Bulgaria

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Introduction

Bulgaria is in the eastern Balkans after the second world war Bulgaria came under the soviet-led Eastern Block and remained under communist rule until 1989. Communist rule in Bulgaria began in 1944, when a communist-dominated coalition, called the Fatherland Front, seized power from the coalition government which led to the adoption in 1947, of the so-called Dimitrov Constitution, modeled after that of the U.S.S.R. However, the collapse of communism in Eastern Europe during the 1980s led to the removal of long-time Bulgarian leader Todor Zhivkov from government and party positions on November II, 1989. Until this time, the Bulgarian Communist Party, with about 984,000 members, controlled all phases of Bulgarian life.

The country has since faced slow and painful issues regarding the market economy when it transitioned into a democracy and a market-based economy. During this period of transition Bulgaria changed from a Soviet socialist model to an economic structure focused on development through economic growth, which was targeted at joining the EU and NATO. Bulgaria adopted a democratic constitution in 1991 and is a unitary parliamentary republic composed of 28 provinces, which are highly centralized. The constitution is regarded as a ‘reactive constitution’ given that it aims to introduce a genuinely new political model and transition from totalitarianism to democracy. Since the creation of the Constitution of the Republic of Bulgaria in 1991 there have been 6 amendments, the most recent in 2015. It is a parliamentary republic, with the prime minister leading government and holding the most powerful executive position. There are three powers independent of each other - legislative, executive, and judicial. The Constitution provides possibilities of direct democracy, namely through petitions and national referenda. The legislative organ is the National Assembly (the Bulgarian Parliament); the central executive organ with general competence is the Council of Ministers (the Bulgarian Government); Justice shall be carried out by the Supreme Court of Cassation, the Supreme Administrative Court, appellate, district, military and district courts. Specialized courts may also be established by law.

Extraordinary courts shall not be allowed. The legislative body in Bulgaria is known as the National Assembly (or Narodno Sabranie), a unicameral parliament with the power to pass laws, enact state budgets and establish tax rates, among other things. Since Bulgaria is a member of the European Union (the “EU”), the law of the EU also frequently interacts with Bulgaria’s internal legislation. 8 Bulgaria has the lowest GDP per capita and the joint lowest human development index in the EU and has faced widespread problems with corruption, most recently seeing nation-wide protests during July 2020 surrounding charges of corruption and injustice.


Bulgaria has a civil law system. This means that the law is codified into constantly updated written statutes and codes. In a civil law system, judges establish the facts of a case and then apply penalties in accordance with the written law, placing practically no emphasis on precedent unlike in a common law system. The Bulgarian civil law system contains Soviet law influence and accepts the jurisdiction of the International Court of Justice as compulsory since 27 November 2015.


State Sponsored Legal Aid

Free legal representation was institutionalized in Bulgaria with the adoption of the Legal Aid Act in 2005 and was has been in force since 2006, which recognized the need for equal access to the justice system for all. Despite there being no regulatory barriers to providing pro bono legal services there are a series of practical, financial, and cultural considerations that inhibit the ability or willingness of many practitioners to provide pro bono services. The Legal Aid Act provides for the following categories of legal aid: (i) legal consultations aimed at reaching a settlement prior to filing a case; (ii) preparing a case file for the purposes of filing a case; (iii) legal representation in civil, criminal and administrative proceedings; and (iv) legal representation of individuals detained for probable cause. Legal aid is not available in commercial and tax cases unless the party applying for legal aid is a natural person and is eligible for legal aid. Financial cuts have meant that many legal aid attorneys have had increasing difficulty in collecting compensation for their services, with others being required to charge and remit VAT to the State, regardless of whether the services were provided for free. However, the largest issue impacting on state-sponsored legal aid is the lack of cultural awareness of pro bono services, therefore a lack of pro bono ‘infrastructure’, such as referral organizations. The majority of free legal representation in Bulgaria is provided by NGOs in the course of their general operations, or by private practitioners on an individual and ad-hoc basis. In order to improve on the Legal Aid Act , which provides free legal representation, Bulgaria needs a systematic and organized approach to the provision of pro-bono services and needs greater cultural awareness of this right.

