The Bulgarian Prisoners’ Association submitted a report to the European Commission. The report was in reply to questions and topics had a word limit per answer and so links to sources are included in the text

Justice System – Bulgaria

Independence

Appointment and selection of judges and prosecutors

On 24 October 2019 Bulgaria’s Supreme Judicial Council elected Ivan Geshev, the former deputy Head Prosecutor, as the new Head Prosecutor, one of the most powerful figures in the country. The office oversees the work of all other prosecutors and has the final word on whether to launch or stop an investigation. Mr. Geshev was the only nominee for the position, and his election was marked by protests and heavy criticism from the public  for the lack of integrity, transparency or competition. Mr. Geshev, who served as Deputy Head Prosecutor prior to his promotion, does not have a proven track record of convictions of highranking politicians for any serious breaches of law https://www.mediapool.bg/head-of-supreme-court-asks-data-about-ivan-geshevs-successful-cases-gets-called-a-maniac-pm-boyko-borissov-apparently-lied-abo-news298665.html Furthermore, he has gone on record to say that there was no need for separation of the judiciary to government, calling the separation of powers an “extreme right” idea http://www.bta.bg/en/c/DF/id/2106775  .  The organization Reporters Without Border had noted that “without regard to procedure, without evidence and in violation of his duty to be impartial and principled, Geshev has expressed himself in terms that suggest that Bulgarian democracy is in great danger” https://rsf.org/en/news/rsf-asks-president-radev-defuse-bulgarias-press-freedom-crisis  . Even the European Commission’s 2019 CVM report noted that there were concerns about the nomination of Mr. Geshev, and indicated that these concerns need to be addressed. However, the Supreme Judicial Council (“SJC”), the body tasked with the nomination, did not do so and simply put the candidacy to a symbolic vote and approved it. Even so, the procedure was so tainted that the Bulgarian President, Rumen Radev, whose responsibility it is to sign the official document appointing the Head Prosecutor, initially refused to do so https://www.euractiv.com/section/justice-home-affairs/news/bulgaria-appoints-new-chief-prosecutor-amid-protests/  .  However, per the Bulgarian constitution, the head of state can reject the candidate only once.  The SJC chose not to restart the procedure but simply re-elected the same candidate, hence the President was obliged to sign the decree confirming his appointment.

Irremovability of judges, including transfers of judges and dismissal

In 2019 the Ministry of Justice proposed a new reform aiming at a new accountability mechanism for the top three magistrates (Chairman of the Supreme Court of Cassation, Chairman of the Supreme Administrative Court and the Head Prosecutor), whereby they may be investigated and brought to criminal liability and suspended pending the criminal proceeding .  Officially, the proposed reform serves to implement the recommendations of the EU Cooperation and Verification Mechanism (CVM) as well as the Venice Commission, both of which have echoed a seminal ruling by the European Court of Human Rights https://hudoc.exec.coe.int/eng#{“EXECIdentifier”:[“004-3557”]}  that the office of the Bulgarian Head Prosecutor lacks sufficient accountability https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%220032915215-3209318%22]} . The recommendations, however, never mentioned the accountability of the Chairpersons of the Courts.  In its assessment of the proposed law, the Venice Commission reminded that the ECHR’s Kolevi opinion was directed at investigations of prosecutors, not judges. https://webcache. googleusercontent.com/search?q=cache:Zp67LWS0j_4J:https://www.venice.coe.int/webforms/documents /default.aspx%3Fpdffile%3DCDL-AD(2019)031-e+&cd=1&hl=en&ct=clnk&gl=be#10  The Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court are high-ranking judges, each of them acting as primus inter pares in their respective court. The new reform proposal aims at putting them on the same footing as the Head Prosecutor in terms of  disciplinary action, but as noted by the Venice Commission “the rationale for suspending a judge and suspending a PG are different, and the draft seems to overlook this difference.” More importantly, per the assessment of the Venice Commission the proposed reform would not resolve the lack of accountability over the PG’s actions, the fundamental problem identified in the Kolevi judgment. Damningly, the Venice Commission also highlighted that the proposal would make the two chief judges more vulnerable to external pressures, as, under the draft, their suspension will be decided by the plenary SJC, where judges are in the minority, namely 6 out of 25. The Venice Commission repeated its earlier proposals on remedying these deficiencies, in its  2017 Opinion and the Recommendation CM/Rec(2010)12, which remain unimplemented till this day. Therefore, there is every reason to believe that the new accountability mechanism, if adopted, may in fact further endanger judicial independence in Bulgaria. It is difficult not to conclude that the new accountability mechanism introduced officially under an EU recommendation to make the office of the Prosecutor-General more accountable may in fact amount to a disguised attack on Bulgarian judicial independence.

Promotion of judges and prosecutors

When the Sofia City Prosecutor was requested to review some missed evidence in the Jock Palfreeman criminal trial, the Sofia City Prosecutors office categorically refused to even look at the newly presented evidence that contradicts the indictment and final court decision. https://bpra.info/otkaz-za-proverka the Prosecutor’s department very suspiciously chooses when to review evidence or cases and when not to without a defined criteria or constant explantion. To summarise the official refusal of the Prosecutor’s office, the Prosecutor claimed that the reason there was no need to review newly found evidence contradicting the final court verdict was because there was a final court verdict. 

