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Resolution 1915 (2013) Final version
Post-monitoring dialogue with Bulgaria
1. 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 dialogue with the Bulgarian authorities on a number of outstanding
concerns contained in the resolution, or on any other issue arising
from the obligations incumbent upon every member State of the Council
of Europe under Article 3 of the Statute with regard to pluralist
democracy, the rule of law and human rights.
2. During the entire period of the post-monitoring dialogue,
Bulgaria has continued to make substantial progress towards the
fulfilment of its remaining obligations. This was confirmed by its
accession, in 2007, to the European Union. Since the adoption by
the Assembly of Resolution
1730 (2010) on post-monitoring dialogue with Bulgaria, the country
has taken a number of important measures designed to implement the Assembly’s
recommendations.
3. The Assembly expects the Bulgarian authorities to show and
continue to demonstrate a sustained political will and commitment
to achieve the full accomplishment of their obligations and commitments
resulting from membership of the Council of Europe and compliance
with democratic standards, as confirmed by their extensive co-operation
with the European Commission for Democracy through Law (Venice Commission).
4. The Assembly recognises important progress in terms of the
legislative framework and the crucial reforms put in place since
the closure of the monitoring procedure, especially since accession
to the European Union. In particular, the Assembly welcomes the
introduction of laws on the functioning of the judiciary, aimed at
increasing its independence, accountability and transparency.
5. Successive amendments to the Judicial System Act, introduced
between 2008 and 2012 in line with the Venice Commission’s recommendations,
particularly those concerning the introduction of a new selection
and appointment procedure for the members of the Supreme Judicial
Council and its Inspectorate, procedures for appointments and appraisals
of magistrates, as well as measures aimed at improving judicial
and investigative practice, have to a large extent created favourable
conditions for the functioning of the judiciary.
6. The adoption, in 2010, of the Strategy to Continue the Judicial
Reform with the objective of increasing public confidence, improving
management and countering corruption in the judiciary, with the
involvement of civil society and magistrates, should further contribute
to the improvement of the functioning of the judiciary.
7. However, a number of concerns, including the role of the Minister
of Justice in the Supreme Judicial Council, the structure of this
institution and the method of appointment of its members, the probationary
period of five years for new judges and the separation of and non-interference
between the three judicial branches (judges, prosecutors and investigating
magistrates), require further reflection and should be addressed. Regretfully,
some fundamental principles, such as the independence of the judiciary,
have not always been fully respected and some important appointments
have not been made on the basis of merit and integrity. At the same
time, it has to be acknowledged that some changes require the courage
to challenge vested interests. This is also true within the judiciary
itself.
8. Ensuring the effective implementation and using the full potential
of the legislative framework, in particular with regard to the managerial
and leading role of the Supreme Judicial Council, whose independence
and integrity should remain beyond any doubt, are necessary conditions
for the sustainability and irreversibility of the process. It is
now crucial that the authorities, as well as the judiciary, assume full ownership
of the reforms.
9. The Assembly commends the efforts that Bulgaria has made to
introduce a comprehensive legislative and administrative framework
and preventative measures to combat corruption and organised crime.
These have also been strengthened since its accession to the European
Union. In particular, it expresses its satisfaction at the final
adoption, in 2012, of the Act on Forfeiture in favour of the State
of Illegally Acquired Assets and, in 2010, of the reinforced Act
on Conflict of Interests.
10. The Assembly appreciates the important efforts made by the
Bulgarian authorities, in particular the ratification of the Council
of Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime and on the Financing of Terrorism (CETS
No. 198, Money Laundering Convention) by the parliament on 19 December
2012, which was a significant step in the right direction and confirms
the sustainability and irreversibility of the democratic process.
The Assembly strongly encourages the Bulgarian Parliament and Government
to fully implement all the provisions of that convention.
11. Despite progress in this field, some concerns remain only
partially addressed, as confirmed by the lack of results in terms
of final court rulings with regard to high profile corruption cases.
This low level of efficiency can be explained to a great extent
by deficiencies in investigatory procedures and by the weakness
of judicial practice. While some shortcomings in the existing legislation,
which have been highlighted by the Group of States against Corruption
(GRECO) and the European Commission, should be remedied without
delay, the implementation of the existing legislation and using
the full potential of the tools available remain essential challenges.