In Bulgaria Law firms that provide consistent and systematic pro bono legal aid are NGO’s, which sometimes provide free legal services in their field of operation, which is the most common way through which pro bono services are accessed. These NGO’s typically offer legal aid in their area of expertise, however these NGO’s don’t serve as referral organizations or clearing-houses instead the pro-bono services are provided by their staff attorneys. The NGOs’ activities may be primarily law-related, or they may cover a broader range of social services, with legal representation as only one aspect of such services. For example, a “legal” NGO may provide (i) free legal representation to individuals in cases involving human rights (e.g., the Association for European Integration and Human Rights) or refugees’ rights (e.g., the Program for Legal Protection of Refugees and Migrants or the Centre for Legal Aid – Voice in Bulgaria), or (ii) free legal consultations for civic organizations (e.g., the Bulgarian Centre for Not-for-Profit Law). On the other hand, a “social services” NGO, such as one focused on women’s rights, may carry out a range of activities aimed at promoting women’s rights, including lobbying the legislature, providing medical and psychological support to victims of domestic violence, and offering free legal services to these victims (e.g., the Gender Alternatives Foundation). Alongside this pro-bono services are provided by many universities in Bulgaria which operate law clinics, with supervision by practising attorneys. It is not common practice for private practitioners to provide pro-bono legal except in high profile cases where it may generate publicity and add to their reputation. In general, the pro-bono culture in Bulgaria is underdeveloped and private and commercial practitioners are not under pressure to demonstrate a commitment to pro bono.

Bulgaria has 13, 850 as the total number of lawyers of which over half are women based on the CCBE Lawyers Statistics, 2018.

Defendant’s rights are protected by the Bulgarian Constitution and, also by the Criminal Procedure Code. Right of defence Art. 15. (1) The defendant shall be entitled to defence. (2) The defendant and the other persons participating in the penal procedure shall be provided with all procedural remedies necessary for the defence of their rights and legitimate interests. (3) The Court, the prosecutor and the investigating bodies shall make clear to the persons under Para. 2 their procedural rights and shall provide them with the possibility to exercise those rights. (4) The victim shall be provided with the needed procedural remedies for the defence of his/her rights and legitimate interests.

Rights of the defendant Art. 55. (1) The defendant shall have the following rights: to learn for which crime he/she is involved in this capacity and on the base of what evidence; to give or to refuse to give explanations about the accusation; to become acquaint with the case, including with the information obtained by usage of special intelligence devices and to make the necessary extracts; to submit evidence; to participate in the penal procedure; to make requests, notes and objections; to make statements last; to appeal the acts which harm his/her rights and legitimate interests; to have a defender. The defendant shall have the right of participation of his/her defender in the performance of all of the actions of investigation and other procedural actions with his/her participation, except if he/she abandons explicitly this right. (2) (new – SG 7/19) The defendant shall have the right to be provided with general information to facilitate his/her choice of the defender. He/she shall have the right to liaise freely with his/her defender, to meet with him/her in private, to receive advice and other legal assistance, including before and during the interrogation and any other procedural action involving the defendant. The defendant shall also have the right to a last plea. When the defendant person does not know Bulgarian, he shall be provided by translation in writing of the decree for bringing the accusations, of the determinations of the Court for imposing a restraining measure, of the act of indictment, of the judgment and of the decision of the Court of appeal in an understandable language.

ii. International Sources of defendant’s rights Under the article5(4) of the Bulgarian Constitution, we can see that international law is a part of the Bulgarian legal system. Indeed, it must be ratified to be part of the Bulgarian law. Also, we have article 17 of the Montenegrin Constitution, which regulates a global ground regarding international law. Article 145 of the Montenegrin Constitution, specifies the conformity between the Constitution and other legal acts.


Pre-trial Procedures

Police procedures

Complaint/information The prosecutor can pursue a complain if he/she has some suspicions (art. 46 (1) Bulgarian Criminal Procedure Code).

