deadlines of the electoral
process, including deadlines regulating complaints and appeals procedures and
allowing the use of minority languages in the election campaign.
135. Furthermore, the opinion recommended that a broad public consultation
process be held and any changes to the Electoral Code be introduced
well in advance of elections.
of judgments of the European Court of Human Rights
136. Since its accession to the
Council of Europe, Bulgaria has lost more than 80 cases on inhuman
and degrading treatment before the European Court of Human Rights
(“the Court”) including cases concerning a lack of a fair trial
and some instances of torture. By comparison, the Czech Republic,
which has a larger population than Bulgaria, has lost only two such
In 2017, following the Court’s rulings, Bulgaria had to pay
€641 535 in indemnities – roughly 12 times more than Germany and
15% more than the previous year.Note
Bulgaria has one of the largest shares of unimplemented Court
judgments. In Resolution
on the implementation of judgments of the European Court
of Human Rights, the Assembly pointed out that it was one of nine
States which had the highest number of non-implemented judgments,
including certain particularly important judgments awaiting implementation
for over five years and revealing structural problems.
139. Bulgaria is one of four countries (along with Turkey, Romania
and Georgia) where increased supervision has been implemented, with
7% of the total number of cases placed under increased supervision.
Main problems concern excessive length of judicial proceedings and
the lack of an effective remedy in this regard, poor conditions
of detention and ill-treatment by law-enforcement officials, expulsion
of foreigners in violation of their rights for family life as well
as ineffectiveness of criminal investigations.
140. According to the statistics of the Committee of Ministers
on supervision of the execution of judgments, as at December 2017,
as many as 207 and as at December 2018 as many as 208 cases against
Bulgaria were pending before the Committee of Ministers. However,
these numbers had decreased compared to the previous years.
141. In 2015, the Court identified a systemic problem concerning
the effective investigation of crime in Bulgaria, based on a large
number of cases reaching the Court over previous years.
142. In reaction, in 2016, the Prosecutor’s Office conducted an
analysis of the existing case law on Bulgaria. It identified a number
of legislative and administrative deficiencies and formulated recommendations
with a view to remedying the situation. This analysis was made publicly
available on the website of the Prosecutor’s Office. In 2017, it
published a roadmap which included an analysis of case law on judicial
review of prosecutorial decisions to terminate criminal investigations,
the designation of specialised prosecutors and investigators to
deal with complaints of excessive use of force by law-enforcement
officers and revision of internal control within the Prosecutor’s
143. Many of the identified issues were already discussed in the
above chapters. In addition to possible legislative initiatives,
a number of administrative measures were introduced. Training for
prosecutors on effective investigations has been launched. Moreover,
in June 2018, a working group was set up to explore ways to enhance
co-operation between the Ministry of Justice and the Prosecutor’s
Office with regard to the follow-up to future judgments of the European
Court of Human Rights regarding shortcomings in the effective investigation
of crimes in Bulgaria. Finally, the statistical reporting by the
Prosecutor’s Office has been revised in such a way as to include
cases of ex ante checks and
pretrial proceedings with respect to alleged violence by law-enforcement
officers and employees of penitentiary and detention facilities.
Any rulings pronounced by the Court are to be published on the website
of the Ministry of Justice with annotated comments by the Prosecutor’s
The most recent report on the implementation of judgments
of the European Court of Human Rights by the Assembly’s Committee
on Legal Affairs and Human Rights,Note
debated in June 2017, recognised
progress accomplished in Bulgaria in connection with the problem
of excessive length of judicial proceedings and the lack of an effective
remedy in that regard. In September 2015 and in February 2017, following
measures introduced in the Bulgarian Criminal Procedure Code, the
Committee of Ministers closed respectively 56 and 34 cases. Some
progress has also been noted in implementing the groups of cases
relating to poor conditions of detention (Kehayov
of cases and Neshkov
pilot judgment) and to ill-treatment by law- enforcement officers
group) (see next
Prison conditions in Bulgaria
have been problematic with systemic police abuse and poor material conditions,
as revealed by CPT reports in 2015.Note
146. During our last visit, we received extensive information on
measures introduced to improve the situation both in prisons, which
remain under responsibility of the Ministry of Justice, and in police
stations administered by the Ministry of the Interior.
