Translated from: “Годишен доклад за дейността на омбудсмана 2019”
Annual Report on the Activities of the Bulgarian Ombudsman in 2019 (pages 229-304)
MONITORING THE IMPLEMENTATION OF INTERNATIONAL ACTS IN THE FIELD OF HUMAN RIGHTS
The implementation of international human rights instruments is monitored by the Ombudsman of the Republic of Bulgaria on the basis of the United Nations Paris Principles and the Ombudsman Act. By virtue of Art. 19 para. 1 item 10 of the PA, the Ombudsman has the express authority to monitor and promote the effective implementation of the human rights conventions to which the Republic of Bulgaria is a party.
On the basis of constant monitoring of the way in which the member-state implements international legal acts for the protection of human rights, the Ombudsman arrives at judgements and formulates recommendations.
In addition, in order to fulfill their authority to promote and protect human rights, the Ombudsman establishes in their Annual Report an independent section assessing both the extent to which national legislation is aligned with the content of each of the conventions, and their practical implementation by national institutions.
With regard to the assessment of the ECHR, the main criterion for the Ombudsman’s assessment is the implementation of the final judgment of the European Court of Human Rights against Bulgaria and the compliance of national legislation with its practice.
2019 is marked by several important anniversaries that mark the entry into force of important international legal instruments.
On December 1, 2019, the 10th anniversary of the Charter of Fundamental Rights of the European Union becoming legally binding. It can be rightly stated that the EU Charter is a historic achievement. It is a symbol of shared European identity and European values because respect for human rights is an important sign, but also a pledge for respect for the functioning of rule of law.
The EU Charter has a difficult fate, as has the way of recognizing the fundamental rights and freedoms it regulates. Democracy, the rule of law and human rights are indivisible, united and interconnected, and the absence of any of the elements of this triad makes it impossible for the other two to exist. As much as we talk about the Charter, it will never be enough. The Charter is a document with rich history and content.
The Charter is a relatively young document, but unlike post-war international conventions, it is a new generation human rights act – the first to be created in the 21st century. The Charter brings together, in a single legal instrument, all the civil, personal, economic, political and social rights enjoyed by EU citizens and persons residing in its territory, clearly highlighting their indivisible character. However, it goes beyond the ECHR catalog of rights because it contains new rights, those which were not the subject of attention until its creation, such as the right to good administration, the protection of personal data, the right to engage in business, the right to consumer protection.
In November 2019, we marked 50 years since the adoption of an iconic decision of the EU Court of Justice in the Stauder case – the first case in a case related to the protection of fundamental rights in the EU.
The same year marks the 70th anniversary of the adoption of the Geneva Conventions, which regulate the legal protection of persons in conflict (wounded and sick on the battlefield, prisoners of war, civilians and objects during armed conflict) and form the basis of international humanitarian law . Adopted on August 12, 1949, shortly after the end of World War II, the four Geneva Conventions in force are among the few international treaties that have been universally ratified and reflect the universal values of ethical conduct in times of armed conflict.
Contemporary conflicts have changed considerably since the Geneva Conventions were created. An alarming trend is visible regarding the increasing in the number, duration and complexity of conflicts, which have extremely severe consequences for civilians and humanitarian personnel, for the infrastructure and for the environment. All this makes perceptible the need for compliance with the rules of international humanitarian law and international human rights, the implementation of mechanisms for finding accountability for its violations, and for strengthening the measures not only at international but also at national level.
In February 2019, by Decree of the Council of Ministers a National Committee on International Humanitarian Law was established in Bulgaria to assist state institutions in the application of IHL (International humanitarian law) norms and in the implementation of the Geneva Conventions. The National Ombudsman also takes part in it.
In the past 2019, the world also marks another important anniversary – 30 years since the adoption of the UN Convention on the Rights of the Child. The anniversary was an occasion for Bulgaria to assess the extent to which the Convention was understood, accepted and applied in the spirit embodied in its texts by States Parties and UN Members.
- European Convention for Protection of Human Rights and Fundamental Freedoms
Conforming to Art. 46 para. 1 of the ECHR, as a party to the Convention, Bulgaria is obliged to implement the final decisions of the ECHR, both those finding violations of the Convention, and those confirming the friendly settlements reached between the parties.
The implementation of an ECHR decision consists of the undertaking of individual measures by the member-state to restore the situation of the complainants before the infringement, and the implementation of general measures (ex: changes in legislation, court practice, etc.) aimed at avoiding similar violations in the future.
The implementation of the final decisions of the ECHR has been placed under the supervision of the Committee of Ministers of the Council of Europe (Article 46, para. 2). Bulgaria as a state has an obligation to implement these decisions and subsequently, should periodically send up-to-date information on the measures taken. The Committee of Ministers prepares an annual report with information on each ECHR member-state.
Enforcement of ECHR judgments is not limited to the payment of compensation as determined by the Court, but includes other measures – the resumption of legal proceedings, when relevant, and the alignment of national law with the ECHR practice. It is this approach that enables the adoption of measures of a general nature with a preventive effect in relation to similar infringements, so that in the future the ECHR is not violated.
