IDENTIFIED PROBLEMS WITH PROSECUTION PROCEEDINGS DURING ТHE STATE OF EMERGENCY

The declaration of a state of emergency in Bulgaria in order to restrict the spreading of SARS-CoV-2 has raised some rule-of-law concerns with regards to certain manifestations of the constitutional function of the Prosecutor’s Office of the Republic of Bulgaria (PORB) to conduct prosecution proceedings, i.e., to press charges on perpetrators for committed crimes. In our capacity of representatives of the NGO sector with a mission to monitor whether the authorities exercise power in the public interest, we believe that this issue should be highlighted for several important reasons that, in our opinion, point to a serious risk of abuse of power:

1) According to the Constitution of the Republic of Bulgaria (CRB) and the laws of the country, the Prosecutor’s Office has a monopoly on prosecution proceedings — it decides who should be charged and when (if at all), as well as what the exact charges should be (except in cases where the committed crime is prosecuted privately by the victim without the involvement of the state; these cases are explicitly specified in Bulgarian legislation).

2) This monopoly over the prosecution function is subjected to very limited institutional oversight. While the courts do examine the basis of the pressed charges, there are nevertheless many adverse consequences, of legal nature and not only, that accused individuals are forced to endure simply as a result of the accusation. This leads to the need for effective mechanisms of overseeing prosecution activities at the core which are lacking at the institutional level, even if stipulated in writing.

3) In countries with strong freedom of speech, one form of control is undoubtedly exercised by the media. The current state of the media sector in Bulgaria, however, is not conducive to criticism of the way authorities exercise power.

4) In a state of emergency, the factors outlined above are coupled with the restricted operation of the most important institutions in a parliamentary republic that strives to uphold the rule of law — the Parliament and courts. By contrast, the Prosecutor’s Office, whose functions are of repressive nature by design, is demonstrating very strong public presence.

5) The PORB is pressing charges under provisions of the Criminal Code (CC) that are obscure even to practicing professionals. These provisions have had a very limited scope historically and have not been analyzed in-depth in criminal law theory which means there is a high risk of arbitrary interpretations of their content.

6) Public figures without a criminal record are accused of minor offenses that have not resulted in palpable damages and their bails are set at five-figure amounts that eventually end up repealed by the courts.

              7) In addition to its prosecution functions, in the state of emergency, the PORB has started exercising oversight of the executive’s efforts to deal with the crisis without having any such competences (see more here).

The disconcerting public manifestations of the PORB’s prosecution functions during the state of emergency (announced by the PORB itself) can so far be summarized into the following categories:

Prosecution of persons for mere expression of opinion

              It is indisputable that the right of freedom of expression enshrined in Art. 10 of the European Convention on Human Rights (ECHR) and Art. 39 of CRB cannot be subjected to any derogations during a state of emergency.

              This precisely was the reasoning behind the presidential veto of the idea to criminalize the dissemination of false information about an infectious disease, proposed as part of a package of legislative measures aimed at regulating the state of emergency. The veto was upheld by Parliament.

However, despite the lack of a specific legal provision, there have been many cases of citizens, including politicians and public figures, who have been charged for expressing allegedly false critical views or warnings in relation to the adequacy of anti-crisis measures adopted by the government, or even negative forecasts. Such charges have been pressed by prosecutor’s offices in different parts of the country (meaning that these are not isolated cases within particular territorial units, but rather there is a tendency at the national level).

The public debate on topics of high public interest, which undoubtedly include the country’s condition amidst the course of a pandemic, is highly protected by the ECHR in accordance with the long-standing case-law of the European Court of Human Rights (ECtHR) (see Judgment of 26.02.2002 on the case of Dichand and others v. Austria: “There is little scope for restrictions on political speech or debates on questions of public interest.”). It is extremely difficult to codify a mechanism for enforcing criminal sanctions for the dissemination of so-called “fake news” as this would create a serious risk of censorship under the guise of protecting the public interest. This is yet another confirmation that repressive punitive measures are not an adequate solution to every problem.

              In has currently become popular to invoke the provision of Art. 326 of the CC which criminalizes the “transmission of false calls or misleading signs for help, accidents or alarm via radio, telephone or other means” despite the explicit prohibition to apply the law by analogy or through broad interpretation against the interests of the accused. It is clear from the wording of the provision (as well as from the rare instances of its application in the past) that it does not concern the transmission of any kind of information (even less so when the “veracity” of the information can be a subjective matter due to various interpretations and assessments of the objective reality), but only the transmission of specific calls for reaction to emergencies that objectively do not exist, but would have required an immediate response if they existed. For instance, the provision would apply in cases of false reporting of explosives planted in buildings (most common case); false reporting of fires or floods; false alerting of mounting rescue services or citizens about people in distress in the mountains, etc. (see Judgment No. 579 of 10 December 2013 of the Supreme Court of Cassation (SCC) on criminal case No. 1937/2013, Division I: In what state and for what reasons did K. report planted explosives in different places in P.). The wording of the provision is inapplicable to forecasts of any nature, no matter how apocalyptic or scientifically unproven, as it is objectively impossible to assess the veracity of forecasts at the time of their publication.

