B Explanatory memorandum
by Ms Thórhildur Sunna Ævarsdóttir and Ms Deborah Bergamini, co-rapporteurs
1 Introduction
1. Bulgaria joined the Council
of Europe in 1992 and was under a full monitoring procedure until
2000. In 2000, by means of
Resolution
1211 (2000), the Parliamentary Assembly decided to close the full
monitoring procedure and engage in a post-monitoring dialogue “on
the issues referred to in paragraph 4 [of
Resolution 1211
(2000)] or any other issue arising from the obligations of
Bulgaria as a member State of the Council of Europe”. Since then,
three reports have been submitted to the Assembly by the Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) in 2010, 2013 and
2019.
2. In 2014, the Assembly’s monitoring procedure underwent some
changes. In particular, the Assembly decided that from then on,
a report on the post-monitoring dialogue should include a draft
resolution which either states that the post-monitoring dialogue
should be concluded or establishes concrete deadlines for the fulfilment
of outstanding commitments. In the latter case, the failure to meet
those deadlines, if so stated in the following report submitted
to the Assembly, would imply the return to the full monitoring procedure
(paragraph 13 of the terms of reference of the Monitoring Committee).
3. In other words, according to the Rules, since 2014, the Monitoring
Committee may prepare at most two reports and the second one, in
its draft resolution has to propose to the Assembly to either close
the post-monitoring dialogue or return the country to the full monitoring
procedure. The Monitoring Committee, as indicated in paragraph 1,
already submitted one report since the entry into force of the new
rules, in 2019. Following a debate, the Assembly adopted
Resolution
2296 (2019) in which it enumerated six outstanding concerns with
regard to the human rights and the functioning of democratic institutions
in Bulgaria and resolved to assess the progress made in these areas
in June 2020. The concerns included: high-level corruption, transparency
of media ownership, human rights of minorities, hate speech and
violence against women.
4. However, from July 2020 until recently, Bulgaria was confronted
with a major political crisis which resulted in five consecutive
early parliamentary elections held on 4 April 2021, 11 July 2021,
14 November 2021 (on the day of the presidential election), 2 October
2022 and the last one on 2 April 2023. For the majority of this
period, Bulgaria was governed by technical provisional governments.
We will deal with the political context of the functioning of democratic
institutions in chapter 2 below.
5. We were appointed rapporteurs on 1st February
2022 (Thórhildur Sunna Ævarsdóttir) and on 13 September 2023 (Deborah
Bergamini).
6. In the preparation of the present report, we were confronted
with the difficult task of ascertaining whether developments in
the six areas of concern since June 2019 justify a proposal to the
Assembly to close the post-monitoring dialogue or to return Bulgaria
to a full monitoring procedure.
7. In order to carry out this task, we undertook a fact-finding
visit to Sofia on 17-19 September 2023. During our visit, we met
the highest representatives of the legislative, executive, and judicial
authorities of the country, including the Speaker of the Parliament,
the Prime Minister and the Ministers of Justice and of the Interior, leaders
of parliamentary political groups, the Prosecutor General and the
President of the Supreme Court. These meetings created an excellent
opportunity for political dialogue. At the same time, we devoted
a great deal of time to exchanges of views with representatives
of civil society whose expertise and first-hand experience greatly
contributed to our understanding of the situation on the ground.
In addition, on 23 November 2023, we held an online meeting with
the Deputy Prime Minister and Minister for Foreign Affairs who was
away from Sofia during our visit.
9. 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 Commissioner for Human Rights,
Note the Evaluation and Compliance reports
of the Fourth and Fifth Evaluation Rounds prepared by the Group
of States against Corruption (GRECO),
Note the
Fifth Round Evaluation Report by the Committee of Experts on the
Evaluation of Anti-Money Laundering Measures and the Financing of
Terrorism (MONEYVAL),
Note the evaluation
report of the Third Evaluation Round by the Group of Experts on
action against trafficking in Human Beings (GRETA),
Note the Fourth
Opinion on Bulgaria adopted by the Advisory Committee on the Framework
Convention for the Protection of National Minorities,
Note and the Government’s
comments,
Note the
Resolution of the Committee of Ministers on the implementation of
the Framework Convention for the Protection of National Minorities
by Bulgaria
Note as well
as the Fifth Report submitted by Bulgaria.
Note We also acquainted ourselves with
the European Commission against Racism and Intolerance (ECRI) report
on Bulgaria in the framework of the sixth monitoring cycle and the
Government’s comments
Note as
well as with the report of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
Note and the Government’s comments.
Note
10. The Assembly observed the presidential and parliamentary elections
mentioned in paragraph 4 and debated the respective reports
Note prepared by the
ad hoc committees. In the present
report we have also used the findings of these observation missions.
11. The relevant judgments of the European Court of Human Rights
constituted another valuable source of information on the state
of democracy in the country. We also relied on the Committee of
Ministers’ documents on the supervision of the execution of judgements
of the Court.
Note
12. 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
judiciary, corruption, and organised crime. To date, 13 yearly reports
have been published, the last one in October 2019.
Note We have used the findings of successive
CVM reports in the present report. In September 2023, the European
Union closed the Co-operation and Verification Mechanism for Bulgaria
which remains subject to yearly European Commission Rule of Law
reports. Before reaching the final conclusion in the present report,
we visited, on 12 February 2024, the European Commission Directorate
monitoring the rule of law in EU member States (DG-Just) and held
an exchange of views with the officials responsible for Bulgaria.
13. Moreover, in 2016, five prosecutors from EU member States,
aided by the Structural Reform Support Service prepared an independent
analysis of the structural and functional model of the Prosecutor’s
Office and an analysis of its independence. We have acquainted ourselves
with the findings of this analysis.
14. We believe that the information gathered from such a variety
of sources has enabled us to prepare an objective and well-balanced
report, assessing the progress accomplished by Bulgaria with regard
to the functioning of democratic institutions, and in particular
the extent to which the reforms undertaken by the authorities have
addressed the concerns expressed by the Assembly in
Resolution
2296 (2019) and whether the reform process is sustainable, irreversible
and sufficiently entrenched in Bulgarian politics.
15. We submitted the preliminary draft report to the Monitoring
Committee which, at its meeting on 4-5 December 2023, decided to
send it to the Bulgarian authorities for comments. The present report
was revised in the light of the authorities’ comments received on
9 February 2024.
16. Last but not least, we would like to extend our gratitude
to the Bulgarian parliamentary delegation to the Assembly and to
its Secretariat for the excellent co-operation in the organisation
of our visit to the country as well as the help in contacting and
collecting information from different authorities, and to the Head
of the Council of Europe Liaison Office to the European Union for
having facilitated our visit to Brussels.
2 Political context
17. The last presidential election
took place in November 2021. The winning candidate, Rumen Radev representing
the BSP (Socialist Party) received 66,72% of the votes against 31,80%
for the candidate of the ruling party (GERB – Citizens for European
Development of Bulgaria). Ms Iliana Iotova was the running mate of
Mr Radev.