At national level, the coordination of the implementation of ECHR decisions is carried out by the Ministry of Justice. After 2012, based on the decision of the 41st National Assembly, the Minister of Justice submits a summary annual report on the implementation of ECHR decisions. In this way, the Parliament is able to monitor the process of aligning national legislation with the ECHR practice, and to be informed of any legislative changes required.
A summary on the status of cases against Bulgaria before the ECHR and cases under enhanced supervision procedure can be found in a special document prepared by the ECHR Department for the Execution of Judgements. Information about Bulgaria is available at https://rm.coe.int/1680709740.
Information on the finalized decisions is available on the Committee of Ministers Annual Report, on the ECHR decision information website http://hudoc.exec.coe.int/eng and on the Minister of Justice’s Annual Report. The implementation of the decisions regarding Bulgaria’s violations ends with a final resolution by the Committee of Ministers, after the assessment that the member-state has fulfilled its obligations and has taken the appropriate measures of individual and general nature.
- General findings regarding the implementation of final decisions of the ECHR in 2019 within the meaning of Art. 46 of the ECHR
As in previous years, it can be concluded that the individual measures provided in the Court’s decisions are implemented and normally, do not present problems. The process of payment of compensation and informing the competent authorities of the possible need for additional individual measures (ex: resumption of court proceedings, etc.), as well as the process of translation of decisions and their distribution, is coordinated by the Procedural Representation of the Republic of Bulgaria before the ECHR to the Ministry of Justice, strictly monitoring compliance with the relevant deadlines and reaching decisions to the widest possible range of competent authorities and persons. In addition, all decisions are published on the Ministry of Justice’s website and on the portal: http://humanrights.bg/
However, the general measures required by the Committee of Ministers to implement the ECHR decisions raise many and serious questions. Some decisions of the ECHR reveal systemic or structural problems related to the need for legislative changes or changes in judicial or administrative practice. It is the general measures that are under the supervision of the Committee of Ministers, and precisely these have remained unfulfilled by national institutions for years.
One of the main reasons why is the fact that implementation requires the active efforts of various institutions, which in many cases do not take the necessary measures to implement the decisions in a timely manner. The coordinating role of the Ministry of Justice is insufficient to impose measures that fall within the competence of other agencies.
Regarding Bulgaria’s progress in implementing decisions under the supervision of the Committee of Ministers in 2019, the following main conclusions can be drawn:
First, the total number of decisions to be enforced and monitored by the Committee of Ministers has decreased significantly. Statistics show that as of December 31, 2019, the total number of ECHR decisions in the implementation phase was 169, a 20% reduction from the figures as of December 31, 2018 and December 31, 2017, when incompleted decisions of the ECHR were respectively 208 and 207 (Data is up-to-date as of December 31, 2019, source: Country Factsheet, https://rm.coe.int/1680709740)
In 2019, 17 convictions were monitored by the Committee of Ministers, this number being twice lower compared to the number in 2018 and 2017, when the new convictions under the supervision of the Committee of Ministers, were 36 and 33 respectively
In 2019, a positive trend is also observed in the total number of cases with a final resolution – a total of 56, compared to 36 cases closed in 2018. However, it is noticeable that the number of cases closed in 2019 is significantly lower than the number of cases closed in 2017 (116).
The data indicates a return to the positive trend towards a significant reduction in the unsolved decisions, which was observed in 2017, and which should be further strengthened in 2020.
Secondly, there is a positive trend in compensation paid by Bulgaria. In 2019, their total value (414,990 euros) was almost double the amount paid in 2018 (794,968 euros). However, Bulgaria’s progress remains extremely unsatisfactory compared to the progress of other countries in the region – for example, the amount of compensation paid by Croatia for 2019 amounts to 74,188 euros, which is a drastic decrease compared to benefits, paid in 2018 in a total amount of 453 537 euros. (Data is up-to-date as of December 31, 2019, source: Country Factsheet, https://rm.coe.int/1680709742)
Thirdly, as of December 31, 2019, the total number of decisions in the enhanced supervision procedure by the Committee of Ministers is 41 cases, 18 of which are precedent and 23 are recurring cases. By comparison, as of December 31, 2018, a total of 72 decisions were under enhanced scrutiny by the Committee of Ministers, of which 21 were precedent and 51 recurring cases.
The Ombudsman’s analysis shows that in 2019 cases under enhanced supervision have fallen by almost half, mainly due to the closure of a large number of recurring cases due to the implementation of individual measures and the closure of three precedent cases. The general trend towards closure of conviction surveillance in both supervision procedures (standard and enhanced) continues.
Despite the positive trends cited, Bulgaria continues to be on the list of ten countries with the highest number of decisions under enhanced monitoring by the Committee of Ministers.
A graphic: Decisions in enhanced supervision procedure from the Committee of Ministers as of December 31st 2019 – total number and categorized by precedents and recurring cases.
|Member-state||Total number of cases||Precedent cases||Recurring cases|
page 234 + 235
In addition, the observation on a regional level that the number of unresolved cases in Bulgaria, supervised by the Committee of the Ministers, continues to be very high, especially compared to countries like Serbia (24), Croatia (11), Republic of North Macedonia (5), Lithuania (3), Slovenia (1), The Czech Republic (1), as well as countries such as Latvia, Estonia, Germany, Finland and Denmark, which for 2019 do not have a single decision under enhanced supervision.
