EU's 2016 Report on Bulgaria: Key Findings
The European Commission published on Wednesday, January 27, reports on Bulgaria and Romania under the Cooperation and Verification Mechanism (CVM) to summarize the two countries' progress in 2014 in areas such as judicial reform, fighting corruption and (in the case of Bulgaria) fighting organized crime. CVM reports are crucial for both countries' progress on their way to Schengen accession.
Below is a summary of the most important remarks and recommendations in the report for Bulgaria.
Many of the recommendations in last year's report also remain valid, including that of an independent analysis of the prosecution.
Bulgaria "took some important steps to put reform back on the agenda" after a period of political instability, but the translation of two stretegies for reform prepared last year into "concrete and tangible progress" will be "a major challenge for 2016", as the report itself points out.
Partial successes such as the adoption of consitutional amendments, but also setbacks of key steps such as the rejected draft law that would establish an anti-corruption body, have been noted.
The text also warns that "the slow progress in high-level corruption or organised crime cases and the uncertain reaction and follow-up to specific controversies such as the one surrounding the Sofia City Court in 2014 continues to erode public confidence in the ability of the Bulgarian authorities to deliver justice."
On the other hand, it notes it is "encouraging to see Bulgarian judges skeaking out in public to support the reform of the judiciary," describing this as "a healthy sign of a new more confident culture developing among Bulgarain magistrates."
The Cooperation and Verification Mechanism (CVM) was set up at the accession of Bulgaria to the European Union in 2007. It was agreed that further work was needed in key areas to address shortcomings in judicial reform, the fight against corruption, and tackling organised crime.
This year's report points to the two strategies drafted by Bulgarian authorities in response to criticism contained in the previous report.
"The Commission welcomes that Bulgaria has indicated an interest in drawing on further technical assistance, as stated by the Bulgarian Prime Minister,5 and encourages Bulgaria to make full use of all the available possibilities," the Commission also says, in an apparent reference to Borisov's suggestion that EU experts should be attracted to oversee and provide further assistance in carrying out reforms.
Supreme Judicial Council:
While no single authoritative model exists for the make-up of judicial councils, it has become clear that both judges and prosecutors consider it inappropriate that these decisions are being taken by mixed groups of SJC judges and prosecutors.
In the Bulgarian context, with a large number of political appointees in the SJC, the current model gives rise to particular concerns about judicial independence and the possibility of pressure being exerted on judges. This was the background for the proposal in the reform strategy to establish two separate colleges within the SJC to deal with personnel matters for the two arms of the magistracy.
The amendments adopted included some significant changes to the way VSS is appointed compared to the text originally proposed by the government, their adoption still represents "an important step towards a reform" of the VSS.
The report has also noted a "mixed" progress on issues such as "non-transparent procedures for judicial appointments, inconsistent practices in disciplinary proceedings, and a lack of follow-up to concerns about potential manipulation of the random allocation of cases in courts".
It praises the "new chair" (elected last spring) of the Supreme Court of Cassation (VKS), Lozan Panov, for being "prepared to speak out in support of reform" and or the fact that he "seems to command respect within the judiciary".
On the other hand, the lack of a "clear criteria for assessing appointments" is also noted, alongside the vacant position of Chairman of the Sofia Court of Appeals that has remained so for almost two years.
Random allocation of cases/develoments at the Sofia City Court:
The VSS "did launch a process to improve the application of random allocation of cases in Bulgarian courts, putting in place a new centralised IT system for the entire judiciary in October 2015, which should help to address a recurrent issue raised in previous CVM reports." However, its reluctance to "react to the allegations of serious wrongdoing by key judges in the Sofia City Court" is subject to criticism.
The election of a Chief Inspector with the VSS:
After a gap of several years, the National Assembly elected a new Chief Inspector in spring 2015. The different steps of the procedure were set out more transparently and involved an invitation for civil society to suggest candidates. This approach was also taken up in the subsequent procedure to elect the new college of inspectors, launched in the autumn and still ongoing.
An overall progress has been noted with regard to the preparation of a new judicial reform strategy (one was adopted last year), but the need of implementing it is also clearly highlighted.
