SPECIAL ANTI-CORRUPTION AGENCY LAW of the BSP2 September 2017 | 10:02 | anti corruption
SPECIAL ANTI-CORRUPTION AGENCY LAW
Art. 1. This law shall provide for:
1. measures for fighting against corruption among senior officials;
2. measures for corruption prevention;
3. the organization and the activity of the Special Anti-Corruption Agency, referred to herein as the “Agency”, the status of its staff and the powers of its bodies.
Art. 2. The law shall aim at protecting the public interests by means of efficient anti-corruption activities.
Art. 3. (1) This law shall be implemented in compliance with the following principles:
1. complying with the Constitution, the laws and the international agreements whereto the Republic of Bulgaria is a party;
2. legality, transparency, independence, objectivity and impartiality;
3. publicity of the assets of senior officials;
4. respecting and safeguarding the citizens’ rights and freedoms;
5. proportionality in the intervention in the personal and family life;
6. information and information sources protection;
7. whistleblower protection;
8. coordination and collaboration among public authorities;
9. political neutrality.
(2) The work of the Special Anti-Corruption Agency shall be supervised by the bodies as envisaged in the Constitution and in this law.
(3) The Special Anti-Corruption Agency shall perform its activities in an independent manner and in collaboration with other public authorities. The collaboration between the agency and other public authorities can be performed on the basis of joint instructions.
Art. 4. (1) The Special Anti-Corruption Agency is a legal entity with public budgetary support and with its seat in Sofia.
(2) The Head of the Agency is the primary budgetary officer.
Art. 5. (1) Senior officials within the meaning of this law are:
1. the President and the Vice-President;
2. the Members of Parliament;
3. the Prime-Minister, the Deputy Prime-Ministers, the Ministers and the Deputy Ministers;
4. the Members of the European Parliament from the Republic of Bulgaria;
5. the Members of the European Commission from the Republic of Bulgaria and Bulgarian citizens employed by bodies of the European Union selected or appointed upon decision or by proposal of a Bulgarian public authority;
6. the Chairperson and the judges of the Constitutional Court;
7. the Chairperson of the Supreme Court of Cassation and of the Supreme Administrative Court, the Prosecutor General, their deputies, the heads of administration of judicial authorities and their deputies, the members of the Supreme Judicial Council, the Chief Inspector and the Inspectors of the Inspectorate to the Supreme Judicial Council, judges, prosecutors and investigators;
8. the Ombudsman and the Deputy-Ombudsman;
9. the Chairman, the Deputy Chairman and the members of the Communications Regulation Commission;
10. the President, Vice-Presidents and members of the Bulgarian National Audit Office;
11. the Chairperson and the members of the Commission for Protection of Competition;
12. the Governor, the Deputy-Governors, the members of the Governing Council and the Secretary General of the Bulgarian National Bank;
13. the Chairman, the Deputy-Chairmen, the members and the Secretary General of the Financial Supervision Commission;
14. the Chairperson, the Deputy-Chairpersons and the members of the Supervisory Board, the Governor and the Deputy Governor of the National Social Security Institute;
15. the Director and the Deputy-Director of the National Health Insurance Fund and the Directors of the Regional Health Insurance Funds;
16. the Chairmen and Deputy-Chairmen of state agencies, the chairmen and members of state commissions, the executive directors of the executive agencies, heads of state institutions established with a law or with a decree of the Council of Ministers, as well as their deputies;
17. the head and the Deputy-Head of the Special Anti-Corruption Agency and the directors of its territorial directorates;
18. the members of the Executive Board and of the Supervisory Board of the Privatization and Post-Privatization Control Agency;
19. the Director General, the Deputy-Directors and the Secretary General of the National Customs Agency, the directors of directorates in the Central Customs Directorate, the heads of customs and their deputies, the heads of customs offices and customs posts;
20. the Director General, the Deputy-Director Generals and the Secretary General of the National Revenue Agency, the directors of directorates of the Central Inspectorate and the directors of the territorial directorates of the National Revenue Agency;
21. the heads of the regional directorates for food safety, of the regional health inspections, of the National Construction Control Directorate and of its regional directorates, of the State Fund Agriculture and of its regional directorates, of the regional departments of the Executive Agency “Automobile Administration”, of the National Institute for Immovable Cultural Heritage and of its territorial units, of Directorate General “Execution of Penalties”, its deputies and the heads of the territorial offices, of Directorate General “Security”, its deputy head and the directors of the regional directorates, of the regional environment and water inspectorates, of the basin water management directorates, of the national parks, of the enterprises for environment protection management;
22. the chairperson and the deputy-chairmen of the State Agency for National Security, of the State Intelligence Agency and of the State Agency for Technical Operations, the head of the National Service for Protection and its Deputy-Heads and the head of the Defense Information Service and its Deputy-Heads;
23. the head, the Deputy-Head and the members of the National Authority for Specialized Investigative Techniques Control;