Allocation of cases in courts

 Software has been used in Bulgaria for the allocation of court cases since 2006. The system has recently come under the focus of the Head Prosecutor after a signal by six members of the  Supreme Judicial Council.  https://www.segabg.com/category-observer/5-neudobni-vuprosa-po-skandala-sluchaynotorazpredelenie-na-delata   

An outside audit of the software stated that the system uses outdated technology, which can be easily attacked, as the software is not written with a focus on its safety, https://www.segabg.com/category-observer /5-neudobni-vuprosa-po-skandala-sluchaynoto-razpredelenie-na-delata . The audit listed a total of 23 areas where the technology used was vulnerable, 11 of them deemed to be high-risk.  http://www.vss.justice.bg /root/f/upload/27/Rez-BCC_22.04.2020.pdf

Given the seriousness of these findings, commentators have asked why the Head Prosecutor has undertaken this review only now, given that the current software was installed as a temporary measure, and issues with its malfunctioning had previously been identified.  In 2018, a report by the Inspectorate of the Supreme Judicial Council found irregularities in the case allocation surrounding the bankruptcy of Corporate Commercial Bank in the Sofia Appellate Court  https://news.lex.bg/%D0%B8%D0%BD%D0%BF%D0%B5% D0%BA%D1%82%D0%BE%D1%80%D0%B0%D1%82%D1%8A%D1%82-%D0%BA%D1%8A%D0%BC-% D0%B2%D1%81%D1%81-%D0%BD%D1%8F%D0%BC%D0%B0-%D0%B4%D0%B0-%D0%BF%D1%80% D0%B5%D0%B4%D0%BB%D0%B0%D0%B3%D0%B0/

In 2019 the computer system suspiciously crashed when having to select judges to review the high-profile request to reopen Jock Palfreeman’s early release. https://news.bg/crime/vks-shte-se-zanimae-sas-sluchayapolfriyman-na-23-oktomvri.html

In the very early stages of the investigation, Mr. Geshev was already expressing certainty that the culprits for the above-identified deficiencies were Judge Kalin Kalpakchiev, the current chairman of Bulgaria’s Union of Judges and a former member of the Supreme Judicial Council; Hristo Ivanov, the former minister of Justice (and current political opposition to the parties who appointed Mr Geshev as well as having opposed Mr Geshev’s appointment); and Lozan Panov, the chairman of the Supreme Court of Cassation.  This is yet another instance where the Head Prosecutor has disregarded the presumption of innocence mandated by Bulgarian and international law, and publicly declared someone guilty before the final conclusion of on-going investigations or a conviction.  Moreover, the three men have frequently voiced public criticism of Mr. Geshev and his methods, which reinforces the preception of the crisis being used as a political vendetta by Mr. Geshev https://www.segabg.com/category-observer/5-neudobni-vuprosa-po-skandala-sluchaynotorazpredelenie-na-delata

Independence (including composition and nomination of its members), and powers of the body tasked with safeguarding the independence of the judiciary (e.g. Council for the Judiciary)

The Supreme Judicial Council (SJC) is tasked with overseeing the work of judges and public prosecutors. Of the 25 members, the parliamentary-represented parties elect 11 members, and another 11 are selected as follows: 6 judges, 4 prosecutors and 1 investigator. The last  three members are the presidents of the Supreme Administrative Council (SAC) and the Supreme Court of Cassation (SCC), and the ProsecutorGeneral, who are always appointed following behind-the-scenes political negotiations, meaning that the politically elected members have a majority of 14 to 11 https://www.euractiv.com/section/justice-home-affairs/opinion/the-bulgarian-judiciary-explained/ . As the SJC is responsible for the appointments of all judges and prosecutors, the oversized political quota is a serious threat for the judiciary’s independence. The Venice Commission, has expressed concern that prosecutors, and the Head Prosecutor (PG) in particular, are still significantly involved in the governance of judges https://search.coe.int /directorate_of_communications/Pages/result_details.aspx?ObjectId=09000016809933f4 . The SJC has traditionally found it difficult to defend pro-reformist magistrates, especially when their positions may not be in line with the ruling political majority. This became painfully obvious when in September 2019 the Australian Jock Palfreeman, convicted of murder and attempted murder during a street melee in 2007, was released early by a panel of three appellate judges. The youth wing of the nationalist VMRO party, http://www.vmro.bg/вмро-внесе-искане-във-всс-за-дисциплинарно-производство-срещу-калин-калпакчиев  a coalition partner of the current government, requested an investigation into the appellate judges, whilst at the same time appearing across all media to call for protests to pressure and attack the judiciary https://sofiaglobe.com/2019/09/24/judges-on-bulgarias-sjc-concerned-by-tensions-over-palfreeman-case/  . The judicial college of the Supreme Judicial Council  referred VMRO’s complaint to the SJC Inspectorate for investigation, and shockingly expressed bias by stating “sympathy for the pain and suffering of (the victim’s) relatives,  sharing their sense of a broken balance between law and justice” https://sofiaglobe.com/2019/09 /24/judges-on-bulgarias-sjc-concerned-by-tensions-over-palfreeman-case/  . Bulgaria’s Union of Judges responded with an open letter, lambasting the failure of the Judicial College of the Supreme Judicial Council to stand up for the judiciary’s impartiality and independence. The full text of the letter translated into English is available here (link to original is included on the same page): http://bpra.info /en/to-the-members-of-the-judicial-college-of-the-supreme-judicial-council/

Accountability of judges and prosecutors, including disciplinary regime and ethical rules.