In response to criticism from the CPT, in January 2017 the
parliament adopted amendments to the Law on Executing Punishments
and Arrests. The changes addressed living conditions, regime, early
release and judicial control over the prison administration.Note
148. Material conditions vary greatly between different detention
centres, but, in general, some improvements have been noted. Large-scale
renovations of prisons have been possible, also thanks to the Norwegian
grants assigned specifically for this purpose. The current capacity
of prisons in Bulgaria, based on CPT standards, is 8 500 places
and there are at present 5 000 inmates. As for custodial arrest,
the respective figures are 1 500 and 860. The authorities intend
to build a new prison with a training centre for prison staff.
149. The European Court of Human Rights has acknowledged the significant
progress made in recent years to improve prison conditions and in
two recent cases the Court concluded that there had been no violation.
150. With regard to the treatment of people in police custody,
according to the most recent statement of the CPT, issued in 2018,
there has been a slight improvement especially as regards the severity
of alleged ill-treatment since the last visit in 2015. The CPT regretted
the absence of any real progress in the application of safeguards
against ill-treatment, namely the right to notify one’s detention
to a third party, the right of access to a lawyer and to a doctor
and the right to be informed about the above- mentioned rights.
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 and 49 000 (0,7%) declared themselves as others (Russians,
Armenians, Macedonians, Vlachs, Greeks, Ukrainians and Jews).Note
152. Non-governmental sources estimate that the Roma population
is much higher than the official figures and oscillates around 700 000.
At a meeting with a Roma representative during our visit, the number
of 1 million was mentioned. We were told by the authorities that
this discrepancy with the census results from the fact that many
Roma identify themselves as Bulgarians or Turks.
153. Bulgaria ratified the Framework Convention for the Protection
of National Minorities in 1999 and since then its implementation
has been the subject of four reports of the monitoring mechanism
of the Convention. The relevant structures, as well as legislative
and administrative framework, have been put in place and as they were
already analysed in the report of our predecessor in 2013, we will
not come back to this question.
154. During our visit, we met representatives of civil society
dealing with minority issues, including representatives of Roma
and Macedonians. We would like to raise here several concerns which
they shared with us.
On a more general level, we were told that racist and intolerant
hate speech in political discourse continues to be a serious problem
in Bulgaria. The main targets of hate speech are Roma, Muslims,
Jews, Turks and Macedonians. In the last report on Bulgaria, the
Assembly called on the Bulgarian authorities to systematically and
unconditionally condemn hate speech against minorities, step up
measures aimed at fostering tolerance and mutual respect and encourage
exemplary behaviour by political leaders. Regrettably, we learnt
that the situation has not improved in this respect. We call again
on the authorities to follow the detailed recommendations of ECRI
included in its fifth monitoring cycle report on Bulgaria.Note
156. The Roma population constitutes the most numerous minority
group in Bulgaria. There is an important concentration of Roma in
the north-western part of the country (approximately 300 000 people).
According to our interlocutors, their situation has deteriorated
over recent years. Roma representatives have been excluded from
the democratic process and they are not present at any level of
the decision-making process. They do not make use of any political
157. Their material and social situation is, in general, very poor.
Some 200 000 families are affected by housing problems. One can
speak about a parallel society – in areas inhabited by Roma, the
State, its institutions and agents are invisible. This vicious circle
of social exclusion and discrimination results in growing impoverishment
and massive emigration. Approximately 30% to 40% of young Roma leave
for other countries of the European Union, in particular Germany.
158. Our interlocutor told us that his association representing
Roma is trying to establish a meaningful dialogue with the authorities
and help the Roma population to take advantage of political instruments
which are already in place. He recognised important progress in
the area of education: approximately 90% have basic education and
approximately 60% to 70 % complete secondary education. Discrimination
at the labour market remains however an obstacle to further integration.
He regretted that textbooks had not been updated with a view to
reflecting Roma history and culture, and that Roma people are not
employed as teachers.
159. The most recent incidents in the village of Gabrovo, last
April, where violence against the Roma population, triggered by
widely circulated footage showing men identified as Roma allegedly
instigating a fight at a store, lasted for several days and resulted
in 80% of Gabrovo’s 600 Roma population fleeing the village, is
an illustration of the problem in the country.
160. Another concern relates to the Macedonian minority, which
is not recognised by the Bulgarian authorities as such due to strict
application of formal criteria, although this group has repeatedly
expressed its wish to benefit from the protection of the Framework
Convention. As a result, there is no Macedonian representative on
the Commission for Minorities. Macedonians are not included in any
programmes concerning ethnic communities and do not receive any
type of assistance from the State for the conservation and development of
their culture and identity. There is no Macedonian language or history
in schools. No Macedonian organisation or party has been registered.