18. The period between July 2020 and April 2023 was marked by
a political crisis and instability following mass demonstrations.
These were triggered by numerous corruption scandals surrounding, inter alia, the allocation of EU
funds, infrastructure projects and government subsidies. Consecutive
parliamentary elections did not lead to stable governments until
April 2023.
19. While these contextual factors remain outside the remit of
the current monitoring report, it is obvious that they have inevitable
impact on the functioning of democratic institutions and on the
reform process. In this respect we wish to underscore the progress
which has been achieved despite the difficult political situation
and repeated elections and to commend the Bulgarian authorities
on their commitment to fulfil all obligations linked to the membership
of the Council of Europe.
20. Following the April 2023 early parliamentary elections, six
political parties and coalitions entered the 240-seat parliament:
GERB-SDS won 69 seats (2 more than in October 2022); it was closely
followed by PP-DB (a coalition between We Continue the Change (PP)
founded in May 2021 and Democratic Bulgaria) which won 64 seats
(9 less than in the previous parliament). The far right and pro-Russian
party Revival obtained 37 seats (10 more); DPS (representing minorities)
36 seats, BTS (socialists) 23 seats and ITN (There is such a People) 11
seats.
21. On 6 June 2023, Bulgaria’s Parliament approved a coalition
of the two biggest political groups - the GERB and PP-DB. According
to the coalition agreement, Mr Nikolay Denkov from the PP-DB will
be Prime minister for the first nine months and then the position
will be taken over by Ms Mariya Gabriel from GERB who until then
will be Deputy Prime minister and Foreign minister.
22. The coalition government has agreed on a pro-European Union
agenda including top priorities: membership in the Schengen area
and the European Monetary Union. It is determined to fight the Russian Federation
influence in Bulgaria’s security sector. Reform of the judiciary
and fight with high-level corruption are high on the domestic agenda.
23. The European elections in May 2019 were won by GERB (31,07%),
followed by the Socialist Party (24,26), the DPS (16,55%) and the
Movement for Rights and Freedoms (7,36%). Mayoral and municipal elections
took place on 27 October 2019. The ruling GERB party won 15 out
of 28 mayoral seats (as compared to 22 in 2015). It registered a
slight fall in support in smaller cities but maintained its grip
on key industrial and tourist centres.
3 Outstanding
areas of concern identified in Resolution
2296 (2019)
3.1 Judiciary
and high-level corruption
24. It is impossible to efficiently
fight corruption without an independent judiciary and for this reason
we deal with both issues in one chapter.
25. The judicial system in Bulgaria underwent major reform carried
out by the then government in 2014, endorsed by the parliament in
2015 and followed by further legislative process in 2015-2017. The
changes introduced in that period have contributed to undeniable
progress in the field of the judiciary and addressed many concerns
expressed by national stakeholders and the international community
including the Assembly.
Note While, in its opinion,
Note the Venice Commission raised a number
of concerns which had not been addressed in 2015-2017, it should
be stressed that the majority of them were the subject of the latest
constitutional reform which the authorities launched following the
formation of the government in May 2023 and which was adopted by
the National Assembly on 20 December 2023 by a prevailing majority
of 165 votes in favour, 71 votes against and 1 abstention.
26. We commend the authorities for having assembled the parliamentary
majority required for the revision of the Constitution indispensable
for the establishment of a fully independent judiciary and safeguarding sustainability
and irreversibility of the reform. Amendments to Chapter VI of the
Constitution with regard to the system of governance of the judiciary
and of the prosecution service address some long-standing concerns
of the Assembly.
27. The composition, method of appointment and functioning of
the Supreme Judicial Council (SJC), as well as the role played by
the Prosecutor General in this body, were crucial issues of the
recent constitutional reform.
28. The 2015-2017 reform created two separate chambers within
the SJC (one for judges composed of 14 members and one for prosecutors/investigators
composed of 11 members). While the Plenary SJC was stripped of most
of its powers regarding the appointment, disciplining and removal
of judges and prosecutors (these powers went to the two distinct
chambers), it retained nomination/dismissal powers vis-à-vis the
two Chief Justices (the President of the Supreme Court of Cassation
and the President of the Supreme Administrative Court) and the Prosecutor
General, as well as the power to remove elected judicial members, and
some regulatory powers.
29. The Prosecutor General retained an increased influence within
the Prosecutorial Chamber of the SJC and remained the hierarchical
superior of the prosecutorial members as well as lay members who
have a prosecutorial background. Overall, it was a source of serious
concern that the prosecutors, and the Prosecutor General in particular,
were significantly involved in the governance of judges, inter alia with regard to certain non-disciplinary
matters.
30. The Bulgarian authorities have made several attempts to remedy
these subsisting shortcomings in the organisation and the operation
of the SJC by elaborating amendments in 2019 and 2020. It is worth
noting that the Ministry of Justice has requested opinions from
the Venice Commission on both occasions which demonstrates the authorities’
will to co-operate. However, due to political instability and repetitive parliamentary
elections, these amendments have been dropped.
31. The constitutional amendments adopted in December 2023, abolished
the plenary of the SJC and created two independent Councils, one
for judges and one for prosecutors and investigators. The abolition
of the plenary SJC addresses the concern that the prosecutors, and
the Prosecutor General in particular, are excessively involved in
the governance of judges.
32. The new Supreme Judicial Council is composed of 15 members
including the President of the Supreme Court of Cassation who will
chair it, the President of the Supreme Administrative Court as well
as 8 judges elected by their peers and 5 practicing lawyers with
15 years of experience elected by the National Assembly by a two-thirds
majority. This composition complies with the Recommendation of the
Committee of Ministers
Note 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.”
33. The new Supreme Prosecutors Council (SPC) is composed of 10
members including the Prosecutor General, 2 prosecutors elected
directly by their peers, 1 member elected directly by investigators
and 6 members elected by the National Assembly by a two-thirds majority.
The public quota in the composition of the SPC has increased as
compared to the one under the previous law.
34. The term of office of the members of the SJC and SPC is four
years. They cannot be re-elected immediately after the expiry of
this period. The selection procedure is transparent and monitored
by public and professional organisations.
35. The powers related to the appointment, promotion, transfer,
dismissal and disciplining of judges and prosecutors will now be
concentrated within the respective councils. The appointment and
dismissal of the Presidents of the Supreme Court of Cassation and
Supreme Administrative Court will be transferred from the President
to the SJC. This change addresses a long-standing concern about
the powers of prosecutors in the SJC.
36. An important amendment to the Law on the Judicial System adopted
in 2023 in the framework of the execution of the SZ/Kolevi group
of judgements by the European Court of Human Rights provided that
a decision to remove a judge from his/her position shall be taken
by the SJC in adversarial proceedings including hearings. This decision
is subject to judicial review.