24. the Secretary General of the Ministry of Interior and their deputy, the administrative secretary, the directors and the deputy-directors of the directorates general, the director of the “Internal Security” directorate, the directors and the deputy-directors of the regional directorates of the Ministry of Interior;
25. the officers of the senior command of the armed forces in accordance with the Law on Defense and the Armed Forces of the Republic of Bulgaria;
26. the secretaries general of the National assembly, of the President of the Republic of Bulgaria and of the Council of Ministers, the general and administrative secretaries in the administration of the executive authorities, the permanent secretary of the Ministry of Foreign Affairs and the permanent secretary of defense;
27. the heads of inspectorates in line with the Law on the administration;
28. the heads of political cabinets;
29. the governors and deputy-governors;
30. the mayors and deputy-mayors of municipalities, mayors and deputy-mayors of regions, the heads of municipal councils, municipal counselors and the chief architects of municipalities and regions;
31. the members of the Central Election Commission;
32. the head and the members of the Council for Electronic Media;
33. the Directors General of the Bulgarian National Television, of the Bulgarian National Radio and the Bulgarian News Agency;
34. Bulgarian citizens employed in the North Atlantic Treaty Organization selected or appointed upon decision or upon proposal of a Bulgarian public authority;
35. the heads of the representations of the Republic of Bulgaria abroad;
36. Bulgarian citizens who upon decision or upon proposal of Bulgarian public authorities are members of management or of supervisory bodies of international organizations co-funded by the Republic of Bulgaria;
37. the members of the management board and of the supervisory board of the Bulgarian Development Bank;
38. the members of the management and of the supervisory bodies of the National Electricity Company and of the Bulgarian Energy Holding, the directors of directorates with the National Electricity Company, the members of the management and supervisory bodies of subsidiary enterprises of the Bulgarian Energy Holding, the members of management and of supervisory bodies of the Electricity System Operator;
39. the Chairmen of political parties on state subsidy, their deputies and those who in accordance with the party statutes represent the party;
40. the members of the management and supervisory authorities of the Bulgarian Red Cross;
41. the heads of budgetary organizations or other authorized officials who function as financial supervision authorities as regards European Union funds and the related national funding or other funds in accordance with the Law on public finance;
42. those who are authorized under the Public Procurement Law by a public awarding authority and who under this law are obliged to organize and hold public procurements and to sign contracts;
43. the President of the Bulgarian Academy of Sciences, the Rectors of state universities and the heads of military academies and of military schools for higher education;
44. the heads and executive directors of health establishments for in-patient healthcare financed by the budget of the National Health Insurance Fund and/ or by the state or the municipal budget;
45. the members of the management boards of state enterprises under the Forest Law and the directors of state forest and hunting holdings;
46. the executive director and the heads of territorial departments of state enterprise “Prison Fund”;
47. the members of the management board and the executive director of state enterprise “Bulgarian Sports Lottery”.
(2) Declarations of assets of judges, prosecutors and investigators, including the chairmen of the Supreme Court of Cassation and the Supreme Administrative Court, the prosecutor general, the heads of administration of judicial authorities and their deputies shall be submitted and verified in accordance with the Judicial System Law.
(3) The heads of the authorities who select and exempt those under para 1 shall notify the agency within 14 days about the respective document. In the cases under para 1, items 5, 34 and 36 the notification shall be made by the head of the authority which has made the decision or the proposal.
ACTIVITIES OF THE SPECIAL ANTI-CORRUPTION AGENCY
Art. 6. (1) The Special Anti-Corruption Agency shall:
1. monitor, detect, prevent, counteract and curb conceived, prepared or performed violations having to do with corruption activities of senior officials;
2. investigate corruption crimes for which there are indications that have been committed by a person under art. 5, para 1;
3. examine and analyze the declarations of assets of senior officials and verify their assets;
4. perform information analytical, forecast, control, coordination and methodological activity with its own information and information of other public authorities which is relevant for its activity.
5. perform preventive actions as per chapter four.
(2) Corruption crimes under para 1, item 2 are crimes under articles 201 – 205, article 219, para 3 and para 4, annex 2, article 220, article 225c, articles 282 – 283b, article 285, article 288, article 289, article 294, article 295, articles 301 – 307 of the Criminal Code.
Art. 7. The Agency shall organize and perform operational and search activities, operational and technical activities, information and analytical activities for surveillance and control of people, objects and activities hereunder.
Art. 8. (1) The crime investigation activities under art. 6, para 1, item 2 shall be carried out by investigating agents under the Criminal Procedure Code.
