Police Brutality: Between Collegial Solidarity and Public Interest

| Obektiv,

On February 15, the BHC, in partnership with other human rights organizations, held a round table entitled “Police Brutality in Bulgaria: Stop Now!” (details about the event and about the data presented there can be found on the BHC’s special website: “Police Brutality: Stop Now!” at the
address
http://policebrutality.bghelsinki.org/
).

The event centered around a detailed analysis of 27 decisions by the European Court of Human Rights (ECHR) in recent years on cases involving Bulgarian police brutality. They have cost our society ten lives – those murdered due to the use of excessive force by police – as well as many other people permanently disabled or seriously injured due to police brutality, and nearly a million Bulgarian leva (half a million euros) in damages awarded to victims who have won cases in Strasbourg.

Significantly, all the attendees at the round table – which included lawyers, judges, prosecutors, high-ranking officials from the Bulgarian Ministry of the Interior, the ombudsman Konstantin Penchev, human rights activists and journalists – were in full agreement that the police’s arbitrary use of violence must be stopped. No one dared dispute the conclusion repeatedly reached by the ECHR that Art. 74 of the Ministry of the Interior Act, which regulates the use of weapons by the police, is highly flawed, as it allows for the use of weapons against individuals who have not committed serious crimes, who do not threaten the life or security of those around them, but who simply “appear” suspicious to the police – and who end up paying for this “appearance” with their lives. All attendees agreed that urgent measures must be taken.

However, this immediately raised questions: What exactly should be done? What should be done by which institution? In which order should changes be made? With the aim of discussing precisely the most crucial of these practical future steps, on February 21 of this year, Obektiv magazine brought together representatives from relevant institutions and human rights NGOs for a conversation. Participants in the discussion included Emilia Nedeva, a lawyer from the well-known Plovdiv-based Association for European Integration and Human Rights; Veselin Vuchkov, the deputy minister of the interior; Evgeniy Trifonov, a prosecutor from the Chief Prosecutor’s Office; and Dr. Krassimir Kanev, chairman of the BHC. The Ministry of Justice was also invited to the discussion and its representative initially confirmed participation; however, shortly before the meeting she announced that she would not be attending, without offering an explanation. 

I believe, as you will see below, that if we were to briefly evaluate the conversation, two things stand out as the most important. The first is Mr. Vuchkov’s declaration that the Ministry of the Interior (MI) is prepared within a short time, in the framework of a three-month period, to organize a broad discussion of the unfortunate Art. 74 from the Ministry of the Interior Act with the aim of proposing amendments to the law as demanded by the ECHR. Second, the discussion underscored the crucial question of how cases of police brutality should be investigated. As the ECHR has noted numerous times, it is well-known that in Bulgaria such investigations are ineffective; the fact that in all 27 cases examined by the Court, not a single police officer has been convicted is proof of the failure of such investigations. The reason for this is clear: we cannot count on an objective investigation of police violence when the investigation is being carried out by colleagues of the suspect under investigation. This is a problem not only in Bulgaria. As can be seen from Krassimir Kanev’s comment at the meeting, a number of European countries and the United States have found a way out of this vicious circle of “collegial solidarity” in investigations into the arbitrary use of weapons by police. There, representatives of civil society are allowed to take part in the investigations, fulfilling a supervisory function; their participation as an independent party guarantees that the chances of such collegial and professional solidarity affecting the investigation are minimal. This experience should be introduced to Bulgaria, despite the fact that it is difficult for representatives of the MI and the Prosecutor’s Office to imagine how this could take place given Bulgaria’s constitutional system and penal process. This should not come as a surprise – radical proposals are always met with bewilderment by those used to the status quo, but sooner or later such novelties prevail.

 

OBEKTIV: A few days ago at the BHC round table, along with two other human rights organizations, you made public the results of your study on police violence in Bulgaria, which was based on an analysis of 27 cases in which the ECHR found violations [1]. The diagnosis: Bulgaria suffers from police brutality. The most important aspect of this diagnosis is the claim that Art. 74 of the Ministry of the Interior Act, that which defines the situations and circumstances in which the police have the right to use weapons, is highly flawed and does not conform to the standards of the European Convention on Human Rights.