The Inspectorate to the Supreme Judicial Council is in charge of performing check-ups on judges, public prosecutors, and investigators for conflict of interest, breach of integrity, and harming the prestige of the judiciary; as well as for failure to declare conflict of interest situations.  This body is highly politicized, as ALL inspectors and the Chief Inspector are elected by Bulgaria’s parliament. The current (10) inspectors  were appointed for a 4-year term, which expired on 14 March 2020, and the Chief Inspector’s on 9 April 2020. Parliament should have taken measures to identify replacements at least before their mandates expired, but that has not occured http://www.bili-bg.org/12/889/news_item.html  Given the already expired term of the Inspectorate and the lack of activity on the appointment of a new one, there is a concern that new inspectors may be appointed without proper vetting and public debate about their qualifications or their suitability for office. But after the dictatorial way that the new Head Prosecutor was appointed there doesn’t seem to be much desire in the government to improve transparency or strengthen democratic structures at all. In addition to the composition of the Inspectorate, its work has come under criticism as well. It failed to properly investigate some of the most egregious scandals that have erupted during its term, including:

a leak of a judge’s personal information https://onties.com/bulgaria/bulgaria-the-court-inspectorate-adoptedpersonal-data-of-judge-todorova-and-her-family/  

The notorious TSUMgate (a meeting organised by then-Head Prosecutor Tsatsarov and businessmen Sasho Dontchev and Georgi Gergov at the latter’s office in the TSUM department store), which Judge Kalin Kalpakchiev even brought to the attention of the European Commission https://news.bg/bulgaria/kazusattsumgeyt-otide-v-bryuksel.html  .

The Inspectorate did not hesitate, however, to open an investigation against a panel of judges for granting early release to the then prisoner Jock Palfreeman, following a complaint given by the youth wing of the far right anti European VMRO political party to the Supreme Judicial Council http://www.vmro.bg/вмро-внесеискане-във-всс-за-дисциплинарно-производство-срещу-калин-калпакчиев/. Despite the Inspectorate not finding any violations, the Inspectorate has suspended their investigation in order to continue it later pending a court case based on the same accusations from the Head Prosecutor. http://defakto.bg/2020/05/02/инспекторатът-отговори-на-де-факто-пр/

Independence/autonomy of the prosecution service

The Prosecution Service seems to be heavily influenced if not directed by the media. Often at times journalists propose measures or actions and the next day despite having little to no legal basis, the prosecution authorities appear to do what the journalists have said.

All prosecutors submit to the will of the Head Prosecutor, who was allowed to run unopposed by the current government, so it is easy to say that there is no autonomy or independence of prosecutors especially when an investigation or trial is in any way connected to the major political parties in Parliament, including the majority of the opposition.  

Significant developments capable of affecting the perception that the general public has of the independence of the judiciary

In late 2019 a panel of three judges granted an early release to Jock Palfreeman.  Under Bulgarian law, this judgment was final and non-appealable, but Mr. Palfreeman, his hands tied with rope, was moved into immigration prison under the public eye on pretext that he lacked proper identification. Formally he was taken by force without explanation or documentation and regardless of the fact that he was actually in possession of a valid Australian passport https://www.facebook.com/PalfreemanJock/posts /139438564118370 .  Shortly thereafter, the then Head Prosecutor Sotir Tsatsarov launched a highly irregular appeal to the Supreme Court of Cassation to have Mr. Palfreeman returned to jail and his case reopened.  (Link in Bulgarian: https://www.prb.bg/media/cms_page_media/Искане%20от%20главния%20прокурор%20на% 20РБ.pdf   The court to which Mr. Tsatsarov appealed has no jurisdiction over early release matters. In decision No. 99/20.06.18,  the same court denied review of a parole request on that very basis. Pending this review, Mr. Palfreeman has been forced to remain in Bulgaria for over 6 months, which has angered the Australian government https://www.newcastleherald.com.au/story/6430624/jock-palfreemansrelease-is-devolving-into-a-war-of-words-between-diplomats/  and baffled human rights organizations https://www.hrw.org/news/2019/10/09/bulgaria-despite-court-order-australian-still-detained .   Even an invitation from an MEP to speak at a conference at the European Parliament was not sufficient grounds for Mr. Palfreeman to be allowed to travel outside the country https://www.abc.net.au/news/2020-03-05/coronavirus-thwarts-jock-palfreeman-trip-to-brussels/12027072 . A number of high-level politicians sought to attack the early release for political gain  https://sofiaglobe.com/2019/09/20/court-decision-to-release-palfreeman-prompts-political-storm-in-bulgaria/  In response, nearly 300 judges throughout the country wrote an open letter to the public, warning that the pervasive threats and insults against the judiciary risk undermining the rule of law.  The full text of the letter is available translated into English here (link to original is included on the same page): http://bpra.info/en/292-judges-across-bulgaria-have-sent-a-statement-to-the-bulgarian-citizens/ Lozan Panov, the chairman of the Supreme Court of Cassation,  also weighed in with a scathing criticism of the political pressure and the “media lynching” that the Bulgarian judiciary was being subjected to. The full text of his position is available translated into English here (link to original is included on the same page): http://bpra.info/en/statement-by-the-president-of-the-supreme-court-of-cassation-in-regard-to-the-case-jock-palfreeman/