37. Under the system introduced in 2015-2017, the issue of the
role of prosecutors in the judicial governance was closely related
to the more general question of the overall position of the Prosecutor
General within the Bulgarian judicial system. In particular, the
lack of an effective mechanism for the accountability and criminal
liability of the Prosecutor General and his/her deputies as well
as of a judicial review of prosecutorial decisions not to open an
investigation have been long-standing issues. The lack of a possibility
for an effective criminal investigation against the Prosecutor General
and his/her deputies was raised by the European Court of Human Rights
(Kolevi v. Bulgaria, judgment
of 5 November 2009) and by the Council of Europe in general. During
our visit, we were informed by the Anti-corruption agency of the
limits that this imposed on the fight against corruption. We will
come back to this question in paragraphs 61-83.
38. Furthermore, the prosecution was in charge of the “general
supervision of legality”. This vaguely defined competence gave to
the prosecutors coercive powers in administrative cases including
private disputes. In consequence, prosecutors could intervene in
the name of the State, conduct checks and issue binding orders. This
has been identified as a concern in previous Opinions of the Venice
Commission.
39. The recently adopted constitutional amendments address the
majority of these issues and introduce a thorough transformation
of the prosecution service with a view to ensuring its accountability
and efficiency while safeguarding individual autonomy of prosecutors.
40. Before the most recent constitutional reform, the Prosecutor
General was appointed for a non-renewable term of seven years following
a selection procedure and nomination by the SJC which was then confirmed
by the President of the Republic. Candidates could be presented
on the initiative of members of the prosecutorial chamber of the
SJC or by the Minister of Justice.
41. The appointment of the Prosecutor General in October 2019
amply demonstrated the shortcomings of this procedure. The non-governmental
judicial and human rights groups questioned the candidate’s professionalism,
integrity, and independence. As he was the only candidate, the President
vetoed his appointment arguing that “nominating a single candidate
not only deprives the procedure of competitiveness but also takes
away prestige and legitimacy from the future chief prosecutor”.
The President’s veto was overridden by the vote in the SJC and Mr Geshev
was confirmed as Chief Prosecutor. His alleged inaction as Deputy
Prosecutor General with regard to high-level corruption and subsequent
appointment for the highest post in the prosecution were one of
the causes of the mass demonstrations in July 2020. In June 2023,
in a positive development, the heavily criticised Prosecutor General
was dismissed.
42. The constitutional amendments stipulate that the Prosecutor
General be appointed for a non-renewable term of five years and
dismissed by the President of the Republic following a proposal
of the SPC. This complies with the Venice Commission’s Opinion which
says that renewable terms of office may substantially jeopardise
the independence of a post-holder. We commend the authorities that
following the Venice Commission recommendation, the original provision
enabling a second mandate has been deleted. Candidates for Prosecutor
General may be presented by three members of the SPC and by the
Minister of Justice. The President shall not veto any appointment
or dismissal following the re-offering of the proposal.
43. The constitutional amendments clarify the Prosecutor General’s
powers and limit their concentration. As mentioned above, they remove
his/her excessive powers over judges in the SJC. Furthermore, they
reinforce the independence of the prosecutors in the SPC. As demonstrated
in paragraph 33, they give a clear prevalence to members elected
by parliament, securing very little representation for the prosecutors
in the SPC.
44. However, according to the Venice Commission Opinion,
Note such a composition of the SPC goes
beyond the need to ensure the accountability and the effectiveness
of the prosecution service and creates a risk of control of this
institution by the governing majority. Despite the Venice Commission’s
recommendation to reconsider the composition of the SPC with a view
to providing a fairer representation of the elected prosecutors,
the amendment was adopted in its original form. In their comments,
the authorities drew our attention to the amendment to Article 117,
paragraph 2, of the Constitution which expressly stipulates that
the judiciary shall be independent. As the Prosecutor’s Office is
part of the judiciary, prosecutors and investigators shall only
be subservient to the law. This clarification which did not exist
until the recent reform is important, the authorities argue, as
in future interpretations it will draw a better distinction between
a party and an arbitrator in the proceedings.
45. According to the amended Constitution, the Prosecutor’s Office
will no longer have the power of “general supervision of legality”
but shall monitor compliance with the law by challenging allegedly
unlawful acts before the court in the cases provided for by the
law or where, in addition to the cases on criminal offences, it
also participates – in the instances provided for by law – in other
cases, defending significant public interest or persons who need
special protection.
46. The constitutional amendments also provide for the accountability
and criminal liability of the Prosecutor General and his/her deputies.
In a very important positive development, on 26 May 2023, the National Assembly
adopted a Law amending and supplementing the Criminal Procedure
Code; it established a mechanism for the accountability and criminal
liability of the Prosecutor General and his/her deputies. The Law also
stipulates that prosecutors’ decisions not to open investigations
can be subject to judicial review. The new law addresses long-standing
concerns expressed by the Venice Commission and the Assembly.
47. These constitutional amendments mean that a majority of previous
Assembly recommendations have been implemented. This has been confirmed
by the Venice Commission which welcomed the amendments, pointing
out that they can be considered as strengthening judicial independence.
48. However, in its 2023 Opinion,
Note the
Venice Commission pointed out that some outstanding concerns have
not been properly addressed in the recent judicial reform. For example,
a five-year probationary period for judges has been retained in
the constitutional amendments currently being debated in the parliament, despite
calls on the authorities to change it, including in
Resolution 2296 (2019). According to the Venice Commission and GRECO, probationary
periods for judges undermine their independence. It should be noted however
that, according to the current law, the acquisition of tenure will
be decided by the independent SJC. This provides some safeguard
against arbitrary or politically motivated terminations of the probationary
period.
49. The powers of the Minister of Justice provided for by the
recent amendments, to make proposals for the appointment, promotion,
demotion, relocation and release from office of prosecutors and
investigating magistrates as well as to make proposals for releasing
from office judges could interfere with the independence of judges
and the autonomy of prosecutors and investigating magistrates.
Note
50. Another concern relates to the amendment which established
the Inspectorate of the Judiciary, a subsidiary organ of the SJC,
to be composed of the Inspector General and ten inspectors elected
by the National Assembly by a two-thirds majority of its members
for a term of five years renewable once. The Inspectorate existed
before the current reform and by an amendment of 2015 it received
stronger powers in areas such as integrity, verification of declarations
of interest and of private assets of magistrates as well as examination
of cases where integrity of magistrates has been put into question.
On the same occasion, the Inspectorate’s role was also strengthened
with regard to disciplinary proceedings. As a result, the current Inspectorate
is competent to examine virtually every aspect of the 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.
51. In its Opinion
Note adopted as a follow-up to a request
in 2016 by the Monitoring Committee, the Venice Commission expressed
the view that the increased powers of the Inspectorate might 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 often overlap with the functions
of the SJC, may result in shifting the real power from the SJC to
the Inspectorate. It also stressed the importance of the procedure
for the nomination of the Inspector General and 10 inspectors which
would minimise the risk of political attachment which would compromise
the independence of the judiciary.