Our interlocutors claimed that there was discrimination against members
of their community.
161. We raised all these questions with the authorities. We were
told that a number of programmes, strategies and action plans had
been adopted in recent years to improve the situation of the Roma,
including the National Roma Integration Strategy (2012-2020). This
was followed by work with regions and municipalities to create strategies
specific to each region in Bulgaria. The number of Roma who had
achieved a higher level of education, including university education,
had increased. Initiatives such as the employment of health and labour
mediators had also proved positive.
162. In its most recent resolution on the implementation of the
Framework Convention in Bulgaria, adopted in 2018, the Committee
of Ministers noted a number of positive developments. The Commission
for Protection against Discrimination continues to deal with individual
complaints of racial and ethnic discrimination under the “Protection
Against Discrimination Act” and has expanded its network of regional
representatives. Its annual budget has been increased.
163. A range of provisions relevant to the protection of the cultural
rights of people belonging to minorities exists and the authorities
are currently engaged in a welcome process of drawing up a national
cultural strategy, including the promotion of cultural diversity
as a specific operational objective. The authorities have issued
an open invitation to NGOs to participate in this process.
164. Ten minutes of television and three hours of medium-wave radio
programming in Turkish continue to be broadcast daily. Mother tongue
teaching continues to be provided in Turkish, Armenian, Arabic,
Greek, Hebrew and Romani. The number of pupils studying Romani has
significantly increased in recent years. Textbooks and exercise
books have been created with a view to promoting Romani history
165. People belonging to minorities continue to be represented
in political parties in the parliament. In regions where ethnic
communities live in substantial numbers, they are also Mayors and
members of locally elected bodies. The National Council for Coordination
on Ethnic and Integration Issues (NCCEII), which is the main mechanism
for ensuring participation of representatives of ethnic minorities
through consultation and co-ordination, includes many NGOs and the
authorities have indicated that they are open to including other
166. The resolution also noted some issues of concern. No consultations
or discussions have been organised by the Bulgarian authorities
on the protection offered by the Framework Convention with some
persons identifying themselves as belonging to national minorities,
who, according to the Bulgarian authorities, do not meet certain
criteria but who have repeatedly expressed an interest in the extension
of the Framework Convention to them.
167. According to the official data, about 10% of the complaints
received by the Commission for Protection against Discrimination
concern issues relating to race or ethnicity.
Cases of incitement to intolerance and racism have been reported.
There is still no special provision in the Criminal Code making
racist motivation an aggravating circumstance.Note
and asylum seekers
169. Bulgaria ratified the 1951
United Nations Convention relating to the Status of Refugees and
the 1967 Protocol in 1993. It has introduced a legislative and administrative
framework with respect to reception and asylum procedures. Being
at a crossroads of migratory movements along the south-eastern border
of the European Union, the country experienced a sharp increase
in arrivals of migrants following the conflict in Syria. In 2015
and 2016, up to 15 000 people crossed the border with Turkey compared
to an average of 1 000 in the previous years.
Since then, the numbers of refugees and asylum seekers have
considerably dropped. We were told at the Ministry of the Interior
that 3 700 applications for asylum were submitted in 2017. As many
as 804 people were granted refugee status and 900 subsidiary protection.Note
was partly due to the government’s decision to build a temporary
fence along part of its border with Turkey as well as to the deployment
of 600 staff of the European Border and Coast Guard Agency (Frontex).
Our interlocutors from civil society complained about shortcomings
in asylum and refugee policy and practices. We would like to insist
on the benefits of programmes supporting whole communities receiving refugees
which allows hostility towards newcomers to be eliminated and enables
sustainable development. We were also told that there were not enough
language courses, which hampered proper integration processes.Note
Concerns relating to asylum seekers and irregular migrants
were the subject of the last visit to Bulgaria by the Commissioner
for Human Rights of the Council of Europe,Note
also formulated concrete recommendations with a view to improving
the situation, so we will not dwell on these issues here. We refer
all those interested to the Commissioner’s report.
173. In their comments, the Bulgarian authorities informed us about
the recent positive, in their view, developments with regard to
asylum and refugee policies and practices, which concern in particular
legal aid offered to asylum applicants, identification of people
from vulnerable groups seeking international protection and provision
of appropriate support, and social and cultural integration.
