Criminal law and investigative

tools used against organized

crime in Bulgaria: Workshop: 14-16 October, 2014:

General Criminal law provisions on participation in a

criminal organisation in Bulgaria

• General provision - it is a criminal offence to form, direct or

participate in an organised criminal group (Article 321 (1) and

(2) of the Criminal Code)

• ‘Organised criminal group’ - defined as a permanent structured

association of three or more persons formed with a the aim “to

commit, acting in concert, in Bulgaria or abroad, any criminal

offences punishable by imprisonment for more three years”

Specific provisions incriminating other types of

criminal organisations • Forming, directing or participating in an organisation or group

• which aims to commit offences against national, racial and ethnic equality,

and religious and political tolerance (Article 162 (3) and (4) of the Criminal

Code);

• which aims to commit offences against the Republic (Article 109 (1) and (2)

of the Criminal Code);

• which aims to commit offences against citizens’ political rights (Article

169d of the Criminal Code);

• which concludes transactions or derives benefits by use of force or

intimidation (Article 321a of the Criminal Code);

• for the growing of opium poppy and coca bush plants or plants of the genus

Cannabis or for the manufacture, production or processing of narcotic drugs

(Article 354c of the Criminal Code)

• Preliminary conspiracy (two or more persons conspiring in advance to commit an

offence) is incriminated as an aggravating circumstance of specific offences

listed in the Criminal Code + the act of joining together to commit an offence,

applied only to several types of criminal offences such as kidnapping,

counterfeiting of currency or forgery of other payment instruments, money

laundering and documentary offences

Aggravating factors

• The participation in an organised criminal is aggravated when

• the group is armed

• the group has been formed with the aim of obtaining a benefit

• the group is formed for the purpose of perpetrating specific

offences (kidnapping, illegal restraint and holding a person

hostage, cross-border smuggling of goods and narcotic drugs,

counterfeiting of currency or forgery of other instruments or means

of payments and offences involving counterfeit currency or forged

other instruments or means of payment, money laundering,

unlawfully taking persons across the border, offences related to

explosives, firearms, weapons other than firearms, chemical,

biological or nuclear weapons, munitions and pyrotechnic articles,

offences related to distribution of narcotic drugs, inducing another

person to use narcotic drugs and other offences related to

facilitating the use of such substances)

• the group includes a public official

Weaknesses of the legal definition of ‘organised

criminal group’

• Very broad scope of application

• large range of offences, which the group could have as an aim

• removal of the benefit from the legal definition of ‘organised

criminal group’ ignoring one of the fundamental distinguishing

features of organised crime, namely the generation of profit

• Requirement for a minimum number of members(ignores the

dynamism of organised crime

• Unclear meaning of the requirements for permanence and

structuredness (characteristics of any group)

The weaknesses make it possible to classify as organised criminal group a

number of concerted criminal activities, which are unrelated to

organised crime and has a negative impact on the effectiveness of the

criminal prosecution of organised crime

Prosecuting and investigating offences relating to

participation in a criminal organisation

• All offences relating to participation in an organised criminal

group are prosecuted ex officio, i.e. the public prosecutor is

obliged to open an investigation irrespective of how he or she

has learned about the crime

• Most often investigated offence in relation to organised crime

• drug trafficking

• sexual exploitation of women (prostitution)

• human trafficking

• smuggling

• VAD fraud

• Other typical crimes often investigated as activities of organised

criminal groups - kidnapping and racketeering

Difficulties before the enforcement

of the provisions incriminating the participation in an organised

criminal group

• frequent legislative amendments

• unclear definition, particularly the need to collect evidence

on the permanence and structuredness of the group

• unduly broad scope of the provisions makes it easier to apply

them even on cases of conventional partnership

• lack of adequate resources - financial resources, technical

equipment, organisational capacity and training

• inconsistencies in the use of terminology - the provisions on

organised criminal groups can often overlap with the

provisions on other types of criminal organisations or groups

which may lead to the imposition of different sanctions for

similar criminal acts

Special investigative tools /means

• The legal acts define the scope of application of all special

investigation means, limited to investigation of expressly

specified serious intentional offences, among which offences

related to an organised criminal group, when requisite data

cannot be collected in another manner or its collection involves

considerable difficulties

• Un application beyond pre-trial proceedings is allowed for the

pevention and detection of serious intentaional offences and in

respect of activities related to the protection of national

security

• The use of special investigative means inherently carries a

potential risk for abuse

Scope of application

Specified both in terms of persons and sites:

•• persons about whom data have been received and in respect of whom a

reasonable presumption can be made that they are preparing to commit,

are committing, or have committed serious offences;

•• persons about whose actions data have been received and in respect of

whom a reasonable presumption can be made that they are used by the

persons of the above group without being aware of the criminal nature of

the activity carried out;

•• sites for establishment of the identity of the persons belonging to the

groups referred to above;

•• persons and sites related to national security;

•• persons who have consented in writing to the use of special intelligence

means for the protection of their life or property.