(2) The investigating agents are appointed by an order of the Head of the Agency. No other activities apart from crime investigation shall be assigned to them.
(3) When performing their duties the investigating agents shall abide by the law and shall take decisions with personal conviction based on objective, comprehensive and exhaustive study of all circumstances related to the case.
(4) The aforementioned Heads are not entitled to give instructions as regards the investigation activities and a written opinion and shall intervene in the investigation in no way.
(5) The collaboration of the investigating agents and other agency bodies shall be provided for by the Head of the Agency.
Art. 9. (1) Anyone who has indications about cases of corruption within the meaning of this law about a senior official or indications about a crime under art. 6, para 1, item 2 can notify the Agency.
(2) A publication in the mass media is deemed as an alert too.
(3) Any alert is immediately registered in the Agency upon submission.
(4) The alerts shall be considered in compliance with the principles in art. 4.
(5) Alerts outside the Agency competence shall be immediately referred to the respective competent authority.
(6) The Head of the Agency shall endorse an alert form available both on the Agency website and on site.
Art. 10. (1) When the alert contains the whistleblower’s full name, personal identification number, address, phone number, fax number, e-mail and signature, the Agency shall inform the whistleblower about the actions undertaken in response to the alert.
(2) The alert can be accompanied by any information source supporting the statements it contains.
Art. 11. (1) A whistleblower who notifies about corruption activities of a senior official shall not be held criminally liable or experience any adverse effects only on that ground.
(2) The officials who examine the alert shall:
1. not reveal the whistleblower’s identity;
2. not spread the facts and data that they are aware of in relation to the alert;
3. protect the written documents they have access to from unregulated access of third parties.
(3) The officials under para 2 shall propose to the respective Heads concrete measures to be undertaken in order to protect the whistleblower’s identity, including measures preventing activities for exerting psychological or physical pressure.
Art. 12. In special cases additional measures can be requested from the Ministry of Interior for the whistleblower’s protection upon request of the Head of the Agency, respectively the Inspectorate with the Supreme Judicial Council.
Art. 13. A whistleblower who has been fired, prosecuted or subjected to psychological or physical harassment only because they have submitted an alert is entitled to judicial redress for any suffered material and non-material damage.
Art. 14. The Agency carries out international cooperation in relation to its activity.
STRUCTURE AND MANAGEMENT OF THE SPECIAL ANTI-CORRUPTION AGENCY
Art. 15. (1) The Special Anti-Corruption Agency is headed by a Head appointed with a Presidential Decree for a 5-year term of office. The Head cannot serve for more than two consecutive terms of office.
(2) Upon proposal of the Head, the National Assembly shall appoint three deputies. They are appointed with a two-third majority of all Members of Parliament. The term of office of the Deputies coincides with the one of the Head.
(3) As Head and Deputy-Heads of the Agency can be selected and appointed persons who:
1. have Bulgarian citizenship;
2. have university master’s degree in law for the Head and university master’s degree in law or in economics for the Deputy-Head;
3. have a 10-year legal work experience for the Head and a 8-year law/ economics work experience for the Deputy-Heads;
4. have not been convicted for general intentional crime irrespective of the rehabilitation and have not been exempt from criminal liability for general intentional crime;
5. are not deprived of the right to hold a special office;
6. have received a clearance for access to classified information marked “Top secret”;
7. are not members of political parties or coalitions or political organizations;
8. are not sole proprietors, associates, managers, proxies or members of supervisory boards, management boards or boards of directors or in control bodies of commercial companies, cooperatives or non-profit legal entities with economic activity;
9. do not work as employees or as civil servants apart from holding an academic office at a university or a scientific organization.
(4) The powers of the Head and of the Deputy-Head shall be terminated earlier:
1. upon their request;
2. upon turning 65 years of age;
3. in case of real impossibility to perform their duties for more than 6 months;
4. in case of incompatibility with the requirements in para 3;
5. in case an act enters into force which establishes a conflict of interest under the Conflict of Interest Prevention and Detection Law;
6. in case of serious breach or systemic failure to perform their official duties as well as in cases of activities damaging the Agency’s reputation.
(5) In the cases under para 4 the powers of the Head shall be terminated with a Presidential decree and those of the Deputy-Heads with a decision of the National Assembly upon proposal of the Head of the Agency.
(6) In case of death or in case of earlier termination of the powers of the Head within one month thereafter the President of the Republic shall issue a decree for a new Head who shall complete the term of office.
(7) In case of death or earlier termination of the powers of a Deputy-Head, the Head of the Agency shall within one month propose to the National Assembly to appoint a new Deputy-Head who shall complete the term of office.
(8) By the time a new Head is appointed their functions shall be performed by a Deputy-Head appointed by the President of the Republic.