If this provision was equally applied to all expressions of public warning regarding different aspects of the current crisis, then hundreds of public figures who express disconcerting views every day should have already been accused of violating the law. As this is not happening, the only conclusion is that there are some unclear and non-transparent criteria for deciding which authors of popular published opinions should be prosecuted.  

              The freedom of expression protected by ECHR and CRB includes the freedom to express highly critical opinions of representatives of the authorities and their actions, and even statements that can be considered verbally aggressive. Public officials in a democratic society can be subjected to a greater degree of criticism than ordinary individuals (see Judgment of 1 October 2013 of the ECtHR on the case of Cholakov v. Bulgaria: “ In the present case the applicant was sentenced to ten days’ detention for having uttered in a public place the slogans “All of them are criminals”, “The prosecutor is a Mafioso”, “The mayor is a Mafioso”, “Political prostitutes” and “A mass of political prostitutes”, and also “other expressions” addressed at the prosecution authorities and the police in Vratsa. In the view of the Vratsa District Court these represented “indecent statements” amounting to “offensive attitude towards public bodies” (see paragraph 15 above). The Court notes that the applicant’s statements were part of what appears to have been an attempt by him to contribute to a public debate on the way the city of Vratsa was governed, in the wake of the local elections (see paragraph 9 above). Such statements relating to issues of public concern and therefore amounting to “political expression” require, in principle, a high degree of protection under Article 10 (see Steel and Morris v. the United Kingdom, no. 68416/01, § 88, ECHR 2005-II). The authorities were thus under an obligation to adduce particularly relevant and sufficient reasons to show that the interference with the applicant’s rights was proportionate to the legitimate aims pursued.”

Therefore, when citizens criticize or reject the anti-crisis measures adopted by the authorities, and this is accompanied by the breaking of their own TV screens (which appear to be conductors of odious information about measures that they reject), insults against the authorities, or calls for peaceful protesting against the government, this can hardly be qualified as a crime. The competent authorities should demonstrate sufficient arguments for the proportionality of any restriction of the freedom of speech in accordance with the ECtHR case-law.

Examples:

It is public knowledge that on 10 April Prof. S. was accused of expressing statements that provoked “unfounded anxiety in the public in relation to the state of emergency” in interviews, in which she warned of potential shortages of particular medicines during the course of the pandemic and highlighted the need for flexible legislation. According to the Sofia District Prosecutor’s Office, this constituted a crime under Art. 326, par. 1 of the Criminal Code (transmission of false calls or misleading signs for help, accidents, or alarm). The case was also reported by the press unit of the Prosecutor’s Office.

(http://defakto.bg/2020/04/22/%D1%81%D0%BE%D1%84%D0%B8%D0%B9%D1%81%D0%BA%D0%B8%D1%8F%D1%82-%D1%80%D0%B0%D0%B9%D0%BE%D0%BD%D0%B5%D0%BD-%D1%81%D1%8A%D0%B4-%D0%BE%D1%82%D0%BC%D0%B5%D0%BD%D0%B8-%D0%BF%D0%B0%D1%80%D0%B8%D1%87%D0%BD/)

            Earlier today the Sofia District Prosecutor’s Office (SDPO) reported that it has pressed charges against “K.K., leader of a political party”, who had claimed that the measures introduced by the Bulgarian authorities in the face of the Coronavirus pandemic were “propaganda to shift away attention and not in the best interest of citizens”…”In addition, the person has made false claims for missing goods from the warehouses of the State Agency State Reserve and Wartime Stock, saying: “On paper everything is there, but in practice there is nothing, everything has been stolen, expended, eaten,” the SDPO clarified.

(https://www.svobodnaevropa.bg/a/30518192.html)

            “In Vidin, there are 15 proven infected medics (doctors, health officers, laboratory assistants) and 10 infected citizens and patients. Vidin was following Sofia in terms of the number of individuals and medical practitioners infected with Covid-19. One unit has been closed and there are infected doctors and personnel in another two units; the entire hospital might be closed,” wrote G. However, the Vidin District Prosecutor’s Office considers this to be false information. “In the course of the investigation it was ascertained that, contrary to what has been alleged, starting from 20 April 2020 all medical personnel of St Petka Hospital – Vidin was being tested for Coronavirus. This information was shared in detail with the accused. Nevertheless, G. G. published false statements in an electronic media.”