In that sense, in 2019 the conclusions from previous years remain valid, namely:
- the number of decisions under enhanced supervision for more than a decade remains significant: 7 of the 18 decisions observed;
- the tendency remains that the condemnatory decisions, which are still under scrutiny, unfortunately, are linked to a large number of ECHR texts, necessitating many complex measures;
- the number of leading decisions under which the ECHR general recommendations have been implemented is still immeasurably lower than those for which no satisfactory progress has been achieved;
- Bulgaria continues to pay extremely high amounts of compensation for violated rights.
Although enforcement actions have been taken with respect to almost all condemnatory decisions in the years following their finalization, these actions are still insufficient to close the supervision, despite the efforts of various institutions and working groups.
For this reason, the recommendations of the Committee of Ministers on the implementation of such decisions remain almost unchanged.
In 2019, the situation in which a member-state continues to be sentenced for similar cases and pays high compensations for damages, all while the rights of its citizens continue to not be effectively defended, remains once again valid for Bulgaria.
This situation is unacceptable and strong action should be undertaken to overcome it.
As in previous years, the Ombudsman is committed to assisting and supporting the Minister of Justice by making recommendations to responsible institutions to undertake specific action on condemnatory decisions against Bulgaria.
In 2019, the main recommendations made in the 2018 report remain valid, namely:
Strengthening the coordination mechanisms between the various institutions responsible for the enforcement of ECHR condemnatory decisions against Bulgaria. The lack of progress in this respect in 2019 proves once again that general prevention measures need to be implemented by the state.
The Ombudsman’s monitoring for 2019 again shows that steps should be taken to strengthen the role of the “Procedural Representation of the Republic of Bulgaria before the European Court of Human Rights” Directorate at the Ministry of Justice in coordinating the process of aligning national legislation and practice of the institutions with the decisions of the ECHR.
It is logical that coordination of the implementation process should continue to be undertaken by the “Procedural Representation of the Republic of Bulgaria before the European Court of Human Rights” Directorate, but a new format should be considered, in which the coordination can be effectuated in order to be significantly more effective and to achieve real progress. This applies in particular to cases where executive action is required, as well as measures that can only be implemented by a change in judicial or administrative practice or by a change in legislation.
For this reason, the Ombudsman proposes the establishment of an interagency coordination council, comprising representatives (experts) of all national institutions, who should be directly involved in the process of coordinating and monitoring the implementation of measures to implement ECHR condemnatory decisions.
Such a mechanism can ensure the effective implementation of ECHR decisions and fruitful cooperation between competent authorities and institutions in this field.
In addition, this body can significantly raise awareness of ECHR practices and standards of respect for fundamental human rights. This will, in reality, reduce the condemnatory decisions that have been under supervision by the Committee of Ministers for many years.
Aligning national legislation and practice with the ECHR and the ECHR practice will also ensure a more effective guarantee of respect for the fundamental rights and freedoms of Bulgarian citizens.
In such an interagency coordination mechanism, it is appropriate to include mainly representatives of the executive branch.
However, the mechanism would only be effective if representatives of the judiciary and the legislature were present at its meetings.
It would be a good idea for the council to meet at regular meetings (at least four meetings a year) so that its members can discuss the measures to be taken, commit themselves to their implementation, ensure coordination of implementation in their own institution and to provide information on progress.
The national Ombudsman should play a part in this coordination process in its capacity as public defender, promoting the implementation of conventions for the protection of fundamental rights and freedoms of the individual, as well as independent experts and representatives of non-governmental organizations.
For a consecutive year, the Ombudsman recalls that after the provision of Art. 28, para. 3 of the Law on Normative Acts from the end of 2016, the national mechanism for reviewing the compliance of normative acts with the ECHR should be implemented by both the executive and the legislative branch.
*The obligation to review draft regulatory acts for compliance with the European Convention is provided for in paragraph 9b. ‘c’, ii of the 2012 Brighton Declaration and reaffirmed in the Declaration adopted at the 2015 High Level Conference Meeting in Brussels of Council of Europe Member-States (Plan C, paragraph 1, ‘d’) to the Declaration).
A practice, according to which proposed by members of parliament bills are not referenced for compliance with the ECHR, with the practice of the European Court of Human Rights, can lead to a breach of international human rights standards and to new convictions of Bulgaria in Strasbourg.
In that sense, it is appropriate to consider legislative changes that provide for an ex-ante assessment of the compliance of legislative proposals of MPs with the ECHR when they relate to fundamental rights and freedoms of citizens.
Subsequently, the general conclusion should be that Bulgaria lags behind in the process of joining international legal acts, which allow citizens to file complaints with supranational (convention) bodies in the event of their rights being violated. In 2019, Bulgaria is not taking steps to accede to the Optional Protocol to the Convention on the Rights of Persons with Disabilities and to the Third Optional Protocol to the Convention on the Rights of the Child.
In addition, Bulgaria has not yet ratified Protocol 16 to the ECHR, which provides an opportunity for a cooperation mechanism between the national court and the ECHR, similar to requests for a preliminary ruling before an EU court. This mechanism will greatly facilitate the alignment of the Bulgarian court practice with that of the ECHR and will contribute to less condemnatory decisions.
