Bulgaria:
Police in Transition (part 4)
4. Measures and means of coercion
4.1. Checking
personal identity
All police officers, sergeants and non-employed police aides have the right
to carry out identity checks. They are obliged first to present themselves by
showing a professional card or badge. Section 69 of the MIAct describes the
grounds for an identity check, the first being a suspicion that the person has
committed a crime or a lesser offense. ID checks can also be carried out in
the detection or investigation of a crime or other offense. Resemblance between
one person and another suspected of having committed a violation could be reason
for an ID check, as could be a person’s suspicious behavior, or their presence
at a place where a crime was committed.
Identity checks can also be carried out where the Police have established an administrative offense. The Police are under a legal duty to issue a fact report, describing the facts related to the offense, including identifying the offender. A third group of cases concerns the Police duty to control observance of personal address registration and stay in the country. Every individual is required to register his or her permanent address with the Police within 30 days of any change. In enforcing this law, the Police may check the identity and address registration of any individual, at any time and at any place. The Police have also the power to organize a permanent ID checkpoint, established for both traffic control and ID checks. Finally, the police may check someone’s identity upon a request by another government agency, such as a judge or a prosecutor.
4.2. General
identity checks in public places
The Police carry out general identity checks at public places, either using
the broad discretion they have to construe probable cause requirements or simply
using their address registration control powers. It would be very difficult
and perhaps impossible to challenge such practices, as the only available remedy
is a civil damages lawsuit, and the courts are unlikely to rule favorably.
4.3. The
obligation to provide information for police
Where the Police have opened a formal investigation, they have the same interrogation
powers as an investigator or a judge. Individuals have the duty to testify in
formal investigations and when they are summoned as witnesses. Refusal to appear
risks a fine. Withholding information, or providing misleading information,
is a crime that could lead to criminal liability.
Where the Police do not carry out a formal investigation, there is no legal duty for individuals to testify. As a result, the Police have few powers for forcing people to comply. The only duty an individual has with respect to the Police is to appear whenever summoned. To assist the Police in gathering information, the Minister of the Interior passed a Regulation determining bonuses the Police can offer to individuals for testifying.
4.4. The
deprivation of liberty of individuals by the police
The arrest and detention powers of the Police are set forth in Section 71 of
the MIAct. Under this provision, the Police may arrest and detain someone for
up to 24 hours, on an exhaustive list of grounds. The Police may detain individuals
suspected of committing a crime, who have refused to follow lawful police orders,
who are fugitives from lawful detention, and whose identity could not be established.
Section 71 (3) of the NPA provides for the right of the detained to appeal the
lawfulness of their detention to a court. The court should hear the complaint
and decide on it immediately. There is no detailed description of the procedure
and it is not widely used.
In practical terms, there is no control over police detention, explained in part by its length, only 24 hours. Although the legislation provides for judicial review, the lack of any specific procedure and the limited length of detention make this provision dead law. Theoretically, there is a second option, to file a lawsuit for damages resulting from unlawful detention. There is, however, no record of such cases.
The practical aspects of the right to counsel also give rise to certain problems. Police officers do not comply with the rule and do not provide detainees with the opportunity to contact their lawyers. As police detention is not part of a formal investigation, such denial cannot be raised as a substantial violation of procedural requirements.
4.5. The
main legal requirements for using physical coercion in order to implement a
police measure
Police may legally use force only in specific circumstances. As a general rule,
there needs to be an unlawful action or a refusal to follow a lawful police
order. Section 79 of the MIAct describes the circumstances under which the Police
can use force or special devices and cause damages to premises, vehicles or
persons against whom force is used, without being liable. Bulgarian law treats
the use of physical force the same as the use of handcuffs, truncheons, straitjackets,
rubber bullets, tear gas, dogs and other special equipment. Besides the specific
circumstances described in Section 79, there is a requirement that Police may
use force only where achieving the desired end would not be possible without
it. Thus, the Police are under a duty to prove that there were no other options
available or sufficiently effective that would have caused lesser damages. There
is also a ban on use of force against children and pregnant women.