 Arrest, Search and Seizure Laws

Stops and Frisks Arrests Art. 22 (3) Bulgarian Criminal Procedure Code mentions the arrest and the following measure that must be undertaken. Pre-trial detention (Art. 31 (1) Bulgarian Constitution Law) stipulates the rules to undertake for a pre-trial detention. Plus, art. 17 (3 2) Bulgarian Criminal Procedure Code mentions the limit time to be detained. art. 64) Bulgarian Criminal Procedure Code regulates the question about the detention in custody in the pre-trial procedure. Art. 64. (1) (1) Detention in custody in the pre-trial procedure shall be ordered by the respective Court of first instance on a motion of the prosecutor. (2) The appearance of the defendant before the Court shall be ensured without delay by the prosecutor, who - where necessary - may order that the defendant be detained up to 72 hours for bringing him/her before the Court. (3) The Court shall hear the case immediately in a sitting of a single judge with the participation of the prosecutor, the defendant and his/her counsel. (4) The Court shall take the restraining measure of detention in custody, where the grounds of Art. 63, Para. 1 appear, and if these grounds do not appear, the Court is allowed not to take restraining measure or to take a lighter one. (5) The Court shall rule a determination, which shall be announced to the parties in the Court hearing and shall be executed immediately. By ruling the determination the Court shall set down the case for hearing before the Court of appeal within a period of not more than seven days, in case of an appeal or an objection. (6) The determination shall be subject to appeal and objection before the appropriate Court of appeal within three-day time period (7) The Court of appeal shall try the case in the staff of three judges in open session with the participation of the prosecutor, the defendant and his or her counsel. Non-appearance of the defendant without good reasons shall not prevent the hearing of the case. (8) The Court of appeal shall rule a determination, which shall be announced to the parties in the Court hearing. The determination shall not be a subject to appeal by private complaint or private objection. (9) Where guarantee has been imposed by virtue of the effective determination, the defendant shall be detained after depositing it. Searches Plus, Bulgarian Criminal Procedure Code regulates the pre-trial rules in chapter sixteen (art. 191ff. Bulgarian Criminal Procedure Code). Art. 159ff. Bulgarian Criminal Procedure Code authorizes the search. There are different measures to undertake during a search. Art. 164. Bulgarian Criminal Procedure Code specifies more in detail the title of the search. Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

 Lineups and other identification procedures

Lineups No specific data found. Other identification procedures Art. 272 Bulgarian Criminal Procedure Code regulates the procedure to identify the defendant. iv. Interrogation Before formal charge in court Art. 138ff. Bulgarian Criminal Procedure Code regulates the question related to the interrogation. After Defendant is formally charged Art. 277ff. Bulgarian Criminal Procedure Code regulates the question related to the interrogation. Enforcing the Rules (procedures to protect against illegal interrogation) Right to Counsel The defendant has the right to have a counsel (Art. 56 Bulgarian Constitution Law; art. 15 Bulgarian Criminal Procedure Code). Rights of the accused at all time: Criminal Law system Double jeopardy

Bulgarian Criminal Procedure Code Art. 24. (1) No penal procedure shall be instituted or the instituted procedure shall be discontinued, where:

6. Concerning the same person there is an uncompleted penal procedure, an effective verdict, a decree or an effective Court ruling for discontinuation of the case;

Legality principle Art. 5 (3) Bulgarian Constitution Law regulates the question about the legality of Criminal Prosecution. presumption of innocence Art. 31 (3) Bulgarian Constitution Law mentions this. However, someone cans be deprived of his liberty if there is a probable cause allowed by law. Plus, art. 16 Bulgarian Criminal Procedure Code specifies this fundamental principle in criminal law. standards of proof and standards for conviction Art. 16 Chapter twelve - "MATERIAL EVIDENCE" (Art.109ff) and Chapter thirteen - "PROOFS" (Art. 114ff) Bulgarian Criminal Procedure Code regulates the different types of proof that can be use. procedure with witnesses Art. 117-118 Bulgarian Criminal Procedure Code specifies the procedure with witnesses. Capital Punishment No specific information found.

BULGARIAN PENAL CODE Art. 36. (3) There is no death penalty in the Republic of Bulgaria.

Ex Post Facto punishment

BULGARIAN PENAL CODE Art. 2. (2) If, until the enactment of the verdict different laws follow applied shall be the law which is most favourable for the perpetrator.

Fair Trial Rights Freedom from prolonged pre-trial detention No information regarding this principle!