Now that the diagnosis has been made, the key question is what can and must be done in order to stop people who have committed minor offenses from being killed by police bullets, to put an end to deaths while in police custody, and to stop violence by guards in prisons. What must government institutions and civil society do to overcome the problem of police brutality in Bulgaria as soon as possible?

EMILIA NEDEVA: I am concerned, because in the absence of a body in Bulgaria which is responsible for the implementation of ECHR decisions as a whole, this activity is carried out by the relevant institution in this sphere – the Ministry of Justice. There is no other body that has a full picture of all the convictions, the ongoing cases and the legislative steps that must be taken in order to solve the problem of police violence. Until now, general information about these 27 cases had to come through the Ministry of Justice and measures had to be decided upon there. The Ministry of the Interior should also have a general conception. The Strasbourg Court has identified discrepancies between the old Ministry of the Interior Act and the requirements and standards of the European Conventions on Human Rights, thus the initiative should have come from there.

I would like to thank the BHC, which has provided quite good comparative materials based on studies of international standards and of discrepancies between such standards and Bulgaria’s internal legislation. It seems to me that with the help of human rights organizations, there should be no obstacle to provoking a discussion on this in Parliament. The Committee for Legal Issues is ready for this. Every piece of draft legislation that conforms to these requirements could be examined and sent to every MP or parliamentary committee.

The most important thing is to change the Ministry of the Interior Act first

The various kinds of auxiliary means used by the police must be limited – this is not a new idea, since the auxiliary means listed as equivalent in Art. 73 of the Ministry of the Interior Act cannot be subsumed into a single general regime. When Art. 72, Art. 73 and especially Art. 74, which regulates the use of weapons by police, are made to conform to the Convention, the MI must write instructions (which it has not yet written) regarding its police bodies, which differ from those now existing for the State Agency for National Security and the Military Police. This has been an ongoing problem for years. The MI does not have internal regulations indicating how auxiliary means and the use of force must be applied [2].

OBEKTIV: Perhaps the initiative should come from the Prosecutor’s Office; it does not, in fact, possess the legislative grounds required for such an initiative, but here we are not talking about some huge change to the codex, but rather the specific editing of only two or three articles in the existing law.

VESELIN VUCHKOV: I have certain reservations about using sub-legal normative acts to settle such matters. When it is a question of a circle of public interrelations, including the use of force and auxiliary means by the police, in my opinion the necessary normative regulation must be on the level of a law. It must pass through the trajectory of a legislative initiative, undergo a thorough discussion by all interested parties – state bodies, the non-governmental sector and institutions, parliamentary committees – as well as public debates in Parliament and promulgation in the State Gazette.

At the end of 2009, Bulgaria and the Ministry of the Interior were visited by Mr. Holovaty, the rapporteur for Bulgaria in the observations the Council of Europe carried out following accession, i.e. the so-called post-monitoring. At that time he visited a series of institutions and non-governmental organizations. At his meeting at the MI (he was quite prepared, it was obviously not his first time following up on such a process), one of the most aggressively posed questions related to Art. 74 of the new Ministry of the Interior Act. This caused us to consider the issue quite seriously. There were colleagues from the Protective Services Police, there were also professors of penal law. We had a very interesting discussion. The representatives of the Protective Services Police and law professors tried to convince him that such police authority must be restricted by regulations within the Criminal Codex – in articles relating to cases of inevitable self-defense and apprehension of a criminal. They also mentioned in his presence that the most important question is not which norms exist in the Ministry of the Interior Act. Examples were given from specific penal proceedings conducted by the prosecutor’s office (formerly the Military Prosecutor, now the Civil Prosecutor, which investigates MI employees). When they investigate circumstances to determine whether a crime has been committed by the police or not, in the end they look to the Criminal Codex. I do not know whether our arguments sounded convincing to him, but in the report which the Parliamentary Assembly of the Council of Europe (PACE) adopted on April 20 of last year, precisely this criticism, including the question of Art. 74 of the Ministry of the Interior Act, was absent.