12. The future adoption of the new penal code, which is currently
being drawn up in co-operation with Council of Europe legal experts,
should further contribute to improving the situation.
13. With regard to the implementation of decisions of the European
Court of Human Rights, the Assembly notes with satisfaction that
the National Assembly adopted, in September 2012, a law providing
for the introduction of an obligation for the government to submit
to parliament an annual report on the number and nature of judgments
as well as information on the implementation of the Court’s decisions,
in accordance with the recommendations of the Parliamentary Assembly.
14. The Assembly recognises the progress made by Bulgaria in the
field of combating human rights abuses by law-enforcement officials,
following a number of measures, including the amendment to the Interior
Ministry Act, adopted in May 2012, setting up systematic human rights
training for police officers and the introduction of concrete measures
to eradicate impunity and the lack of accountability for abuses.
15. While commending the adoption, in 2010, of a new law obliging
the print media to disclose the names of their actual owners, the
Assembly stresses the need for the adoption of similar provisions
for the broadcast media.
16. The Assembly is preoccupied by the rise in nationalist ideology
and actions and by the climate of increasing hostility towards minorities,
as illustrated by the aggressive conduct of the Ataca political
party supporters towards worshippers in front of the mosque in Sofia
in May 2011, and the hate speech and incitement to violence against
Roma in Sofia and 14 other cities in October 2011. Moreover, despite
undeniable progress and efforts with regard to the rights of people
belonging to minorities, a number of concerns, which have been identified
by the relevant Council of Europe monitoring mechanisms, still remain
and should be addressed without further delay.
17. The Assembly recalls the concerns identified by its observers
during the last parliamentary elections in 2009, as well as the
recommendations made by the Venice Commission in respect of the
current electoral code, and calls on the Bulgarian authorities to
address these concerns in time for the forthcoming elections in the
summer of 2013.
18. In order to continue the progress and confirm the sustainability
and irreversibility of the reforms in Bulgaria, the Assembly calls
on the authorities to take the following measures:
18.1. with regard to the independence
of the judiciary:
18.1.1. safeguard
the independence of the judiciary and refrain from exerting any
pressure on it;
18.1.2. review the role of the Minister of Justice in the Supreme
Judicial Council and consider the introduction of a qualified majority
vote in the election of the parliamentary quota of the Supreme Judicial
Council;
18.1.3. shorten the length of the probationary period for new
judges;
18.1.4. ensure the separation of and non-interference between
the three judicial branches (judges, prosecutors and investigating
magistrates) within the Supreme Judicial Council, in compliance
with the Venice Commission’s recommendations;
18.1.5. encourage and support the Supreme Judicial Council and
the Inspectorate in their task of increasing the efficiency of the
judiciary and judicial practice, particularly through the following actions:
18.1.5.1. develop a human resources strategy
which would encourage professionalism, independence and integrity,
notably by addressing the deficiencies in the system of appraisals,
establishing a uniform and consistent mechanism for assessing the
performance of judges, prosecutors and investigating magistrates
and linking it with career development;
18.1.5.2. ensure consistency in sanctions, notably in cases concerning
delays in issuing the motivation of decisions, and establish 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 workload;
18.1.5.3. conduct an analysis of the deficiencies in judicial practice
with a view to addressing them, develop a strategy for reducing
the delays in publishing the motivation of decisions, and remedy
loopholes in the effective implementation of court decisions, such
as absconding to evade prison sentences or failure to apply financial
sanctions decided by the court;
18.1.5.4. carry out the upcoming elections of the new member of
the Constitutional Court and of the Chief Inspector of the Inspectorate
to the Supreme Judicial Council in accordance with the highest standards
of professionalism and integrity;
18.1.6. encourage the involvement of civil society and professional
organisations in defining and monitoring further strategies for
the reform of the judiciary;
18.1.7. complete the work on a new penal code, in full co-operation
with Council of Europe legal experts, and ensure its implementation
once adopted;
18.2. with regard to the fight against corruption and organised
crime:
18.2.1. implement the recommendations
made by GRECO, in particular with regard to the clear incrimination
