Annexes to COM(2008)63 - Interim Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation and Verification Mechanism

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dossier COM(2008)63 - Interim Report from the Commission to the European Parliament and the Council on Progress in Bulgaria under the Co-operation ...
document COM(2008)63 EN
date February  4, 2008
agreements. In this context it will be important to clarify for which cases the Agency will be competent and to ensure that it can carry out investigations independently and testify in court.

SUPPORT UNDER THE COOPERATION AND VERIFICATION MECHANISM

Substantial support has been made available to Bulgaria in the area of justice and home affairs by both EU programmes such as Phare and the Transition Facility and by Member States.[19] This area remains the main focus of EU post-accession support: More than half of the budget of the EU's Transition Facility for Bulgaria is dedicated to this sector including a special envelope of 6 MEUR for projects directly supporting progress under the CVM benchmarks.

Projects in the area of justice and home affairs cover the entire range of benchmarks. A closer analysis of projects implemented since 2003[20] shows that some areas, such as judicial reform (BM 3) and training and equipment for police and border police (BM 5) received significant amounts of assistance and may have reached a certain level of saturation. Assistance to the fight against high-level corruption (BM 4) and to fight against organised crime (BM 6) is less well supported. In addition, to date there have been no projects on the prevention of local corruption or corruption in vulnerable sectors such as education and health-care (BM 5).

The support provided has had an impact on progress by Bulgaria. Areas of heavy exposure to international cooperation, such as judiciary reform and the borders show better progress in fulfilling the benchmarks than areas which have received less assistance.

Future support should be focused on supporting the fight against corruption and organised crime. It should directly address the priorities and needs identified in the Action Plan which has been drafted by Bulgaria. In general, preference should be given to smaller, well targeted assistance missions that respect the absorption capacity of Bulgarian institutions and allow full ownership of the results. A managed phasing-out of support in saturated areas seems appropriate.

Bulgaria is encouraged to make full use of the substantial EU assistance budget which is still available through the Transition Facility and TAIEX. Larger projects that are scheduled for implementation from 2008 under the Transition facility and which may yield concrete results only in 1 or 2 years time must be complemented by flexible and well-targeted short-term or medium-term projects ("twinning light").

The Commission would advise Member States to consider more direct and practical support to Bulgaria in the form of e.g. cross-border investigation teams, support in witness protection programmes, the sharing of financial intelligence and methodologies, the secondment of technical experts to bodies fighting organised crime and corruption and the creation of institutional partnerships in this area. Exchange programmes and scholarships with institutions such as the new National Security Agency, the Supreme Judicial Council and its inspectorate or the investigation and prosecution services dealing with high-level corruption and organised crime could be further priorities.

CONCLUSION

In its first year of EU membership Bulgaria has continued to make efforts to remedy weaknesses that would otherwise prevent an effective application of EU laws, policies and programmes. However, in key areas such as the fight against high-level corruption and organised crime, convincing results have not yet been demonstrated.

The technical update which is provided in this report does not constitute an in depth assessment of progress under the benchmarks but the situation on the ground gives rise to concerns which need to be addressed before the Commission carries out a full assessment in June. Whereas Bulgaria's efforts in judicial reform (benchmarks 1-3) and fighting corruption on its borders continue to show progress, actions to fight corruption within local government and vulnerable sectors such as healthcare and education (benchmark 5) should be strengthened. Bulgaria should in particular step up efforts to fight high-level corruption (benchmark 4) and organised crime (benchmark 6).

The Commission recognises the important effort made to produce a credible Action Plan. However, the Action Plan needs coherence in some parts, and needs to fill some gaps. Some activities need to be more fully explained, deadlines should be set and institutions responsible for carrying out the various actions need to be clearly identified.[21] The Commission proposes that the Action Plan should be corrected on these points.

ANNEX

Overview of EU Assistance provided to Bulgaria in the area of Judicial Reform and the Fight against Corruption and Organised Crime [22]

Benchmarks 1 and 2: Independence and Accountability of the Judicial System; Transparency and Efficiency of the Judicial Process

Projects focusing on the revision and implementation of the Bulgarian judicial procedure codes and projects strengthening key institutions in the judicial system such as the Senior Judicial Council and the Prosecution Office have been implemented. The application of procedural legislation will continue to be supported through the Transition Facility.

