MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-8

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-8 S.Z. / Kolevi v. Bulgaria (Applications Nos. 29263/12 and 1108/02) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)142, H-Exec(2021)20, H-Exec(2021)21, CM/Del/Dec(2020)1377bis/H46-9

 

Application	Case	Judgment of	Final on	Indicator for the classification
29263/12	S.Z.	03/03/2015	03/06/2015	Structural problem
41990/18	Y	20/02/2020	07/09/2020
22457/16	X AND OTHERS	02/02/2021	02/02/2021
39257/17	Z	28/05/2020	12/10/2020	Complex problem
1108/02	KOLEVI	05/11/2009	05/02/2010	Complex problem

Case description

The group S.Z., which includes also the cases X. and Others, Y. and Z., concerns ineffective investigations into rape, false imprisonment and incitement to prostitution and allegations of sexual abuse in a social care home (procedural violations of Article 3 or 8). In the S.Z. case, the European Court found a “systemic problem” of ineffectiveness of criminal investigations in Bulgaria.^[1] The Z. case concerns a failure to examine in a meaningful manner whether the evidence indicated a lack of consent on the applicant’s part (who was 13 years old at the time) and whether charges for rape should have been filed.

The Kolevi case relates primarily to the ineffectiveness of the investigation into the murder of the first applicant (a high-ranking prosecutor) which occurred in 2002, owing to the lack of guarantees in Bulgarian law for the independence of criminal investigations concerning the Chief Prosecutor (who was suspected by the second, third and fourth applicants to be implicated in the murder) and “high-ranking officials close to him” (procedural violation of Article 2).^[2]

Status of execution

Individual measures:

S.Z. group: During past examinations, the Committee recalled that no further individual measure was possible in the S.Z. case. As concerns the Z. case, the Chief Prosecutor filed an application for reopening of the criminal proceedings. As concerns the X. and Others and Y. cases, the authorities are seeking information on the feasibility of further investigation.

Kolevi case: the investigation was reopened in 2009. The former Chief Prosecutor Mr F. was questioned in 2012 in response to the criticism of the European Court concerning his lack of interrogation during the initial investigation. The investigation was suspended in 2015, but reopened again in 2018. In January 2019, the second applicant expressed the view that there was sufficient evidence to bring charges against Mr F. During past examinations, the Committee has repeatedly stressed the importance of deploying all possible efforts to achieve results in the investigation. In October 2021, the authorities indicated that the proceedings had been suspended again on 26 May 2020, as it proved impossible to find the perpetrator.

In a communication of 15 October 2021[3], the Bulgarian Helsinki Committee (BHC) noted that since May 2020 Mr. F. was a member of an advisory council to the Chief Prosecutor, which was “unsettling”. The authorities pointed out this fact was beyond the scope of the execution of the judgement.

General measures:

A detailed presentation of the general measures adopted or envisaged can be found in H-Exec(2021)20 (S.Z. group) and H-Exec(2021)21 (Kolevi case).

Previous examinations by the Committee

The Committee adopted Interim Resolution CM/ResDH(2019)367 in December 2019, and decisions in September 2020 and March 2021.

As concerns the S.Z. group, it repeatedly insisted, inter alia, on the need to introduce judicial review of the refusals to open an investigation and asked the authorities’ assessment on other possible measures.

As concerns the Kolevi judgment, it examined draft bills of June and December 2019 and draft new Constitution which revealed various deficiencies and which were not adopted.

In February 2021, the authorities adopted amendments, which provided for the investigation of a Chief Prosecutor and his or her deputies by a special prosecutor. The Committee noted that these rules included several positive arrangements, but also revealed deficiencies and, in view of the current composition of the Supreme Judicial Council (“SJC”), might not have excluded the Chief Prosecutor’s influence on the appointment and accountability of a special prosecutor. It again urged the authorities to adopt legislative or, in the event that insurmountable constitutional obstacles are established, constitutional amendments, to fully respond to Interim Resolution CM/ResDH(2019)367. It stressed, inter alia, the importance of reducing any potential influence by the Chief Prosecutor in the SJC and of considering measures to that effect before the election of a new SJC in 2022, and of introducing clear rules for the suspension of a Chief Prosecutor.