- Key ECHR cases in 2019
In 2019 there is not one key decision against Bulgaria according to the official ECHR report.*
The total rulings in cases brought against Bulgaria in 2019 are 12*. Out of those cases, 8 find violations of individual ECHR texts (Article 2 right to life, expulsion, Article 3 prohibition of torture, extradition, Article 6-1 criminal indictment, independent tribunal, Art. 8-1 of family life) and 4 found no violation.
- ECHR decisions whose enhanced supervision by the Committee of Ministers ended in 2019
In 2019, the Committee of Ministers terminated the enhanced supervision of the implementation of ECHR decisions in three major cases*.
*source: IORDAN PETROV v. Bulgaria, HRISTOVI v. Bulgaria, NATIONAL TURKISH UNION AND KUNGYUN v. Bulgaria
In the case of “Jordan Petrov v. Bulgaria” (22926/04), the Committee of Ministers found that, in addition to the exhaustion of possible individual measures, the recommendation of a general nature to eliminate the lack of effective domestic remedies for filing complaints and compensating the poor material conditions of detention through the amendments to the Law on Enforcement of Sentences and Detention* adopted in 2017. The remaining general measures in the case remain under enhanced supervision in other leading cases – the ineffectiveness of criminal investigations into allegations for abuse within the group of cases “Velikova against Bulgaria,” the lack of effective domestic mechanisms for protection and prevention of poor material conditions of detention in the case “Neshkov against Bulgaria.”
*SG, issue 13 of 2017
In the case of “Hristovi v. Bulgaria” (42697/05), the Committee of Ministers has agreed that, in addition to the exhaustion of possible individual measures, the general recommendation relating to reform introducing the use of anonymous identification by officials participating in special police operations*. The remaining general measures in the case remain under supervision in the framework of other leading cases – the ineffectiveness of criminal investigations into allegations for abuse within the group of cases “Velikova against Bulgaria,”, “Kolevi v. Bulgaria,” “S.Z. v Bulgaria “; the lack of effective domestic mechanisms to compensate for the psychological turmoil caused by detention within the “Gutsanovi v. Bulgaria” group of cases.
*SG, issue 17 of 2019
In the case of “National Turkish Unionan and Kugyun v. Bulgaria” (4776/08), the Committee of Ministers found that along with the exhaustion of possible individual measures, the general recommendation, regarding a reform in the mechanism of registration of non-profit legal entities, remains under enhanced supervision in the framework of the group of cases “Omo Ilinden v Bulgaria” even though the reform corresponds to the highest ECHR standard.
A review of the discontinued supervision of the three leading cases shows that, despite the progress reported on some general measures, the problems identified by the ECHR in its convictions are systemic and that a substantial part of the causes of the infringements have not yet been remedied. On the other hand, it also shows that Bulgaria will continue to be convicted in the future for the same violations of the ECHR.
In that sense, the abovementioned statement unequivocally shows that the lack of coordination efforts between institutions enforcing general recommendations on condemnatory ECHR decisions leads to the lack of effective results, which then leads to the lack of decisive progress.
The fact that the number of complaints to the Ombudsman has more than doubled in the period of 2016-2019 shows a rise of violations of fundamental freedoms, linked to a multitude of key ECHR provisions.
In many cases, citizens turn to the Ombudsman either during pending court proceedings or after their finalization. Although these complaints are inadmissible for the review of the Ombudsman, they indicate the multitude and the recurrent nature of citizens’ violations and complaints. In addition, they are an indication of the existence of offenses most commonly referred to the ECHR after exhaustion of domestic legal mechanisms.
- ECHR decisions, for which measures have been taken to tackle the problem, but are still under supervision by the Committee of Ministers
- Deficiencies of investigations into deaths and inhuman treatment. Violations of the right to life and the prohibition of torture, inhuman or degrading treatment. (Articles 2 and 3 of the Convention)
Group of cases “Velikova v Bulgaria”
The decision on the case “Velikova v Bulgaria” entered into force in 2000 and despite the noted progress, the enhanced supervision on the case is still not lifted.
The cases from the “Velikova v Bulgaria” group are referring to death cases, tortures (including inadequate incrimination of torture), ill-treatment or lack of timely medical assistance during arrest, police detention or in places of imprisonment, and lack of effective investigation of these cases (violations of Articles 2 and 3).
In 2019, the Committee of Ministers ceased enhanced monitoring of 1 precedent case and 17 recurring cases of this group.
The Committee last reviewed the group of cases “Velikova” in September 2019 (1355th meeting, “Human Rights” format). A lack of progress in two categories of problems has been found:
- Measures aimed at preventing and discovering ill-treatment of detainees;
- Measures aimed at improving the effectiveness of investigations.
According to the MoJ, in June 2018, the Attorney General and the Minister of Justice signed a cooperation agreement that establishes a framework for cooperation on future complaints before the ECHR concerning ineffective investigation and on the necessary measures for the enforcement of condemnatory decisions.
In the framework of the cooperation in 2019 a report was made, in which the current ECHR practice was updated. In that report problems were found in the pre-trial proceedings. Recommendations were made for the elimination of those violations. The report is published on the following e-learning portal: https://e-learning.nij.bg/enrol/index.php?id=544
Regardless, the lack of sufficient progress concerning some considerable and long-lasting problems, revealed in the framework of that group of cases, brings expectations of decisive measures of enforcement of the engagements made*, especially keeping in mind that the case “Velikova” has been under the supervision of the Committee for almost 19 years.