Phare 2004-2006:

- Strengthening the Bulgarian Judiciary – Implementation of the new penal procedures code; strengthening the interagency cooperation between public prosecutor’s office (PPO) and other concerning bodies in fighting organised crime and corruption (Oct 2006-Apr 2008: 878.600 EUR)

- Strengthening the Supreme Judicial Council and improvement of magistrates' status (until Jul 2007: 1,2 MEUR)

- Remedy the Civil and Penal Procedures (ended early 2007: 1.2 MEUR)

Transition Facility 2007:

- Strengthening the uniform application of the new procedural legislation in Bulgaria (1,6 MEUR)

Main Bilateral Projects:

Consultations to national legislation and further training in criminal law, harmonization of European Law and various topics, e.g. legal aid (2007: 88.000 EUR) |

- Main Projects with a total budget of at least 4.8 MEUR

Benchmark 3: Judicial Reform

An important budget for investment into IT technology and for training and strategic advice on structural reform of the judiciary was made available. Substantial support has been given to the establishment of a witness protection system. Future projects continue training activities and strengthen court management. Bilateral projects focused on various aspects of judicial reform including training and capacity building.

Phare 2004-2006:

- Training of magistrates and administrative staff (1,2 MEUR)

- Judicial Cooperation in Penal and Civil Matters (until 09/2007; 1 MEUR)

- Support for the Establishment and Strengthening of a Witness Protection System (6.2 MEUR)

- Several Projects investing into Information Technology for the Judiciary and providing Technical Assistance (total approx. budget 43 MEUR)

Transition Facility 2007:

- Strengthening the public management of the judiciary and court administration (1,8 Mio EUR)

- Further steps towards a higher quality of training in the judiciary (780.000 EUR)

European Social Fund: Operational Plan 2007-2013 (Administrative Capacity):

The ESF will fund several projects on the improvement of professionalism, transparency and accountability of the Bulgarian judicial system for a total budget of 12 MEUR. Project objectives include monitoring of the Administrative Procedure Code; development of IT systems; development and capacity building of the administrative court system; development of the Unified Information System.

Bilateral Projects:

Consultation to national legislation and further training in administration of justice, administrative law and various topics: quality management workshops for judges and prosecutors (until Dec 2007: 38.000 EUR) |

Establishing European Union Law Documentation Centre for the Judiciary(Apr 2006-Mar 2008: 350.000 EUR) Strengthening the capacity of the Ombudsman of BG and the local public mediators to protect human rights, counteract corruption and promote good governance (Jan 2007-Dec2008: 350.000 EUR) Strengthening of institutional capacity of SIRENE bureau (in preparation: 325.000 EUR) Rendering of advice on strategic issues relating to the conceptual framework of the reforms of the structure of the Prosecutor’s Office of the Republic of Bulgaria (Jan-Sept 2007: 74.500 EUR) |

Continued Development of Judiciary Training Capacities (Mar-Nov 2007: 35.000 EUR) |

Better Legal Training for magistracy (Apr 2006-2008: 101,000 EUR) Prosecution Office Reform (Jun 2006-2008: 80,700 EUR) |

- Main Projects with a total budget of at least 65.4 MEUR

Benchmark 4: High-Level Corruption

Several successive EU projects on capacity building for the fight against corruption have been implemented since 2004. This support will continue through both Phare and the Transition Facility. A number of bilateral advisers are active in this area and individual missions and training courses have been carried out through bilateral funds.

Phare 2004-2006:

- Strengthening the Capacity of the Anti-Corruption Commission to Counteract Corruption in Public Administration and Judiciary and the relevant law enforcement bodies - Technical Assistance (several projects since 2004, total budget: 7.2 Mio EUR)

Transition Facility 2007:

- Civil Society Development in the area of anti-corruption fighting (1,15 Mio EUR)

- Elaboration and strengthening of the Human Resources Management System in the Ministry of Interior as a factor in the fight against corruption among its personnel (1,5 Mio EUR)

Main Projects with a total budget of at least 9.85 MEUR

Benchmark 5: Local Corruption / Corruption at Borders

The EU has heavily invested in Border Control and in improving the effectiveness of Bulgarian police since 2003. A number of bilateral projects have also reinforced institutional capacity in this area. However, no larger projects directly addressing prevention aspects of local corruption and corruption in vulnerable sectors such as education and have been implemented.

Phare 2003-2006:

- 11 large projects modernising Border Police equipment, implementing EU best-practice in border control and improving the operative capacity of border police have been implemented since 2003/2004. (total budget: approx. 90 MEUR)

- Several projects address the general modernisation of Bulgarian Police and the improvement of its efficiency (total budget: approx. 25 MEUR)

Bilateral Projects (examples):

Enhancing Anti-Corruption Practices within the Bulgarian Law Enforcement Agencies (Nov 2006 -Feb 2007) Border Justice (Aug 2006-Mar 2007: 125,000 EUR) |

- Main Projects with a total budget of at least 115 MEUR

Benchmark 6: Organised Crime

As yet, assistance for capacity-building of the key institutions responsible for the fight against organised crime has been relatively limited, except for important investment into Police. For the future an important budget for training and capacity development in this area has been foreseen. Bilateral projects focussed on a number of specific areas such as drugs trafficking, human trafficking or money laundering.