(https://segabg.com/node/131605)

            The Yambol District Prosecutor’s Office has initiated pre-trial criminal proceedings against a man who demonstrably broke his TV screen and called upon other citizens to do the same as an act of protest against the measures aimed at restricting the spread of the Coronavirus. A social media video clip showed a young man breaking his TV screen in the region of the Yambol marketplace. He called upon others to do the same as an act of protest against the measures adopted by the Government and the National Staff for Combatting the Spread of Coronavirus. The man was detained for 24 hours and charged with hooliganism.

(https://www.bnr.bg/post/101249693/maj-ot-ambol-troshi-televizor-kato-protest-sreshtu-antivirusnite-merki-arestuvan-za-24-chasa)

            Two men have been detained in Pleven for hooliganism in relation to the state of emergency measures. The case was reported by the regional directorate of the Ministry of Interior in Pleven. In front of a residential building in the Druzhba neighbourhood, a 36-year-old and 43-year-old man engaged in acts of indecency by breaking a TV screen with an axe, while shouting insults against the state of emergency measures adopted in relation to Covid-19. Their behaviour was recorded with a mobile device and the video clip was published in social media networks where it was freely accessible by the public.

(http://www.bta.bg/bg/c/BO/id/2179607)

 

            Prosecution of persons for violating the measures adopted in order to restrict the spread of the virus

            Art. 355 of the CC was amended to criminalize not only the violation of “ordinances” (as the hardly-used pre-amendment text read), but also the violation of “rules or measures” adopted in order to restrict the occurrence or spreading of an infectious disease among the public. This amendment of the otherwise general provision (redirecting to other legislation) opened the floodgates to various interpretations of the phrase “rules or measures”, as well as to opinions as to the violation of which of the newly-adopted, constantly-changing, often unclear, and sometimes contradictory guidelines of the national or local authorities concerning the proper conduct of citizens during a pandemic should be considered a crime. The result is that charges for violations of all kinds of anti-crisis measures have been pressed all around the country. Prosecution proceedings have been instigated in this regard in more than one thousand cases since the outbreak of the crisis. 

In fact, there is no differentiation between the definition of an administrative violation under the Public Health Act when the preventive measures have been introduced via a decision of the minister of health or a director of a regional health inspectorate and the definition as per Art. 355 of the CC (this issue has been analyzed in detail by attorney Silvia Petkova here). This means that one and the same violation can be classified as an administrative offense (perpetrators will not be considered convicted for a criminal offense) punishable by a reasonable fine (after the recent change) of BGN 300 – BGN 1,000, or it can be classified as a criminal offense (perpetrators will be identified as convicted), possibly bringing a punishment of up to five years in prison and (cumulatively) a fine of BGN 10,000 – BGN 50,000. It is important to note that the way of formulating the elements of the crime in the CC (without a specified minimum of the imprisonment) possibly represents a vague suggestion for the perpetrators to hastily agree to plea bargains, accepting probation as per Art. 55 of the CC, in order to avoid harsher punishments such imprisonment (even if suspended) and a potentially larger fine which could possibly even be waived off in case an agreement is reached.

The bigger issue with such a definition, however, lies in the fact that there is logic in the argument that sentencing under such a text of the CC, which refers to a large number of constantly changing vague orders and decisions, could be opposed to a basic legal principle such as the principle of legality of criminal law.

(Art. 7 pt. 1 of the ECHR and Art. 5, subparagraph 3 of CRB, see Decision 22.11.1995 of the ECtHR /S. W. v. the United Kingdom/: Article 7 “should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment…Article 7 of the Convention is not confined to prohibiting the retrospective application of criminal law to an accused’s disadvantage. It also embodies, more generally, the principles that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and that the criminal law must not be extensively construed to an accused person’s disadvantage, for instance by analogy. From these principles it follows that a crime should be clearly defined in the law. This requirement is satisfied when a person can find out from the definition of the particular provision and, if need be, with the help of interpretation by the courts, which actions or lack thereof can incur legal sanctions. Article 7 cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offense and could reasonably be foreseen.)