There is no obligation for the Police to give a prior warning that force will be used, even where such warning is possible and will not damage the effectiveness of its use. The list of cases where the Police can use force starts with the refusal by an individual to follow a lawful order. There is a general duty for every citizen to follow instructions given by the Police and one can refuse to follow an order only when this constitutes a crime. Still, the Police can use force only when the order itself was lawful. The Police may also use force when arresting a resisting offender, or when a detained person under escort attempts to escape. Handcuffs should be used as a preventive measure, but not force if the detainee does not try to flee. Force can also be used in cases of assault against citizens or police personnel, in hostage release operations, in cases of group violations of public order, or where buildings, premises, or vehicles are attacked. Lastly, the Police may use force in the terminating the illegal occupation of premises.
While the use of any force during interrogation for obtaining testimony is absolutely prohibited by law, Police beatings during interrogations remain a persistent problem. It is, however, very hard to prove the illegal use of such force since there are no witnesses and the victim is unlikely to receive a competent medical examination. Although complaints of ill treatment by the Police are usually investigated, such investigations are not very effective, and the Government has failed to develop a comprehensive institutional response to the problem.
4.6. The
system of reporting and overseeing the application of coercive means
Unlike the use of firearms, there is no legislative requirement to report every
use of force or special device. In some cases the use of special devices is
a routine operation, while in others police personnel might have report their
use as part of a more complex task.
4.7. The
use of firearms by the police
Section 81 of the MIAct describes the conditions under which the Police may
use firearms. The description is to be narrowly interpreted and no use of firearms
should be allowed in any other case. Even when allowed, firearms should be used
only as a device of last resort. The list of permissible situations includes
the threat or actual use of firearms or an attack on a police officer. The implied
purpose of this permission, against which the „last resort" test is applied,
is to stop the attack and prevent damage. Firearms can also be used for the
release of hostages or to detain someone. This can be either the arrest of a
crime suspect or a fugitive. In both cases, prior to shooting the Police are
under a duty to warn the person that they are about to use firearms.
In April 1999 the Ministry of the Interior drafted amendments to the rules on the use of firearms in the Ministry of the Interior Act. According to these amendments, an additional test for the use of firearms would be applied. This test would have required that firearms be used only where there is an immediate risk to the life of the police officer or another. These amendments would have cleared some possible misinterpretation of the Criminal Code and the Ministry of the Interior Act and would have brought Bulgarian legislation in line with international standards. The amendments, however, were withdrawn later.
In all cases of the use of firearms, the Police should protect the life of the person against whom firearms are used, to the highest extent possible. They should also not shoot randomly or do anything that might endanger the life and health of people who just happen to be at the scene. After every use of firearms, the police officer should draw up a report in writing, describing the circumstances that required the use of firearms and what happened. This is a particularly important requirement, as it provides an immediate account of the events that might be helpful in an investigation.
The test set forward in the legislation on the Police is quite stringent. Firearms should be used only where any other means or methods could not achieve the purpose for their use. There is not much case law, however, that has applied this test. One reason is the fact that, as a rule, the Military Prosecutor would apply the test leniently, and in many cases would not bring charges for the illegal use of firearms in court. Between 1991 and 2000 there have been only a few cases where police officers were charged for unlawful shooting. In one case, a sergeant was accused and acquitted by the Sofia City Court of shooting dead a person who in the course of an identity check tried to run away from him. In another, in 1999, a police sergeant was found guilty of shooting dead a suspect he was trying to apprehend. In most of the cases where police personnel have been found guilty for causing injuries as a result of unlawful use of firearms, the firearms were not used in performing their policing functions. In such cases the guilty verdict was declared for negligent homicide.
4.8. The
limitations of search and seizure powers of the police
The Police may enter private premises and carry out searches under two distinctly
different procedures. The first is where there already is a formal investigation
procedure. In this case, the Police are more like a tool of the investigator
or the prosecutor and not an independent actor. The prosecutor issues a search
warrant, explicitly instructing what the Police should seek. According to the
law, after the Police arrive at the scene, they should identify themselves,
display the search warrant to the owner or tenant and ask that person to submit
the items the Police were instructed to find. If the person submits all items,
the search should end. If not, then the Police should search and seize what
they were instructed to find. In the end a formal report should be drawn up,
describing the time, place and people present, as well as the items that were
found and taken by the Police. The report should be signed by the owner and/or
witnesses, and a copy should be left with the person whose premises were searched.
