Bulgaria:
Police in Transition (part 3)
3. Control
and accountability
3.1. The supervision of police by state organs
The different police services are all subordinated to the Minister of the Interior,
with the exception of the Military Police, which reports to the Minister of
Defense. The Ministers are members of the Cabinet, and are voted into office
by Parliament as members of the Cabinet, proposed by the Prime Minister. The
Council of Ministers has the power to adopt executive legislation with respect
to the work of the Police, but most often it is the Minister of the Interior
who adopts such regulations. The Council of Ministers does not have an active
role in regulating these matters.
The Minister of the Interior holds the greatest power over the Police. He has the power to appoint and dismiss the top executives of the police services as well as police officers, with the exception of his immediate deputies and the directors of national services, which are appointed by the President upon a proposal of the Council of Ministers. There are also no limitations with respect to his power to provide directions and instructions in individual cases. The Minister of the Interior decides jurisdiction in cases of conflict between the different police services within the Ministry.
As the Police is a highly centralized sector over which the Minister of the Interior has full power, no public conflicts or disagreements rise between different police services or the Police and the Government. Instead, there have been highly publicized conflicts between the Ministry of the Interior, on the one hand, and the Investigation and the Prosecution, on the other. Being part of the Government, the Ministry of the Interior is far more exposed to the pressure of public opinion demanding the effective fight against crime. Until January 2000, the Police had no formal investigative powers, so conflicts emerged between the Ministry of the Interior and the largely independent Investigation and Prosecution Offices as to the effectiveness of their respective work. As the executive maintains no power over the Investigation Service or the Prosecutor's Office, the Government could use public opinion to pressure them. The Investigation and the Prosecution in turn would accuse the Police of reporting cases as „successful” while lacking sufficient evidence, only to improve its ratings. In early 1999, the Government succeeded in changing the Chief Prosecutor and the Ministry of the Interior initiated a more cooperative approach between the institutions.
3.2. Instruction
and supervision of the police
Besides the Minister of the Interior -- the executive of the Police -- only
the prosecutors, the investigators and the County Governor have powers to instruct
or supervise the Police. Prosecutors have the power to repeal unlawful acts
of the Police or issue mandatory instructions and orders. Within a formal investigation,
which the Police do not carry out, prosecutors and investigators may instruct
the Police to collect evidence or assist the investigation as necessary. However,
if the Police were to refuse to fulfill these instructions and orders, the prosecutor
would have no remedy, since such noncompliance would not be a „refusal to carry
out orders of a superior" and thus would not constitute a criminal offense.
Institutional disagreements between the Police and investigators and prosecutors
can only be resolved through negotiation between the institutions.
The County Governor, the representative of the national Government for a particular administrative unit, also has certain supervisory powers with respect to the Police. As a representative on a local level, the County Governor could exercise certain influence. He/she does not have substantial powers however, and could be more effective in monitoring, supervising and occasionally reporting on unlawful acts by the Police. Still, County Governors have not played a significant role with respect to Police performance and control.
Monitoring and supervising the Police is also carried out by Parliament. The „National Security" Committee is charged with overseeing the work of the Ministry of Defense and the Ministry of the Interior. Parliament and the National Security Committee have the power to request any information and question any Government official on issues of interest to them. Parliamentary control has been used more as a tool in party political confrontation, rather than as an instrument for achieving Police accountability.
3.3. The
co-operation between police and local government
City mayors also have some powers with respect to the Police, as they are charged
by statutory law with keeping public order in their respective territories.
Mayors are also under a duty to take all appropriate measures to improve the
work of the Police in protecting and guaranteeing public order. Related instructions
issued by the Minister of the Interior must be communicated immediately to the
mayor of the respective town or village. The instructions that mayors have the
legal powers to give to the Police on public order protection measures are mandatory
for the Police. While the Police can appeal these instructions to the County
Governor within three days, such appeal does not excuse the Police from following
them. The County Governor is under a duty to consult the Minister of the Interior
on any such appeal.
Despite these formal powers, mayors have no financial or other powers over the Police to ensure they follow such instructions. Indeed, the Police are rather independent from local authorities and there is little cooperation. In cases where the Minister of the Interior supports such refusal, mayors have practically no remedy. From a political perspective, it is highly unlikely that the City Governor would reach a decision in defiance of the wishes of the Minister of the Interior. Because of its lack of control, in 1999 the Sofia City Municipality started its own municipal police, which patrols public places in Sofia. This municipal police has the legal status of a private security company, however, and its staff has no police powers at all.
The National Service Police is the only service in the Ministry of the Interior that has subdivisions and permanent representatives even in the smallest towns and villages of the country. In determining the local units and number of police personnel for a region, the Ministry of the Interior should consider the population, crime rate and other factors. Before taking such suggestions to the Council of Ministers, the Ministry of the Interior may also consider suggestions by the local authorities, though it has no legal obligation to do so. The smallest „police" units are hierarchically subordinated to the upper levels within the National Police Service and the Ministry of the Interior, revealing their priority to have a clear and immediate chain of command to the local units. This is explained by the need for „independence" from the municipal authorities and any local influence, an alleged source of corruption.