Use of special intelligence means in pre-trial

proceedings

• The supervising prosecutor must submit a reasoned request in writing

to the court [ Criminal Procedure Code, Article 173 (1)].

• Other persons who, acting within their authority, may request the use

of special intelligence means and use the data and physical evidence

collected by such means, are: • National Police Directorate General, Border Police Directorate General, Internal

Security Directorate, regional directorates of the Ministry of Interior, and specialised

directorates (with the exception of the Technical Operations Directorate), territorial

directorates and stand-alone territorial departments of the State Agency for National

Security;

• Defence Information Service and Military Police Service under the Minister of Defence;

• National Intelligence Service;

District prosecution offices for offences against political rights - buying votes (Art.167, p.3 and 4,

Criminal Code) and violation of secrecy of voting(Art 169, Criminal Code)

The authorisation to use special intelligence means is granted in

advance and the court is the only authority authorised to grant it

Use of special intelligence means in pre-trial

proceedings (continued)

• Period of use - within up to two months after the authorisation is

granted; Where necessary, this period may be extended by not more

than four months following the same procedure applicable for

obtaining the initial authorisation(thus, the overall period may not

exceed six months)

• Upon expiry of the authorised period, the use of special intelligence

means is discontinued ex officio by the entities authorised to apply

them

• According to the latest legislative amendments provision and

application of special intelligence means in each case shall be

financially secured by the authority requested for their use

• Electronic register of special intelligence means introduced from 01.

03.2012 In order to facilitate and optimise the use of special

investigative techniques in the pre-trial phase

Special intelligence means

• Wire-tapping - the oral, telephone or electronic communication of

controlled persons is acquired auditory or otherwise by using technical

means”

• Monitoring correspondence and computerised information by using

chemicals and technical means to establish the content and recipients

of correspondence of controlled entities and objects

• Access to traffic data under the Law on the electronic communications

–for detecting and investigating serious criminal offences and

computer offences, as well as for the tracing of persons

• Controlled delivery - consists in import, export, transfer or transit

through the territory of the Republic of Bulgaria by the controlled

person, which is under constant surveillance, of a thing/goods - subject

of a crime, to reveal the participants in cross-border crime

• Trusted transaction

Special intelligence means

• Undercover officer - an officer of the respective services, who

has been empowered to establish or to maintain contacts with a

person under surveillance in order to obtain or to discover

information about the commission of a serious intentional

offence and about the manner in which the criminal activity is

organised

• Protected witnesses - for proving organised criminal activities

• one group protected by personal physical guarding by the

authorities of the Ministry of Interior

• another group protected through non-disclosure of the witnesses’

identity, called in practice ‘anonymous witnesses’(together with

some additional elements, is furthermore applicable to an

undercover officer where questioned in a witness capacity)

Some findings

• Wire-tapping was the most frequently used operative means in 2012

(Report on implementation of the law and the activities of the

prosecution and the investigating authorities in 2012) - 38.4% of all

used special investigation means, which in general have an increase

with 13.2% in comparison to 2011 (no separate statistics on the use of

wire-tapping in cases of organised crime that makes the assessment of

their share difficult)

• The share of observed cases in 2012 in which they were used special

investigation means (among them wire-tapping) to total observed cases

of serious crimes (of which organised crime is a part) was only 6.9%.

• Illegal wire-tapping scandals that erupted in the 2013 confirmed

concerns about potential abuse with the special investigative tools and

their use not for its intended purpose

• Increased use of protected witness - however the anonymity of a

witness and the independence of the witness testimony are very

difficult to guarantee

Specialised judicial and law enforcement

agencies

• Chief Directorate ‘Combating Organised Crime’ (Ministry of

Interior) /Specialised Directorate ‘Combating Organised Crime’

(State Agency for National Security)

• Specialised public prosecution office - since 1 January 2012,

responsible for the prosecution of organised crime cases

• Specialised criminal court - since 1 January 2012, responsible

for the hearing of criminal cases related to organised crime

Conclusions

• Bulgaria has adopted the necessary legal framework against organised

crime, including substantive and procedural criminal law, special

intelligence means and asset forfeiture legislation, etc., but there are

still flaws in the legislation that hamper the effective fight against

organised crime.

• The main problems

• the ineffective implementation of the existing rules, which predetermines

the poor results in the fight against organised crime

• gaps in the legal framework, lack of capacity (human resources, equipment,

professional skills) of the criminal justice system and the law enforcement

institutions to deal with complex cases and poor cooperation among

institutions.

As a result, very few cases have been successfully completed and only

a small number of offenders have been convicted.

•