Art. 16. (1) The head of the Agency receives basic monthly remuneration amounting to 90 per cent of the basic monthly remuneration of the Speaker of the National Assembly.
(2) The Deputy-Heads receive basic monthly remuneration amounting to 90 per cent of the remuneration of the Head of the Agency.
Art. 17. (1) The Head of the Agency shall:
1. organize, manage and supervise the Agency activity;
2. represent the Agency;
3. endorse the distribution of the offices in the Agency administration and the job descriptions of its employees; establish and close structural units within the approved budget and numerical composition;
4. propose the draft annual budget of the Agency;
5. implement and report the implementation of the Agency budget;
6.be in charge of the human resource management;
7. be in charge of the management of the properties given to the Agency;
8. endorse a Code of Conduct for the civil servants of the Special Anti-Corruption Agency;
9. adopt rules for exerting checks of the Agency employees’ integrity and organizes their performance;
10. collaborate with similar authorities of other countries and with international organizations;
11. perform other functions stipulated by law.
(2) In performing their powers, the Head of the Agency shall issue orders and other acts envisaged by law.
Art. 18. (1) The Head of the Agency shall perform their functions directly and with the help of the Deputy-Heads.
(2) The powers of the Deputy-Heads shall be established by a written order of the Head of the Agency.
(3) The powers of the Head in their absence shall be performed by a Deputy-Head whom they appoint with an order on a case-by-case basis.
(4) The Deputy-Heads shall issue orders in performing their powers.
Art. 19. (1) The administrative management of the Agency administration shall be performed by an Administrative Secretary.
(2) The Administrative Secretary shall manage the administration in coordinating and supervising the administrative units for the precise implementation of the legal acts and of the legal instructions of the Head of the Agency, for the regulated document and information flow and shall be in charge of the accountability in performing the annual goals of the administration, including coordination and supervision of the distribution and the use of the property that the Agency manages. The Administrative Secretary shall organize and coordinate the collaboration of the Agency with other entities and organizations. The Administrative Secretary shall perform other functions assigned by the Head of the Agency.
(3) The Administrative Secretary shall assist the Head and the Deputy-Heads of the Agency in performing their powers. The Administrative Secretary shall be directly accountable to the Head of the Agency.
(4) In performing their powers the Administrative Secretary shall issue orders regarding the Agency administration or separate structural units.
(5) The Administrative Secretary shall not perform their powers as regards the operational and search activity of the Agency as well as the investigation function.
Art. 20. (1) Main structural units in the Agency administration are the specialized directorates, the individual territorial departments and the specialized administrative directorates.
(2) The total number of the employees in the Agency shall be determined with the Rules of Procedure for the implementation of the law upon proposal of the Head of the Agency.
Art. 21. (1) The specialized directorates of the Agency shall perform the activities under chapter four, chapter five and chapter seven as well as the crime investigation activity under art. 6, para 1, item 2.
(2) The specialized directorate for corruption detection shall perform operational and search activities.
(3) The structure of the directorates under para 1 shall be determined with an act of the Head of the Agency. The structure includes departments and sectors.
(4) The specialized directorates within their competence shall perform methodological management and supervision over the territorial directorates and the individual territorial departments in the respective field of activity.
(5) The Security Directorate of the Special Anti-Corruption Agency shall also be an administrative unit in charge of information security in the Agency.
Art. 22. (1) The specialized administrative directorates and the activities they perform shall be determined by force of an order of the Head of the Agency.
(2) The individual territorial departments of the Agency shall be set up with an Decree of the President of the Republic upon proposal of the Head of the Agency which shall also determine the seats and the respective areas of activity. The individual territorial departments shall perform operational and search activity.
(3) The structure and the activities of the individual territorial departments shall be determined with an act of the Head of the Agency. The structure of the individual territorial departments can also include sectors.
Art. 23. (1) The specialized directorates and the specialized administrative directorates shall be headed by directors appointed by the Head of the Agency and shall be direct managers of the employees in the directorates.
(2) The Director of the Security Directorate of the Special Anti-Corruption Agency shall also be an information security officer.
Art. 24. (1) The directors of directorates in the Agency shall be in charge of the overall and direct management of the directorates whereby they shall:
1. plan, organize, manage, supervise and be responsible for their activity;
2. execute the orders of the Head of the Agency and be accountable to the latter;
3. be in charge of the results of the activity, of abiding by the laws, the other legal acts and the orders of the Head of the Agency;
4. coordinate the activity of the directorates with other public authorities via the Head of the Agency;
5. manage the information repositories, provide for and be in charge of the information cohesion of the directorate with the respective territorial directorates and individual territorial departments;
6.be in charge of the human resource management;
7. perform other functions assigned with an order to the Head, the Deputy-Head and the Administrative Secretary of the Agency within the legal activities of the Special Anti-Corruption Agency.
