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CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON
“ The role of judges in striking a balance
between protecting the public interest and human rights
in the context of terrorism”
Reply submitted by
the delegation of the Republic of Bulgaria
Preliminary remark
Questions under sections A-C hereafter should be answered by respondent delegations not only taking into account the problems relating to the role of the judge in the context of terrorism, but from a more general point of view. Questions under section D, on the contrary, are specifically aimed at dealing with the role of the judge in the context of terrorism.
A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)
If a country's judges are to be at home in a European and international context, that country must, beyond the uncertain substance of the iura novit curia principle, do everything to ensure that its judges can gain a full understanding of the relevant European and international reference texts, enabling them to perform their activities under the best possible conditions.
In this connection, it is important that appropriate initial and in-service training schemes should be run for judges on international subjects in both basic and specialist areas of knowledge. Judges should also have access to paper or electronic versions of legal instruments, so as to permit documentary research in the European and international legal spheres. Lastly, encouragement should be given to appropriate measures - including the allocation of grants - aimed at teaching judges foreign languages as part of their basic or specialist training and ensuring that each court has legal translation facilities, without any consequent increase in the length of proceedings.
Questions
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
The training of the judges as well as the improvement of their qualification is carried out by the National Institute of Justice (NIJ) (Judiciary Act Art. 35). Its mission is to enhance magistrates’ performance through the delivery of relevant and quality training taught by professional faculty using contemporarily adult education methodologies and international judicial best practices.
The Institute developed a cohesive and applied curricular for different levels of judges with varied degrees of experience. The curricular development process involved an extensive analysis of the judges’ legal needs and judicial skills to determine the most relevant programming. However, the process of soliciting information about judicial training needs is an on-going activity that contributes to the development of specific programming and refines existing curricula. The programmes developed include mandatory course for junior judges (according to decision of the Supreme Judicial Council from 3rd December 2003 all junior judges, junior prosecutors and junior investigators appointed by the upcoming competition (2004), pass a six month mandatory course), mandatory course upon first appointment at the organs of the judiciary (according to decision of the Supreme Judicial Council from 3rd December 2003 the magistrates, appointed after the last competition, pass through a mandatory course in the NIJ), European Union Law training, continuing judicial qualification, etc. The initial training in International and European Law is part of the first two programmes - as they include presentation of the basic principles, conceptions and institutions of the European Union. The in-service training in International and European Law is carried out in the framework of the third and the fourth programmes - which address the on-going educational requirements of judges from all levels and courts. The core curriculum of the latter includes 17 disciplines, among which are European law (foundations of the EU law, jurisprudence of the European Court of Justice, specialised courses – judicial and police cooperation in the EU and Intellectual property law in the EU, European Convention on Human Rights) and International cooperation and Conventions. As the accession of Bulgaria to the EU is expected as of 1 of January 2007, the National Institute of Magistrates designs its programmes on levels and modules allowing maximum judges to be in attendance at the seminars and to enhance their knowledge on European law. The latter is an area of magistrates’ special interest due to the impact of the social and economic development of the country.
Scheme of initial training within mandatory course for junior judges and mandatory course upon first appointment at the organs of the judiciary -list of the modules of core curruculum “Foundations of European Law” held in 2005:
Module I
1.EC and EU - history and legal character. Basic principles and characteristics of the EU law. Classification of the instruments of the EC/EU. External relationships of the EC/EU. Widening of the EU. Bulgaria – accession treaty.
2.EU Institutions – Council of Ministers, European Council, European Commission, COREPER. Comitology.
3.European Parliament, Economic and Social Committee, Committee of the Regions, Court of Auditors, European Investment Bank.
4. Decision making. Assent procedure. Co-decision procedure. Consultation procedure. Co-operation procedure.
Module II
EU Institutions - Court of Justice, Court of First-instance. Proceedings before the Court of Justice and the Court of First-instance (part I). Enforcing Community Law.
Module III
Proceedings before the Court of Justice and the Court of First- instance (part II). Preliminary references/rulings. Non-discrimination.