52. In October 2021, the European Court of Human Rights gave a
judgment regarding disciplinary proceedings against a judge before
the SJC (case Todorova v. Bulgaria).
While the Court confirmed that the disciplinary proceedings comprised
a number of procedural guarantees, it considered that, together
with the sanctions, they amounted to an interference with the exercise
of the magistrate’s right to freedom of expression.
53. Regrettably, the Venice Commission recommendations reiterated
by Assembly
Resolution
2296 (2019) and the European Commission have not been addressed
in the recently adopted constitutional amendments. The functions
of the Inspectorate remain broad and vaguely defined. According
to the Venice Commission, the delimitation of powers with regard
to carrying out inspections and initiating disciplinary proceedings
between the Inspectorate and the Judicial and Prosecutorial Councils
is not clear which makes it difficult to understand the exact role
of the Inspectorate. Moreover, there are no safeguards against possible
interference with the substance of courts’ decision making. There
is no explicit provision stating that the Inspectorate cannot review the
decisions taken by courts in individual cases. Consequently, there
is a serious threat of a shift of the real power from the two future
Councils to the Inspectorate.
54. Furthermore, while the requirement of a two-thirds majority
is important for guaranteeing the non-political nature of the appointment,
the selection and nomination process of candidates is equally important
and both independent Councils – for judges and prosecutors/investigators
– should be involved in this process. Similarly, despite earlier
recommendations, the amendments do not provide for an anti-deadlock
mechanism in case of failure to secure the required number of votes.
In their comments to the preliminary draft report, the authorities have
pointed out that in order to address these issues, the Minister
of Justice had set up a working group tasked with the preparation
of a draft law amending and supplementing the Judiciary System Act
with regard to the functioning of the Inspectorate and improving
and speeding up the procedures concerning promotions and appraisals.
55. While the constitutional amendments constitute, overall,
a step in the right direction and address many earlier concerns
with regard to the Bulgarian judiciary, their adoption procedure
raises some concern. The draft amendments were introduced on 28
July 2023 by 166 MPs (out of 240) on the basis of the agreement
between the political forces within the National Assembly
Note and made public. The vote on the
first reading of the amendments took place on 8 December 2023, the
second reading on 19 December and the third reading on 20 December
2023. While we commend the authorities for assembling the required
majority, it appears that the political agreement for a constitutional
change came as a surprise not only to the general public but also
to some stakeholders.
Note The
Venice Commission has always underlined that constitutional amendments
should be based on a broad consensus among the political forces
and within society. The Venice Commission also pointed out
Note that as regards the legislative
process, an impact assessment should be done before the adoption
of the legislation.
56. On the other hand, it should be acknowledged that the pace
of the legislative process was partly the result of international
pressure for reform and delays caused by political instability.
As mentioned earlier, the evaluation of the progress accomplished
by Bulgaria in complying with democratic standards cannot be considered
in abstraction from the constraints imposed by repetitive elections.
We are fully aware of difficulties encountered by the Bulgarian
authorities and once again we commend them for their commitment
and political will to comply with the obligations declared, without
any ambiguity.
57. The legality of the legislative process is a potentially more
serious concern. According to some constitutional experts, the proposed
changes require the convocation of the Grand National Assembly based on
Article 153 of the Constitution and the jurisprudence of the Constitutional
Court.
Note The
case has been referred to the Constitutional Court which has not
rendered its decision yet.
58. The implementation of the reform which would safeguard its
irreversibility and sustainability is another challenge. During
our meetings in Brussels, we have heard some positive assessments
of the progress in this area. A working group, as already mentioned,
is preparing draft amendments to the Judicial System Act and other
implementing measures in co-operation with EU experts.
59. Finally, it is to be regretted that not all issues with regard
to the judicial system have been addressed in the ongoing reform,
which represents a missed opportunity.
60. The level of perceived judicial independence in Bulgaria continues
to be very low despite recent improvements. Overall, in 2023, only
30% of the general population and 33% of companies perceived the
level of independence of courts and judges to be “fairly or very
good”. In 2016, the first figure was higher; it decreased however
in 2021 and 2022 (32% and 31% respectively).
Note It
is to be hoped that the ongoing reform will contribute to the increase
in confidence in the judiciary in Bulgaria.
61. With regard to the high-level corruption, we note with satisfaction
that the Bulgarian authorities have undertaken a number of important
measures aimed at increasing efficiency of the prevention of and
fight against corruption. The current government, which was formed
in April 2023, declared the fight against corruption to be one of
its top priorities. The updated National Strategy for Preventing
and Countering Corruption 2021-2027 and its associated Road Map
are being implemented.
62. The already mentioned Law amending and supplementing the Criminal
Procedure Code adopted by the National Assembly on 26 May 2023,
marked an important progress by establishing an effective mechanism
for the accountability and criminal liability of the Prosecutor
General and his/her deputies. With the same law, prosecutors’ decisions
not to open investigations can be subject to judicial review, particularly
investigations regarding serious and corruption-related crimes.
63. On 21 September 2023, amendments to the Anti-Corruption Act
were adopted by the National Assembly. They mainly aim at safeguarding
the political independence and the efficiency of the Anti-corruption Commission
which was established under the previous law in 2019. The amended
law provides for the division of the Commission into two separate
bodies: Commission for Counteracting Corruption and Commission for Illegal
Assets Forfeiture.
64. In accordance with the amended law, the Commission for Counteracting
Corruption will be composed of three members selected from among
candidates proposed by the National Assembly or non-profit legal entities
for public benefit. Candidates will be considered and selected by
a special nominating committee composed of five independent members
appointed by the Supreme Court of Cassation, the Supreme Bar Council,
the Ministry of Justice, the Ombudsperson, and the Audit Chamber
respectively. Selection procedure will include public hearings.
The draft rules of procedure for the selection process are currently
being elaborated with the experts from the European Commission.
65. Crucial changes have been introduced with regard to the Commission
for Counteracting Corruption’s powers: according to the amended
law it will have the power to investigate corruption offences allegedly committed
by persons holding public positions. Under the previous law, the
Commission did neither have the powers nor tools to carry out investigative
activities. Furthermore, it could not bring charges before the court and
in this respect was totally dependent on the prosecution service.
Before the recent reform of the prosecution service (described in
the previous chapters), this total dependence was combined with
the lack of accountability of the Prosecutor General and of judicial
review of his decisions on whether or not to bring cases to the
court. This has resulted in a lack of high-profile cases before
the courts.
66. Indeed, despite the high number of proceedings for establishing
existence of a possible conflict of interest which have been initiated
since the establishment of the Anti-Corruption Commission under
the unamended law, a solid track-record of final convictions in
high-level cases of corruption has been totally lacking. During
our visit, we met the Chairperson ad
interim of the agency before the revision of its structure and
powers. He confirmed the weaknesses of the former anti-corruption
law, and expressed conviction that the amendments which at that
time were undergoing legislative process, would considerably improve
the situation.