*According to the most recent Action plan from 24.09.2017
That is why it is of essence to avoid further prolonging of the enforcement process, at least of the enforcement of decisive measures that have not been adopted regarding:
- improving the practical functioning of the right of access to a lawyer in police detention and of medical examinations in police arrests and places of punishment;
- improving the organization of reporting injuries to detainees in police custody and in places of detention and imprisonment;
- introduction of judicial review of prosecutors’ refusals to open criminal investigations in cases of ill-treatment during detention;
- introduce sufficient guarantees for the independence of investigations and preliminary investigations into abuse by members of law enforcement agencies;
- criminalizing acts of torture and criminalizing the solicitation of a confession by a person who has not been formally charged with a crime but is nevertheless suspected of committing a crime
It is appropriate to consider a legislative change for the elimination of limitation periods for offenses related to torture. In that way, when it comes to similar complex and hard to investigate cases there won’t be a limitation of the time frame. There will be a possibility to reopen cases even with slow actions from the judiciary and after a decree from the ECHR.
Group of cases “S.Z/Kolevi v Bulgaria”
With its decision on the cases “Kolevi v Bulgaria” and “S.Z. v Bulgaria” the ECHR raises questions about the efficacy, speed and independence of criminal investigation.
In the beginning of 2019 with a change in the Law of the Ministry of the Interior an explicit provision was introduced (art. 72, para. 5)* which requires the police authority to clarify both the right of refusal of a defense attorney and the consequences thereof, as well as the right of the detained person to refuse to give explanations when the detention was based on the lack of data on a crime committed under Art. 72 para. 1, item 1.
*20 SG, issue January 7, 2019
In March 2019 the Committee of Ministers published a statement according to which the progress is still insufficient when it comes to: 1) the issue of the initiation of criminal proceedings and the need for judicial review of the refusal of initiation; 2) the lack of guarantees that judges will not be automatically removed from their position when charges are raised against them for a premeditated crime of general nature; and 3) the introduction of a special procedure for holding the Attorney General accountable in the case of reasonable suspicion of involvement in a crime.
In September 2019, the Minister of Justice sends a request to the Venice Commission for a statement on the legislative proposals made by Bulgaria. In its statement of 6-7 December 2019, the Venice Commission explicitly emphasizes that resolving the problems addressed by the ECHR in the “Kolevi v. Bulgaria” case will require a set of institutional changes, new procedural and substantive provisions.*
source: file:///C:/Users/k.hristova/Documents/REPORT/3.%20%D0%9A%D0%9E%D0%9D%D0%92%D0%95%D0 %9D%D0%A6%D0%98%D0%98/Venice.pdf
On December 7, 2019, the Bulgarian government approved a draft law proposing that the investigation into the Attorney General and his deputies be entrusted to a special prosecutor.
The most recent decision of the Committee of Ministers on the “S.Z. / Kolevi” group of cases was dated December 2019 (1362nd meeting, “Human Rights” format). It takes into account the progress with the adoption of amendments to Art. 230 Law on the Judiciary on providing guarantees to judges against automatic removal from office.* In this group of cases, the Committee of Ministers also adopted an intermediate resolution due to lack of progress in other key areas.
*2 SG no. February 11, 2020
In the beginning of 2020, the Constitutional Court of the Republic of Bulgaria initiated a lawsuit No.15 / 2019 at the request of the Council of Ministers for granting compulsory analyzing of Art. 126 para 2 of the Constitution.
Bulgaria is given until mid-2020 to present information in Strasbourg on measures taken to implement the recommendations in these two cases.
The Ombudsman will continue to monitor the implementation of the measures.
The cases “Gutsanovi v Bulgaria” and “Slavov v Bulgaria”
Πpeтъpcвaнeтo и иззeмвaнeтo ĸaтo пpoцecyaлнo-cлeдcтвeни дeйcтвия и в cвeтлинaтa нa нaмecaтa в пpaвaтa пo чл. 8 oт Koнвeнциятa ca paзглeждaни в мнoжecтвo дeлa cpeщy Бългapия.
At the beginning of 2019, progress was made with regard to the possibility of identifying, through anonymous marks, masked police officers working in the special units for which complaints were filed for inhuman treatment, as well as ensuring the impartiality and independence of police officers, who in some way participate in investigations or inspections of other police officers against whom there have been complaints of misuse of force.
In 2019 a legislative change was made to the provision of Art. 151, para. 5 of the Ministry of the Interior Act. The supplement to this text stipulates that when performing the activities under Art. 89, para. 1, the police authorities shall bear individual identification numbers in the order determined by the instruction under para. 3 – these are activities where the police authorities have the right to use special safeguards to guarantee their personal safety and concealment of their identity. An instruction was also issued to the Minister of the Interior regulating the preparation and reporting of the MRO in the Ministry of Interior.
For the Bulgarian Prisoners Association
- Prohibition of torture (Article 3). Overcrowding and poor conditions of prisons and mechanisms for protection against them (Article 3)
The case “Neshkov v Bulgaria”
The case “Neshkov v Bulgaria” raises several groups of questions before Bulgaria, which remain unsolved. They are defined by the Committee of Ministers as problems, linked to inhuman conditions and degrading treatment and refer to the overcrowding of prisons, poor sanitary and material conditions, lack of adequate medical aid and lack of effective measures for protection.