Module IV
Internal market. Free movement of goods. Free movement of persons and services. Competition. Judicial and police cooperation.
Number of judges concerned: 274
Schemes of continuing judicial training - List of the topics on which seminars were held in 2005
1. Foundations of the European Union Law (EC and EU – history and legal character. Basic principles and characteristics of the EU law. Classification of instruments. EU Institutions - Council of Ministers, European Council, European Commission, COREPER, Comitology, European Parliament, Economic and Social Committee, Committee of the Regions, Court of Auditors, European Investment Bank. Decision making. Assent procedure. Co-decision procedure. Consultation procedure. Co-operation procedure. Court of Justice, Court of First-instance. Proceedings before the Court of Justice and the Court of First-instance. Preliminary references/ rulings. Enforcing Community law. Non-discrimination. Free movement of goods, persons and services. Competition. Human Rights.)
2. Basic principles of the EU law and the role of the national judge.
3. Judicial defense in Europe and the role of the national judge.
4. Jurisprudence of the European Court of Justice (free movement of goods, persons and services; consumer protection; competition; social and labour law; environment law; enforcing community law rights before national courts).
5. Intellectual Property Law in the EU (trademarks, patents, copyright and related rights).
6. Preliminary references/rulings.
7. Jurisprudence in respect of consumer protection.
8. Environment Law in the EU.
9. Fight against misuse with the interest of the EC.
10. Cooperation in Criminal Law in Europe.
11. Cooperation in Civil Law in Europe.
12. Judicial cooperation in criminal cases.
13. Judicial cooperation in civil cases.
14. Acquis communautaire in respect of asylum and refugees.
15. Anti-corruption.
16. Fight against organised crime.
17. International Private Law.
18. The appliance of European social chart in Bulgaria.
19. The influence of the accession of Bulgaria on the administrative jurisprudence.
20. Article 8 of European Convention on Human Rights and Fundamental freedoms and Art.5 of Protocol 7.
21. Art.5 and Art.11 of European Convention on Human Rights and Fundamental freedoms.
22. Art.10 of European Convention on Human Rights and Fundamental freedoms.
Number of judges concerned: 791
Total number of judges concerned: 1065 (274 + 791)
Total number of judges in Bulgaria: 1750 (at the end of 2005)
A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).
The judges don’t receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research. However, they have access to specialised Bulgarian legal computer programmes (installed on their personal computers), monthly or daily updated. Apart from the national laws and the practice of the domestic courts, the programmes contain International treaties and Conventions section, other international instruments section and European Union section. The latter includes texts of treaties, conventions, protocols, declarations, etc., selected judgements of the European Court of Human Rights and the European Court of Justice, relevant information. Besides, the judges have permanent access to Internet where they can perform their own research.
Some of the courts have their own libraries where printed materials are at hand – collected international treaties and conventions, books, textbooks on International and European law, legal periodicals containing articles on the matter and case-law of the European courts, dictionaries.
The judges passing the European Union Law training at the NIJ receive printed materials and books.
United documentary center and a library at the National Institute of Justice are in process of setting up.
A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
There are no special free of charge or state-subsidised foreign language courses for judges. They can attend foreign language courses if they find suitable ones and pay the tax due themselves.
The official language of the court proceedings is Bulgarian. The courts dispose of lists of interpreters who are appointed in case a party or a witness does not speak or understand Bulgarian. The interpreter facilitates their participation in the proceedings through simultaneous translation in the course of the hearing. However, all documents presented before the courts in foreign language should be accompanied by an official translation in Bulgarian.
B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)
For all national courts, the European Court of Human Rights and the Court of Justice of the European Communities serve as a reference regarding interpretation of a uniform European body of law. National courts have been delegated jurisdiction for administering European law since they are required, firstly, to apply it directly and, secondly, to interpret it in conformity with European standards.
To establish an effective dialogue between national and European courts, it is necessary that national judicial institutions should be the target of initiatives aimed at fostering not just the exchange of information but also, wherever possible, direct contacts between institutions.