I was surprised by this perhaps justified criticism, since there have been 27 cases brought against Bulgaria. I, along with Mr. Boyko Slavchev [3] and the then-deputy minister of the criminal police (now a lawyer), began thinking about what we could do. We decided to hold a department-internal discussion, primarily with the unions, to examine Art. 74 and to consider whether we should amend it or abolish it. We did not discuss a specific text, but this cannot be a problem for the carrying out of police activities.  

Perhaps we have neglected this question for more than a year now

First, we could hold a discussion within the MI, then after that a public discussion including the non-governmental sector. The union organizations within the MI, especially the union of state employees, is exceptionally reserved with respect to any restrictions whatsoever on police authority. The first protests we faced included the demand for a certain physical parameter to be obligatorily defined around every police employee, which cannot be violated. In cases of violation, serious criminal charges would ensue. This, however, was not included in the new Ministry of the Interior Act. We also spoke with Mr. Boyko Slavchev. As a ministry, we can initiate such a public discussion with the participation of the Protective Services Police, the Criminal Police, lawyers, political leadership from the relevant levels and the non-governmental sector.

What aspects of Art. 74 of the new Ministry of the Interior Act from 2006 must be corrected, since it disproportionally allows for the use of weapons? I don’t see any danger in reinterpreting that wording. However, I am not completely sure that the problem is in the legal wording alone.

OBEKTIV: It is not in the wording alone, but that’s where we have to start. The claim that Art. 74 is flawed is not a claim made by non-governmental organizations, but by the ECHR. Concerns about how the unions might react should not be a leading factor.

EMILIA NEDEVA: In my opinion we can’t use as our starting point the fact that the Criminal Code (CC) prescribes certain standards, since Art. 12 on unavoidable self-defense applies to absolutely everyone – police and citizens alike. The standard used in a case of unavoidable self-defense involving an ordinary citizen cannot be treated as on part with the executable and stipulated behavior of a police officer, who is armed and who has been entrusted by the law and the specifics of his profession to engage in a certain activity related to counteracting criminal behavior. The police officer must be prepared to react in such a situation. For this reason I do not consider the unions’ concerns all that serious. It is not particularly dangerous for the law not to include a prescribed parameter. It would be good to introduce a parameter around a police officer inside which he could not be approached, but best of all would be for the behavior of the police officer and the citizen stopped for verification to be strictly described, as it is the US – you have to hold your hands so that they are visible to the police, you cannot exit your vehicle unless instructed to do so and so on. If the behavior of the citizen is stipulated, then the behavior of the police officer must also be stipulated. His behavior cannot be examined within the framework of general standards for unavoidable self-defense.

To say nothing of the prosecutor’s behavior – to terminate legal proceedings against police officers not only on the basis of unavoidable self-defense, but also based on the use of citizen’s arrest according to Art. 12a, which is not applicable at all to employees of law-enforcement bodies. The application of Art. 12a from the Criminal Code (CC) in such cases harms the interests of victims of police violence, because that text is intended to vindicate the behavior of citizens in apprehending a criminal, and not the behavior of a police officer.

EVGENIY TRIFONOV: We must examine practices not only in Bulgaria, but in other European countries as well, where similar norms have been introduced. We must see how they react there in analogous cases and how the court has responded.

I also do not agree that we should mechanically transfer the norms from penal law onto the norms for Art. 74, because the Ministry of the Interior Act is a special law, with a much narrower scope. An analysis must be made to see how these norms can be changed in such a way as to avoid ending up with even greater imperfections.
Otherwise, on the question of Art. 12 and Art. 12a – that must be decided on a case-by-case basis.

OBEKTIV: The BHC has conducted a very detailed analysis of those 27 convictions by the ECHR involving excessive use of force by the police. There is one important thing we should keep in mind: all of the arguments in this analysis are nothing more than a synthesis of the findings made by the ECHR in its decisions against Bulgaria, numerous times at that. In essence, we have not added anything of our own to it.