 Other

Mr. Palfreeman’s early release has been used for political gain and settling old scores. The far-right Ataka and VRMO parties, both in coalition in the current government, organized protests in Sofia demanding that Mr. Palfreeman be sent back to prison and that the  presiding panel judge Kalin Kalpakchiev be sacked. https://www.theguardian.com/world/2019/oct/02/jock-palfreeman-to-learn-fate-on-monday-as-parole-sparksprotests-in-bulgaria  Ataka’s leader announced at the same time that he was running for mayor of Sofia in the October local elections. VMRO appointed the current deputy Minister of Justice who oversees the Bulgarian prison system, and who is the one most often on the target of criticism by the Bulgarian Prisoners’ Rehabilitation Association (BPRA), founded by Jock Palfreeman. Various BPRA members, including Jock Palfreeman, have been repeatedly punished for advocating on behalf of Bulgaria’s prisoners https://bpra.info/en/you-stand-up-for-your-rights-but-all-you-get-is-more-repressions/ Despite the unanimity of the three-judge panel, mostly Judge Kalpakchiev, and to a lesser extent Judge Ivanova, were targeted for the alleged miscarriage of justice.  The third judge, whose name was hardly mentioned throughout the entire orchestrated media blitz, happens to be the daughter of the Chairman of the Supreme Administrative Court, who is widely seen as an ally of both Mr. Geshev and his predecessor. Mr. Tsatsarov’s conflict of interest allegations also seem to be politically-motivated, as they center entirely on these same judges’ alleged involvement with the Bulgaria Helsinki Committee, a human rights organisation that has frequently criticised the Bulgarian government, and in particular the prosecutor’s office for failing to protect human rights. Judge Kalpakchiev received a distinction from the organization, and Judge Ivanova was a small contributor to the 2016 annual report, while the organisation’s chairman submitted a character reference in support of Mr. Palfreeman’s parole request. According to Mr. Tsatsarov, these facts rendered the judges prejudiced or interested in the outcome of the case.   The other part of Mr. Tsatsarov’s motion stated that the appellate court in Mr. Palfreeman’s case made a “ruling” and not a “decision”, thus committing a grave procedural error that requires rectification by the Supreme Court of Cassation. However, this argument contradicts the widespread practice in Bulgaria’s courts and has already been disproven in a previous court hearing by the Supreme Court of Cassation. The Supreme Court of Cassation has not been able to rule on the merits for nearly seven months, despite legislation requiring the case to be decided within 2 months and the previous Supreme Court of Cassation ruling on the same matter in only 1 month. The significant delay in the court’s ruling alone has further fuelled speculations as to what sort of influence the Supreme Court of Cassation is subject to.

Quality of justice

Accessibility of courts (e.g. court fees, legal aid)

90% of prisoners have no employment at all and about 5% work without pay, however there are still judges in Administrative courts rejecting cases from prisoners based on the prisoner not paying the court fees. There is legally a possibility for legal aid for prisoners but it is so hard to access and so rarely used that it is easier to say there is no legal aid for prisoners. Many cases that should have been won by the prisoner are rejected in practice as the prisoner (applicant) does not have legal representation.

 Other

Not all but many judges in the Administrative Courts are extremely biased towards applicants when those applicants are prisoners. Judges have been known to comment that someone who has broken the law doesn’t have the right to then complain to the court, especially seeking compensation for poor conditions in prisons. Of course the opposite is correct that violators of the law must be taught that the correct way to solve problems is by the law and when there is a disagreement the correct place is within the court. Some judges in Administrative courts clearly are not acting professionally during court hearings or when writing their decisions.

The behaviour of the Prosecutors is also of concern, more often than not the Prosecutor’s office thinks it is their job to oppose all claims and evidence proposed by the applicants when the case is against the state for compensation or appealing administrative decisions. Clearly the job of the Prosecutor’s office is to defend the law and not the state institution.

In this regard many Prosecutors think their job is simply to oppose reactionarily any request or complaint given by a prisoner, simply because they are a prisoner. 

Efficiency of the justice system

 Length of proceedings

In the case of Y. v. Bulgaria https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-201350%22]}  , issued on February 20, 2020, the European Court of Human Rights found that Bulgaria had failed to efficiently investigate a rape victim’s allegations. The claimant’s rape petition had been dragging on since July 2013, which amounted to a period of over5 years at the time she filed her claim with the ECHR in August 2019. In 2012, the ECHR found Bulgaria guilty for failure to protect the right to life of Todor Dimov Todorov https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-114253%22]}  Mr. Todorov was murdered in a controversial police operation, led by the then Chief Secretary of Police, and currently Prime Minister, Boyko Borisov.  Per Mr. Borisov’s orders, fifteen rockets were fired from a rocket propelled grenade launcher against the house where Mr. Todorov was hiding alone. A military court investigation did not find any breaches of procedure, but the ECHR found that the police did not respect the suspect’s right to life, and in 2013 the investigation of Mr. Todorov’s death was reopened https://balkaninsight.com/2013/03/26/bulgaria-reopens-case-implicating-ex-pm-in-police-murder/  . Per unofficial leaks in the media, an autopsy on the exhumed body proved that police tried to cover up the cause of death. The official police version was that he blew himself up with a hand grenade, but evidence showed that he was blown to pieces and subsequently burned to cover up the tracks. https://www.mediapool.bg/deloto-za-smartta-na-chakara-okonchatelnopriklyuchi-news223877.html  While the prosecutor’s office was supposedly waiting for a final medical expertise, news came out that the case had quietly been  dropped indefinitely, together with another case implicating Mr. Borisov, just as he was preparing to launch a re-election campaign in the 2014 parliamentary elections.   http://m.legalworld.bg/38448.prokuraturata-slojila-tochka-i-na-deloto-za-smyrtta-na-chakyra.html   Till this day, an ECHR ruling implicating Bulgaria’s Prime Minister in murder remains without any consequence. A common tactic of the Bulgarian prosecution is to stretch out trials purposefully so as the statute of limitations expires and thus the perpetrators are unpunished, as in the case in the infamous 2010 ‘Tramway’ assault, the perpetrators of which to this day remain unconvicted https://baricada.org/2017/06/06/7-godini-bez-pravosudie/  .