BULGARIAN CRIMINAL PROCEDURE CODE Period to perform the investigation. Period of the measures of procedural compulsion. Art. 234. (8) (amend. - SG 32/10, in force from 28.05.2010) The measures of procedural compulsion, taken with regard to the defendant, as well as the measure for securing the civil claim, if there are no longer grounds for its imposition, shall be cancelled by the prosecutor after the elapse of more than two years from the involvement in the cases of a serious crime and more than of one year –in the rest of the cases. These time limits shall not include the time of suspending the penal procedure by the prosecutor pursuant to Art. 25. (9) If the prosecutor does not fulfil his/her obligation under Para. 8, the measures of procedural compulsion shall be cancelled upon request of the defendant or of his/her defender by the first-instance Court. (10) (amend. - SG 32/10, in force from 28.05.2010) The Court shall rule by a single judge at a closed session, which shall be final. Freedom from punishment Art. 30 Bulgarian Constitution Law regulates the restriction of liberty. The principle is that everyone has the right of freedom. However, it is possible to deprive someone, if it is allowed by law.

BULGARIAN PENAL CODE Art. 80. (1) The criminal prosecution shall run the statute of limitations when it has not been instituted for a period of: 1. (amend., SG 31/90; SG 153/98) twenty years for acts punishable by life imprisonment without an option, life imprisonment, and thirty five years for murder of two or more persons; 2. fifteen years for acts punishable by imprisonment of more than ten years; 3. ten years for acts punishable by imprisonment of more than three years; 4. (amend., SG 62/97) five years for an act punishable by imprisonment of more than one year, and 5. two years for all remaining cases. (2) The terms of limitation under the preceding para for crimes committed by juveniles shall be determined upon considering the replacement of the punishments under art. 63. (3) The prosecution limitations shall begin from the completion of the crime, for attempt and preparation - from the day when the last act is committed, and for permanent crimes, as well as for continued crimes - from their termination. Right to counsel The defendant has the right to have a counsel. This right is regulating under art. 30 (4) Bulgarian Constitution Law and also under art. 15 Bulgarian Criminal Procedure Code. Right to habeas corpus Any individual has the right to complain and seek damages for unlawful imprisonment art. 7 Bulgarian Constitution Law.

BULGARIAN CRIMINAL PROCEDURE CODE Inviolability of person Art. 17. (5) The Court, the prosecutor and the investigating bodies must release every person who has been unlawfully deprived of freedom.

Right to medical care An individual under custody or detention has the right to medical care at all time.

RULES FOR THE ORGANIZATION AND ACTIVITY OF MEDICAL INSTITUTIONS TO THE MINISTRY OF JUSTICE

Art. 9. The medical centers established at the prisons shall carry out:

1. emergency medical and dental care of the prisoners;
2. primary medical care of the prisoners;
3. specialized psychiatric outpatient medical care;
4. dental care of the prisoners;
5. prophylactic, rehabilitation and hygienic-anti-epidemic activity for maintenance and strengthening of the physical and mental health of the prisoners;
6. medical examination of the health condition and working capacity of the prisoners.

Right to a fair trial

Constitution of the Republic of Bulgaria Chapter Six - "THE JUDICIARY"

Right to notice of charges BULGARIAN CRIMINAL PROCEDURE CODE Announcements for scheduling the pretrial hearing

 Art. 247b. (New, SG No. 63/2017, effective 06.11.2017) (1) By order of the judge-rapporteur, a copy of the indictment shall be served on the defendant.

Right to non self-incrimination Art. 31 (2) Bulgarian Constitution Law mentions that none should incriminate himself/herself.

BULGARIAN CRIMINAL PROCEDURE CODE Art. 116; 208, p. 3; 210; 356; 372; 373, para 3; 382, para 8.

Right to a speedy trial Art. 22 (1) BULGARIAN CRIMINAL PROCEDURE CODE mentions that the Court shall hear the cases within a reasonable term.

Right to a trial by jury In Bulgaria, the legal system does not provide for the right of a trial by a jury.