(2) The directors shall issue orders in performing their powers under para 1.
Art. 25. The Agency shall implement the state corruption prevention policy by:
1. collecting, summarizing and analyzing information for the national anti-corruption policies and measures;
2. making analyses, drafting and proposing measures for corruption prevention and counteraction, as well as coordinating their implementation, including by sectors;
3. performing activities to disseminate information, connected with the fight against corruption, including anti-corruption policies and measures.
Art. 26. To perform its obligations under art. 25, item 1, the Agency shall:
1. collect and summarize information and maintain a database for the implementation of anti-corruption policies and measures;
2. monitor and perform periodic evaluation of the implementation of anti-corruption measures, including by sectors;
3. collect and summarize best practices;
4. analyze and provide information to national, European and international anti-corruption institutions and organizations.
Art. 27. (1) To perform its obligations under art. 25, item 2, the Agency shall:
1. coordinate every bill, drafted by the executive authorities in terms of the presence of risks of corruption and it shall perform a follow-up analysis of the impact of the respective law;
2. identify and analyze areas with corruption risks;
3. draft measures of anti-corruption nature;
4. provide methodological support for the implementation of the measures under item 3;
5. make a follow-up impact analysis in terms of the measures implemented under item 3;
6. develop methodologies for the evaluation of the risk of corruption, ethical standards for conduct, an integrity check system and it shall provide support for their implementation;
7. develop draft legal acts of anti-corruption nature
(2) The analyses and proposals for anti-corruption measures drafted by the Agency shall be submitted to the competent authorities, which shall be obliged to take a stance on them within one month thereafter and to inform the Agency about the measures adopted and the deadlines for their implementation, as well as about the measures that they have not adopted and the reasoning behind that. After the introduction of anti-corruption measures, the competent authorities shall be obliged to inform the Agency about the results of their implementation.
Art. 28. To perform its obligations under art. 25, item 3, the Agency shall:
1. organize trainings, seminars and awareness raising campaigns of anti-corruption nature;
2. on request by a stakeholder, provide opinions on the application of the law in terms of corruption prevention;
3. organize public opinion polls and analyses;
4. take other appropriate actions.
Art. 29. During the implementation of its corruption prevention activity the Agency shall cooperate with other state and local governance authorities, non-governmental organizations, the business, as well as with international organizations and foreign public authorities.
DECLARATION OF ASSETS AND INETERESTS. ASSET CHECKS
Obligation to declare
Art. 30. (1) Senior officials, with the exception of those with obligations under the Judicial System Law, shall submit the following declarations:
1. a declaration on assets and interests;
2. a declaration on the change in circumstances declared in the declaration under item 1 in its section on interests and about the origin of funds, in case of an early repayment of debt and loans.
(2) The declarations under para 1 shall be submitted to the Head of the Agency and shall comply with the form, endorsed by the Head.
(3) The declarations shall be submitted on paper and in an electronic format. A declaration submitted in an electronic format only shall be considered not submitted, except in the cases when it is submitted in compliance with the Electronic Document and Electronic Signature Law.
Art. 31. (1) Senior officials with the exception of those with obligations under the Judicial System Law, shall submit to the Agency a declaration on assets and interests in this country and abroad, whereby they shall declare:
1. immovable property;
2. motor means of transportation on land, water and air, as well as other means of transportation, which by law are subjected to registration;
3. funds, including deposits, bank accounts and receivables whose total amount exceeds BGN 10 000, including such in foreign currencies;
4. investments in investment and pension funds as well as equivalent forms of savings and investments, if their total amount exceeds BGN 10 000;
5. available securities, shares in limited liability companies and limited partnerships, as well as financial instruments under art. 3 of the Markets in Financial Instruments Law;
6. liabilities and loans exceeding BGN 10 000, including credit cards, if the credit limit used in the preceding calendar year in local or foreign currency total exceeds BGN 10 000;
7. labor income, received during the preceding calendar year;
8. income, beyond the income from the position occupied, received during the preceding calendar year, when it exceeds BGN 1 000;
9. someone else’s immovable property and motor means of transportation on land, water and air, whose value exceeds BGN 10 000, and which the person or their spouse, or their cohabitee uses continuously, irrespective of the grounds on the basis of which it is being used and the terms and conditions of this use;
10. collaterals provided and costs made by them or in their favor or in favor of the persons under para 4 with their consent, when these are not paid with their own funds, with public funds or with funds of the institution where the person occupies a position, pertaining to:
c) other payments with unit price above BGN 1 000;
11. expenditure on trainings, outside the scope of cases under item 10, including to the benefit of persons under para 4, whose unit value exceeds BGN 1 000;
12. participation in commercial companies, management or control bodies of commercial companies, non-profit legal entities or of cooperatives, as well as performing activities as a sole-owner at the date of election or appointment and 12 months prior the date of election or appointment;
13. contracts with persons performing activities in areas, connected with the decisions made by the senior official within the scope of their powers or the official duties of the senior official;
14. data about related parties the activities of which are of private interest to the senior official.