- Overcrowding of prisons
In 2019, the National Prevention Mechanism (NPM) carried out inspections in six prisons, eight arrests and one and one female juvenile detention center.
From those inspections of living conditions in 24 Ministry of Justice institutions, a positive tendency has been found in the bettering of material conditions and lowering the number of subjects in the prisons in the Bulgarian cities of Lovech, Pleven, Belene, as well as in the five institutions for freedom deprivation оn the territory of the city Vratsa because of considerable amount of work conducted for moving arrests from Vratsa and Montana cities, as well as from the juvenile correctional facility in Boichinovtsi city on the territory of the prison.
NPM states that in some prisons the issue of overcrowding remains pertinent, and that is the case especially in the prison in the Bulgarian capital – Sofia, as well as the arrests in the Regional Service “Execution of Judgements”, Sofia, as well as in the arrests in Vidin and Kardjali cities.
Regardless of attaining the standard of 4 square meters per incarcerated subject in prisons and in open dormitories it should be noted that attaining that standard does not override other parameters, such as the lack of clearly defined regulatory standards on the amount of fresh air required and daylight or artificial light. Inspections by experts from the National Preventive Mechanism once again find that the excess beds in the cells have not yet been removed.
On the whole, the issue with overcrowding in closed prisons has not been solved in 2019. The state of the building stock in the prisons in Sofia remains alarming.
- Strategy for overcoming overcrowding and bettering the conditions of detention
In December 2019 the Council of Ministers adopted a strategy for the Development of the Penitentiary System in Bulgaria for the period up to 2025. The strategy formulates the main strategic goals, measures and actions for their achievement, as well as the expected results from their implementation, based on the requirements of international legal documents on the rights of prisoners, the study of good foreign practices in this field, European standards for democratization of institutions and the humane treatment of offenders. The drafting of the strategy takes into account national and international instruments and adopted standards in the field of imposition and enforcement of penalties such as the European Convention for the Protection of Human Rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Recommendation No Rec (2006 ) 2 of the Committee of Ministers of the member-states on the European Prison Rules, the Law on the Execution of Sentences and Detention and the rules for its implementation, and the updated early strategy for continuing the reform of the judiciary and the Roadmap for the implementation of measures adopted by Council of Ministers Decision No 299 of 22 April 2016.
The Ombudsman will continue to supervise the implementation of the Strategy.
- Use of force and boarding aids
The recommendation of the Torture Prevention Committee for reporting injuries found on persons admitted to pre-trial detention centers and prisons has been met. The NPM monitors the maintenance of an injury registry and a register of use of force and accessories during its inspections.
In the whole justice system the wrongful use of boarding aids (handcuffs). Handcuffing continues for days without taking into account the risk assessment and health status of the incarcerated.
- Issues with staff
Despite the measures taken to optimize the work of current personnel, the enlargement of structures, the closure of arrests and the redeployment of staff, the issue of increasing the number of members of the supervisory and security staff remains a problem in 2019.
Another systemic deficit that the NPM has noted over the years is the lack of budgetary funding for adequate activities in the work of social workers. There are no premises for social activities in the newly repaired arrests, and where there are such places (for example, the arrests in Plovdiv and Shumen) – there are no social workers.
In addition, due to the large number of prisoners placed in each prison group throughout the prison system, there is an organization in the execution of sentences. This leads to excessive workload for social workers, which is why individual plans are formal, and the assessment of regime change, transition to an open-type dormitory and conditional early release are inevitably subjective. In this regard, the judicial control introduced by the latest amendments to the Law on Enforcement of Sentences and Detention is inevitably influenced by the opinion of the administration.
- Medical care for prisoners
The 2019 inspections showed that the healthcare system in prisons remains unreformed and the quality of the medical care for prisoners is not improving. NPM holds that a structural reform is needed in the medical care in the penitentiary system, looking towards outside health services.
- Education and cultural and informative activities
In 2019 there is no change regarding the issue of the education of the prisoners. There is a legislative barrier in Article 74 of the Law for Higher Education of Prisoners, notwithstanding the proclaimed right of all in Article 53 of the Constitution. Subsequently, new legislative solutions should be seeked when it comes to remote learning alternatives. Problems remain with the change from squad to actual individual execution of the sentence; budget financing for meaningful activities and enough social workers.
|Main recommendations: continuing the implementation of measures for solving the overcrowding issue closing of the “Ceramic Factory” open-type dormitory in accordance with the Ombudsman’s recommendation sent to the Minister of Justice;implementing a system for electronic surveillance as soon as possible, including the introduction of alternatives to the pre-trial detention measure and the effective implementation of Recommendation rec (2000) 22 on community sanctions and measures;taking measures for solving the problem of staffing security and adequate remuneration of employeesmaximizing the integration of the healthcare system in prisons with that of the Ministry of Health;a decisive increase in meaningful activities and real individual execution of the sentence.|
- Placement in juvenile centers, the case “A. and others v Bulgaria” (Article 5)
- The case “A. and others v Bulgaria”
This group of decisions require legislative changes, as deliberate provisions were incorporated in the draft Law on Deviation from Criminal Proceedings and the Imposing of Educational Measures for Minors. The draft law includes a change in the Law of the Ministry of the Interior and the adding of a text, which regulates appeals before a court of placement in a Temporary Accommodation Center at the Ministry of Interior, as well as a new regulation of the control of accommodation in a boarding facility.