In Bulgaria, there is the figure of the so-called jurors – Art. 123 of the Constitution of the Republic of Bulgaria and Art. 8 Bulgarian Criminal Procedure Code

Right to impartial judge It is a fundamental right to have an impartial judge during a trial, Art. 117 (2) Bulgarian Constitution Law regulates the question related to an independence. Moreover, the judges should be impartial and fair, if not they must recuse themselves. (art. 10 + 29 + 31 Bulgarian Criminal Procedure Code). Right to appeal It is possible to file an appeal art. 318 ff. Bulgarian Criminal Procedure Code. Ways to protect rights Exclusionary Rule or Nullity of Procedure


Bulgarian Criminal Procedure Code

Discontinuation of the Court procedure by the reporting judge Art. 249. (1) The Court shall discontinue the Court procedure in the cases of Art. 248, Para. 1, Items 1 and 3. (2) Where the Court discontinues the Court procedure on the grounds of Art. 248, Para. 1, Item 3, the Court shall return the case to the prosecutor and in the disposition shall state the breaches. In these cases the prosecutor shall correct the existing procedural irregularities according to the provision of Art. 242 and a new period from the receipt of the case shall start.

Art. 335 (2) The Court of appeal shall cancel the verdict and remand the case to the first-instance in the cases of Art. 348, Para. 3, unless the Court on his own may remove the admitted breaches or they are irremovable at the new hearing of the case.

Civil Action Civil claim can be filed, art. 51 + 73 + 307 Bulgarian Criminal Procedure Code. Motions

Bulgarian Criminal Procedure Code Art. 70. (1) In the pre-trial procedure the respective Court of first instance in a body of one judge and two Court jurors, upon a motion of the prosecutor, and in the Court proceeding – the Court, which is trying the case, on a motion of the parties or on its own initiative, may place the defendant for examination in a mental disease establishment for a period not longer than thirty days.

Art. 252. (Amended, SG No. 63/2017, effective 06.11.2017; amended, SG No. 44/2018) (1) When there are grounds for consideration of the case by the order of Chapter Twenty-Nine, and on a motion of the parties – as well as in accordance with Chapter Twenty-seven and Chapter Twenty-eight, the Court shall consider the case immediately after the pretrial hearing.

Rights in prison

Conditions of confinement There are some rules to follow when the defendant is being kept (Art. 31(5) Bulgarian Constitution Law). It is necessary to respect the several rights of prisoners. Also, the Bulgarian Law on execution of penal sanctions and detention in custody regulates the different rules to undertake, when someone has been deprived of his/her liberty. Bulgarian Law on the execution of penal sanctions and detention in custody

Art. 9. (2) The consequences of non-fulfillment of the obligations and restrictions regulated in the Law during the serving of the punishment shall be explained to the convicted.

Art. 243. (2) (Amended, SG No. 103/2012) The rights of visitation, telephone communication, correspondence, food consignments and the amount of personal needs shall be immediately explained to the detained person.

INSTRUCTION № 8121h-78 OF 24 JANUARY 2015 ON THE PROCEDURE FOR IMPLEMENTATION OF DETENTION, THE EQUIPMENT OF THE PREMISES FOR ACCOMMODATION OF DETAINED PERSONS AND THE CONDITIONS IN THE PREMISES IN THE MINISTRY OF THE INTERIOR

Art. 16. (1) A detained person, who does not understand Bulgarian language or is deaf-mute, deaf, mute or blind, shall get acquainted with the grounds for his/her detention and the responsibility provided in the law and his/her rights shall be explained, including the ones indicated in art. 15, para. 1, and the procedure for action under Art. 19 in a language he/she understands with the help of a translator or interpreter.

Immigrant detention The rights of detainees apply to all detainees without discrimination (Art. 11 (1) Bulgarian Criminal Procedure Code) Right to medical care in prison Art. 84 (4) + 150ff. Bulgarian Law on execution of penal sanctions and detention in custody underlines the right to have a health insurance and also the right to health control.

See the above-mentioned RULES FOR THE ORGANIZATION AND ACTIVITY OF MEDICAL INSTITUTIONS TO THE MINISTRY OF JUSTICE

Mental health care Art. 84 (4) + 150ff. Bulgarian Law on execution of penal sanctions and detention in custody underlines the right to have a health insurance and also the right to health control. See the above-mentioned RULES FOR THE ORGANIZATION AND ACTIVITY OF MEDICAL INSTITUTIONS TO THE MINISTRY OF JUSTICE