New road map and new programme proposals

In August 2021 a caretaker government adopted a Road Map for the Execution of the Judgments of the European Court of Human Rights. In October 2021 it adopted the National Recovery and Resilience Plan of Republic (“NRRP”) of Bulgaria, submitted to the European Commission on 15 October 2021, which contains proposals relevant for the S.Z. and Kolevi group and sets as deadline the fourth quarter of 2022. The authorities noted that these proposals (see details below) have “a programmatic nature” and will be consulted on with the Council of Europe and the Venice Commission. They also noted that due to the political instability and repeated early parliamentary elections, reforms awaited a stable legislature and government.[4] 

Substantive measures

1) S.Z. group - measures aimed at resolving the systemic problem of ineffective investigations and problems related to the investigation of rape or sexual abuse

- judicial review of prosecutorial decisions: The authorities specified that in its NRRP Bulgaria has indicated that it will work on introducing judicial control of prosecutorial refusals to open criminal investigations. At the same time, they noted that it was still controversial among domestic stakeholders whether a judicial review of refusals to open investigations would be compatible with the Prosecution Office’s (“PO”) constitutional mandate.

- other measures concerning investigations in general: The authorities specified that in its NRRP Bulgaria has committed to i) reducing formalism at the trial stage, including remittals of cases to the pre-trial stage; ii) introducing a right for the victim to ask for acceleration of proceedings before charges are brought; iii) regulating in detail the re-opening of criminal proceedings, including through expanded judicial control.

- prosecution of rape: The authorities are gathering information about the domestic practice.

- investigation of allegations of sexual abuse of children: The authorities prepared a draft bill of 10 November 2020 including amendments concerning, inter alia, individual assessment of victims’ needs, victim support persons, interviews of victims with special protection needs, etc. Work on it is expected to resume in a new parliament. Information is being sought about the relevant prosecutorial practice and judicial practice.

2) Measures aimed at securing independent investigations concerning Chief Prosecutors[5]

- Declaration of unconstitutionality of the amendments of February 2021 providing for investigation of a Chief Prosecutor and his or her Deputies by a special prosecutor:  On 11 May 2021 the Constitutional Court (CC) declared unconstitutional several provisions, indicating that they required constitutional amendment. It held, inter alia, that it was unconstitutional to exclude all activities of the special prosecutor from the internal institutional control and the legality supervision of the Chief Prosecutor and to exclude the latter’s legality supervision over investigations concerning his or her Deputies. The special prosecutor was moreover unable to rely on independent investigative apparatus, as investigating magistrates were subordinate to the relevant higher authorities and to the Chief Prosecutor. The CC did not voice separate criticism, inter alia, of the rule on judicial review of a refusal by a special prosecutor to open an investigation, but declared it unconstitutional, as it was linked to other unconstitutional provisions and could not be applied independently. Some amendments were not challenged and were therefore not declared unconstitutional.

The authorities indicated that it is still possible for ordinary prosecutors to conduct an investigation against a Chief Prosecutor, as reiterated in the CC judgment of 23 July 2020.

- New programme proposals concerning the investigation of a Chief Prosecutor: The authorities propose that investigations are entrusted to an ad hoc prosecutor having the rank or the position of prosecutor in the Supreme Cassation PO and an ad hoc investigating magistrate having the rank or position of investigating magistrate in the National Investigation Service, appointed by the SJC on the principle of random selection. It is also proposed to:

i)              exclude the ad hoc prosecutor’s acts concerning the investigation against a Chief Prosecutor and his or her Deputies from the power of review of higher prosecutors and from the legality supervision of the Chief Prosecutor;