 Enforcement of judgements

The inhumane conditions in Bulgarian prisons have already been brought to the attention of the European Court of Human Rights (“ECHR”). In 2015 the ECHR adopted a pilot judgment in the case of Neshkov and Others https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-150771%22]}  , the decision has still not been implemented. In a number of other cases the ECHR has similarly found the existence of overcrowding, poor sanitary and material conditions, limited possibilities for out-of-cell activities, inadequate medical care and prolonged application of a restrictive penitentiary regime https://hudoc.exec.coe.int/eng#{% 22EXECIdentifier%22:[%22004-3589%22]} . Regrettably, a  number of important rulings remain unimplemented. The European Implementation Network, which tracks the implementation of ECHR judgements across Europe, found that as of February 2020, 48 percent of the ECHR’ leading judgments against Bulgaria have not been implemented http://www.einnetwork.org/bulgaria-echr  .  This finding is also supported by the 2019 annual report of the ombudsman of the Republic of Bulgaria (available at https://www.ombudsman.bg /pictures/file/REPORT-BG%20mart_2020.pdf) . An informal English translation of the relevant portion of the report is available here http://bpra.info/en/annual-report-on-the-activities-of-the-bulgarian-ombudsman-in-2019-pages-229-304  A final decision by an appellate court, dated 5 November 2019, mandated that the warden of Sofia’s prison ensure that all prisoners have access to running water  https://www.facebook.com /BulgarianPrisonersAssociation/photos/pcb.1336722593188452/1336722436521801/?type=3&theater. Although the appropriate measures had to be taken in a matter of weeks, as of April 2020 the prisoners in Sofia prison still had no constant access to running water. Given the conditions in Bulgarian prisons  https://bpra.info/en/the-prison-in-pazardjik-city-a-story-from-inside/  and https://www.facebook.com/PalfreemanJock/videos/222548292402370  , where more than 10 prisoners often share a small space, there is absolutely no possibility to comply with the government’s distancing guidelines during the COVID-19 crisis. Furthermore, the Bulgarian government took no steps and announced no measures to limit the prison population during the pandemic, for example, releasing inmates incarcerated for non-violent crimes or those nearing the end of their sentences. https://www.canberratimes.com.au/story/6734396/palfreeman-sues-bulgarian-prison-authority/

Other

Despite the fact that in 2019 Jock Palfreeman finally obtained video footage that was crucial to his murder trial in 2009, the prosecutor summarily refused to reopen his case. https://bpra.info/otkaz-za-proverka/

Another dirty tactic is evident in the case of Angel Dimitrov, alias Chorata, who died in police custody in 2005 from asphyxia https://balkaninsight.com/2007/06/18/bulgarian-police-tried-over-man-beaten-to-death/  . After Bulgaria’s Supreme Court of Cassation acquitted the five policemen involved in the death, the ECHR held that Mr. Dimitrov’s right to life had been violated, and that the circumstances of his death were not thoroughly and impartially investigated.  https://sip.lex.pl/orzeczenia-i-pisma-urzedowe/orzeczenia-sadow/77938-11-dimitrov-i-inni-v-bulgaria-wyrok-europejskiego-521571354  . The investigation was reopened and in April 2019, the Supreme Court of Cassation sentenced the policemen involved in Mr. Dimitrov’s death to 7 years in prison (In Bulgarian: https://www.svobodnaevropa.bg/a/29893046.html  . The Head Prosecutor  requested that the judgment be set aside ( https://www.svobodnaevropa.bg/a/30329810.html , and a 5member panel released the men from custody, pending a retrial. There is every indication that the court is engaging in a retrial on the merits, in direct contradiction of the ECHR ruling https://news.lex.bg/%D1%87% D0%BE%D1%80%D0%B0%D1%82%D0%B0-%D0%BC%D0%BE%D0%B6%D0%B5-%D0%B8-%D1%81% D0%B0%D0%BC-%D0%B4%D0%B0-%D1%81%D0%B5-%D0%B5-%D0%B7%D0%B0%D0%B4%D1% 83%D1%88%D0%B8%D0%BB/  In the case of Dimiter Mitev v. Bulgaria, the applicant alleged that he had been convicted of murder on the basis of a confession made to the police immediately after his arrest in 2006, under duress and in the absence of a lawyer http://hudoc.echr.coe.int/eng?i=001-181387  . In 2018 the ECHR agreed that Mr. Mitev was not assisted by a lawyer when making the confession which was subsequently used to secure his conviction, and that neither had he waived the right to legal assistance nor did the Government prove “compelling reasons” to justify the failure to provide him with such . The judgement hasn’t been implemented yet, including with regard to the individual measures requiring the examination by a court on the question whether the violation of Article 6 (ECHR) raises serious doubts as the the validity of the conviction in this case http://hudoc.exec.coe.int/eng?i=004-49729  . Till this day, the Supreme Cassation Prosecutor’s office has openly refused to submit the case to the Supreme Court of Cassation for retrial in effect illegally imprisoning a man that the state has not proven to be guilty.