67. In another positive development, on 27 January 2023, the National
Assembly adopted the Law on the Protection of Whistleblowers or
Persons Publicly Disclosing Information about Violations. The new
law provides for a comprehensive and streamlined legal framework
for reporting and whistle-blowers’ protection which complies with
democratic standards.
68. Amendments to the Law on Public Procurement aimed at increasing
transparency were adopted on 5 October 2023.
69. In 2020, the Code of Conduct for State Administration Employees
was adopted by the Council of Ministers.
Note While this is a positive development,
it is regrettable that the Code does not cover persons with top
executive functions. According to GRECO, serious gaps remain in
the legislation relating to the integrity of persons with top executive
functions. The National Anti-Corruption Strategy for 2021-2027 envisages
drawing up a Code of Ethics for persons holding senior public positions
in the executive. We hope that in their future comments, the authorities
will inform us about the state of fulfilment of this recommendation.
70. In September 2022, the authorities set up a working group
to examine the issue of lobbying which remains unregulated in the
present legislation. There are no specific obligations for the registration
of lobbyists or the reporting of contacts between public officials
and lobbyists. On 11 November 2023, the working group published
a Concept Note for the Regulation of Lobbying Activities in the
Republic of Bulgaria, and it is now subject to public consultation.
The Law is expected to be adopted mid-2024.
71. Similarly, work continues on new legislation in the area of
foreign bribery. The working group was expected to formulate proposals
by the end of 2023 with regard to improving the liability of legal
persons and other relevant legislative changes in line with the
Organisation for Economic Co-operation and Development recommendations
(OECD).
Note
72. Progress has been also acknowledged by GRECO. In January 2020,
GRECO published the Second Compliance report on Bulgaria, assessing
the implementation of the recommendations of the Fourth Evaluation
Round on the Prevention of Corruption in respect of members of parliament,
judges, and prosecutors. The report concluded that Bulgaria has
implemented 16 out of 19 recommendations and that the three remaining
recommendations have been partly implemented. In particular, a procedure
has been put in place to tackle breaches of ethical rules by MPs
with a parliamentary committee having the power to impose sanctions
in case of infringements. Moreover, an independent review into the
prevention of conflicts of interest and the verification of asset
declarations of MPs was established.
73. With regard to judges and prosecutors, additional rules on
integrity checks including through regular asset declarations have
been established. The principle of random case allocation has been
put in place in respect of both judges and prosecutors.
74. The three partially implemented recommendations concerned
the composition of the College of Judges within the SJC which is
now the subject of the ongoing constitutional reform. The five-year
probationary period for judges, mentioned in paragraph 48, and the
application of supplementary remuneration for judges which remains
subject to broad discretionary decisions mean that the risk of undue
influence remains.
75. The GRECO Fifth Evaluation Round report on Bulgaria published
in January 2023, evaluated the effectiveness of the framework in
place to prevent and combat corruption among persons entrusted with
top executive functions (Prime Minister, ministers, secretaries
general, chiefs of political cabinets, advisers, experts etc.) and
members of the police (civil servants of the Ministry of the Interior
with law enforcement functions). It underscored that Bulgaria’s
criminal justice response to high-profile corruption cases is unsatisfactory
and needs to be addressed as a matter of urgency. It formulated
28 recommendations with regard to transparency and oversight of
executive activities of government including the introduction of
rules on incompatibilities and vetting of persons hired at the discretion
of government; the adoption of a comprehensive code of conduct for
persons entrusted with top executive functions to be complemented
with clear guidance regarding conflicts of interest and other integrity
related matters (contacts with third parties, gifts and other benefits,
ancillary activities, contracts with State authorities, post-employment
restrictions etc.); the establishment of a credible and efficient
supervisory mechanism envisaging specific sanctions for violations and
tools for their enforcement. GRECO urged for more pro-active and
systematic investigations and prosecutions for corruption offences
linked to top executive functions, a removal of procedural impediments and
effective and proportionate sanctions.
Note The state of implementation of these
28 recommendations will be evaluated by GRECO in 2024. In their
comments to our preliminary draft report, the authorities have informed us
of further progress in fulfilment of pending recommendations, in
particular with regard to the establishment of clear and transparent
rules for the additional remuneration within the judiciary. The
authorities have set up a working group which drafted an action
plan to address GRECO recommendations. We call on the authorities to
continue ensuring progress in the fulfilment of these recommendations.
76. The new laws and regulations are expected to remedy the situation
which remains worrying. Over the last years, Bulgaria has been shaken
by scandals over allegations of purchases of luxury properties below market
prices by prominent politicians and State officials involving corruption,
fraud, and tax-evasion (“apartmentgate”). The revelations led to
the resignation of a number of high-level politicians including
the former Minister of Justice, two deputy ministers, the deputy
chairman of GERB (ruling party) and the Head of the Anti-corruption
Commission. However, no charges have been brought before the courts.
77. In March 2022, former top executive officials (notably the
former Prime Minister and the then leader of the opposition, the
Finance Minister as well as the Head of the Press Centre of GERB)
were detained on suspicion of corruption as part of a police operation.
They were all released the following day as no charges were brought
by the Prosecutor’s Office.
Note The
administrative court ruled that the arrest warrants were issued illegally.
Note
78. A number of Bulgarian political figures were sanctioned in
third countries in 2023 in cases related to high-level corruption.
On 10 February 2023, the United States and United Kingdom sanctioned
several current and former government officials for corruption under
their Global Magnitsky Act. Some of them had earlier been subject
to investigations or indictments within the Bulgarian judicial system
but the proceedings had been halted or dismissed.
Note
79. The perception of public sector corruption among experts and
business executives remains very high. In the 2022 Corruption Perception
Index of Transparency International, Bulgaria scored 43 on a scale
from 0 (highly corrupt) to 100 (very clean). It ranked 72nd among
the 180 countries in the index. The 2022 Special Eurobarometer on
Corruption shows that 88% of respondents considered corruption widespread
in their country (EU average 68%) and 30% of respondents felt personally
affected by corruption in their daily lives (EU average 24%).
80. Allegations of endemic corruption were among the underlying
reasons for widespread public protests which started on 9 July 2019
in Sofia and other cities and lasted 282 days until the resignation
of the Prime Minister was accepted by the National Assembly on 16
April 2021. This was followed by five consecutive early elections
as already mentioned in Chapter 2.
81. One of the difficulties in properly evaluating the situation
is the lack of accurate reporting, including disaggregated data
on high-level corruption cases. The Prosecutor General’s Office
and the Supreme Court of Cassation continue to report different
streams of data on corruption which makes it difficult to have a
clear picture. There is no regular reporting on high-level corruption
cases thus making accuracy and reliability of data problematic.
Note In
their comments, the authorities drew our attention to the recently
adopted amendments to the Law on the Judicial System which oblige
the Prosecutor General to submit an annual report to the National Assembly
on the activities of the Prosecutor General’s Office with regard
to corruption cases including detailed information on ongoing and
resolved cases and relevant comparable statistics.