(2) During the annual declaring of assets under items 3-6, it is the amounts by 31 December of the preceding year that need to be declared.
(3) When property under para 1 is being declared, in case it has been acquired during the period when the senior official has already been occupying this position, the legal bases and origin of funds used during the acquisition shall also be declared.
(4) Senior officials shall declare also the property and income of their spouses or cohabitees and of minor children.
(5) Senior officials shall not declare the property and income of their spouses in case of legal separation and of minor children, when the senior officials do not have the rights of custody.
(6) The person obliged to declare shall submit a declaration on the circumstances under para 5.
(7) Senior officials shall be entitled to submit declarations stipulating that they do not want the information about their cohabitees and their cohabitees’ property and income to be disclosed publically.
Art. 32. (1) The declaration of assets and interests shall be submitted:
1. within one month following the taking of office as a senior official;
2. on an annual basis by 15 May - for the preceding calendar year;
3. within one month following the senior official’s no longer occupying their position;
4. within one month following the expiry of one year after the submission of the declaration under item 3.
(2) Within one month following the submission of the declaration of assets and interests, the senior officials shall be entitled to make changes to their declarations, when necessary, in order to introduce additional clarification or correct mistakes in the circumstances declared.
Art. 33. Senior officials shall submit the declaration under art. 30, para 1, item 2 within a period of one month after the changes have taken place.
Art. 34. The Agency shall publish the declarations of senior officials and a list of persons who have failed to submit their declarations within the deadline on is webpage within two months following the expiry of the deadlines under art. 32.
Art. 35. (1) The Agency shall accept the declarations of assets and interests as well as the declarations of a change in declared circumstances in the declaration of assets and interests in the section on interests and shall record them in a public register.
(2) A public register under para 1shall contain the information under art. 31, paras 1, 3, 4 and 6.
Art. 36. (1) Each person shall be entitled to access to the data in the register under art. 35.
(2) Access shall be provided via the webpage of the Agency in compliance with the Personal Data Protection Law.
(3) Each person shall be entitled to receive information connected with the data from the register under art. 36 in compliance with the Access to Public Information Law.
Checks of declarations and assets
Art. 37. (1) Within 6 months following the expiry of the deadlines under art. 32 Agency employees, from the respective specialized directorate, shall check and analyze the information in the declarations of assets and interests of senior officials in order to verify the declared facts.
(2) The check of declarations of assets of judges, prosecutors and investigators, including the chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court, the Prosecutor General, the heads of administration of judicial authorities and their deputies shall be performed in compliance with the Judicial System Law.
Art. 38. (1) The declaration checks shall be performed by means of direct access to electronic registers, databases and other information repositories, maintained by other institutions.
(2) The Agency employees shall be entitled to request additional information from state and local governance authorities, local administration, judicial system bodies and other institutions where the facts declared have to be recorded, announced or certified.
(3) Within 30 days following the receiving of the request the bodies and institutions under para 1 shall be obliged to provide the necessary information.
(4) The check shall be performed by means of comparing the facts declared and the information, received in compliance with para 1.
Art. 39. In the cases when no discrepancies between the facts declared and the information received were found, the check shall be finalized with a compliance report. In all other cases the check shall be finalized with an incompliance report.
Art. 40. (1) Should incompliances be found, the Agency shall notify the respective person and grant the person a period of 14 days to introduce additional clarification and correct mistakes in the circumstances declared. Additional clarification shall be introduced and mistakes corrected in compliance with the order for submitting declarations.
(2) Should incompliances be found, which have not been addressed within the deadline under para. 1, the Agency shall exercise its powers by law until the reasons for the incompliance have been clarified.
(3) Should it be found that the incompliance is not due to the committing of a crime, the Agency shall provide the data to the National Revenue Agency in order for it to take action in compliance with the Tax Procedure Code, if there are grounds for this.
ACTIVITIES TO DETECT INSTANCES OF CORRUPTION OF SENIOR OFFICIALS
Art. 41. The Agency shall perform activities to detect instances of corruption of senior officials by collecting, analyzing and checking data in case of and in relation to information about such instances.
(2) The Agency shall perform operational and search activities.