KRASSMIR KANEV: The Bulgarian Ministry of the Interior Act allows for the use of firearms for the apprehension of individuals and for preventing the escape of individuals, even if they have committed a completely minor offense and do not pose a danger to anyone. Such situations are intolerable not only from the point of view of the Convention standards, but also from the point of view of how such norms are formulated in other countries. Firearms should be used in the apprehension of an individual suspected of having committed a serious crime. But this is not sufficient, since, for example, financial crimes can be serious, yet they are not violent, right? Furthermore, the individual’s behavior must pose a threat to others around him.

In the case Karandja v. Bulgaria, in which a police officer shot a twenty-year-old young man in the head as he ran away from a police station where he was being held for nothing but the theft of stockings, last year the ECHR said: The legislation on the use of firearms must allow for situations in which the use of firearms is forbidden, “even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost”. Similar is also the law in the United States, where the possible use of firearms is less restricted than in European countries. There, the situations in which a police officer may not use a firearm are explicitly stated, even if there is a risk of the individual escaping. In my opinion, this is the sense in which items 3 and 4 of Art. 74, para. 1 of the Ministry of the Interior Act must be reformulated – for example, weapons can be used a last resort after warnings have been issued in the apprehension of an individual who has committed a serious crime, if he resists or attempts to escape and poses a threat to others. The reformulation of the wording of Art. 74, however, is not enough. ECHR practice has pointed other necessary legislative reforms out to us as well, especially in cases from the past year. In the case of Seizova v. Bulgaria, the court says that in addition to a change in the regulations in Art. 74, there must also be procedural guarantees in the court’s penal proceedings which would

guarantee the victim’s right to participate effectively

in the proceedings. In the Seizova case, Bulgaria was convicted only because the old Criminal Procedure Code does not allow for the victim’s adequate participation from the very beginning of the penal process, nor does it provide for access to case materials, the possibility for participation in the investigation, or the opportunity to appeal the relevant acts. Here, too, some legislative reform is necessary.

If we look at the practices of other European countries, we must go even further. Take English practices, for example. There, in cases of the use of force or firearms by law enforcement bodies, the investigation is carried out with the participation of representatives of civil society. Legal bodies have been established which are made up of representatives of civil society who observe the development of the investigation, since in such cases the police are investigating the police, hence there is always a risk that the investigation will not be carried out properly, precisely because the police are investigating themselves. With the introduction of these representatives, the possibility for bias in the investigation is avoided, while the victim’s interests, as well as the interests of society at large, are protected.

Last but not least is the need to guarantee broad preventative action against the use of force and firearms. In September of last year, Bulgaria signed the UN Convention against Torture, which foresees the founding of a national preventative mechanism – a body which can enter any place where people are being held or deprived of freedom at any time so as to carry out checks and to write instructions. This “National Prevention Mechanism,” as it is called in the Optional Protocol to this Convention, is an effective means of preventing the use of force and other abuses that could be committed. I believe that we must undertake a complete legislative reform to solve this very serious problem.

The European Court for Human Right’s 27 decisions against Bulgaria are currently under supervision by the Committee of Ministers of the Council of Europe. Supervision has not been terminated in a single one of those cases, because the committee believes that the measures prescribed in the decisions, which our country is obliged to implement, have not been carried out. There are some decisions that have been under supervision since the year 2000. This will continue to be the case until we undertake a more comprehensive legislative reform and until the Committee of Ministers is convinced that such a reform will have an effect.

OBEKTIV: These 27 convictions have identified not so many cases of excessive use of force (for example, shooting someone as they run away), but rather concern degrading and inhuman conditions, torture and so on. As far as the decisions that are under supervision are concerned, we recently looked over the list. There are dozens of decisions involving violations of Art. 3 [4] of the Convention.

KRASSMIR KANEV: There are also decisions concerning inhuman conditions in detention facilities.

EMILIA NEDEVA: All of that falls under the norms of Art. 3, however.

KRASSMIR KANEV: If after the use of a weapon someone is injured or killed, the victim or one of his relatives must be able to participate in the case in an effective way, right from the very beginning. If this is not possible, the ECHR will find a violation on those grounds alone.