82. The Supreme Court of Cassation has started differentiating
between high-level and regular corruption cases since the end of
2022. As of mid-2023 it had tracked eight cases related to high-level
corruption and six cases had been initiated. As for the Prosecutor
General’s Office, it had reported 144 new pre-trial proceedings and
48 indictments forwarded to the court in the first nine months of
2022.
Note
83. It is too early to see the concrete results of all the positive
developments in the fight against high-level corruption, but we
do hope that the newly adopted legislation, in line with recommendations
of the European institutions, will bring about considerable improvement.
We expect the authorities to fully implement the amendments and
to address the persisting concerns.
3.2 The
media
84. Bulgaria has considerably improved
the status of freedom of expression. In 2023, Reporters without Borders
ranked Bulgaria 71st out of 180 countries
as compared to 111th in 2019. However, according to Reporters without
Borders the overall situation is fragile and unstable and the few
independent voices in Bulgaria work under constant pressure.
85. We have noted a number of positive measures taken by the authorities
with a view to improving the situation. In particular, on 28 July
2023, amendments to the Criminal Code provided for better protection
of journalists in cases of alleged deformation of public officials.
The alleviation of criminal liability has addressed a long-standing
recommendation of the Council of Europe. It should also be acknowledged
that in recent years there has been a major improvement in the jurisprudence
of national courts with regard to defamation charges brought against
journalists in application of Article 10 of the European Convention
on Human Rights (ETS No. 5) and the case law of the European Court
of Human Rights in this respect.
86. The media market in Bulgaria is diverse but to a great extent
dependent on political and economic influences. Having a large number
of media outlets does not necessarily result in a more pluralistic
media scene. According to the Centre for Media Pluralism and Media
Freedom, the overall situation of risks to media pluralism remains
challenging with the indicator showing a high risk (76%).
Note
87. Persisting problems include high levels of media concentration
and a lack of transparency in media ownership, distribution, and
media providers, already highlighted by our predecessors in their
report debated in 2019. Unfortunately, there has been no progress
in this respect. The general rules in the Bulgarian competition
law do not include sector-specific provisions for the media market
which the Law on Radio and Television does not regulate either.
For example, the legislation does not provide for concentration
thresholds in case of media mergers.
88. Consequently, Bulgaria is among the five European countries
with the highest concentration of media ownership with a rate amounting
to 66%.
Note Horizontal media ownership concentration
is estimated to be as high as 96% and cross-media ownership concentration
at 88%. The top four major owners in the broadcasting sector have
an aggregated market share of 93,35%. The top four major press owners
have 79,7%.
89. The problem of the concentration of ownership is further aggravated
by insufficient transparency in ownership. The actual level of concentration
is impossible to track due to a lack of precise data, which is considered
as a risk in itself. Information available on market shares is based
solely on partial advertising revenue data. Although there are formal
legal provisions for the disclosure of media ownership (Mandatory Deposition
of Print and Other Works Act, Radio and Television Act, Commercial
Register Act), the present legal requirements are not effectively
implemented in practice, in particular as regards online media.
90. In 2020, the Law on Radio and Television was amended, and
a Public Register of the Council of Electronic Media was established.
The register includes information on the ownership structure and
on the actual owners of the suppliers as well as on legal entities
and private individuals exercising control over the management of
media service providers. In addition, the public register, established
by the Ministry of Culture, is based on declarations on ownership
and funding received from different sources. Even though envisaged
by law, sanctions for not complying with the transparency obligations
have never been imposed on media outlets. As a result, not all media
declare their ultimate owners and sources of financing. During our
visit, the representatives of civil society complained that in some
cases, the actual owners of a given media remain unknown to the
public.
91. There is a need for reliable and accessible media market data
including market shares of owners in all media sectors, circulation
and distribution figures, data on online media concentration etc.,
which would allow for precise monitoring and evaluation of media
pluralism in Bulgaria.
92. In their comments to the preliminary draft report, the authorities
have informed us that the Expert Working Group on Media Environment
and Access to Information set up by the Minister of Justice on 14
August 2023, has been tasked with the elaboration of proposals on
possible measures to improve the functioning of the Register under
the responsibility of the Ministry of Culture.
Note
93. Ownership is frequently used as a tool for advancing political
and business interests. While legal safeguards against owner influence
over editorial content exist, they appear to be insufficient. There
are serious shortcomings in the legal and self-regulatory instruments
ensuring editorial independence: there are no mechanisms granting
social protection to journalists in case of changes of ownership
or editorial line; no regulatory safeguards ensuring that decisions
regarding appointments and dismissals of editors-in-chief are not
influenced by commercial interests; no measures stipulating that
the exercise of the journalistic profession is incompatible with
activities in the field of advertising. This facilitates the owners’
interference in editorial content. However, the 2023 Media Pluralism
Monitor indicator on “Political independence of the media” rated a
medium risk of 42% as compared with a high risk (92%) in 2021.
94. One of the biggest problems that affects media pluralism is
the non-transparent and unregulated allocation of State advertising
to certain media outlets as well as the distribution of EU funds.
The high degree of media dependence on income from advertising and
a non-transparent distribution of funds to the media are powerful
tools for the authorities to influence news reporting.
95. An important measure to remedy this situation constituted
the adoption, on 8 October 2023, of the amendments to the Public
Procurement Act increasing transparency in the conclusion of contracts
for the purchase of programme time or the provision of broadcasts
which are awarded to media providers.
96. Other measures have also been taken to improve the implementation
of existing legislation notably through the introduction of an additional
control mechanism and the publication of a list of advertising contracts.
97. Investigative journalists covering organised crime and high-level
corruption are frequently targeted by smear campaigns, strategic
lawsuits against public participation (SLAPPs), threats and at times
physical assaults, which do not appear to be met with adequate legal
and political responses from the authorities. While the legislative
framework for the protection of journalists seems to be in place,
efficient tools for safeguarding the media from violations of press
freedom are lacking. The authorities, in their comments, drew our
attention to the fact that the already mentioned Expert Working
Group is preparing proposals for amendments to the Code of Civil
Procedure on the introduction of legal mechanisms to protect journalists
and human rights defenders from SLAPPs.
98. There are also concerns with regard to legislation on the
composition, independence and effectiveness of the Council for Electronic
Media, the national media authority.
99. Protection of the right to information through more effective
implementation of the Access to Public Information Act by State
institutions is another issue. While some concerns remain (such
as administrative refusals) in terms of access to information functionalities
of institutional websites and increasing the number of institutions
responding within the statutory deadlines and giving full access
to the requested information, positive trends can be noted.
100. Political and corporate interests are preventing the majority
of Bulgarian media and journalists to act as a check on power and
in the public interest.