Phare 2004-2006:

- Modernising Bulgarian Police and Enhancing its efficiency (several projects since 2004, total budget: 16.46 MEUR)

- Further strengthening police investigation capacity (crime statistics, undercover operations and investigative techniques and forensics) (900,000 EUR)

- Improving of the Co-operation between the Financial Intelligence Agency and the Obligated Entities Enlisted by the Law on Measures against Money Laundering (150,000 EUR)

- Further Strengthening the Administrative Capacity of the Public Prosecutor’s Office for fighting money laundering, organized crime and corruption on the high levels with an accent on confiscation of property acquired by crime (155,000 EUR)

- Improvement of Forensic Capacity for the Inspection of Crime Scenes (Phare 2006: 1.6 MEUR)

Transition Facility 2007:

- Enhancement of the administrative capacity of the Police in counteraction to drug crimes at national and regional level (600.000 EUR)

- Enhancement of the Ministry of Interior's capacity to fight organised crime (1 Mio EUR)

- Enhancement of the capacity of the Bulgarian police through the introduction of EU models and methods for crime analysis (580.000 EUR)

- Further strengthening the administrative capacity of the Financial Supervision Commission (money-laundering) (450.000 EUR)

- Improving and extending the level of training in the field of countering organized crime for Bulgarian MoI (620.000 EUR)

- Further strengthening forensic capacity of the expert services of Ministry of Interior for collection and examination of material traces for crime scenes (525.000 EUR)

Bilateral Projects:

Illegal Migration (Nov 2007-Jun 2008: 24.000 EUR) |

“Development of a child-rights methodology to identify and support child victims of traffic” (Dec 2005-2007: 214.908 EUR) |

Raising the effectiveness of the Financial Intelligence Agency in monitoring of anti-money laundering and anti-terrorist financing compliance in entities of the non-financial sector (Jun-Nov 2007: 51.000 EUR) |

Explosives, Firearms, Ammunitions (Feb-Aug 2007: 39.500 EUR) Fight against money laundering Police cooperation programmes on (1)crime management (2) trafficking in human beings and illegal migration, (3) police and ethics |

Combating Money Laundering (Nov 2006-Jun 2007: 35,140 EUR) Murder Investigation – Building Capacity (Jul06-Mar 2007: 24,770 EUR) Identity Document Fraud Unit (Apr 2006-2007: 282,000 EUR) Improving anti-drugs intelligence capacity of BG Customs Agency (Nov 2006-Dec 2007: 105,000 EUR) |

- Main Projects with a total budget of at least 22.96 MEUR

[1] Commission Decision 2006/929/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight against corruption and organized crime (OJ L 354, 14.12.2006, p. 56).

[2] The Commission reported for the first time on 27 June 2007COM(2007)377 final

[3] The plan is available at the following site : http://www.mvr.bg/en/EUIntegration/plan_BM_1_6_21_10_07_final.htm

[4] The reports on Penal Procedure Code (PPC) are published on the websites of both Ministry of Justice and the Prosecution Office, whereas the reports on the Administrative Procedure Code (APC) are accessible on the websites of the Ministry of Justice and the Supreme Administrative Court.

[5] Action Plan, point 2.10

[6] As a matter of fact, a piece of information not retrieved in the course of criminal proceedings by the authorised Bulgarian authorities cannot be legally considered as evidence. There are also no means to safeguard data which have not been considered as evidence. Such a restrictive approach to evidence presentable in court makes the pre-trial phase more difficult and decreases the efficiency in providing justice.

[7] In the view of various institutions such as the general prosecutor's office and the Supreme Judicial Council, as well as independent experts, Bulgaria needs to modernise its Penal Code and revise the Penal Procedures Code.

[8] Amendment to art. 194 of the Penal Procedure Code

[9] On 13 December 2007, the SJC released from their duties one prosecutor and one investigator for corruption. In both cases, the SJC adopted a rigorous interpretation of the case and rejected possible procedural healings such as the expiry of legal prescription and immunity guaranteed to magistrates before amendments to the Constitution.