And in 2019, there is no real progress on the adoption of legislative measures to comply with national law with the ECHR ruling on the case of “A. and others v Bulgaria.” A working group has been set up within the MoJ, with representatives of the Supreme Cassation Prosecution, Department for the Execution of Judgments, Ministry of the Interior, General Directorate Combating Organized Crimе, the Sofia University “St. Kliment Ohridski ”, MP and others. The work of the group is continuing, and is currently working towards the preparation of a draft on the Law on Deviation from Criminal Proceedings and the Imposing of Educational Measures for Minors, introducing, first, automatic judicial control of temporary detention and, second, automatic and periodic judicial control of detention in social-pedagogical boarding facilities and educational-correctional establishments
Unfortunately, in 2019, the draft Law on Deviation from Criminal Proceedings and the Imposing of Educational Measures for Minors was not submitted to the Council of Ministers. In this sense, there is no change in the Ombudsman’s finding of no progress compared to previous years. The recommendation remains the same.
|Main recommendation:Submission of the prepared draft of the Law on Deviation from the Criminal Proceedings and Imposing of Educational Measures for Minors in the National Assembly in accordance with the European standards.|
- Violations of the right to a fair trial (Art. 6)
The case “Chorbov and others v Bulgaria” and the case “Agromodel v Bulgaria”
In 2019 measures were taken to implement the cases of those groups, but the supervision still hasn’t been lifted from the Committee of Ministers. The Ombudsman’s recommendations from 2017 still remain pertinent, as they have not been followed.
The remaining issue – the one for implementing a mechanism for protection in the cases of prolonged lack of fulfillment of financial obligations by the state or municipalities, requires changes in the national legislature, which are yet to be implemented.
The Ombudsman reiterates that the Execution of ECHR Judgements Department to the Council of Europe has send a letter with recommendations, based on an analysis of the ECHR practice for similar Bulgarian cases, as essentially a recommendation a recommendation was made to assess the possibility of taking specific legislative measures by amending Art. 304 and 306 APC.
In 2018, the MoJ conducted a preliminary study of the case law and an analysis of the possibilities for amending Art. 304 and 306 APC. As of the end of 2019, the MoJ did not provide information on the follow-up action taken.
|Main recommendations:taking measures for legislative amendment to make the instrument under Art. 304 APCs effective within the meaning of Article 13 of the ECHR;making an elaborate a detailed analysis of the case-law applying these two provisions, including assessing whether the implementation of these decisions requires legislative action;in relation to the case of “Agromodel and Mironov v. Bulgaria”, to analyze the possibility of amendments to the Citizens’ Procedural Code.|
- Prisoners’ voting rights
- The case “Kulinski and Sabev v Bulgaria”
In accordance with Art. 42, para. 1 of the Constitution of the Republic of Bulgaria, imprisoned persons have no right to elect state and local bodies and to take part in consultations with the people.
In 2019, no progress has been made on the implementation of the decision, nor has the National Assembly responded to the requested by the MoJ statement on the measures that can be taken to implement the decision, given the existing constitutional prohibition on prisoners exercising their voting rights.
|Main recommendation: change in Article 42, para 1 from the Constitution of the Republic of Bulgaria and in the relevant provisions of the electoral legislation in order to comply with the recommendations of the ECHR|
4. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the UN General Assembly on 10.12.1984 and has been in force for Bulgaria since 1987.
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment sets out in its Art. 1 for torture, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public officialor other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
International law provides for restrictions on almost all fundamental human rights under certain legal conditions, and the interference with these fundamental rights is at the discretion of the state. Only the torture prohibition is absolute – it cannot be derogated or restricted in any way.
In 2012, the Ombudsman of the Republic of Bulgaria took on a new role, expanding its wide-ranging advocacy for the rights and freedoms of citizens – to perform the functions of a National Preventive Mechanism (NPM) under the Optional Protocol to the UN Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. The main activity of the National Preventive Mechanism is related to continuous monitoring of the places where the prisoners are located or where persons are detained or accommodated by an act or with the consent of a state body, which they cannot leave at their own will. Every year the Ombudsman, as a National Preventive Mechanism, presents a report on its activities, outlining the degree of respect for the rights of persons deprived of their liberty.
The main recommendations of the Committee against Torture to the Republic of Bulgaria in the framework of the VI Periodic Report on the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment will be presented in this statement:
The repeated recommendation of the Committee against Torture to the institutions of the Republic of Bulgaria is related to the need to adopt a legal definition of torture in the Penal Code, which contains all the elements referred to in Art. 1 of the Convention and classifying torture as a separate crime in the Penal Code. To date, despite the state’s commitment, this Committee recommendation has not been implemented.
The Committee against Torture shows concerns about the use of force and aids in prisons and police stations.