EVGENIY TRIFONOV: I wonder why they don’t address us as a country and ask us for our position. There are cases being heard against Bulgaria, we have monitored the pre-trial proceedings, but no one asks us what happened. But we could tell them that many things are not quite as they seem.

EMILIA NEDEVA: The Ministry of Justice represents the country and should ask you before presenting a position on a specific case.

EVGENIY TRIFONOV: That doesn’t happen. We have information indicating that the defense itself is to a certain extent inadequate.

EMILIA NEDEVA: I don’t agree that the law must include these details which are characteristic of a sub-legal normative act. The law delegates the right and responsibility of issuing the Use of Auxiliary Means Act to the minister of the interior. Why should this legislative delegation be carried out? For example, bans on drawing a gun in front of children or in the presence of clearly helpless or visibly non-dangerous individuals (such as women, minors and so on) cannot be described in detail in these three articles of the law. For this reason, I feel that first

we must focus on changing the three articles in the law,

and after that a sub-legal normative act containing the precise instructions should be created.

OBEKTIV: The BHC’s analysis summarized what has been said by the ECHR. And it says that in a series of cases, the prosecutor’s office has carried out a formal investigation into cases of the use of weapons which ended in death or serious injury. Regarding the MI, the Court holds that in a series of cases the inadequacy of the organization of police operations has been confirmed, that the police are insufficiently trained as to how to behave in dangerous situations, that specific circumstances are not taken into account during planning, and that often far more force than necessary is mobilized, which leads to the excessive use of force and so on.

What does the Prosecutor’s Office think with regards to the ECHR’s finding that those who accuse the police are treated with condescension and that their approach is merely formalistic – they only investigate whether there is a direct, formal discrepancy with Art. 74 in their investigations of cases of police brutality. It is then established that the police officer acted in accordance with this article and with that, everything comes to an end. In your opinion, what should the state do to overcome these cases of condescension and formalism?

EVGENIY TRIFONOV: I do not agree with such findings and with such broad generalizations. You know that there is already a legal avenue for appealing such acts by the prosecutor’s office. The courts are the corrective. There are three instances. But every case is considered on its own merits. There may be oversights, but I do not think the policy as a whole can be described as such. In smaller towns, everyone knows one another, and very often the police officer and the prosecutor work together in the same office. It is possible that there may be subjective “detours,” but I think this is the exception, not the rule – we are hardly the police’s defense lawyers. If, however, there are certain activities of this nature, they came about after the transfer of jurisdiction over police crimes from the Military Prosecutor to the General Prosecutor. When crimes committed by employees of the MI were investigated by the Military Prosecutor, where such investigations were obligatorily carried out by investigating magistrates (who were better prepared and had more experience), the success rate was much higher.

OBEKTIV: So as I understand it, you would like to go back to the old system.

EVGENIY TRIFONOV: Yes. Most colleagues from the MI with whom I have spoken agree with me on this. 

VESELIN VUCHKOV: Those of us from the General Prosecutor’s office would not agree to allow the Military Prosecutor to begin investigating acts committee by state employees of the MI again.

Dr. Petar Raimundov from the Supreme Court of Cassation (SCC) has made some extremely interesting proposals. I have familiarized myself with them with a view to guaranteeing greater objectivity and effectiveness in investigating cases of police violence. As early as the second case against Bulgaria in 1998, Asenov v. Bulgaria, it was established that the MI’s internal system of supervision was not effective.

It would be difficult to reestablish military jurisdiction over crimes

committed by police. The demilitarization that set in with the new Ministry of the Interior Act, which has been in effect since May 1, 2006, is a good thing. There’s no more military ranks, no more militarism, no more generals and officers, even though the inertia of the earlier way of thinking still persists. The military courts and the Military Prosecutor would have nothing against restoring that aspect of their jurisdiction, but I personally do not think it would be advisable.

It is illogical to think that an investigator from the MI, who is himself a police officer, could objectively investigate his own colleague. During the period 1994-1997, such an experiment was conducted, but it was exceptionally unsuccessful. For this reason, in the current normative framework of the Criminal Procedure Code (CPC), another tendency has been established – for example, an investigation of a police employee is carried out by investigating magistrates from the investigative units of the corresponding prosecutor’s office, or if necessary the investigation is even carried out at a higher level. The current organization of the judiciary branch, of the state prosecution and of the CPC freely allows this.