Anti-Corruption Framework – Bulgaria

The institutional framework capacity to fight against corruption (prevention and investigation / prosecution)

 Authorities (e.g. national agencies, bodies) in charge of prevention detection, investigation and prosecution of corruption. Resources allocated to these (the human, financial, legal, and practical resources as relevant).

The first Chairman of the Anti-Corruption Commission, Mr Plamen Gerogiev was forced to resign after serious allegations of acquiring  a luxurious apartment at a price at least three times below the market price. This became known as the country’s “ApartmentGate” scandal, in which several senior ruling party’s politicians were found by journalists to have purchased prize real estate far below market value https://www.ft.com/content/30083814-5ea0-11e9-a27a-fdd51850994c . In show of political links with the governing party, Mr Goergiev was appointed, without any prior experience, as a consul in the Bulgarian Consulate in Valencia https://www.bnt.bg/en/a/former-head-of-anti-corruptioncommission-appointed-consul-in-valencia  . The person replacing Mr. Georgiev as the head of the Anti-Corruption Commission is Mr Sotir Tstsarov, the former Head Prosecutor, whose term ended in January 2020 . Mr Tsatsarov  took on the leadership of the anti-corruption body despite the poor track record of the institution he headed for seven years. Dozens of high-profile corruption cases launched by the former Head Prosecutor are dragging on or have been shut, and no senior official has been ever sentenced on corruption charges https://balkaninsight.com/2019/12/11/ex-prosecutor-general-to-head-bulgarias-anti-corruption-commission/  .  Additionally, Mr. Tsatsarov himself was implicated in the same “ApartmentGate” scandal that forced Mr. Georgiev to resign from the AntiCorruption Commission in the first place https://www.occrp.org/en/daily/10393-apartmentgate-bulgaria-s-anticorruption-head-resigns  . A thorough critique of the politicization of the Anti-Corruption Commission is available in a report prepared by the Bulgarian Anti-Corruption Fund https://acf.bg/wp-content/uploads/2019 /05/doklad_EN_web.pdf  .

Prevention

Integrity framework: asset disclosure rules, lobbying, revolving doors and general transparency of public decision-making (including public access to information).

Anti corruption laws are extremely rudimentary. Many high ranking politicians, Ministers and people overseeing anti corruption institutions were found to all live in or have bought luxury properties bought at only a fraction of the market value, most if not all of these properties were constructed and sold by the same developing company “Arteks”. The Prosecutor’s office and the Anti Corruption Agency found no conflicts of interest or violations of law, as previously mentioned, high ranking people in the Anti Corruption Agency were also implicated themselves. Although the second highest ranking member of the major ruling party (Tsvetan TSvetanov )was expelled  over the scandal, although the Anti Corruption Agency and the Prosecutor’s Office could make an argument for bribery from lobbyists (developers) specifically paying less than market value for good and services isn’t specifically noted as either receiving a “gift” or a bribe. Despite the scandal seeing even the Minister of Justice give her resignation, to this day the anti corruption and conflict of interest laws have not been amended to regulate the purchasing of assets or services by state employees, Ministers or politicians. Despite a Bulgarian being the European Commissioner for Digital Economy and Society (Mariya Gabriel) from the ruling political party, Bulgaria seems to have gone backwards in terms of digitalisation, which is a major problem for transparency. Many state institutions,  which are obliged by law to have web pages containing information pertaining to the work of the institution, rights, responsibilities and state tenders, either have very poorly created/maintained web pages or simply no web pages at all. For example the Head Directive for the Execution of Punishments (HDEP) (national prison authority) has no webpage at all. Most if not all government agencies have little to no public access to information and instead people have to know something exists to be able to request it. Often state institutions refuse to supply the information giving obviously fake reasons, the applicant is then forced to appeal the refusal in court which in some instances can take over 2 years to conclude. This is especially a problem when the information is needed and relevant when the request was first given. Again the HDEP is infamous for refusing to supply public information.  

Measures in place to ensure Whistle-blower protection and encourage reporting of corruption.

There are no measures or practice of protecting whistleblowers whatsoever, on the contrary many witnesses of crimes are afraid to come forward due to lack of faith in the Prosecutor’s office and the Police. With regards specifically to prisons, each prison is allocated an “Investigative Policeperson”. These Investigators work for the Ministry of Interior, the idea being that they are independent from the Ministry of Justice running the prisons. However as the Investigators are permanently placed in their respective prisons, which are the limits of their jurisdictions, they soon become entrenched in the prison social culture, meaning although they remain officially independent from the Ministry of Justice, in actuality they become friends with the staff in the prisons they are allocated to, making objective investigation of crimes committed by prison staff and prisoners impossible. Systematically almost every accusation from a whistleblower in prison is sent to the same Investigator assigned to their respective prisons. Even when a whistleblower sends a complaint to the Prosecutor’s office, either due to laziness or corruption the complaints are sent to the Investigators to be processed whereby they are almost summarily dismissed. There are even court decisions alluding to corruption by prison staff yet no investigation is made.