The Ombudsman, in the quality of the National Preventive Mechanism, has stated multiple times that in the whole system for execution of judgements, the unrightful use of handcuffs in the discovery of external posts in medical establishments still remains. Handcuffing continues for days without taking into account the risk assessment and health status of the detained. In this regard, the Ombudsman made recommendations to the Minister of Justice to take immediate, effective administrative measures to end torture, cruel, inhuman and degrading treatment or punishment, escorting and taking out prisoners at rest from dormitories for outdoor time and when visits are made to indoor and outdoor healthcare facilities.
According to the Committee against Torture, further efforts should be made to train police officers and staff in prisons on compliance with basic principles of use of force, and that all cases of torture and ill-treatment should be investigated effectively and by an independent body.
The Committee against Torture specifically notes the importance of detainees having access to a lawyer at the beginning of 24-hour detention at police stations, as well as the importance of providing at practice all legal guarantees to detainees against torture.
The Committee also notes that injuries are not being recorded in medical records, examinations are often in the presence of a police officer and that medical information contains insufficient information.
The Committee Against Torture points to the need for reforms in detention centers – prisons and police departments, to improve living conditions, eliminate overcrowding, reform healthcare, promote staff trainings in these places, and investigate all deaths in arrests. In its annual reports, the Ombudsman, as a National Preventive Mechanism, addressed these issues in detail and made specific recommendations to the Minister of Justice and the Minister of the Interior for: overcoming overpopulation, undertaking a large-scale health care reform for prisoners with a prospect of outside healthcare services, provision of budget financing for adequate activities in the work of social workers, etc.
Another important issue brought to the attention of the Committee against Torture is the situation of persons in social institutions. Recommendations were made to the state on the need to provide sufficient legal guarantees for these persons, to improve the material conditions therein, and to need independent monitoring to establish the degree of respect for their rights.
The Ombudsman’s lasting statement is that the institutional system for providing care is still unreformed and the quality of social service has not been improved for the time being. One of the main problems is that the facilities for elderly with mental retardation, mental disorders and dementia are often located outside the cities or villages, with poor road and communication infrastructure, which hinders access to professionals. Only in individual cases homes and newly built social services facilities are located in cities, with the possibility of providing comprehensive social and health services.
Over the years, the Ombudsman, as the National Preventive Mechanism, has repeatedly recommended speeding up the process of deinstitutionalization, since the long-term residence of persons with disabilities in institutions violates fundamental human rights. The placement of a family member in an institution should be treated as a last resort for protection.
It is absolutely unacceptable for the Ombudsman to have any social institutions and services in remote locations where there is a lack of adequate infrastructure and difficulties in recruiting specialized staff.
Another worrying finding by the Ombudsman as a NPM is that, at present, a very small percentage of residents of residential social institutions use community services, which is a prerequisite for potential difficulties in moving them to new social services and is an obstacle to their successful future inclusion in society. .
In 2019 The Ombudsman is referring to the Chief Prosecutor for violations of the rights of persons accommodated in a facility for people with dementia – Gorsko Kosovo, Suhindol Municipality, in order to prevent degrading treatment and to guarantee normal living conditions for them. The Ombudsman cited that Art. 16, para. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was violated, as well as that the violation of the jubjects in that facility are deprived of fundamental rights such as the right to privacy, the right to security, the right of free movement, quality medical care, and others.
The Committee Against Torture is also concerned about the situation of refugees and migrants located on the territory of the Republic of Bulgaria.
It should be noted that there is a significant change in the refugee situation compared to 2015 and 2016. There is a significant decrease in applicants for international protection. According to the official statistics of the State Council for Refugees with the Council of Ministers for the period from January 1 to December 31, 2019, the total number of asylum seekers is 2152, coming mainly from Afghanistan, Pakistan, Syria and Iraq. It is also stated that the conditions in the centers are improving.
Unfortunately, a constant recommendation of the Ombudsman as a NPM, given in all annual reports, is related to the ban on the forced placement of foreigners in facilities for temporary placement of foreigners to the Migration Directorate of the Directorate for Migration of Minors, regulated by Art. 44, para. 9 of the Law on Foreigners in the Republic of Bulgaria. In the 2019 check at the – facility for temporary placement of foreigners in Sofia, the Ombudsman once again found the cases of three children placed in custody, who were included in orders issued to adults, to impose a compulsory administrative measure under theLaw on Foreigners in the Republic of Bulgaria, without their knowledge or any relationship between them.
Monitoring the rights of unaccompanied children seeking or receiving asylum has shown that the care of unaccompanied children in 2019 by government institutions has increased. The Ombudsman’s main recommendation to set up a separate State Agency for Refugees center to accommodate unaccompanied minors was partially implemented by building “safe spaces” in the departments of the Registration Center – Sofia (in neighbourhoods “Voenna rampa” and “Ovcha kupel”). The safe area has been renovated and is controlled, solely for meeting the needs of children. Children placed in the safe area receive educational, medical and psychological support.
A major problem for unaccompanied refugee children remains the appointment of their legal representative. The Ombudsman notes that it is a continuing practice for one legal representative to be responsible for many children, while at the same time performing another position in the respective municipality. In this regard, the Ombudsman reiterates the recommendation to set up a working institute for the representation of unaccompanied children, to determine the preliminary criteria to be met by the employee designated as representative and to provide them with additional training.