ii)             prohibit the initiation of disciplinary proceedings against the ad hoc prosecutor during the investigation or prohibit to engage the disciplinary liability of the ad hoc prosecutor for investigative acts against the Chief Prosecutor;

iii)            prohibit the possibility to carry out an extraordinary appraisal of the ad hoc prosecutor before the end of the term of office of the Chief Prosecutor investigated by him or her;

iv)            establish guarantees of career stability and independence for the ad hoc prosecutor, including a possibility to become a judge after the end of the proceedings against a Chief Prosecutor;

v)             introduce a procedure for suspension of the Chief Prosecutor and his or her Deputies;

vi)            prepare amendments to the Judicial System Act on the powers of the Chief Prosecutor, so as to bring them in compliance with the Constitution.

Analysis by the Secretariat

Individual measures

No additional individual measures appear possible in the S.Z. case, as indicated previously by the Committee. As concerns the Z. case, information on the outcome of the Chief Prosecutor’s request for reopening is awaited. As concerns the Y. and X. and Others cases, information should be provided without delay on the outcome of the PO’s review of the feasibility of additional investigation.

As to the Kolevi case, it seems useful to indicate whether the applicants have appealed against the suspension of the criminal investigation and whether any additional investigative work is done by the police or other relevant authorities to try to establish the perpetrator.

General measures

The Committee could welcome the authorities’ readiness to work by the end of 2022, in consultation with the Council of Europe, on measures to improve the effectiveness of investigations in general and on measures to guarantee the independence of an investigation against a Chief Prosecutor. For a detailed assessment, see H-Exec(2021)20 (S.Z. group) and H-Exec(2021)21 (Kolevi case).

1) Systemic problem of ineffectiveness of investigations, investigation of rape or allegations of sexual abuse (S.Z. group)

It is positive that the authorities are willing to work on introduction of judicial review of refusals to open investigation. As to the doubts concerning the constitutionality of such review, reported by the authorities, it should be recalled that in its decisions of September 2020 the Committee indicated that legislative or, if necessary, constitutional amendments, should be adopted to introduce such review. The Committee could thus reiterate its call to introduce without delay such review, and to provide an assessment of the modalities of these procedures, inter alia to avoid an excessive workload for courts and prosecutors.[6] 

The Committee could also invite the authorities to provide, in due time, information on the outcome of their deliberations on concrete measures to reduce formalism at the trial stage (including remittals of cases to the pre-trial phase), to introduce a right for the victim to ask for acceleration of proceedings before charges are brought and to regulate in detail the re-opening of criminal proceedings, including through expanded judicial control. It could moreover invite them again to provide it with an assessment of the possibility to strengthen judicial review and guarantees regarding the bringing of charges, authorise the severance of a case against numerous accused persons at the trial stage and improve practices concerning the content, examination and amendment of the indictment.

As to the questions raised by the recent Z.case, the Committee could invite the authorities to provide a review of the domestic judicial and prosecutorial practice, as well as their assessment on any additional measures needed to ensure that rape is prosecuted in a Convention compliant manner, inter alia as to the determination of non-consent and child-sensitive handling of a child’s complaint of rape.

As to the questions raised by the X. and Others case, more extensive information on the reform initiated in November 2020, as well as an overview of domestic prosecutorial and judicial practice is needed, in particular as concerns videorecording of children’s interviews, approach adapted to their age, care not to contaminate their testimonies, international cooperation and assistance to victims to get knowledge of the proceedings and participate, even if they have not joined as private prosecutor or civil party.

2) Lack of guarantees for the independence of an investigation against the Chief Prosecutor (Kolevi case)

- Positive aspects and deficiencies of new programme proposals for general measures

It should be noted from the outset that the new programme proposals do not contain concrete provisions, which makes it difficult to thoroughly assess them at this stage. Overall, they seem aimed at improving the existing framework, found to be deficient in the Kolevi judgment, but for the reasons set out below fail to respond thoroughly to Interim Resolution CM/ResDH(2019)367 and the Committee’s subsequent decisions. Therefore, they could only be seen as step towards a more lasting solution.