Questions
B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
The National Institute of Justice organised seminars and round tables for Bulgarian judges with the participation of foreign eminent lawyers (some of them working in European Institutions) and judges from other national courts in Europe. An example is an Anti-corruption seminar held in Sofia in November 2005 (8-9.11.2005). A chair of the seminar and a lecturer was Dr. Willi Fuhrman, former judge at the European Court of Human Right; judges from Austria, Italy, Poland and Portugal also took part. Dr. Fuhrnman was also a guest of the first national conference of the Bulgarian judges held in Sofia in December 2004 and took part in its European Convention on Human Rights module.
Bulgarian judges visit The European Court of Justice and the European Court of Human Rights in the framework of twining projects and other EU and Council of Europe projects.
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)
Each country's application of the European standards depends to a large extent on the rank they enjoy in national law, including under the Constitution. Nonetheless, national case-law also plays a role since it is able to give interpretations adapting national law to European law, while upholding national constitutional standards.
A study is necessary to allow the CCJE to consider the most appropriate measures to be proposed to national courts in order to solve the problems encountered in this field.
Questions
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:
- the European Court of Human Rights
- the Court of Justice of the European Communities
d) international treaties.
Please cite the relevant constitutional provisions or case-law.
The relationship between the domestic legislation and the international treaties is a problem, which has found its legal solution in the Constitution (in force since 1991). The principle set forth in its Art.5 par.4 is that the international treaties, which are ratified under the Constitution, promulgated and in force for Bulgaria, are integral part of the domestic legislation and their provisions prevail the national laws which contradict them. Following the constitutional provision two groups of international treaties can be defined – those, which meet the above-mentioned requirements for ratification and promulgation – and therefore are part of the internal legislation, directly applicable and prevailing the domestic norms which contradict them, and those, which do not meet the Art.5 above-mentioned requirements. The latter are also obligatory for Bulgaria and the State has to undertake further steps in respect of their implementation. Treaties, concluded before the entry into force of the 1991 Constitution and ratified in conformity with the then relevant legislation, which are promulgated (published in an official periodical State Gazette) are also part of the internal legislation and prevail the internal laws which contradict them. The non-promulgated ones are part of the internal legislation but do not prevail its contradicting provisions. However, as soon as they are promulgated they achieve the status of the first group treaties and prevail the contradicting internal laws.
The Constitution has a higher rank than the international treaties in the hierarcy of law. That conclusion follows from its Art. 85 par.4 and Art.149 par.1 providing that the signing of international treaties which imposes amendment of the Constitution should be preceded by adoption of such amendment, respectively, that the ratification of the international treaties concluded should be preceded by the Constitutional Court’s review of their conformity with the Constitution. In February 2005, an amendment of the Bulgarian Constitution was adopted (with respect to the accession of Bulgaria to the EU) allowing the transfer of souvereignity to the European Union.
The European Convention on Human Rights is duly ratified, promulgated and had entered in force in respect of Bulgaria on 7 September 1992. It is directly applicable and prevails those norms of the internal legislation which contradict it. The hierarchy of the Convention requires a good knowledge on the European Court of Human Rights’ case-law. It could be reffered to and taken into account as relevant jurisprudence in cases of contradiction.
The EU treaties are not yet in force in respect of Bulgaria - the accession of Bulgaria to the EU is expected as of 1.01.2007.
C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?
Yes. The aim is the Council of Europe recommendations and resolutions to be incorporated in the legislation through relevant laws/provisions (an example is the mediation and domestic violence area where R(98)1 on family mediation, R(99)19 on mediation in criminal matters, R(2001)9 on mediation between administrative authorities and citizens and R (2002)10 on mediation in civil matters on the one hand, and Resolution IP 2(2004)27 on prevention of everyday violence in Europe on the other hand, are taken into account when drafting the adopted respectively in December 2004 and March 2005 Mediation Act and Law against Domestic Violence). In case it is not so, they are used as guidelines in the laws implementation and interpretation.
C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgements by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?