In this respect, I would not agree with this point proposed by Mr. Raimundov, but all the other measures he has suggested and with which I am currently familiar sound perfectly reasonable to me. 

As for complaints about police brutality – he suggests they be directed to a higher level, for example, the regional directorate or one of the inspectorates of the MI should be designated as the ones who receive and investigate such complaints. This deserves some further thought. This is a sensitive topic and supervisory checks must be immediately instigated. Such organization-internal measures do not require changes to the law. This can be done by issuing a department-internal act and by organizing the MI.

OBEKTIV: I will give you a concrete example. In its decision on the Karandja case, the Court said: “The first thing to be noted in the present case is that the investigation limited itself to assessing the lawfulness of Chief Sergeant G.P.’s conduct in the light of… the 1993 National Police Act” – that is, whether there was a formal violation of Art. 74 and with that, the investigation ends. This has also been found in a series of other decisions by the ECHR, which does not consider this a good practice.

KRASSMIR KANEV: Here it is a matter of demanding a wholly objective and effective investigation (according to Art. 2 and Art. 3 of the Convention). The state must guarantee wholly objective and effective investigation in such cases. Based on such grounds alone, if the state has not done so, it is guilty of a violation of Art. 2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Here the question arises:

Who is investigating whom? And what interest do they have in investigating?

In many criminal investigations, the prosecutor’s office and the police work as partners. The cases of police brutality that come to the prosecutor’s attention are few and far between. The prosecutor faces the challenge of ending this partnership between prosecutor and police. On a local and central level, the prosecutor must rely on the police’s preliminary investigation on the one hand, while on the other hand, the prosecutor must investigate the police. To solve such situations, a legislative and institutional solution in necessary which does not follow the general order of legal proceedings. As early as 15 years ago, Amnesty International said that a solution must be found in which institutions external to both the police and the prosecutor participate as well. For this reason, in England and several other countries such institutions have been created.

VESELIN VUCHKOV: What kind of investigations are you talking about – administrative, disciplinary or criminal?

KRASSMIR KANEV: No one has said anything about disciplinary investigations. The European Convention on Human Rights says that investigations must be independent, objective and effective. They must be conducted by an external, independent body at the very least. So as to guarantee independence and to escape from this model of partnership, there must be a nontraditional legislative solution, which goes beyond the framework of the process. That’s how it is in England, that’s how it is in Belgium. Such a body, which can make recommendations about which investigative actions should be carried out, includes representatives of civil society, non-governmental organizations, university instructors and medical personnel.

EVGENIY TRIFONOV: The cases you are cited used to be investigated by military investigators according to the system laid out in the CPC – first the military’s investigating magistrate, then the military prosecutor would express and opinion, and after that – the military court. The fact that less punishment is meted out is another question.

EMILIA NEDEVA: And the same condescension was demonstrated by the military court, too. I can give you examples. The basic question is why the European Court establishes different facts from those accepted by our courts. Because condescension here in Bulgaria leads to the distortion both of the facts and of the law.

VESELIN VUCHKOV: Let us situate things in our constitutionally established system of jurisdiction and consider whether it is possible for [such a solution] to be realized in some way. We must find a concrete way out of this situation –

to engage external, non-traditional institutions,

which could carry out specific investigative activities

and make specific demands. I can’t imagine how that could happen within the constitutional framework now in force and under the current Criminal Procedure Code. We don’t have much choice. The investigation would be led by the prosecutor, opportunities for the participation of society at large in the penal process for the moment are limited only to the institution of court juries, and even that has been quite limited since 1998, while invited witnesses at searches and seizures play another role entirely.

EMILIA NEDEVA: Here it is more a question of supervision by citizens.

KRASSMIR KANEV: I don’t see how the Constitution prevents the creation of such bodies with a well-defined scope of authority. Such bodies exist in England, Belgium, Italy. There, too, these bodies are not foreseen by their constitutions. Plus, we’re not talking about making decisions and judging people, but about participation which is restricted to making recommendations on a specific case.