The main improvements envisaged concern the introduction of: i) a procedure for temporary suspension from office of a Chief Prosecutor; ii) safeguards against interference in the decisions of the ad hoc prosecutor; iii) safeguards against career risks for the ad hoc prosecutor; iv) applicability of the safeguards also to investigations against Deputy Chief Prosecutors. Moreover, the random selection of ad hoc prosecutor and investigating magistrate, potentially among a wider range of persons, seems aimed at reducing the risks that a Chief Prosecutor influences the selection of persons investigating him or her.

However, it is concerning that despite the Committee’s indication in this regard, no measures are proposed for reducing the Chief Prosecutor’s influence in the new SJC, to be elected in 2022. The Venice Commission concluded that given a strong presence of prosecutors in the Plenary SJC, it is very unlikely that this body would ever authorise a suspension of a Chief Prosecutor[7], which could render the suspension procedure ineffective in practice. Also, the involvement of sufficient number of independent investigators is not guaranteed, as it appears that only one investigating magistrate will assist the ad hoc prosecutor and will not enjoy guarantees vis-à-vis a Chief Prosecutor concerning his or her accountability and career.

Moreover, it is questionable whether in practice the new programme proposals could address adequately the career and accountability risks concerning the ad hoc prosecutor as a permanent solution. If the ad hoc prosecutor remains a prosecutor after the investigation, he or she could fear that the Prosecutorial Chamber of the SJC, dominated by a Chief Prosecutor, will not protect his or her career against the will of the latter. While the possibility to become a judge is a safeguard, certain issues need to be considered: i) a career change may be undesirable for some ad hoc prosecutors selected randomly, which could make them reluctant to vigorously investigate a Chief Prosecutor; ii) if several ad hoc prosecutors are reappointed in higher courts, without competition, this could raise issues of balance and good governance in the judiciary.

Also, some other aspects are not elaborated in detail, such as the appointment procedure (including whether the ad hoc prosecutor will continue to work on other cases, under the authority of higher prosecutors and the Chief Prosecutor, while investigating a Chief Prosecutor) and the kind of judicial or other review available in respect of the decisions of the ad hoc prosecutor.

- Outstanding measures or information

In view of the above, the Committee could urge again the authorities to elaborate and adopt legislative or, in the event that insurmountable constitutional obstacles are established, constitutional amendments, which fully respond to its Interim Resolution CM/ResDH(2019)367 and its subsequent decisions, in particular as concerns the guarantees for the independence of the person directing and supervising the investigation and the investigators and the need to ensure the involvement of sufficient number of investigators.

The Committee could also exhort them to urgently adopt appropriate measures to ensure that the Chief Prosecutor’s influence in the new SJC and its Prosecutorial Chamber, to be elected in 2022, is reduced, to allow introduction of an effective suspension procedure and reduce the chilling effect on persons tasked with the investigation of a Chief Prosecutor. This could be achieved by implementing the relevant Venice Commission’s recommendations on the composition and mandates of the SJC Chambers^[8](by providing that members elected by parliament should not be prosecutors or investigating magistrates; by providing that judges elected by judges represent at least half of the members of the Judicial Chamber of the SJC); other similarly effective measures could also be considered. Failure to take such steps in a timely manner would cast doubts on the effectiveness of any future suspension procedure during the mandate of a new SJC and would delay the execution of this judgment. The Committee could also encourage again the authorities to assess whether procedural or institutional rules need to be amended, including as concerns extension of judicial review, to reduce to some extent a potential Chief Prosecutor’s influence within the magistracy or his or her influence within the PO, to allow the implementation of effective investigation mechanism.

 

Finally, it could invite the authorities to authorities to provide information in response to the questions identified above and those raised in the documents H-Exec(2021)20 and H-Exec(2021)21, and to resume the consideration of the cases from this group, together or separately, at the latest at its June 2022 meeting.

Financing assured: YES