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Resolution 2296 (2019)
Post-monitoring dialogue with Bulgaria
1. Bulgaria joined the Council of
Europe in 1992. It was subject to the full monitoring procedure
until 2000. The Parliamentary Assembly refers to its Resolution 1211 (2000) on
the honouring of obligations and commitments by Bulgaria, in which
it decided to close the monitoring procedure and to open a post-monitoring dialogue
on a number of outstanding concerns and on any other issue arising
from the obligations incumbent upon every member State of the Council
of Europe under Article 3 of the Statute of the Council of Europe
(ETS No. 1) with regard to democracy, the rule of law and human
rights.
2. Furthermore, the Assembly refers to its Resolution 1915 (2013) on post-monitoring
dialogue with Bulgaria, in which it recognised the important progress
achieved by Bulgaria in terms of the crucial reforms and legislative
framework put in place since the closure of the monitoring procedure,
in particular since Bulgaria’s accession to the European Union in
2007, as confirmed by the annual European Commission reports prepared under
the Co-operation and Verification Mechanism.
3. The Assembly commends the Bulgarian authorities for demonstrating
their sustained political will and commitment to fully respect their
obligations, as confirmed by their continued co-operation with Council
of Europe monitoring mechanisms, legal experts and the European
Commission for Democracy through Law (Venice Commission).
4. The Assembly welcomes Bulgaria’s substantial progress towards
establishing judicial independence, in line with the Assembly’s
recommendations. Overall, the reforms adopted between 2015 and 2018
to the Judicial System Act and subsequent regulations with regard
to the functioning of the Supreme Judicial Council and the judiciary
as a whole have constituted a major step towards full accomplishment
of Bulgaria’s commitments and obligations in this field.
5. The division of the Supreme Judicial Council into chambers
of judges and prosecutors independently exercising appointment and
disciplinary powers with regard to the judges, prosecutors and investigating magistrates
has addressed long-standing concerns formulated by the Assembly
and the Venice Commission.
6. The procedure of election of members of the Supreme Judicial
Council has been significantly improved in line with Assembly recommendations.
The Assembly notes with satisfaction that since its election in
2017, the Supreme Judicial Council has appointed a number of heads
of judicial bodies following a transparent procedure without giving
rise to controversy.
7. The Assembly’s long-standing concerns relating to the deficiencies
in the system of appraisals and career development of magistrates
were addressed by the adoption by the Supreme Judicial Council,
in 2016, of the Regulation of the Indicators, the Methodology and
the Procedure for Appraisal of a Judge, Chairperson and Deputy Chairperson
of a Court and, in 2017, of the Regulation of the Competitions of
the Magistrates and on the Election of Administrative Heads in Judicial
Bodies.
8. The Assembly notes with satisfaction that its recommendations
relating to the distribution of the workload and the question of
delays have been dealt with in a satisfactory way by the establishment
of a single, effective system of random, nationwide allocation of
cases and clear criteria for the assessment of the complexity of
cases and their impact on the distribution of the workload. Complementary
measures introduced to redistribute the workload of the busiest
courts, including the Court of Sofia, are also to be commended.
9. The Assembly commends the authorities for the establishment
of the Supreme Judicial Council Inspectorate tasked with increasing
accountability of the judiciary and, in particular, with the prevention
of corruption within the judiciary and disciplinary proceedings.
10. The Assembly recognises that the 2017 amendments to the Criminal
Procedure Code and the Criminal Code have, in general, been in line
with the Assembly’s recommendations and notes with satisfaction
that they have addressed the delays in criminal proceedings and
enabled better enforcement of sentences.
11. With regard to high-level corruption and organised crime,
the Assembly welcomes the adoption by the Bulgarian Parliament,
in January 2018, of a new Anti-corruption and Forfeiture of Assets
Act, in line with its earlier recommendations. The law establishes
a new unified anti-corruption agency which is in charge of verifying
the absence of conflicts of interest and the private assets of high
officials, investigating allegations of corruption, establishing
safeguards for the prevention of corruption and setting up procedures
for the seizure and confiscation of illicit assets.
12. The Assembly welcomes the fact that the recommendations of
the Group of States against Corruption (GRECO) concerning incrimination
have been implemented satisfactorily. It also welcomes the fact
that Bulgaria has invested considerable resources in the training
and awareness-raising of a large number of judges, prosecutors and
law-enforcement officers on issues pertaining to bribery and trading
in influence and the criminalisation of accepting undue non-material
advantages.