Quality and efficiency of the judiciary:
"Past CVM reports have highlighted the uneven workload between courts as an issue in terms of the quality and efficiency of the judicial process, as well as possibly the independence of judges.
"In 2015, as in previous years, the [VSS] has attempted to address the imbalances in workload between courts by opening new posts in more overloaded courts while closing posts in others with less workload. However, this approach has so far had only a marginal impact. A more comprehensive solution has been awaiting the development of harmonised workload standards as well as a broader socio-economic analysis of the regional courts, both carried out by a sub-committee of the VSS."
"This analytical work reached its conclusion in 2015 and the results should now provide the basis for a more systematic management of staff resources, and perhaps also for a redrawing of the organisation of courts."
"It will be necessary to follow up on the judicial reform strategy through managerial decisions in a number of areas. A particularly important example, where legislative and managerial decisions need to go hand in hand, concerns the introduction of e-justice. It will be crucial to develop a capacity to manage the complex managerial and technical processes required to ensure proper implementation of e-justice, including in areas such as data protection and security."
With regard to disciplinary proceedings,
A "general perception among magistrates" is mentioned according to which the decisions of the VSS in this areas "are neither transparent nor objective".
"The lack of clear disciplinary standards is particularly problematic when proceedings refer to breaches of the ethics code or acts undermining the prestige of the judiciary,31 where the exact scope of disciplinary liability is unclear. In such cases there is a risk of arbitrary decisions leading to a chilling effect on magistrates speaking out in public on legitimate subjects."
"A stronger sense of initiative and responsibility" is needed "through a less hierarchical culture and strengthening accountability and public trust in the prosecution as a whole." There is “lack of a solid track record in high-level cases on corruption and organised crime and also remains a recurrent theme of debate among independent observers in Bulgaria. “
"CVM reports have repeatedly recommended that an objective analysis of where concrete high-level cases have not been successfully concluded would be the best way to identify clear steps for the future."
The report recalls that "Bulgaria consistently ranks among the EU Member States with the highest perceived level of corruption, and corruption is considered to be one of the most important barriers to doing business in Bulgaria".
Problems were acknowledged in 2015 by the Bulgarian authorities, with the government adopting a new comprehensive anti-corruption strategy, described as "an important step forward", and also setting up a "national cooperation council" to coordinate efforts and monitor progress.
"However, it remains a policy level institution and will need political backing at the highest level and the support of efficient operational structures in order to ensure success. The level of political support for a new approach was called into question by the failure of the government's proposal for a new anti-corruption law to pass the first reading in the National Assembly in September 2015."
"While the government has vowed to push ahead with the law in 2016, its initial failure raised concerns about the degree of consensus behind the need to address high-level corruption and to pursue the new anti-corruption strategy."
At the same time, the Commission welcomes a number of other initiatives of the government "targeting corruption more generally throughout the public administration. These include a reform of the administrative inspectorates, measures to improve the public procurement system, and the preparation of sectorial anti-corruption plans containing preventive measures in a number of specific sectors considered to be of high-risk of 'low-level' corruption."
"Track record of successful investigation and prosecution of cases of high-level corruption" is also needed, the Commission believes.
"There remain indications of serious intimidation of witnesses, undermining cases. Bulgaria still needs to establish a solid track record showing that final court decisions are reached and enforced in cases involving serious organised crime," despite effort to address problems identified in previous CVM reports.
"Recently, the severity of the challenge has once again been underlined by several murders with apparent links to organised crime. A large number of contract killings over recent years remain unsolved."
"On the issue of criminal absconding, new problems have been identified, this time of a more organisational character, and work is ongoing to address these."
The transfer of a specialised investigatory service dealing with organised crime back to the Interior Ministry last year "was better organised than in 2013 but nevertheless still rsulted in a certain amount of disruption."
Recommendations are published without any abridgement:
The Commission looks forward to continuing to work closely with Bulgaria to secure the CVM's objectives and invites Bulgaria to take action in the following areas:
1. Independence, accountability and integrity of the judiciary
Bulgaria has opened the way to a reform of the Supreme Judicial Council (SJC) and a strengthening of the judicial inspectorate. Now these commitments need to be implemented. It will also be important to build on the steps taken to improve the credibility around random case allocation and appointments.