Sectors with high-risks of corruption in a Member State and relevant measures taken/envisaged for preventing corruption in these sectors. (e.g. public procurement, healthcare, other).

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A country’s prison system can be said to be the apex of the Justice system, after the Police/Prosecution investigates (because investigations are often led by the prosecutor’s office) and courts convict, at the end of the day it is all about prisons where the criminal is sent. There is a lot of European focus on corruption in the Police, Prosecution, Courts and for public procurements, but absolutely no attention is given to the prison system. This is somewhat ironic if people fight to put those guilty of corruption in prison where they can simply bribe the prison Director to release them, which is the current case in Bulgarian prisons. The Committee for the Prevention of Torture – Council of Europe stated in their Public Statement “as acknowledged by the Bulgarian authorities, corruption remains endemic in the Bulgarian prison system. In the three prisons visited in the course of the 2015 visit, the delegation was again inundated with allegations of prisoners being asked to pay custodial, administrative, and/or medical staff for many services provided for by the law (e.g. transfers to prison hostels, early release, access to medical care, transfers to hospitals, procurement of goods, access to education/vocational training, work, etc.) or for being granted various privileges (such as leave and additional or open-type visits). This situation brings in its wake discrimination, violence, insecurity and, ultimately, a loss of respect for authority.” https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806940ef

Any other relevant measures to prevent corruption in public and private sector.

Prisoners have been punished for complaining about corruption from prison staff, the state seems to have only taken measures to protect and encourage corruption.

Potential obstacles to investigation and prosecution of high-level and complex corruption cases(e.g. political immunity regulation).

The biggest obstacle to investigations and prosecution of high level corruption is that the people committing high level corruption appoint and control those who are supposed to investigate and prosecute high level corruption. As the saying goes, ‘don’t bite the hand that feeds you’

Media Pluralism – Bulgaria

Media regulatory authorities and bodies (Cf. Article 30 of Directive 2018/1808)

Other

Interference by the media in judicial matters is a serious problem in Bulgaria. There are no laws specifically protecting suspects or accused from “media lyncing” or “trial by media”. Although many people complain the media here isn’t free, the truth is that it is too free and there are no restrictions on the media from labeling suspects with biased language even when there isn’t enough evidence to indict said suspect. It is common practice to refer to a suspect or accused as “the thief”, the “murderer” or “the guilty” even before the suspect has been charged. Of course this puts enormous pressure on the judiciary to live up to the scenario that was /is portrayed by the media, if it is correct or not. At the same time, people know that when they want to corrupt the courts and prosecution, the easiest way to do that is not necessarily to pay cash to Police, Prosecutors or judges (stereotypical corruption) but to influence public perception of a case through media propaganda, where of course the information is not under the same scrutiny as evidence presented to a court.

Prosecutors have even submitted newspaper articles written after the fact as evidence into criminal proceedings, and the Director of Sofia Prison Desislav Traikov last year submitted newspaper articles as evidence into a court hearing, which were accepted by the judge.

Many “media” companies, especially pro-government ones, publish libelous and obviously fake articles both in print, internet and on TV, and they do this with fake names or often published with no names at all. If a victim of media libel sues for compensation, the media company will make even more money from selling stories surrounding the court case, so even if a victim wins in court, the lie has been repeated so much that it is in the public sphere forever and the media/journalist still has made a profit even after fines and legal expenses.

Other institutional issues related to checks and balances – Bulgaria

The process for preparing and enacting laws

Stakeholders’/public consultations (particularly consultation of judiciary on judicial reforms), transparency of the legislative process, rules and use of fast-track procedures and emergency procedures (for example, the percentage of decisions adopted through emergency/urgent procedure compared to the total number of adopted decisions).

Of extreme worry is the ever increasingly common practice of passing legislation without the public even being informed and therefore without public discussion. Even more concerning is the ever-increasing practice of hiding law changes in unrelated legislature. Most recently the government changed the laws governing prisons without prior announcement, without public discussion and within the legislature for the state budget for 2020. A common practice in Bulgaria is for Parliamentarians and Ministers to propose laws almost solely based on media coverage of certain problems. Many laws seem to be drafted in bubbles without input from experts in the area of question. Only after the law proposal is made public, experts and civil society have to act very fast to inform the public as to the dangers and misconceptions of such a legislative change. In sum, legislative changes are more often than not reactive to issues that are popular with the media and without any foresight as to potential problems the legislation could create or exacerbate.

Regime for constitutional review of laws.

Although it is not on topic, it is nevertheless poignant to mention that the ECHR has ruled that prisoners should have the right to vote, the Bulgarian Constitution currently prohibits this.

 Independent authorities

Independence, capacity and powers of national human rights institutions, ombudsman institutions and equality bodies;