13. Furthermore, the Parliament of Bulgaria is to be commended
for the introduction of specific measures to fight corruption at
parliamentary level, which follow GRECO’s recommendations; in particular,
the parliamentary Rules of Procedure were amended in 2016 with a
view to ensuring transparency in the legislative process.
14. With regard to the Electoral Code, the Assembly welcomes the
series of amendments introduced between 2014 and 2016 which addressed
a number of concerns formulated by the Venice Commission in 2013 and
2014, improving, inter alia,
campaign finance provisions and their oversight, voter registration
and provisions on media coverage.
15. The Assembly recognises the progress accomplished in Bulgaria
with regard to the implementation of judgments of the European Court
of Human Rights in connection with the excessive length of judicial proceedings
and the lack of effective remedy in that regard. Progress has also
been noted in implementing the groups of cases relating to poor
conditions of detention and to ill-treatment by law-enforcement
officials.
16. The Assembly commends Bulgaria for the adoption, following
the recommendation of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
of amendments to the Law on Executing Punishments and Arrests in
2017. The changes addressed material conditions, regimes, early
release and judicial control over the prison administration; furthermore,
the Assembly recognises that significant progress has been made
in recent years to improve prison conditions.
17. With regard to the Roma minority, the Assembly acknowledges
that a number of programmes, strategies and action plans have been
adopted in recent years to improve the situation of Roma, including
the National Roma Integration Strategy (2012-2020) which resulted, inter alia, in an increase in the
number of Roma with higher education, including university education.
18. While the overall progress in the fulfilment of Bulgaria’s
commitments and obligations is not questioned, a number of outstanding
concerns still exist, in particular:
18.1. in the field of the judiciary:
18.1.1. although
the reform of the structure and functioning of the Supreme Judicial
Council has addressed the majority of the Assembly’s concerns, its
composition does not fully comply with Committee of Ministers Recommendation
CM/Rec(2010)12 on judges: independence, efficiency and responsibilities,
which specifies that “[n]ot less than half the members of such councils
should be judges chosen by their peers from all levels of the judiciary”.
In the present Supreme Judicial Council, judges chosen by their
peers constitute 6 out of 25 members. This parameter raises some
concern as the plenary Supreme Judicial Council still keeps some
important powers with regard to the judiciary;
18.1.2. the degree to which prosecutors, and the Prosecutor General
in particular, are still involved in the governance of judges within
the Supreme Judicial Council is perceived by the Venice Commission
as a concern;
18.1.3. the Assembly’s long-standing recommendation concerning
the abolition or shortening of the five-year probationary period
for judges has not been addressed;
18.1.4. some concerns have been raised about the extensive disciplinary
powers of the Inspectorate to the Supreme Judicial Council, particularly
in the light of the present method of election of its members. Regrettably,
the Venice Commission’s recommendations for the nomination and dismissal
of inspectors and on the division of competences between the Inspectorate
and the Supreme Judicial Council have not been followed;
18.1.5. important legislative initiatives are not subject to broad
public debate and all stakeholders are not sufficiently consulted.
It should be stressed that the sustainability and irreversibility
of reforms lies, inter alia,
in a properly conducted legislative process involving all stakeholders
and broad public debate;
18.2. with regard to high-level corruption:
18.2.1. while
the establishment of a new unified anti-corruption agency constitutes
a positive development, a key challenge will be to effectively manage
the broad remit of its responsibilities, including prevention, investigation
and forfeiture of assets. The final criteria of its efficiency will be
the number of cases brought to the courts and number of convictions
delivered. The ongoing investigation into the scandal of purchases
of luxury properties at favourable prices by senior politicians
and officials may be perceived as a litmus paper test of the authorities’
sincerity in combating corruption;
18.2.2. GRECO’s recommendation to establish clear, objective and
transparent criteria with regard to supplementary remuneration within
the judiciary has not been fulfilled. There is still a worrying
practice whereby court presidents use their discretion in awarding
year-end bonuses to judges under their responsibility and allegations
that this has been used to secure loyalties in the courts;
18.3. with regard to the media:
18.3.1. the situation
concerning media freedom in Bulgaria has been deteriorating systematically
over recent years, the main concerns being concentration of ownership
and lack of transparency, political interference in the media, State
influence over media outlets exerted through the advertising budgets
of European Union operational programmes, and intimidation of and
violence against journalists. The Assembly regrets the lack of appropriate
data on media ownership. The Assembly commends the adoption of appropriate