A much better alternative would be to criminalize with a clear text the violation of one or several emergency measures when this brings greater danger to society, compared to violating all other measures, thus justifying punitive actions by the state — for example, when an infected person violates the quarantine imposed on them (an act which has been criminalized in many European countries as opposed to violations of all other prohibitions for which administrative sanctions and fines of reasonable amounts are usually levied). Violating quarantine carries a real danger of spreading the virus, while other violations incur more abstract risks. Another legislative solution could be to introduce a requirement for repeated infringements.

Since not much has been done by the legislators, the prosecution could at least limit the damage to law and order by assuming the role of defendant of the rule of law. The Prosecutor General could issue methodological guidance (exactly as per the much-commented lately Art. 126, pt. 2 of CRB: “The Prosecutor General supervises the work of all prosecutors in order to ensure legality and provide methodological guidance”), providing some reasonable limits to the application of this too vague and very broad legal text which, in itself, provides multiple opportunities for arbitrary exercise of public authority.

Examples:

The other criminal proceedings were initiated because of a violation of the emergency measures by a fast food facility located on Dimitar Blagoev Street, close to the entrance of the Multidisciplinary Hospital for Active Treatment in the town of Bobov Dol. At around 1pm yesterday, 25 March 2020, the fast food facility, managed by a trading company, sold goods and drinks by the shelf inside the facility, rather than at a counter. For these crimes the Criminal Code stipulates punishments of up to five years in prison and a fine of BGN 10,000 – BGN 50,000. In all cases, those who violate the quarantine measures aiming to limit the spread of Coronavirus will be charged as per the Criminal Code and the Criminal Procedure Code.” (https://dariknews.bg/regioni/kiustendil/rajonna-prokuratura-dupnica-vodi-dosydebni-proizvodstva-za-narushavane-na-vyvedenite-zadylzhitelni-protivoepidemichni-merki-2218858)

A violation of rules and measures stipulated in Order RD-01-224/16.04.2020 of the Minister of Health with the subject prevention of the spread of acute respiratory syndrome caused by Coronavirus was carried out at around 9:30 pm on 19 April 2020 in Sofia. The violation was carried out at checkpoint 20 on the Sofia – Burgas highway, at the entrance of Sofia City, by the Bogrov guesthouse, at the time of a state of emergency because of pandemic and deaths, announced with a decision of the Bulgarian Parliament from 13 March 2020. After police told the defendant he had no valid reason to enter Sofia and directed him to turn back his vehicle, he took off in the direction of Sofia, violating Order RD-01-224/16.04.2020 of the Minister of Health — a crime as per Art. 355, pt. 2 of the CC. (http://defakto.bg/2020/04/21/%D0%B4%D0%B2%D0%B5-%D0%BE%D0%B1%D0%B2%D0%B8%D0%BD%D0%B5%D0%BD%D0%B8%D1%8F-%D0%BF%D0%BB%D1%8E%D1%81-%D0%B0%D1%80%D0%B5%D1%81%D1%82-%D0%B7%D0%B0-%D0%BC%D1%8A%D0%B6-%D0%BD%D0%B0%D0%B2%D0%BB%D1%8F/)

The defendant S. D. committed a crime under Art. 355 of the CC by violating the emergency measures introduced in response to the increasingly complex epidemiological situation in the country by the Minister of Health via an order from 17 March 2020 ( amended an expanded on 19, 26, and 30 March 2020). On 31 March 2020, in the town of Plovdiv he allowed customers in a gym in the city, although the facility should have been closed for visitors. (https://www.plovdiv24.bg/novini/plovdiv/Tozi-dopusna-klienti-vuv-fitnes-zala-v-Plovdiv-po-vreme-na-epidemiyata-Vizhte-nakazanieto-mu-955043)

Criminal proceedings under Art. 355, pt. 2 of the CC have been initiated by police authorities in the town of Veliko Tarnovo against a local citizen, aged 52. The man, a gym owner, had violated emergency measures by allowing in a customer inside the gym yesterday morning. The violation was discovered during a check-up by police. (http://radiovelikotarnovo.com/%D0%B2%D1%8A%D0%BF%D1%80%D0%B5%D0%BA%D0%B8-%D0%B7%D0%B0%D0%B1%D1%80%D0%B0%D0%BD%D0%B0%D1%82%D0%B0-%D1%83%D1%81%D1%82%D0%B0%D0%BD%D0%BE%D0%B2%D0%B8%D1%85%D0%B0-%D1%80%D0%B0%D0%B1%D0%BE%D1%82%D0%B5/)