EVGENIY TRIFONOV: The problem is procedural, because they are not interested parties.

EMILIA NEDEVA: There are no parties in pre-trial proceedings. The court gives a better guarantee than the investigative bodies, and besides, the court sessions are open to the public.

OBEKTIV: It would be possible for such a body to be allowed to occupy a position as observer during the process of investigation and after that – with its authority only going as far as recommendations. This is neither out of the ordinary, nor surprising, nor even unusual! After all, isn’t that what the press and the television stations do?! What does public opinion do, including in cases of excessive use of force?! It expresses opinions, disputes other opinions, asks questions and in this way guarantees extra-institutional supervision, which the investigative bodies, the prosecutors and the court in most cases take into account. It would be far better if this existed in a form vested within the legal framework.

EMILIA NEDEVA: The constitutionally related statements that some individuals from the MI leadership have been making in precisely such cases are also incorrect. Reality is our starting point – that investigating such types of cases is very difficult. When such an investigation has been started (I have the “Chorata” case [5] in mind), when certain individuals have been turned over to the court and in court two arguments are battling it out – the accusatory and the defense arguments – the last thing the MI leadership should do is to take up a position of eventual (I’m not saying categorical) support. This casts doubt on the investigation and its lawfulness, it also casts doubt on the future court decision, whatever it may be. Individuals

in leadership positions within the MI undermine

the presumption of innocence and propagate opinions

By the way, there have already been cases of convictions for such statements by prosecutors and MI employees. Even when it has been very difficult to bring a case to court, the last thing we need is for the MI leadership to take the side of the accused police officers. It should not take sides. Sides can be taken within the framework of an internal check, when the presence of disciplinary violations or the lack of such has been established.

VESELIN VUCHKOV: That very often depends on the outcome of the criminal case.

EMILIA NEDEVA: I don’t fully agree with that.

VESELIN VUCHKOV: Since we’re talking about the Chorata case and since it will soon be taken up by the courts of second and third instance, every day we are showered with petitions from both parties. The regional directorate of the MI has been sentenced as a civil defendant to pay nearly 300,000 leva in damages. We have authorized lawyers to serve as the procedural representatives of the regional directorate. We try to help with the defense of the MI procedurally. And as to whether it is organically tied to the defense of the defendants, in this case it is inextricably tied to it. In the end the court will decide this very tangled case.

To get back to the topic mentioned by Mr. Krassimir Kanev – what form the participation of external institutions should take in specific criminal proceedings. I can only imagine

a human rights organization with a competent lawyer,

whom should be obliged to participate in the case under the CPC, but in such a way that he has some sort of procedural standing. Otherwise the pretrial phase, where the outcome of the case is decided to a great extent and where the prosecutor conducts an investigation, is kept secret. The pretrial proceedings are closed with the exception of cases in which court hearings are held – for example, bail hearings. Everyone finds out what proof the prosecutor has gathered, but only at the end of the investigation, when the prosecutor brings an indictment in court. I cannot imagine the pretrial proceeding having a guaranteed public nature and including external observation over a specific criminal investigation.

EMILIA NEDEVA: The prosecutor could give access to a certain human rights organization.

EVGENIY TRIFONOV: Do you believe that such an organization should take part in all cases or only when the victim has expressed the wish for such participation?

KRASSMIR KANEV: I think such an organization should participate in all cases, since here it is a question of public interest, and not a question of one or other of the parties to the proceedings. When it is a matter of violence on the part of a law-enforcement body, which should abide by the law even more so than everyone else, here the public interest is much stronger. Such an organization would be an additional guarantee for that public interest. I don’t see anything unconstitutional about it. I think that in the Bulgarian legal system the collection of evidence is much more closed than it normally is. Openness should be the principle behind gathering evidence. That is the overarching principle in law so that it can enjoy the people’s confidence.

However, in Bulgaria court proceedings are closed more often than is necessary.