3.4. Complaints
against the police
A police officer or sergeant can be disciplined for violating rules and orders,
as well as for an offense, including a criminal offense, irrespective of whether
or not the prosecutor brings charges against him/her. Disciplinary measures
are taken by the superior officer following the finding of a violation.
Citizens who are victims of the illegal conduct of police personnel can directly address the territorial Police Office, the Regional Directorate or the Ministry of the Interior with their complaint. There is no time limit. After the head of the respective police unit receives a complaint, s/he is under a legal obligation to investigate the complaint and provide an answer to the complainant within one month. The complaint may be oral or written, and should describe in as much detail as possible the relevant facts, identifying the police employee who allegedly committed the offense. While the complaint cannot be anonymous, the head of office should guarantee the anonymity of the complainant. The Police is obliged by law to respond to the complaint irrespective of whether or not a violation is found. Inaction by the head of office can be appealed up the hierarchy to the Regional Directorate, the National Service Police and the Ministry of the Interior. There are „complaints" units within the Regional Directorates and an „Inspectorate" Service within the Ministry of the Interior dealing with allegations of police misconduct. They should also report their findings to the complainant. In the case of violations, they can only suggest measures, but it is the responsibility of the head of the respective unit to take action. There is no appeal outside the Ministry of the Interior on the decisions of the Police or Ministry upon such complaints.
Complaints against police personnel are investigated by police officers who report to the superior commissioning the investigation. Even special units charged with investigating allegations of police misconduct are composed of officers of the Ministry of the Interior, usually more experienced ones. Following fact-finding, the superior decides whether the accused police officer or sergeant should be disciplined on the basis of the facts. Without any transparency, the public lacks confidence in this system and in many cases would not even consider using it. There has been no discussion of improving the investigation of complaints and no suggestions for such improvements. Allowing for the participation of independent committees or individuals would encounter strong opposition by both rank and file police officers and by top police executives.
Most often, disciplinary measures are taken for violations of internal rules and discipline, but not for the violation of the rights of others. Disciplinary measures are independent of any criminal or civil liability. Anecdotal evidence suggests that such punishments are also imposed for unlawful business activities, contact with persons with criminal records, and for damaging the reputation of the Police. Except in cases of disciplinary dismissal, the most severe measure, appeals to an independent tribunal are not possible. As of 1993, disciplinary dismissal can be appealed to court.
Officially published data on disciplinary measures remain unhelpful in understanding the essence of real violations. In the first six months of 1997, 2125 disciplinary measures were taken, 616 of them against officers, 1393 against sergeants and 116 against police administration. According to such official data, 566 were punished for „not performing their duties", 154 had „violated official duties", 151 exhibited „behavior incompatible with professional standards", 132 showed „disobedience", 115 had „allowed significant omissions in their work" and 98 „did not exercise proper control on their subordinates". The vague categories used to describe the violations prevent the development of a better understanding of the issues and the evaluation of the effectiveness of the disciplinary procedure.
3.5. Getting
information of pubic interest from the police
Effective executive regulations prohibit police personnel from providing any
work-related information to the public. According to the Ministry of the Interior
Act, such permission remains only with the Press Office of the Ministry of the
Interior. Many of the Regional Directors of the Ministry of the Interior have
appointed spokespersons or press offices that provide information to the public
and press. Instructions by the Minister of the Interior, which were never made
public, prohibit all employees from communicating with the press on work-related
issues, without prior authorization by a superior. Communications without such
permission are considered a serious infringement of discipline and this instruction
is strictly enforced. Journalists commonly complain that the Ministry of the
Interior remains quite closed and fails to provide adequate information. Still,
political allegiances and clashes have allowed the potential for leaks to the
press.
There is no freedom of information legislation in Bulgaria or any legal obligation for the Ministry of the Interior to provide any information. Thus the Police retains unlimited discretion in releasing its documentation to the public. In a 1997 decision, the Constitutional Court stated that the obligation for any government agency to provide information could not be read in the Constitution, and instead should be created by law. According to effective legislation, the only duty the Ministry of the Interior has in this respect is to „explain" its activities to the public, which cannot be interpreted as creating a general obligation to provide access to any of its documents.
The sole legal obligation of the Ministry of the Interior to release information concerns the files of the former State Security. A law passed in 1997 grants all persons access to his/her own file. The same law requires the Ministry of the Interior to clear every high ranking government official, including members of Parliament and judges, for association with the former State Security. This legislation, however, does not affect the present activities of the Police.
3.6. The
individual responsibility of police officers
There are a number of different remedies in cases of unlawful behavior by police
officers or sergeants. They might be individual, targeted at the particular
police employee, or institutional, targeted at the police service or the Ministry
of the Interior. Individual police officers and sergeants can be held responsible
in disciplinary proceedings, criminal liability and civil liability for damages.