Restriction of rights Art. 75 Bulgarian Law on execution of penal sanctions and detention in custody specifies the principle of liberty but advise the exception. Women’s rights in prison Art. 85 Bulgarian Law on execution of penal sanctions and detention in custody specifies several right to pregnant women or women with children. Art. 59 + 246 Bulgarian Law on execution of penal sanctions and detention in custody stipulates that women shall serve in separate prison as men. Court Procedures Pre-Trial Initial Court Appearance Art.64 Bulgarian Criminal Procedure Code stipulates the appearance of the defendant before the Court. Charging Instrument Art.254 Bulgarian Criminal Procedure Code stipulates this (revoked, SG 63/17, in force from 06.11.2017)

See the above-mentioned Art. 247b of the Bulgarian Criminal Procedure Code

Preliminary Hearing The Bulgarian Criminal Procedure Code does specifically stipulate the Preliminary Hearing in art. 370ff. Bulgarian Criminal Procedure Code Pre-Trial Motions Art. 64 (1 6) Bulgarian Criminal Procedure Code provides the motion during the pre-trial procedure. Discovery The prosecutor shall send a copy of the decree to the defendant, as well as to the victim or his/her heirs art. 370ff. Bulgarian Criminal Procedure Code. Also, art. 254 Bulgarian Criminal Procedure Code stipulates that a copy of the act of indictment shall be handed to the defendant.

Taking into account the sense of the notion "discovery in a criminal proceeding":

In both civil and criminal cases, discovery involves investigating the evidence that the other side plans to present. It can prevent any surprises at trial, narrow the issues that are disputed, and often help the two sides reach a resolution out of court rather than going through a full trial.

It should be cited:

Bulgarian Criminal Procedure Code Art. 24. (1) Except para 1 no penal procedure shall be instituted or the instituted procedure shall be discontinued, where:

3. the victim and the perpetrator have become reconciled with one another, except if the perpetrator has failed to fulfil the terms and conditions of the reconciliation without valid reasons; Trial Nature of the Trial The trial is opened and public (Art. 20 Bulgarian Criminal Procedure Code). except as provided in this Code. Defendant Chapter seven of the Bulgarian Criminal Procedure Code regulates specially the different right related to the defendant. Art. 55 Bulgarian Criminal Procedure Code specifies the rights of the defendant. Lawyers Art. 91ff. Bulgarian Criminal Procedure Code provides several articles regarding the defence lawyers. Moreover, art. 99 Bulgarian Criminal Procedure Code stipulates the right of attorneys. Expert Witnesses Expert witness can be necessary during a criminal procedure. Indeed, the experts can give some opinions. (Art. 144 Bulgarian Criminal Procedure Code). Judges Art. 117 (2) Bulgarian Constitution Law regulates the question related to an independence. Moreover, the judges should be impartial and fair, if not they must recuse themselves. (art. 10 Bulgarian Criminal Procedure Code. Victims Victims have also rights. Indeed, art. 75 Bulgarian Criminal Procedure Code lists their rights. Sentencing Art. 309 Bulgarian Criminal Procedure Code specifies the measures to follow when the Court convicted the defendant. The Court has various types of judgements: reject the charges, found the defendant guilty or acquittal.

The content and structure of the sentence is defined in Art. 305 of the Bulgarian Criminal Procedure Code.

Appeals Right to Counsel The right to counsel as described above applies in the same way to the appellate procedure. Ineffective Assistance of Counsel The Criminal Procedure Code does not regulate the ineffective assistance of the counsel.

Legal Aid Act Art. 37. (2) For unconscientious or incompetently performed legal aid and in case of non-presentation of a report within the term under art. 38, para. 4, regardless of other sanctions, the lawyer shall not receive remuneration in the specific case.

Other Grounds for Appeal First, art. 318 ff. Bulgarian Criminal Procedure Code regulates the reasons to file an appeal. Collateral Remedies (Habeas etc…) It is possible that someone has been wrongfully deprived. In these cases, the person has the right to restitution (art. 433 Bulgarian Criminal Procedure Code). Moreover, art. 17 (5) Bulgarian Criminal Procedure Code mentions also the fact, that none shall be unlawfully deprived of his/her freedom.

According to Art. 2 of the State and Municipal Liability for Damages Act - the State is liable for damages caused to citizens by the investigative bodies, the prosecution or the court. In this regard, it shall be filed a civil claim.