This exception can be abused. I believe that sooner or later this question will reach the ECHR. The pretrial procedure is not sufficiently open. But faith in justice rests precisely on that – allowing everyone to see how the evidence was gathered and to understand on the basis of what evidence a person was convicted.

EMILIA NEDEVA: Such access must be reasonable and balanced, because there is a risk that the investigation could be undermined.

VESELIN VUCHKOV: After that, other guilds will request similar defense or intrusion in the pretrial criminal prosecution – victims of medical malpractice, of customs officers and so on.

Even if there isn’t a problem on the constitutional level, it will be difficult to overcome that intrusion into the pretrial process in terms of mindset. Here we run up against the model of our criminal procedure. I can foresee huge obstacles on the level of the CPC to the participation in some procedural capacity of a lawyer who is an advocate or agent for someone besides via the possibilities now in effect. It is difficult for me to envision other options.

OBEKTIV: We must welcome Mr. Vuchkov’s statement that the MI is prepared to initiate a discussion of Articles 72, 73 and 74 from the Ministry of the Interior Act. We hope this will happen soon, and that representatives of non-governmental organizations will also be invited.

VESELIN VUCHKOV: We can arrange such a discussion within three months’ time on our territory. But must we be the initiators of such a legislative change? The MI very often starts making pronouncements on topics that are not within its sphere. For example, we offered a position on the Law on Waste Management, on Special Investigative Techniques and so on. Should we really be the basic driving force? In my opinion, this should be started off by a different institution.

EMILIA NEDEVA: I think it is precisely the MI that should get involved with this. Do you have any idea what positive force statements of the following kind would have?:

“The Ministry of the Interior wants to halt police brutality,”

“The MI wants to eliminate all possibilities for ambiguous interpretations of wording in the Ministry of the Interior Act, which violates ECHR standards.”

VESELIN VUCHKOV: Do you recognize, however, the danger of political speculation with such a topic?

KRASSMIR KANEV: Yes, I do. In this discussion, when the conversation turns to the use of excessive force and firearms by law enforcement bodies, the use of specialized investigative techniques and many other questions, I see an unjustifiable passivity on the part of the Ministry of Justice. At the moment, Bulgaria is the country with the highest per capita number of unfulfilled ECHR court judgments. In Bulgaria, this problem is starting to become alarming. The Ministry of Justice has the proper expertise, for that reason the initiative should come from there to take a more active position on how to overcome these convictions.

OBEKTIV: What’s also alarming is the practice of every new minister beginning from “square one.” There used to be a conceptual strategy for overcoming these convictions. It was 25 pages long and was written under the direction of the prominent human rights lawyer and BHC member Yonko Grozev. But since the new minister has come to power, no action has been taken on this conceptual strategy, at least none that we are aware of.

In its publications, the Bulgarian Helsinki Committee will try to elucidate the issue of the participation of civil society in investigations of cases of police brutality, showing how it has been solved in other countries, so that a wider circle of people will understand what the issue is about.

VESELIN VUCHKOV: But still, I don’t think the biggest problem is the wording of Art. 74. There are many moral and material problems at the root of such violence – the financial state of the system, education, selection of recruits.

OBEKTIV: Thank you for your participation in this lively discussion.

The conversation was led and prepared for publication by Emil Cohen.


[1] The study conducted by the lawyer Margarita Ilieva, deputy chairperson of the BHC and director of the organization’s Legal program, as well as the comments made by other participants at the round table can be read on the BHC’s special website “Police Brutality: Stop Now!” at the address: http://policebrutality.bghelsinki.org/  [back]

[2] Several days before the discussion the Ministry of the Interior’s Instructions for the Use of Auxiliary Means was promulgated in the State Gazette. It is brand new and lawyers practicing in this sphere clearly have not yet had a chance to familiarize themselves with it. [back]

[3] Cabinet Chief for Minister of the Interior Tzvetan Tzvetanov. [back]

[4] It reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” [back]

[5] Angueal "Chorata" Dimitrov died during his arrest by several police officers in Blagoevgrad on 10 November 2005. There was evidence that excessive force was used against him, which caused his death. Nevertheless, all police officers were subsequently acquitted by the Supreme Court of Cassation. [back]