Art. 42. The Agency bodies shall perform activities under art. 41 by:
1. planning, organizing, managing, controlling and being responsible for the performance of tasks, assigned to them by force of an order of the Head of the Agency;
2. managing information repositories;
3. finding the facts about information submitted to the Agency;
4. maintaining coordination with other administrative units in the Agency;
5. maintaining coordination with state and local governance authorities;
6. checking alerts under art. 9;
7. performing other functions, assigned to them by force of an order of the Head of the Agency.
Art. 43. (1) To exercise its powers stipulated by law the Agency shall establish, maintain and use information repositories.
(2) The organization of information activities of the Agency, the bodies to manage and control this activity, as well as the ways to use the information shall be stipulated in an instruction by the Head of the Agency.
(3) During the exercising of control on the information activity the rules for protection of classified information shall be abided by.
Art. 44. The goal of the operational and search activities shall be to:
1. prevent, deter and counteract corruption crimes;
2. check information under chapter five;
3. provide and store evidence.
Art. 45. The operational and search activities shall be performed in respect and while safeguarding the citizens’ human dignity, rights and fundamental freedoms.
Art. 46. (1) The operational and search activities shall be carried out by:
1. performing checks of senior officials in information repositories;
2. taking samples for comparative tests;
3. staining of sites and objects;
4. tests of objects and documents;
6. identification of persons and sites;
7. collecting information from technical channels for communication;
8. operational infiltration;
9. operational experiment;
10. operational checks of data collected and their documenting;
11. cross-checks of documents;
12. taking statements from citizens.
(2) The operational and search activities shall be performed through specific ways and means, specialized investigative techniques, as well as through citizens who have voluntarily accepted to cooperate with the bodies of the Agency while they exercise their functions.
(3) The Agency shall use, apply and own special investigative techniques in compliance with the Special Investigative Techniques Law.
(4) Voluntary cooperators can be used only by the Agency bodies that work under the stipulations of this chapter. An instruction of the Head of the Agency shall regulate the cooperation with citizens for the performance of the powers of these bodies.
(5) Voluntary cooperators shall be attracted and shall act in compliance with the following principles:
1. they shall be attracted, shall work and their activity shall be terminated on a voluntary principle;
2. protection during or as a result of the cooperation;
3. keeping the identity as well as other personal data of the persons and their activity confidential.
(6) Data about the persons who have voluntarily accepted to cooperate with the Agency bodies shall be disclosed to the court or the Prosecutor’s Office only after the obtaining of written consent by the persons in relation to specific criminal proceedings and in compliance with the provisions of the Protection of Classified Information Law.
Art. 47. The following shall be considered grounds for the performance of operational and search activities:
1. data received about senior officials, who are preparing, are engaging or have already been engaged in instances of corruption;
2. data received about corruption crimes under art. 6, para 2;
3. request by pre-trial proceedings bodies and the court;
4. incompliance report under art. 40.
EMPLOYEES OF THE SPECIAL ATI-CORRUPTION AGENCY. BODIES AND POWERS
Art. 48. (1) The employees of the Special Anti-Corruption Agency shall be:
1. the civil servants under this law;
2. civil servants;
3. persons, working under employment contracts.
Art. 49. (1) Persons with higher education, who have successfully passed the integrity check, after participating in a competition, shall be appointed civil servants to perform the activities under chapters four, five and six. Persons with a law degree shall be appointed investigating agents, under the conditions of the first sentence.
(2) The employees under para 1, shall give their consent to be subjected to periodic and ad hoc integrity checks while they occupy their position.
(3) Integrity checks shall be carried out in compliance with rules, approved by the Head of the Agency and they shall obligatorily include a check of the circumstances declared under this law. The rules shall be published on the webpage of the Agency.
(4) Failure to pass an integrity check shall be grounds for removal from the respective position.
Art. 50. The provisions of chapter seven from the State Agency for National Security Law shall apply to the status of the Agency employees, in so far as this law does not stipulate differently.
Art. 51. (1) Civil servants in specialized directorates shall be considered bodies of the Agency.
(2) The bodies of the Agency that perform operational and search activities and investigate, shall have powers under art. 124b-129 from the State Agency for National Security Law.
INTERACTION BETWEEN THE AGENCY AND OTHER PUBLIC AUTHORITIES AND INTERNATIONAL COOPERATION
Art. 52. (1) The Agency, its bodies, the Prosecutor’s Office, the Ministry of Interior, the bodies of the State Agency for National Security, the revenue bodies and the bodies of the Customs Agency shall cooperate in compliance with their jurisdiction in order to accomplish the objective of this law.
(2) The order, conditions and deadlines for this cooperation shall be stipulated in a joint instruction document of the Prosecutor General, the Minister of Finance and the Minister of Interior, the Chairperson of the Agency for National Security and the Agency.