If the European Court of Human Rights were to hold that certain provisions of the Bulgarian legislation violate the ECHR, the national courts are permitted not to apply those provisions. They could not prescribe their own measures implementing the Court's decisions. However, they could give directions, which are obligatory for a lower court or an administrative organ.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
- a direct application for reopening of the proceedings? No
- lodging of a claim for compensation? No
If a breach of a Convention’s provision was found in ECHR’s judgement in respect of Bulgaria, that judgement is a ground for reopening of the relevant civil or criminal proceedings which had ended (before the filing of the complaint to the ECHR) by a final judgement or decision (Art. 231 par.1.z Code of Civil procedure; Art. 362 par.1.4 Code of Criminal procedure).
Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement. No
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
Since 1949 the Council of Europe has been committed to safeguarding human rights, the rule of law and pluralist democracy.
Terrorism is a denial of these three fundamental principles, and the Council of Europe has produced a number of conventions aimed at combating terrorism while seeking to uphold human rights.
Questions
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
Bulgaria implements a consistent and active policy for the prevention and suppression of terrorism, which includes broad international co-operation in this field. The relevant Council of Europe recommendations and resolutions (ex. Recommendation Rec(2005)10 of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism, Recommendation Rec(2005)9 of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice) have been taken into account when adopting the recent Bulgarian anti-terrorism legislation.
Besides, Bulgaria ratified the European Convention on the Suppression of Terrorism on 17 February 1998 and the Convention entered into force for Bulgaria on 18 May 1998. On 19 December 2001 the Art.13 reservation that was made at the ratification of the Convention was withdrawn. Bulgaria ratified the Protocol amending the European Convention on the Suppression of Terrorism on 26 February 2004 and thus became the first state that ratified this Protocol.
The 25th Conference of European Ministers of Justice was held on 9 and 10 October 2003 in Sofia at the invitation of the Bulgarian Minister of Justice who submitted the main report dealing with the response of the justice system to terrorism.
Bulgaria took an active part, within the framework of the Council of Europe, in the preparation of the drafts of a Convention on the Prevention of Terrorism and a Convention on the Laundering, Search, Seizure and Confiscation of Proceeds from Crime and on Financing of Terrorism. The conventions were open for signing on 16 May 2005. Bulgaria already signed the first of them on 17.11.2005. Further steps in respect of signing the second one and their ratification would be undertaken in 2006.
D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.
In April 2004, the Bulgarian Government approved the National Plan on Combating Terrorism dealing with the prevention of terrorist acts on the territory of Bulgaria, the improvement of the activity of the specialised antiterrorist bodies, the protection of the population and support for the antiterrorist initiatives of the international community. The updated National Strategy on Counteracting Crime also contains measures for the prevention of terrorist acts and international co-operation in the fight against terrorism.
1. In 2002 the Bulgarian Criminal Code (CC) was amended in order to establish special regulations for the punishment of terrorist acts and related to them crimes. The amendments of 2002 provided for the legal definition of terrorist acts and financing of terrorism. Besides this, the Criminal Code provides for punishment for setting up, leading or participating in organised terrorist groups as well as for using the territory of Bulgaria for the preparation of terrorist acts abroad. The Bulgarian Criminal Code also contains specific provisions for the punishment of open incitement to terrorism and threatening to commit terrorist acts.
Whoever commits any of the crimes mentioned in this provision (26 crimes) with the aim of intimidating a population or compelling the representatives of the public authority, society, foreign state or international organisation to perform or abstain from performing an act within their functions shall be punished for terrorism by five to fifteen years’ imprisonment (Art.108a par.1 Criminal Code). Where death has been caused, the punishment imposed shall be fifteen to thirty years’ imprisonment, life imprisonment or life imprisonment without alternative punishment
Any person who in any way directly or indirectly collects or provides means for the purpose of perpetrating a terrorist act, and is aware, or assumes, that these means will be used for that purpose, shall be punished by three to fifteen years’ imprisonment and a fine shall be imposed upon him/her of up to thirty thousand Bulgarian Levs (equivalent to 15000 euros ) (Art.108a par.2 Criminal Code).