174. The question of ratification
of the Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (CETS No. 210, “Istanbul
Convention”) has created a very heated debate in Bulgarian society.
It was signed by Bulgaria on 21 April 2016. On 8 February 2018,
prior to the ratification by the National Assembly, 75 members of
the Assembly (mainly from the Socialist Group), asked the Constitutional
Court for a ruling on its conformity with the Bulgarian Constitution.
They claimed that the Istanbul Convention introduced concepts of
“socially constructed roles”, “stereotyped roles” and the term “gender”,
and that these opened the possibility for same-sex marriages.
In its ruling delivered on 27 July 2018, the Bulgarian Constitutional
Court declared the Istanbul Convention unconstitutional. The decision
was taken by 8 votes to 4. The Court pointed out that despite its undeniable
positive aspects, the Convention was internally contradictory, and
this contradiction created duality therein. Thus, the meaning of
some of its provisions went beyond the Convention’s stated purposes
and its title.Note
In particular, the Court
found the use of the term “women” as a subject of protection inconsistent,
while at the same time the legal definitions included the term “gender”.
176. At our meeting with representatives of the ruling GERB party,
they insisted that they had been in favour of the ratification.
In the light of the Constitutional Court’s decision, they decided
to draw up a set of legislative amendments to the Criminal Code
and the Criminal Procedure Code as well as the Law on Execution
of Penalties and Detention in Custody, reinforcing the protection
of the victims of violence including domestic violence. The amendments
were under preparation during our visit. While they regretted the
non-ratification of the Istanbul Convention, they considered that
thanks to the debate the adoption of the law on combating violence
against women has become realistic.
177. The representatives of women’s non-governmental organisations
whom we also met during the visit had a different view on the outcome
of the debate, which they saw in a much more negative way. Firstly,
according to them, the debate raised a lot of emotions and false
arguments and hate speech were used. It resulted in open hostility
towards the lesbian, gay, bisexual and transgender (LGBT) community,
and the closure of some LGBT associations.
178. Another negative consequence of the Constitutional Court’s
ruling will be the absence of comprehensive legislation protecting
women, which is a matter of urgency in Bulgaria. At present, the
situation of victims of violence is dramatic and despite all efforts
of civil society, without proper State policies and funding, it
will not improve. There are regions with no reception centres, where
psychological and material assistance are not available.
179. Our interlocutors from civil society were quite sceptical
about the prospects for adoption of a law on preventing and combating
violence against women. They regretted not being associated in any
way in the preparation. We were told that there were no ongoing
consultations on the subject. We hope that the legislation will
nevertheless be adopted. It is obviously very much needed.
180. In their comments, the Bulgarian authorities pointed out that
the proposed amendments had been registered – in accordance to Article
76 of the Rules of Organisation and Procedure of the National Assembly –
in the public register and on 24 October 2018 published on the official
website of the Assembly with a deadline for comments until 22 November
2018. Seven NGOs had submitted their opinions. Furthermore, the amendments
were discussed in the context of an inter-agency working group at
the Ministry of Justice with the participation of representatives
of nine NGOs and of civil society.
181. On 7 February 2019, the law amending and supplementing the
Penal Code was adopted by the Bulgarian Parliament.
182. In conclusion, we recognise
that Bulgaria has made substantial progress since the adoption of
the last report on the post-monitoring dialogue in 2013. It has
partly introduced legislation which, with several exceptions, complies
with Council of Europe standards and has addressed several concerns
formulated by the Assembly and other Council of Europe monitoring
mechanisms. However, the question of sustainability and irreversibility
of the reforms as well as efficiency of measures aimed at combating
high-level corruption remain subject to proper implementation of
183. Regrettably, due to a period of political instability between
2013 and 2016, and repeated elections, a number of reforms have
been subject to hasty legislative procedure in 2016 and 2017, without
proper consultation or involvement of all stakeholders. It remains
to be seen whether they will bring about sustainable improvements.
The present political situation marked, since February 2019, by
the boycott of the parliament by the opposition Bulgarian Socialist
Party may have a negative impact on progress and may weaken democratic
processes in the country.
184. The Assembly notes that in order to ensure sustainability
and irreversibility of reforms, some steps including, where relevant,
legislative changes, still need to be undertaken.