- Implement the reform of the SJC through the necessary amendments to the Judicial System Act.
- Swiftly provide the Judicial Inspectorate (ISJC) with the legal authority and material resources to fulfil its new role in safeguarding integrity and fighting corruption within the judicial system.
- Establish a capacity within the SJC and the ISJC to monitor the application and security of the new system for the random allocation of cases in courts. These institutions must be transparent about the outcome of inspections and the follow-up to problems identified.
- Develop a track record within the SJC of transparent and consistent decision-making with regard to appointment decisions, applying clear standards of merit and integrity, while making such decisions in a timely manner.
- Provide the conditions for an impartial investigation into the different allegations of high level corruption within the Sofia City Court, in particular with regard to possible systemic implications, including possible comparable practices in other courts.
2. Reform of the judicial system
A comprehensive package of amendments to the Judicial Systems Act has been prepared by the Ministry of Justice and widely debated in the judiciary in the course of 2015, aiming at the implementation of the government's judicial reform strategy. The long-standing recommendation for a modernisation of the Bulgarian criminal codes also remains relevant.
- Enact amendments to the Judicial Systems Act in line with the government's judicial reform strategy, including reforms to give more say to individual judges and prosecutors, and ensure their implementation in close consultation with the judicial authorities.
- Prepare a set of targeted amendments to address key problems in criminal procedures, in particular problems affecting complex cases involving corruption or organised crime.
- Adopt a comprehensive reform of criminal policy in line with the ideas set out in the judicial reform strategy.
3. Standards in the judiciary
Bulgaria should move ahead in 2016 with reforms in key parts of its judiciary, including appropriate changes in the judicial map to improve overall quality and efficiency, implementation of e-justice, clear standards for disciplinary proceedings, and a continued reform of the prosecution office.
- Adopt a reform of the judicial map for the regional courts and present a roadmap for a more general rationalisation of the courts at all levels to improve overall quality and efficiency, including the reallocation of resources where appropriate in light of an overall analysis of workload in courts.
- Establish a clear timetable for the implementation of e-justice and put in place the necessary capacity to monitor and steer its implementation.
- Develop a practice of motivating disciplinary decisions in accordance with clear and objective standards and principles. Conduct an independent assessment of disciplinary practice under the current SJC since 2012.
- Launch an independent analysis of the prosecutor's office as set out in the government's judicial reform strategy, taking into account the reform measures already implemented.
Initiatives in this area should focus on the implementation of the new national anti-corruption strategy adopted in spring 2015. A major priority should be the swift re-consideration by the National Assembly of the government's proposals for a new anti-corruption law, taking into account any specific concerns but ensuring the main elements in line with the intentions as set out in the anti-corruption strategy.
- Adopt a new anti-corruption law in line with the anti-corruption strategy, including the establishment of a unified authority with a strong independent mandate to fight high-level corruption. Ensure the swift establishment of the new institution and provide it with the required resources.
- Adopt amendments to the law on public administration to enhance the powers and independence of the internal inspectorates, and establish a uniform set of minimum standards for the public sector in terms of risk assessment and reporting obligations.
- Provide the public procurement agency with the legal authority and organisational capacity to perform risk-based, in-depth checks on public procurement procedures.
- Continue the efforts to address low-level corruption in the Ministry of Interior. Launch similar efforts in other risk sectors within the public administration.
- Monitor the progress of criminal cases involving allegations of high-level corruption, including the pre-trial and trial phase and implement measures to address the problems identified.
5. Organised crime
Bulgaria still needs to establish a solid track record on securing final conviction in court in relation to serious organised crime cases. It will be important to ensure that the legal and institutional conditions are in place to allow law enforcement and the judiciary to work effectively.
- Monitor the progress of criminal cases involving serious organised crime, including the pre-trial and trial phase as well as the enforcement of sentences and implement measures to address the problems identified.
- Swiftly address the legal problems identified in regard to the competence and functioning of the
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