The Police can also conduct searches on their own initiative, without a warrant. This applies in a limited number of cases, with or without the agreement of the legal owner or tenant. In theory, these cases require urgent action and thus lack the time for getting a warrant. Under the same special circumstances, the Police can also perform searches in the absence of the owner or tenant. In all such cases, the Police remain under the duty to identify themselves first.
The Police can enter premises on their own decision to prevent an imminent or existing criminal offense, or when chasing a fugitive or criminal suspect. They may enter as well with the advance knowledge that the perpetrator is hiding there. Other circumstances include the urgent need to help someone whose health or liberty is in danger, or in order to save someone's life. Finally, in urgent cases, the Police have the power to enter premises and seize documents or items that might be used as evidence that a crime has been committed. This is a quasi-investigative power, whose admissibility requires that the prosecutor later confirm the procedure. In all these cases, the Police should submit a report describing the search and items seized, with a copy submitted to the legal owner or tenant of the premises.
There are no effective safeguards against the abuse of police powers for urgent searches. If a prosecutor later approves the search, even a lack of urgency would not render the evidence inadmissible. Lawsuits for damages in such illegal searches remain a theoretical remedy.
4.9. The
regulation and external control of police intelligence
The use of electronic and other surveillance techniques is regulated by the
Special Surveillance Methods Act (SSMA). As defined, special surveillance is
the use of wiretapping, picture taking, interception of correspondence, monitoring
and tracing. The SSMA describes the conditions for carrying out special surveillance,
and the procedure that should be followed.
The Act sets forth two different standards. The first standard is in compliance with the Bulgarian Constitution and international standards. According to Article 3 of the Act, special investigation methods shall be used only for the prevention or disclosure of grave crimes, and only if the information could not be obtained using other measures that less restrict basic rights. The second standard, however, is at odds with principles of human rights. Electronic surveillance can also be employed in "exceptional cases", where there is a need to protect the country’s security. This vague and broad standard, most likely used by the Security Services and not by the Police, makes outside control over the legality of the use of electronic surveillance impossible.
The procedure for obtaining permission for surveillance is confidential. Permission can be requested not only by the Police, but also by the National Security Service, the National Investigation Service and the National Investigation Office. It is granted by the Chair of the Regional Court. Once given, the actual surveillance is carried out by the Operative-technical Service of the MI since by law, the service that requested surveillance is not allowed to conduct it on its own. Permission for surveillance is granted for two months and can be extended for another four months. Surveillance can be started even without permission, but if a permission by the Chair of the Regional Court is not secured within 24 hours, it should be terminated. There is no requirement that the facts of the surveillance be reported to the individuals who are its subjects. Nor is there a no statutory requirement for the authorities to publish statistics on the use of electronic surveillance or any statistical information on the use of special surveillance.
Prior to September 1997, information collected through such techniques was not admissible as evidence in court. Legislative amendments have since provided for admissibility. The new legislation also set certain procedural requirements with respect to the collection of such evidence and its storage, including a signed report in each instance. Such requirements are particularly important, as the failure to follow them renders the evidence inadmissible in court.
4.10. Sharing
secretly gathered information with other institutions
There is no legislation on information gathering and management and data protection
in Bulgaria, nor are there legislative guarantees for the protection of private
information or special requirements of how it should be used. The Police are
under a legal duty to provide information gathered secretly to the investigation
and the prosecution where there is a pending investigation. Whether and what
information the Police and the Ministry of the Interior should or may release
to the public or other institutions, with the exception of state secrets, is
by law a matter of institutional discretion. The Ministry of the Interior reports
on a regular basis or upon specific requests to the Council of Ministers. Such
reports are often confidential and are likely to contain secretly gathered information,
such as the report on corruption among high ranking government officials, which
was requested and submitted to the Prime Minister in November 1999.
The services within the
Ministry of the Interior are obliged by law to provide to other services information
related to their respective tasks. In 1995 the Minister of the Interior passed
Regulation No 7 on issues related to information management in the Ministry.
However, this Regulation did not set any standards as to the substantive rights
and obligations of the Ministry with respect to third parties. It deals with
procedural matters and the distribution of duties and responsibilities among
the services within the Ministry as to information gathering, control, management
and storage. It also reaffirms the duty of the different services to submit
information of interest to other services within the Ministry.
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