Article 109 of the Criminal Code regulates punishment for participation in terrorist groups. Paragraphs 1 and 2 of Article 109 provide for punishment for setting up, leading (up to twelve years’ imprisonment) and participating (up to ten years’ imprisonment) in organised terrorist groups. Paragraphs 3 and 4 of Article 109 provide for specific measures to encourage the participants in terrorist groups to co-operate with the police and judicial authorities in order to prevent terrorist acts or to collect evidence. In particular, paragraph 4 of Article 109 provides that a participant in an organised terrorist group shall not be punished if he/she voluntarily surrenders to the authorities and reports on the group before the commission of a crime. Likewise, any participant in such a group who surrenders voluntarily and discloses any information he/she has about the group, thus substantially facilitating the detection of and proving the committed offences, should be sentenced on the basis of mitigating circumstances.
Article 110 provides for punishment of up to six years’ imprisonment for the preparation of terrorist acts.
The confiscation of the property, or a part thereof, of the perpetrators of terrorist offences and of the persons financing their activities is provided by Art. 114, paragraph 2 of the Criminal Code.
Under the general rules of the Criminal Code, accomplices aiding and abetting are liable to the criminal sanctions provided for the perpetration of the respective crime.
Paragraph 2 of Article 320 of the Criminal Code provides that the punishment for openly inciting the perpetration of terrorism is up to six years’ imprisonment. It means that the Bulgarian Criminal law considers "incitement to terrorism" as a serious offence.
Besides this, Article 320a of the Criminal Code provides that "a person who threatens to commit a crime under Article 108a, para.1 (i.e. terrorism)…. and where such threat might give rise to justified fear of its perpetration, shall be punished by up to two years’ imprisonment ".
Under the provisions of Article 356b of the Criminal Code, a foreign national who, on the territory of the Republic of Bulgaria, plans to commit abroad any offence involving a threat to the population (including terrorist acts) is liable to up to five years’ imprisonment. If an organisation or group has been established for the same purpose, the punishment is one to six years’ imprisonment and three to eight years’ for the organisers and the leaders. The criminal liability under these provisions does not require the respective offences to have been committed or their perpetration to have been attempted.
2. On 5 February 2003 the National Assembly adopted the Law on the Measures against Financing of Terrorism. The Law was drafted in compliance with the measures under Resolution 1373 (2001) of the UN Security Council and taking into account the provisions of the Council’s Regulation (EC) No. 2580/2001 of 27 December 2001 on the specific restrictive measures directed against certain persons and entities with a view to combating terrorism. The aim pursued by the Law on the Measures against Financing of Terrorism, as defined in Article 2, is the prevention and disclosure of the actions of persons, legal entities, groups and organisations aimed at the financing of terrorism. The measures envisaged in that Law are freezing of assets and other property and a prohibition on providing financial assets, services or property.
The measures under the Law are applied with respect to individuals and entities included in the list approved by the Council of Ministers. The list is adopted, modified or amended upon a proposal submitted by the Minister of the Interior or the Chief Public Prosecutor. The list includes any individuals and organisations identified by the UN Security Council as linked with terrorism or on whom sanctions for terrorism have been imposed by virtue of a resolution of the UN Security Council, as well as any persons against whom the Bulgarian authorities have instituted criminal proceedings for terrorism or related to terrorism crimes. Likewise, any person identified by the competent authorities of another state or of the European Union may be included in the list. The list is published in the State Gazette and the persons concerned may appeal against the Council of Ministers’ decision under which they are included in the list before the Supreme Administrative Court (Art.5).
Under the Law on Measures against the Financing of Terrorism, anyone who knows that certain operations or transactions are aimed at the financing of terrorism must report to the Minister of the Interior. Banks and other reporting entities under the Law on Measures against Money Laundering must notify the Minister of the Interior and the Agency of Financial Intelligence about any suspicion of the financing of terrorism. Those entities are also under an obligation to insert in their internal regulations criteria for the identification of suspicious operations, transactions and customers related to the financing of terrorism. The disclosure of such information cannot be prevented on grounds of official, bank or commercial secrecy. The competent authorities, having received information under that law, must keep confidential the identity of those who provided the information, and may only use those data for the purpose of the law or to combat crime (Art.9 Law on Measures against the Financing of Terrorism).