[10] For the period July-November 2007 the inspectorates at the central administration have carried out a total of 784 checks, 373 of which planned and 411 ad-hoc. The inspectorate of the Customs Agency has conducted most of the ad-hoc checks – 90 . A total of 214 corruption signals have been received by the inspectorates. 73 disciplinary proceedings have been initiated against administrative officials. 54 officials have been dismissed. 5 officials have been temporarily suspended. Files on 30 officials have been submitted to the Prosecutor’s Office. 3 officials have been convicted for corruption with a sentence entered into force.

[11] Action Plan benchmark 4, point 1.2.

[12] By the end of December 2007 five border check points (out of 11) were due to be operating under the “single electronic fiche” principle

[13] According to the data provided by the Ministry of Interior, the Customs Agency was carrying out checks on 86 customs officers resulting from the planned checks in the period July- November 2007. Moreover, 12 disciplinary proceedings following signals were conducted in the same time and 15 disciplinary sanctions were imposed. In the same time the Border Police exercised 24 checks resulting in 10 dismissals, 8 reappointment to other activities, 3 discharges. Disciplinary proceedings were accomplished against further 5 officials who would be dismissed.

[14] On 28 October and 4 November local elections were held in Bulgaria. The authorities received 179 signals on alleged vote buying. The Prosecution launched 13 investigations on 22 November. The biggest number of investigations was launched in Pernik, Varna, Stara Zagora, Berkovitsa.

[15] In the absence of qualitative analysis on the judicial follow-up to organised crime cases, the Commission communicated to Bulgaria as an exemplary sample for discussion, a list of well-known cases registered between 2000 and 2007. The state of play received by Bulgaria on the 10 cases registered until 2006 shows that indictments were forwarded and court proceedings were ongoing in 3 cases, in one case an agreement between prosecutor and defendant had been proposed and is currently under review by the Supreme Cassation Court, in one case an agreement between prosecutor and defendant has legally entered into force, in all other 5 cases, including one registered in 2002 and one registered in 2003, investigations were still ongoing.

[16] Law on State Agency "National Security", Official Journal of Bulgaria N° 109 of 20/12/07.

[17] Service under the Ministry of the Interior for special- and covert investigations

[18] The incorporation of the Financial Intelligence Agency into the new National Security Agency may influence the situation of the Bulgarian FIA within the network of European FIU's (Egmont group) and need to be coordinated with the respective bodies.

[19] Phare alone has made available over 182 MEUR for justice and home affairs in Bulgaria since 2004. The Transition Facility will be implemented until 2010. In the framework of the structural funds, specific attention and support is given for setting-up of a sound and transparent financial management of the EU funds which is a process linked to the fight against corruption. Technical assistance will be provided for project monitoring, evaluation and control, as well as for developing of an effective Single Management Information System able to provide also transparent information on fund interventions and absorptions. During the compliance assessment exercise EC auditors will look on systems set up in Bulgaria, including the readiness to fight fraud and corruption. TAIEX organized a substantial number of activities in the area of justice and home affairs in Bulgaria and still keeps budget available for activities in the future.

[20] In order to identify possible assistance gaps and to ensure that a full range of support is available, relevant EU and bilateral assistance provided to Bulgaria since 2003 is summarized in a list attached to this report. The list has been established on the basis of information available within the Commission and on the basis of information communicated by Member States. Not all data on individual projects could be listed and aggregated data has been given preference to allow better readability. However, the full available set of information has been shared with Bulgaria and the suggestions in this chapter have been discussed with the Bulgarian authorities.

[21] Proposed actions under judiciary reform (benchmark 3) and in particular under the legal framework for the judiciary (benchmarks 1 and 2) are detailed and credible. The Action Plan for benchmarks 4, 5 and 6, by contrast, is lacking precise targets and meaningful performance indicators. The measures proposed (such as awareness-raising campaigns etc.) do not reflect the level of commitment necessary to tackle the issues concerned. They also fail to set out the necessary underlying operational framework. For example, measure 1.4 under benchmark 5 mentions annual inquiries at key border posts with passengers and truck drivers on the behaviour regarding corruption of border post officials. To monitor progress more precisely such enquiries could be conducted every month or every three months at the most vulnerable border posts. They could be conducted together with an independent organisation. The enquiries could also be linked to an operational action plan regarding these border posts by setting up a detailed agenda for controls, inspections, training etc. Such an operational action plan could then be based on qualitative data that allows for an analytical risk assessment. The continuous update of the Action Plan should be rigorously monitored by a strong central operational coordination mechanism.

[22] PHARE: Budgetary figures include Bulgarian national co-financing.

Bilateral Projects: Only larger bilateral projects are taken up in this list. In addition, various assistance missions, study visits and smaller activities have taken place.