The Police as an institution can only be held liable in a civil case for damages.
3.7. The
responsibility for carrying out unlawful orders or instructions
One of the central building blocks of police discipline is the duty to carry
out an order or instruction of a superior. Refusal is not only an infringement
of discipline, but also a crime, as defined in Section 327 of the Penal Code.
The responsibility for any damage or violation of rights resulting from unlawful orders or instructions lies with the person issuing the orders. Such responsibility could be disciplinary, criminal or civil, depending on the type of offense and the particular facts in the case. However, there is one exception to that rule: when the order is manifestly unlawful. In such cases, both the person giving the order and the one acting on it are liable. Although valid for both disciplinary and criminal liability, this rule is not found as an explicit legislative standard, neither in the Penal Code, nor in the Ministry of the Interior Act. Both the courts and the disciplinary bodies would apply this standard as a balance between the prohibition of unlawful behavior and the legal duty to follow orders. In criminal law this standard was reached through interpretation by the courts.
3.8. The
liability of police for unlawful actions leading to miscarriages of justice
Information on crime rates and particular types of crime committed by police
personnel has become publicly available only in the late 1990s. In several cases
police employees were implicated for involvement in organized crime. Among the
crimes for which police could be liable are corruption, abuse of power, illegal
depravation of liberty, violation of privacy and the use of excessive force,
which has resulted in three deaths of victims. By law, police officers and sergeants
receive higher punishments for the crimes of murder or assault.
When police misconduct qualifies for a criminal offense, a complaint can be filed with the prosecutor. Allegations of criminal offenses by police employees are investigated, prosecuted and tried by separate military investigators, military prosecutors and military courts. This system, developed by the old regime, was dissolved between 1993 and 1995, only to be resumed again. Thus now there are Military Prosecutors Offices with the Military Regional Courts and the Military Department of the Supreme Court and a separate Military Investigation. They are charged not only with all crimes of Ministry of the Interior personnel, but also with those committed by army servicemen. Military prosecutors, investigators and judges enjoy the same status as their civilian counterparts and have immunity, rights and privileges. They are also considered military personnel, with the requirement to wear military uniform the only practical effect. From a pragmatic perspective, their workload is less than that of their civilian counterparts and they are better paid, as they receive funding from the Ministry of Defense and not the budget of the judiciary.
Whenever a military prosecutor finds a reasonable suspicion that a crime has been committed, a military investigator, responsible for gathering all relevant evidence, should conduct an investigation. The prosecutors should then bring charges against the suspected police officer or sergeant and support the accusation at trial. This system was reintroduced in part because military investigators, prosecutors and courts have more knowledge and experience with respect to military and police rules and procedures, making them more effective.
There is certainly a disadvantage to the system. Military investigators and prosecutors have to some extent developed a corporate loyalty that makes them biased in favor of the Police. Anecdotal evidence suggests that they do not always conduct proper investigations and do not prosecute in cases of alleged violations by the Police. Still, there has been no research comparing the efficiency of military investigation and prosecution, and it would be very difficult to do so.
Civil liability
Civil liability for official misconduct can be both individual and institutional. From a practical point of view, claims for damages are more often raised within the criminal procedure against individual police officers or sergeants. Although technically possible, both civil liability of individual police employees outside criminal trial and institutional liability of the police for damages caused by police personnel have been rare.
Under Bulgarian law, civil liability is regulated by Sections 45 to 55 of the Obligation and Contracts Act and the Liability of the State for Damages to Citizens Act. Civil liability can be both for pecuniary and non-pecuniary damages. Non-pecuniary damages are awarded for the pain and suffering caused by the illegal conduct.
Civil damages cases against the Police have not been very common. As a matter of fact, they only started recently and their total number hardly exceeds a dozen. This is explained by a number of factors. First, there is no tradition of suing the Police; though technically possible, under the previous regime it was politically unthinkable. Such attitudes are deeply rooted and still influence public behavior. Second, there is a strong tendency to overly rely on criminal law, where the prosecutor has the leading role, and civil claims would simply be „attached" in criminal trial. The victim of police abuse would wait for the criminal trial rather than sue on his own. Lastly, a number of legal issues remain to be resolved.
Article 7 of the Constitution provides that the State be liable for any illegal action of its employees. Thus the Constitution introduced no-fault liability for all cases of damages caused by the administration. This rule is further extended in the Liability of the State for Damages to Citizens Act, which provides for a special procedure where the claimant is exempt for court fees. To prevail in a case for unlawful damages, the plaintiff must prove a causal link between illegal acts or omission by the Police and damages. The Ministry of the Interior still argues in cases that they should not be liable under this Act, basing their claim on a technical interpretation of the term „administrative activities". So far the courts have not been willing to agree with the Ministry, but as there have been no decisions by the Supreme Court, the issue remains unresolved. Whenever the Police is held liable as an institution for actions of its employees, it may claim the damages it has to pay from the employee.
3.9. Criminal
or disciplinary proceedings against police officers
No information provided.
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