The Law on Measures against the Financing of Terrorism does not regulate the criminal suppression of terrorist acts. That law, however, puts in place a preventative administrative mechanism, thus building the conditions indispensable for the detection of acts that might constitute terrorism-related offences.
The Law on the Ministry of the Interior, the Law on Measures against Money Laundering, the Law on Control of Explosives, Fire Arms and Ammunition, the Law on Foreign Trade in Arms and Dual-use Goods and Technologies and the Law on the Prohibition of Chemical Weapons and Control of Toxic Chemical Substances and their Precursors are also related to the prevention of terrorism.
3. Amendments and Supplements to the Penal Procedure Code were adopted in 2004 regulating the possibility for setting up, in co-operation with other states, of joint teams for investigation, for investigation through an agent under cover, through controlled supplies and trans-border observation, as well as interrogation by video- and telephone conference when implementing legal assistance on criminal cases. The procedure of recognition and execution of foreign sentences and of transfer of criminal proceedings has also been regulated.
4. Amendments and supplements to the Constitution of the Republic of Bulgaria in view of the future EU accession were adopted in 2005. The amendments concerned inter alia the possibility for extradition of Bulgarian citizens (in view of creating conditions for application of the European Arrest Warrant).
5. On 16 February 2005 the National Assembly passed the Law on Divestment in Favour of the State of Property acquired from Criminal Activity. This Law also applies in cases of criminal proceedings instituted for terrorism and related to terrorism crimes. It amended and supplemented the Law on the Measures against Financing of Terrorism in order to regulate the powers of the Commission for establishing of property acquired through criminal activity in the cases where measures against financing of terrorism are to be implemented.
6. On 20 May 2005 the Law on Extradition and European Arrest Warrant was passed. The part of the Law concerning the European Arrest Warrant will enter into force from the effective date of the Agreement on Accession of the Republic of Bulgaria to the European Union.
7. On 21 September 2005 the National Assembly adopted a Law to Amend and Supplement the Law on Administrative Offences and Sanctions to regulate the responsibility of the legal entities in respect of offences. The Law provides for imposition of property sanctions to legal entities, which have or would obtain advantage from certain criminal offences including terrorism related ones.
There is no special procedure in Bulgaria for indictment and conviction of persons suspected of having committed terrorist acts. The rules and principles governing the investigation and prosecution of terrorism related offences are the same as those for any other offence. They are laid down in the Bulgarian Code of Criminal Procedure. The persons accused of terrorist activity have the same rights as all other accused - during the preliminary proceedings and the trial and with regard to the conditions for appeal. Respectively, the role of the judge in such proceedings does not differ from his/her role in ordinary criminal proceedings.
Under Art. 171 of the Code of Criminal Procedure in the case of an act of terrorism, preliminary criminal proceedings should be initiated. Preliminary proceedings are carried out by investigating magistrates under the control of the prosecutor’s office.
D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?
Investigation measures
The Code of Criminal Procedure provides for the use of technical means for gathering evidence (special investigative techniques). A Law on Special Investigative Techniques was adopted in 1997 (last amendment October 2005). It gives detailed regulation of the conditions of their use as it causes temporary limitation of the right to respect for private life, home and correspondence. Bugging in private or public premises, telephone tapping, other means of intercepting communications (mail, fax, e-mail), electronic surveillance, observation, controlled delivery, anonymous informants and searches may be used in cases of terrorism. Special investigative means may only be applied if approved by the Chief of a Regional Court or by authorized by him/her his/her Vice-chief, following a request submitted by the police or the public prosecutor’s office. The request should consist of: full and exhausted information on the facts and circumstances grounding the reasonable suspicion that a crime has been prepared or committed, or is in the process of committing, imposing the use of the special techniques; full description of the measures undertaken so far and the results of the preliminary check up or investigation; information on establishing the persons or subjects in respect of which the special techniques would apply; the time-limit of their use; concrete special technique that would be used; the authorized person who had to be aware; written consent of the person who would be subjected to a special technique – in case it is used in order to protect that person’s life or property (Art.14).