3.3 Human
rights of minorities
101. In her last report on Bulgaria
published in March 2020, the Council of Europe Commissioner for
Human Rights, noted with alarm “the rampant intolerance manifested
towards minority groups in Bulgaria, affecting especially Roma,
Muslims, migrants and asylum seekers, persons identifying as ethnic
Macedonians and LGBTI people”. The negative attitude towards minorities
is often reflected in media coverage which associates minorities
with criminality and presents them as creating a danger to the values
or interests of the majority population.
Note
102. The situation of the Roma population which constitutes the
largest minority group in Bulgaria (almost 5 % of population) remains
a concern. Our predecessors referred in their report to cases of
mob violence leading to attacks on Roma population and demolition
of Roma houses.
Note While such incidents have not been
repeated since 2019, there has not been much progress in the integration
and inclusion of Roma.
103. 15% of Roma children do not attend school. There is a de facto segregation in education
for Roma pupils because the majority of Roma families live in areas
inhabited by their communities. The schools attended by Roma children
are often sub-standard. Only an estimated 9% of Roma have secondary
education and just 0,5% have a university degree.
104. Long-term mass unemployment among the Roma population is the
most serious indicator of their socio-economic exclusion and poverty.
Despite the government’s efforts including positive policies and
strategies to counter this phenomenon, only 23% of economically
active Roma are employed as compared to 53,5% average in the Bulgarian
society as a whole. Roma NGOs consider these figures to be underestimated.
While the reasons for this inequality are complex, the marginalisation
and discrimination of the Roma population contribute to reducing
the employment opportunities available to them. Due to their lack
of employment, a number of Roma do not have health insurance.
105. The material situation of the Roma population is generally
very poor. Housing remains a major concern. The lack of social housing
is a problem affecting Bulgarian society as a whole but its impact
on the Roma population is disproportionate, affecting approximately
200 000 families. Furthermore, many Roma houses are built either
illegally or without compliance with sanitary and safety requirements.
Concerns linked to the issues of forced evictions and demolitions
of Roma settlements have been denounced by different bodies of the Council
of Europe, including the Assembly, since Bulgaria’s accession. Following
the developments in Voyvodinovo,
Note a
number of affected people have lodged a complaint before the European
Court of Human Rights.
Note The
Court indicated interim measures in this case and demolition orders
have been suspended.
106. The Bulgarian authorities have declared their commitment to
the execution of the Court judgements in the Yordanova cases and
have engaged in a dialogue with the Committee of Ministers in this
respect. The relevant legislative proposals have been prepared by
the inter-ministerial working group and they are at the stage of
consultation with all stakeholders including municipalities, regional
governors, and the Directorate for National Building Control. The
authorities in their comments have informed us about the progress
in the execution of the Yordanova group judgements and in particular
about the state of preparation of the law on the proportionality
in cases of eviction, in co-operation with Council of Europe experts.
Note
107. Meanwhile, on several occasions the Supreme Administrative
Court has directly referred to the European Court of Human Rights
judgments on the violation of Article 8 of the Convention in relevant
domestic cases, thus practically applying the principles and criteria
set out in the planned law which is under consultation.
108. The vicious circle of social exclusion and discrimination
causes further impoverishment among the Roma population. The absence
of reliable statistics is also a problem.
109. At the same time, it has to be acknowledged that the Bulgarian
authorities demonstrate political will and make efforts regarding
Roma integration. The National Strategy for Equality, Inclusion
and Participation of Roma (2021-2030) and the National Action Plan
(2022-2023) established objectives in four areas in which the situation
of Roma is particularly disadvantageous: education, health, housing,
and employment. It is also planned to establish a Council of NGOs
monitoring the implementation of the Strategy.
110. In particular, the National Action Plan provided for programmes
for inclusive education at municipal level. It also envisaged expanding
the network of health mediators. It is planned to introduce an amendment
to the relevant law to guarantee medical care to pregnant women
without health insurance. With regard to employment, the Plan provided
for increasing the number of labour mediators and the establishment
of an electronic register facilitating job searches. In 2022, as
many as 26 235 unemployed persons identifying themselves as Roma
were included in vocational guidance, training, and employment programmes.
Overall, unfortunately, the situation of the Roma population has
not much improved since the last report.
Note
111. A very tiny Macedonian minority (according to 2021 census
1 143 persons, less than 0,5%) is not recognised by the authorities,
as defined under the Framework Convention for the Protection of
National Minorities (ratified by Bulgaria in 1999), due to a strict
application of formal criteria and despite repeated requests expressed
by the group’s representatives. As a result, Macedonians are not
included in programmes concerning minorities, do not receive assistance
and have no representatives in consultative bodies, their language
is not taught, and they are prevented from establishing a party.
112. However, recognition by the State as a minority is not a prerequisite
to qualify for protection under the Convention, and the Macedonians
are very active in lobbying for their rights, while the authorities
are very sensitive about this issue.
113. The major concern in this respect remains the execution of
the European Court of Human Rights judgments in UMO Ilinden and others v. Bulgaria case
regarding the violation of Article 11 of the Convention (freedom
of association). They concern the unjustified refusals of the Bulgarian
courts in 1998-99, 2002-2004, 2010-2013 and 2014-2015 to register
an association the aim of which is to achieve “the recognition of
the Macedonian minority in Bulgaria.” In their comments, the authorities
have informed us about the progress in the execution of this group
of judgements monitored by the Council of Europe Department for
the Execution of Judgments of the European Court of Human Rights.
114. Bulgaria has had difficult relations with neighbouring North
Macedonia over a number of controversial issues with regard to minorities,
language, historical and educational issues. This resulted in Bulgaria’s
efforts to block North Macedonia’s accession to the European Union.
Only on 24 June 2022, under heavy EU pressure, did Bulgaria’s Parliament
approve the lifting of the veto on opening EU accession talks with
North Macedonia.
115. In 2018, police recorded 46 hate crimes in Bulgaria including
violent attacks against people and attacks against property. Roma
and Sinti people as well as refugees and Muslims were among the
victims. Six cases were prosecuted and 158 people were sentenced.
116. With regard to the rights of LGBTI people, on 20 February
2023, the Supreme Court of Cassation ruled that transgender people
will no longer be eligible to change documents in accordance with
their gender identity, as the constitution and legislation “are
built on the understanding of the binary existence of the human
species”, according to the text of the judgment. 28 judges voted
in favour, but 21 expressed dissenting opinions. Legal experts stated
it was rare to see the Supreme Court so starkly divided on an issue
and expected that the plaintiffs would file an application with
the European Court of Human Rights.
3.4 Hate
speech
117. During our visit, the authorities
provided us with extensive information on measures undertaken to combat
hate speech. The relevant legislation contains the main elements
prescribed by international standards. In 2020, amendments to the
Law on Radio and Television introduced stricter measures against
the use of hate speech and incitement to violence, hatred or terrorist
acts in the audio-visual media and online platforms and strengthened
the powers of the media regulator (the Council for Electronic media)
in this respect.
118. The latest amendments to the Criminal Code adopted in July
2023 provide for more severe punishment for hate speech and crimes.