legislation on transparency of media ownership which reflects Committee
of Ministers Recommendation CM/Rec(2018)1 on media pluralism and
transparency of media ownership. Violence against journalists must
be met with decisive, prompt condemnation and thorough investigation
by the Bulgarian authorities;
18.4. with regard to human rights:
18.4.1. the Assembly
welcomes the important changes to the Penal Code of 16 January 2019 and
notes that according to the CPT there has been a slight improvement
with regard to the treatment of people in police custody, especially
as regards the severity of alleged ill-treatment since 2015; it
regrets, however, the absence of any real progress in the application
of safeguards against ill-treatment, namely the right to notify
detention to a third party, the right of access to a lawyer and
to a doctor, and the right to be informed about the above-mentioned
rights;
18.4.2. racist and intolerant hate speech in political discourse
targeting Roma, Muslims, Jews, Turks and Macedonians continues to
be a serious problem in Bulgaria. Serious efforts need to be made
on the part of the Bulgarian authorities to systematically and unconditionally
condemn hate speech, including by following the recommendations
of the latest report of the European Commission against Racism and
Intolerance (ECRI) on Bulgaria;
18.4.3. despite the Bulgarian authorities’ efforts, the situation
of the Roma population has not tangibly improved. Roma representatives
are excluded from the democratic process, they do not make use of
any democratic instruments already in place and are not present
at any level of decision-making processes. There is no meaningful
dialogue between the Roma representatives and the authorities. Their
material and social situation is in general very poor and discrimination in
the labour market remains an obstacle for integration. The recent
flare-up of interethnic violence by ethnic Bulgarians against Roma
in Gabrovo, which included the demolition of and setting fire to
houses belonging to Roma, exemplifies the magnitude of this problem;
18.4.4. the Macedonian minority is not recognised by the Bulgarian
authorities as such due to the strict application of formal criteria,
although this group has repeatedly expressed its wish to benefit
from the protection of the Framework Convention for the Protection
of National Minorities (ETS No. 157);
18.4.5. Bulgaria signed (in 2016) the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence (STCE No. 210, “Istanbul Convention”), but has not yet
ratified it, which is deeply regrettable. While the recently adopted amendments
to the Penal Code providing for additional legal protection against
domestic violence and violence against women constitute a step in
the right direction, they must be followed by the provision of adequate
resources, including in the fields of education and prevention,
as well as psychological support, which would enable real protection
of victims.
19. In conclusion, the Assembly recognises that Bulgaria has made
substantial progress since the adoption of the last report on the
post-monitoring dialogue in 2013. It has partly introduced legislation
which, with several exceptions, complies with Council of Europe
standards and has addressed several concerns formulated by the Assembly
and other Council of Europe monitoring mechanisms. However, the
question of the sustainability and irreversibility of the reforms,
as well as of the effectiveness of measures aimed at combating high-level corruption,
remain subject to proper implementation of the legislation.
20. Regrettably, due to a period of political instability from
2013 to 2016 and repeated elections, a number of reforms were the
subject of hasty legislative procedure in 2016 and 2017 without
proper consultation or involvement of all stakeholders. It remains
to be seen whether they will bring about sustainable improvements. The
present political situation, marked, since February 2019, by the
boycott of the parliament by the Bulgarian Socialist Party (BSP)
may have a negative impact on progress and may weaken democratic
processes in the country.
21. The Assembly notes that in order to ensure sustainability
and irreversibility of reforms, some steps, including, where relevant,
legislative changes, still need to be undertaken.
22. Against this background, the Assembly resolves to continue
a post-monitoring dialogue with Bulgaria and to assess, in June
2020, the progress made in the following areas:
22.1. the judiciary: Bulgaria should
demonstrate that the remarkable steps taken towards a better judicial
system are sustainable and effective;
22.2. high-level corruption: the new anti-corruption agency
started operating just a few months ago. In the next months, tangible
progress in the fight against high-level corruption needs to be
seen. This has so far not been visible;
22.3. the media: a main challenge is the transparency of media
ownership. Bulgaria has to take legislative steps to guarantee this
transparency;
22.4. human rights of minorities: Bulgaria must improve the
integration of Roma and other minority groups. The rights of refugees
have to be fully respected according to European standards;
22.5. hate speech: hate speech should not be a matter of political
discussion. Members of the government especially have a particular
obligation in this respect;
22.6. violence against women: the Assembly calls on Bulgaria
to make every possible effort to ratify the Istanbul Convention.