Protection of witnesses and of endangered persons in respect of criminal proceedings
The Code of Criminal Procedure regulates witness protection. Such protection can be provided by keeping the identity of the witnesses secret (anonymous witness) or by providing physical protection both to the witnesses themselves and to their families, relatives or other close persons. The witness protection measures are taken when the proceedings are instituted. The protection measures may continue after the end of the proceedings.
Law on Protection of Endangered Persons in Respect of Criminal Proceedings was adopted in November 2004 and entered into force on 25.05.05. It regulates the terms and conditions under which special protection of persons endangered in respect of criminal proceedings and related to them persons is provided in case they could not be protected by the Criminal Code measures. The aim of the law is to support and encourage the fight against grave crimes and organised crime (including terrorism and related to terrorism crimes) providing the safety of the persons whose testimony, explanations or information are essential for the criminal proceedings. The programme for protection of endangered persons (participants in criminal proceedings /witness, plaintiff, suspected, accused, expert, etc./, sentenced persons, directly related to them persons – ascendants, descendents, brothers and sisters, spouses or persons of a very close relationship) includes measures as personal physical guard, property guard, temporary safe place accommodation, change of residence, place of work or educational institution, change of place of imprisonment, change of identity.
Compensation of victims
Under the Bulgarian Code of Criminal Procedure, victims and their successors and institutions and legal entities having sustained damage as a result of a criminal offence may bring a civil action for damages in the criminal proceedings and before the criminal court examining the case, thus entering the criminal proceedings as civil plaintiffs. The civil claim may be brought either against the accused or against any other party that should be held liable under civil law for the damage caused by the crime. Such an action may not, however, be brought in the criminal proceedings if the plaintiff has already brought it before a civil court. Where the criminal proceedings are discontinued, the civil claim will not be examined by the criminal court but may be brought separately before a civil court.
In the course of the criminal proceedings, the courts may and should play an active part in protecting the interests of those affected by acts of terrorism. The Bulgarian Code of Criminal Procedure puts the court and the pre-trial authorities under an obligation to explain to any victim that he or she is entitled to bring a civil action to seek redress for the damage caused by the offence. An injunction order to secure the implementation of a further judgement in favour of the plaintiff may be delivered at any stage of the proceedings.
Aliens Act
The terms and conditions, under which the aliens could enter, stay and leave the country as well as their rights and obligations are provided in the Aliens Act. According to its provisions (Art.10 and Art.40) the suspicion about terrorism is a ground for denial of accession / issue of visa and for deprivation of an alien’s right to residence.
If an alien’s presence in the country creates serious threat to the national security or the public order, he/she could be expulsed.
Both the deprivation of residence order and the expulsion order could be appealed against before the courts (although the Aliens Act provides that the expulsion order could not be appealed against, the domestic courts apply directly the Constitution and the European Convention on Human Rights, taking into account the European Court of Human Rights’ Al-Nashif v. Bulgaria judgement, and, finding the appeals admissible, decide on them delivering judgements). Thus the demands of the security and of the human rights are reconciled the persons affected having access to a court in order to impugn allegedly arbitrary orders.
The preventive measures have been already examined in section D2 where the Law on the Measures against financing terrorism and the Law on measures against Money Laundering were discussed.
Mutual assistance and extradition
The mutual legal assistance and extradition in criminal matters, including in terrorist cases, can be afforded to the extent provided for by international instruments (bilateral treaties and multilateral conventions) and national legislation.
The Law on Extradition and European Arrest Warrant and the Criminal Code contain separate sections on extradition and mutual legal assistance in criminal matters, the provisions of which take into consideration the international standards in the field of judicial co-operation. Unless otherwise provided for in any international agreement, to which Bulgaria is a party, the above rules will apply. Extradition and judicial assistance may also be implemented on a reciprocal basis if no international agreement has been signed as well as in cases of Interpol bulletin.