of bribery and trading in influence, ensure broader interpretation
of the concept of undue advantage, and ensure full implementation
and use of the potential of the Act on Forfeiture in favour of the
State of Illegally Acquired Assets, adopted in May 2012;
18.2.2. review the Conflict of Interest Act so as to ensure a
more efficient application of dissuasive sanctions; revise the asset
declaration and verification system with a view to increasing its
efficiency as an effective instrument to detect illicit enrichment;
18.2.3. establish independent institutions in the anticorruption
field with the authority and obligation to make proposals, to intervene
in a proactive way and to ensure independent monitoring in line
with the European Commission’s recommendations; and ensure that
they have sufficient capacity to conduct complex financial investigations;
18.2.4. conduct a full analysis of the deficiencies in investigatory
procedures with a view to remedying the situation and, on the basis
of past experience, improve the performance of the police, the prosecution
and the courts;
18.2.5. ensure full implementation of the Council of Europe Money
Laundering Convention (CETS No. 198), which was recently ratified
by the parliament and is an important step forward for the country;
18.3. with regard to abuses by law-enforcement officials:
18.3.1. pursue efforts to eradicate
abuses by law-enforcement officials by effectively implementing
the measures to eliminate impunity and the lack of accountability
of such abuses, in particular by ensuring proper investigations
into individual cases, introducing procedural safeguards during
police custody, promoting civil society monitoring and developing
further training and awareness-raising measures;
18.4. with regard to the independence of the media:
18.4.1. adopt legislation obliging the
broadcast media to disclose the names of their actual owners, as
is now the case for the print media;
18.4.2. ensure that defamation and libel are not criminalised
in the new penal code under preparation;
18.5. with regard to the rights of people belonging to national
minorities:
18.5.1. systematically
and unconditionally condemn hate speech against all minorities,
in particular any aggressive action against the Roma and Sinti peoples,
step up measures aimed at fostering tolerance and mutual respect,
and encourage exemplary behaviour by political leaders;
18.5.2. ensure full implementation of all the provisions of the
Framework Convention for the Protection of National Minorities (ETS
No. 157), in particular those concerning the personal scope of application
of the convention, and sign and ratify the European Charter for
Regional or Minority Languages (ETS No. 148);
18.5.3. address the concerns identified by the Council of Europe
Commissioner for Human Rights with regard to the human rights of
Roma, in particular concerning forced evictions and access to social
rights, including education, housing and health care;
18.5.4. give due consideration to the claims of the former political
prisoners of Belene Island, in accordance with the Bulgarian Act
on Political and Civil Rehabilitation of Persons Repressed During
the Totalitarian Regime;
18.5.5. continue to improve the rights of persons belonging to
minorities as regards teaching of and in their mother language,
promote knowledge of the cultural identity of minorities and foster tolerance
through education;
18.5.6. ensure equal opportunities in public employment to persons
belonging to minorities;
18.1. with regard to the electoral
code and electoral process: in order to apply Council of Europe standards
and to answer the identified concerns and recommendations of the
Organization for Security and Co-operation in Europe (OSCE), the
Bulgarian Parliament should as soon as possible adopt amendments
to the electoral code in order to ensure the equality and transparency
of the electoral process and that it is fully in line with international
standards for the next parliamentary elections in the summer of
2013.
19. The Assembly encourages the Bulgarian authorities to implement
and fulfil all commitments to ensure democratic progress. It hopes
its confidence that Bulgaria will continue to advance in the right
direction is not misplaced. It expects the remaining concerns to
be addressed democratically and in full compliance with the relevant
mechanisms and procedures.
20. The Assembly expects the Bulgarian authorities to pursue their
fruitful co-operation with the Venice Commission and Council of
Europe legal experts with a view to remedying remaining deficiencies
in existing legislation.
21. Against this background, the Assembly resolves to continue
the post-monitoring dialogue with the Bulgarian authorities in respect
of reform of the judiciary, media freedom and transparency of ownership,
as well as the revision of the electoral code, and, in accordance
with its internal procedures, to closely follow the developments
in this country.