The criteria defining hate speech were expanded to include colour,
origin and sexual orientation.
119. The Ministry of the Interior is monitoring content posted
online with a view to detecting human rights abuses. It also receives
alerts from non-governmental organisations and individuals.
120. A number of public awareness measures have been introduced:
civic education has been included in all stages of school and pre-school
education. Training of law enforcement agents on anti-LGBTI hate
crimes has been introduced in co-operation with the LGBTI community.
The Council of Europe
manual “Policing Hate Crime against LGBTI persons: Training
for a professional Police Response” has been translated into Bulgarian and
disseminated to all police structures. In 2022-2023, the Commission
for Protection against Discrimination organised a national campaign
to increase public awareness on protection against discrimination
and hate speech. The SJC jointly with the Ministry of Education
conduct an educational programme on the subject involving more than
15 000 students. In 2023, the question of hate speech was integrated
in the curriculum on human rights and protection from discrimination
of the Academy of the Ministry of Interior. A number of
ad hoc trainings and seminars have
been organised for police officers and prosecutors.
121. It would be interesting to know what measures are being taken
to eliminate hate speech in the parliament and whether specific
sanctions are foreseen in the Code of Conduct in this respect. We
look forward to the authorities’ comments on this subject.
122. Despite all these measures, hate speech remains a serious
concern in Bulgaria. While it is widespread, it is often under-reported
mainly due to a fear of disclosing sexual orientation/identity and/or
a lack of confidence in law enforcement agents’ efficiency to prosecute
the offenders. According to a survey conducted by a Bulgarian NGO
in 2019, 73% of LGBTI respondents had experienced hate speech online
in the preceding five years. Of these victims, 34% did not report
the incidents; 24 % reported them to the relevant social media platforms
and only 3% reported cases to the police.
Note
123. Hate speech affects mainly Roma, Muslims, migrants and asylum
seekers, persons identifying as ethnic Macedonians, as well as LGBTI
people. Shifts in targets among these groups often depend on the
political agenda of the moment. For example, during the migration
crisis, hate speech was mostly directed against migrants, in particular
those from Muslim countries. Recently, it has shifted back to Roma
and LGBTI people.
Note
124. Of particular concern is hate speech in political discourse.
This is particularly noticeable during electoral campaigns but is
present also outside the electoral period. In June 2023, a member
of VRMO (Bulgarian national movement) was fined and prohibited from
publishing materials amounting to racism and hate speech against
Roma and other ethnic minorities on his website by a decision of
Bulgaria’s Commission for Protection Against Discrimination. The
European Court of Human Rights, in its 2021 judgment in the case
of Budinova and Chaprazov v. Bulgaria,
found that the anti-Roma statements made by a Bulgarian politician
constituted a violation of Article 8 (right to private and family
life) in conjunction with Article 14 (prohibition of discrimination) of
the Convention.
125. In their comments, the authorities have pointed out that there
has been significant improvement in the elimination of hate speech
from political discourse over the period of 20 years which has passed
since the events in the case Budinova and Chaprazov. In few cases
of discriminatory public speaking, the domestic courts have followed
the case law of the European Court of Human Rights.
3.5 Violence
against women
126. It has to be acknowledged that
considerable progress has been achieved with regard to the protection of
women. In order to address the issue of violence against women,
the government adopted a National Strategy for promoting equality
between women and men (2021-2030). The accompanying Action Plan contains
specific measures aimed at combating domestic violence.
127. In July 2023, the National Assembly adopted amendments to
the Criminal Code which provide the definition of an “offence committed
in the context of domestic violence” thus enabling victims to benefit
from protection at an early stage, namely the first committed act
of violence.
128. In August 2023, following a shocking case of violence against
an 18-year-old woman by her ex-boyfriend, which sparked mass outrage
in the country, additional amendments to the Criminal Code were adopted
by the parliamentary majority in an extraordinary session. They
provide for the protection of people who have experienced violence
in the context of an intimate relationship outside marriage or cohabitation.
129. At the same time, the amendments to the Law amending and supplementing
the Law on Protection from Domestic Violence were adopted. They
provide for quick and effective protection for victims of domestic violence.
The amendments expand the range of victims that are granted protection
and increase the scope of protection measures against domestic violence.
Moreover they facilitate access to justice and optimise court proceedings
by, inter alia, expanding
the jurisdiction for cases of domestic violence. In addition, the
amended law provides for the establishment of a National Council
for Prevention and Protection against Domestic Violence and an accompanying
mechanism for the co-ordination between the competent authorities, municipalities,
and the judiciary.
130. These legislative changes are most welcome as they also address
some shortcomings identified by the Court’s judgment mentioned in
the next paragraph.
131. According to police statistics, 18 women were killed in the
first three months of 2023. Women’s rights activists claim that
due to under-reporting and unclear statistics, this figure is underestimated.
In 2022, the European Court of Human Rights delivered a judgment
in the case
Y and others v. BulgariaNote in
which it concluded to a violation of Article 2 of the Convention
due to inefficient protection against domestic violence followed
by the death of the victim.
132. In their comments, the authorities provided us with detailed
information on the recently introduced awareness-raising measures,
legal framework and organisational and capacity building measures
to combat against domestic violence.
133. Bulgaria signed the Convention on Preventing and Combating
Violence against Women and Domestic Violence (CETS No. 210, “Istanbul
Convention”) in April 2016. However, the question of its ratification
has created a very heated debate in the country. In February 2018,
a group of 75 members of the National Assembly (mainly from the
Socialist Group) asked the Constitutional Court for a ruling on
the conformity of concepts such as “socially constructed roles”,
“stereotyped roles” and the term “gender” with the Constitution. In
July 2018, the Court declared the Istanbul Convention unconstitutional.
In consequence, Bulgaria is not subject to the evaluations by GREVIO,
the independent monitoring body attached to the Istanbul Convention.
134. During our visit, civil society interlocutors highlighted
the insufficient material basis for the protection of women. We
were told that there are 24 shelters for victims of domestic violence
which is not enough. In some places, allegedly, women without children
are not admitted. This information, received from the activists,
was rejected by the authorities, who did however admit that the
insufficient number of shelters is a problem.
135. It is clear that specific budgetary provisions have to be
foreseen for ensuring sufficient number of shelters for all victims
of domestic violence throughout the country. We urge the authorities
to effectively address these concerns.
4 Conclusions
136. After having carefully ascertained
the progress accomplished by Bulgaria in six areas of concern enumerated
in
Resolution 2296 (2019), we have decided to propose to the committee, and if
agreed, to the Assembly, to close the post-monitoring dialogue with
Bulgaria.
137. At the same time, however, we suggest that the Monitoring
Committee devotes one of its future periodic reviews within a few
years to the implementation of the reforms with regard to the rule
of law, pluralist democracy and human rights as well as their irreversibility
and sustainability. It would be also important to ascertain they
way in which the authorities will address some outstanding concerns
indicated in the present report.