An expedited procedure for a crime as per Art. 355, pt. 2 of the CC has been initiated against a 49-year-old man who had violated the state-wide emergency measures in the South district of the city of Plovdiv, the press center of the Plovdiv police has said. On 14 April, at a cafe managed by the man and located on 46 Todor Alexandrov Str, police discovered a group of ten people consuming alcohol at the time of the declared emergency measures. The man was detained in the First Police District and the case — reported to a prosecutor on duty. (https://www.plovdiv24.bg/novini/plovdiv/10-dushi-se-nalivat-s-alkohol-v-zavedenie-v-Plovdiv-Arestuvaha-sobstvenika-956814)

Around noontime yesterday, during a check related to the state of emergency in the country, the woman presented a declaration in which she had mentioned that she was travelling to the town of Gorna Oriahovitsa for work reasons. However, a subsequent   check at her workplace revealed that, as per the schedule, she was not supposed to be at work on that particular day. An expedited procedure under Art. 355. pt. 2 of the CC has been initiated against the woman. (https://boliarinews.bg/2020/04/21/%D1%82%D1%8A%D1%80%D0%BD%D0%BE%D0%B2%D0%BA%D0%B0-%D0%BF%D1%80%D0%B5%D0%B4%D1%81%D1%82%D0%B0%D0%B2%D0%B8%D0%BB%D0%B0-%D0%BD%D0%B5%D0%B2%D1%8F%D1%80%D0%BD%D0%B0-%D0%B4%D0%B5%D0%BA%D0%BB%D0%B0%D1%80/)

Criminal proceedings for selling goods at speculative prices

While the argument that such a crime could exist in principle in a market economy, is hard to defend in terms of its common sense, not only this crime does exist, but legislators even added new aggravated elements which could lead to higher penalties: if the sale of “a good at a price above the predetermined one or before a price has been dully determined or established” has been carried out by the seller in the period of state of emergency — Art. 225, par. 6 in connection with par. 1 of the CC.

The idea of the legislators was most likely to develop a criminal sanction for the sale of goods at prices which differ significantly compared to the prices for the same goods during the time before the emergency situation. However, this extravagant idea was abandoned in the final version state of emergency legislation, following a presidential veto on the first version of the text, which the Parliament took into consideration. Thus, a method of determining a price ceiling of goods in order to prevent “speculation” is missing from the legislation.

Still, as in the cases of people charged with spreading false information, instances of criminal proceedings on the basis of the above-discussed legal text are being announced in different legal districts (the announcements mainly concern the sale of protective masks in pharmacies).

In contrast to the case-law with regards to the other crimes described  in this text, there is a slightly larger number of cases heard by the courts for selling goods at speculative prices. These legal precedents date from some time back, however it is easy to see what kind of social interactions they were examining ( for example, Decision 88 from 15.07.1990, case 52/1989 Third Criminal Section of the Supreme Court: “transactions, related to the sale of light vehicles among private persons in the period 8.10.1970 — 23.05.1986 are carried out at prices  agreed by the seller and buyer, but not higher than the price determined by the government  for the particular car brand and model; Decision 444 from 13.09.1977, case 405/1977, First Criminal Section of the Supreme Court: The facts disclosed in the course of the hearing show that the defendant has been carrying out private economic activities by building steam installations for private persons and charging greater amounts than the ones determined by the legal acts.“)

Examples:

The criminal proceedings were initiated after several people from the town of Tutrakan tipped off the authorities that the manager of a local pharmacy sold them disposable protective masks at a price of BGN 6 per item. (https://www.kvorum-silistra.info/news/16797)

The Sofia District Prosecutor’s Office has initiated proceedings against a Sofia-based pharmacy which has been selling protective masks for BGN 10 per item.( http://defakto.bg/2020/03/27/%D0%BE%D0%B1%D1%80%D0%B0%D0%B7%D1%83%D0%B2%D0%B0%D1%85%D0%B0-%D0%B4%D0%BE%D1%81%D1%8A%D0%B4%D0%B5%D0%B1%D0%BD%D0%BE-%D0%BF%D1%80%D0%BE%D0%B8%D0%B7%D0%B2%D0%BE%D0%B4%D1%81%D1%82%D0%B2%D0%BE-%D0%B7/)

 

In conclusion, we must stress that the principle of the rule of law clearly excludes the arbitrary use of punitive actions without clarity and predictability and this principles applies even in periods of declared state of emergency. The legitimate goal of the state to ensure the implementation of measures adopted in order to stop the spread of infection cannot be justified by all kinds of means. It is highly likely that we will have to continue living  for a substantial period of time with measures which to one degree or another contradict our current concepts of normality.

We are aware of the challenges faced by law enforcement institutions in these times of hardship for everybody, however, we urge the representatives of institutions, the media, non-governmental organizations and all citizens not to normalize unlawful arbitrary state actions.


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