The state “equality” body, the Commission for Defence Against Discrimination, shows no independence from the state in the decisions that it makes. A submission was lodged with them by Jock Palfreeman in 2018, and now in 2020 there hasn’t been a single hearing. The Commission for Defence Against Discrimination itself is being sued for discrimination by the Vice-Chair of the Bulgarian Prisoners’ Association Svetlomir Neshkov. The make up of the Commission for Defence Against Discrimination is also extremly infamous with one of the members herself, Sabri Sapunjieva embroiled in a massive corruption scandle involving the embezzelment of prison funds when she was the Vice-Minister of Justice (responsible for prisons) https://www.capital.bg/politika_i_ikonomika/bulgaria/2017/07/28/3015272_vechniiat_kadur_na_dps_sabrie_sapundjieva_s_poredniia/   Although the embezzelment was categorically established by the then Minister of Justice, to this day no one has been charged or convicted of the embezzelment. Prior to being Vice Minister of Justice, Mrs Sapunjieva was also an “expert” for the Commission for the Prevention and Ascertaining of Conflict of Interest, which was amalgamated into the now Anti Corruption Commission The Commission for the Defence Against Discrimination is comprised of 5 people appointed by the government and 4 from the Presidency, there is absolutly no transparency in the appointment of these people and decisions appear highly politicised, especially when it is a question of discrimination on behalf of the government, the same people who appointed the majority of the Commission. The Ombudsman’s office works well within their capacity, however in some of their reports relating to prisons it was noted that the government has always ignored their reports and recommendations https://www.ombudsman.bg/pictures/6428_REZUME%202020%20_FOR%20PRINT_ENG(1).pdf

Accessibility and judicial review of administrative decisions

Modalities of publication of administrative decisions and scope of judicial review

No administrative decisions are published by the national prison authority ‘Head Directive for the Execution of Punishments’. Administrative decisions are only given on paper and when staff change or staff and prisoners forget the administrative decisions are also forgotten causing chaos and corruption. Currently the only place for the public to see administrative decisions is the Bulgarian Prisoners’ Association Facebook page https://web.facebook.com/BulgarianPrisonersAssociation/?_rdc=1&_rdr  which we upload as we find them within the prisons themselves. As previously already mentioned, many Bulgarian institutions have extremely poorly maintained webpages or none at all, such as the Bulgarian national prison authority has no webpage.

Prisoners also have no access to legislation other than what prisoners with money can supply for themselves. No prisons in Bulgaria have law libraries or databases containing legislation current or otherwise. Prisoners are not informed of legislature changes, often not even prison staff are informed of changes of the legislature. In many prisons the administrations even use outdated legislation. The prison staff also do not have access to a database of administrative decisions or legislature and complain that the Ministry of Justice does not supply them with the current law books pertaining to prisons. There was even a situation where a prisoner was punished by an Article of the ‘Law for Prisons’ that had been repealed, so the Director of the prison clearly didn’t know that the law had changed and punished a prisoner for something that was no longer a violation. Despite the law being repealed in 2010 the majority of prisons still enforce the ban on men having beards and long hair (a simple example of the problem)  

Implementation by the public administration and State institutions of final court decisions

Although there is a legal possibility for public administrators to be punished for refusing to obey a court decision, this mechanism is rarely if ever used. Meaning there is often no effective remedy through the courts, an example of this is the court ruling that prisoners should have constant access to drinking water in Kremikovski Prison https://m.facebook.com/story.php?story_fbid=1336722593188452&id=336784633182258 . The prison administration has simply ignored the court order and prisoners still do not have access to water.

As previously mentioned, with regards to the attacks against the Judiciary by the government for the early release of Jock Palfreeman, the Ministry of Interior illegally imprisoned Jock Palfreeman, ignoring the Sofia Court of Appeal decision to release him from prison. The Chair of the Supreme Court of Cassation published on the Court’s website “I call on the Minister of Interior to comply immediately with the ruling of the Sofia Court of Appeal because, up to this moment, he crudely violates the right of an Australian citizen to move freely.” https://bpra.info/en/statement-by-the-president-of-the-supreme-court-of-cassation-in-regard-to-the-case-jock-palfreeman/ however from the date of publication (14.10.2019) to the current date the Ministry of Interior (the government) has refused to obey the final court decision and are preventing Jock Palfreeman from freely moving in or out of Bulgaria. The Police who work for the Ministry of Interior said they received a phone call from the Prosecutor’s Office to “keep Jock in Bulgaria”. The then Head Prosecutor last year publicly stated that “Jock wasn’t free to leave the country” brazenly attacking the rule of law. Stefan Balabanov https://www.mediapool.bg/zam-vatreshen-ministar-ot-vmro-obicha-problemite-da-se-reshavat-sboi-news264042.html the Vice Minister of Interior from the far right party VMRO literally said “The Ministry of Interior will fulfill the court decision when everything is clear”

The enabling framework for civil society

 Other

Accessibility and judicial review of administrative decisions

Occurring more frequently, despite there being legal precedents to the contrary, judges in the Administrative Courts are dismissing cases appealing administrative decisions claiming they are inadmissible. Jock Palfreeman appealed 3 disciplinary administrative decisions, 2 judges ruled the appeals were admissible and 1 judge ruled it wasn’t. It is common with judicial reviews of administrative decisions to have contrary court rulings for the same questions being appealed. Access to judicial review of administrative decisions remains a problem for prisoners especially outside of Sofia, where systematically the legal post of prisoners is stolen by the prison staff, both legal mail leaving the prison being sent by prisoners to lawyers or the court is stolen as well as incoming legal mail to the prisoner. Without a lawyer there is no independent means for prisoners to access judicial reviews of administrative decisions. Furthermore the Administrative Courts themselves violate the law by sending legal documents through the prison/Immigration authorities despite them being a party to the legal judicial review and it being illegal for them to act as courier of legal documents where they have a conflict of interest. In this regard the solution is simple, the Administrative Courts simply have to send the court couriers to deliver the legal mail personally to the detained (in prison or immigration prison). The fact that the Administrative courts across the country do not abide by the laws for issuing legal documents can only be explained by laziness and apathy