Art. 53. (1) While exercising their powers under this law the Agency bodies shall be entitled to require cooperation, data and documents, including in an electronic format, from state and municipal authorities, commercial entities, credit institutions, notaries, private enforcement agents, as well as from other natural persons and legal entities.
(2) The bodies and persons under para 1 shall be obliged to provide the required data within one month following the request, with the exception of the data which is to be provided in compliance with a special order.
(3) The exchange of classified information shall be carried out in accordance with the Protection of Classified Information Law.
(4) The processing of personal data shall be carried out in accordance with the Personal Data Protection Law.
Art. 54. (1) While the Agency bodies carry out the activities under chapter six, the Agency shall cooperate with the:
1. Prosecutor’s Office;
2. Ministry of Interior;
3. State Agency for National Security;
4. State Agency for Technical Operations;
5. State Intelligence Agency.
(2) The order and deadlines for the cooperation under para 1, shall be stipulated in joint instructions.
Art. 55. (1) The Agency bodies shall draft a protocol for every action taken under this law, except in the cases when the performed activity has been attested by means of another document.
(2) The persons, who during or in relation to the performance of their duties, become aware of information about the conducted check, shall not be entitled to disclose it.
Art. 56. (1) For the purposes of this law, the Agency shall exchange information with the competent authorities in other states and with international organizations on the basis of international instruments and treaties which are in force for the Republic of Bulgaria.
(2) The Agency shall sign international agreements for data exchange for the declaration checks under art. 30, para 1.
TRANSITIONAL AND FINAL PROVISIONS
§ 1. (1) The persons for whom the obligation to declare has arisen for the first time by force of this law, shall submit introductory declarations in compliance with this law within one month following its entry into force.
(2) The persons obliged to declare who have submitted their introductory declarations in compliance with the repealed Disclosure of Assets of Senior and Other Officials Law shall not submit new introductory declarations after the entry into force of this law. They shall submit declarations in accordance with this law within the deadlines under art. 32.
§ 2. The legal representation in pending litigations of the respective unit of the Audit Office shall be performed by the Head of the Special Anti-Corruption Agency.
§ 3. (1) The Audit Office unit performing the activity under the repealed Disclosure of Assets of Senior and Other Officials Law and the respective specialized directorate of the State Agency for National Security for the counteracting of instances of corruption among senior officials shall merge with the Special Anti-Corruption Agency.
(2) The Special Anti-Corruption Agency shall be the legal successor of the respective part of the assets, liabilities, archive, rights and obligations of the Audit Office, connected with the activity under the repealed Disclosure of Assets of Senior and Other Officials Law, as well as of the respective specialized directorate of the State Agency for National Security for the counteracting of instances of corruption among senior officials.
(3) The service and employment relations of the heads and employees in the administration shall be settled in accordance with art. 123 of the Labor Code and art. 87a of the Civil Servants Law.
(4) Service relations of the civil servants under art. 43, para 1, item 1 from the State Agency for National Security Law shall be transferred to service relations with the Special Anti-Corruption Agency.
(5) The professional experience acquired under the State Agency for National Security Law by the employees transferred to the Special Anti-Corruption Agency shall be accounted for as work for one and the same employer, employment authority respectively, including in the cases when compensations are to be paid for discontinuation of relations with the Agency.
(6) The persons under para 3 and 4 shall be transferred to the Special Anti-Corruption Agency without a probationary period, with the exception of employees who are under a probationary period.
(7) The employment authority shall be entitled to propose a different position, corresponding to the qualification, expertise and professional experience to the persons under para 2, who occupied the positions of head of administration or an employee in the general administration, and who are transferred to a position of similar or identical functions in the general administration of the Agency.
(8) Should the employee refuse to accept the proposed position, the respective relation shall be terminated without prior notice. The employee shall declare their refusal in writing. Should the latter refuse to declare this in writing, this circumstance shall be certified by means of the signatures of two witnesses.
(9) Up to six months following the taking of new positions, the persons under para 3 and 4, shall undergo an integrity check; failure to pass the check shall be grounds for removal from the respective position.
(10) Within three months following the entry into force of the law, the Council of Ministers shall settle the relations connected with the transformation of the administrative structures under para 1.
§ 4. (1) Until the Special Anti-Corruption Agency has set up its own operational and search, as well as operational and technical units, the State Agency for National Security shall provide the Agency with the necessary human and technical resources for these activities, stipulated in a decision of the Council of Ministers.
(2) These resources shall be used in a way not allowing the interests of the Agency to be disclosed and abiding by the need-to-know principle.
§ 5. This law shall repeal the Disclosure of Assets of Senior and Other Officials Law (promulgated, SG, № 38 from 2000; amended, № 28 and 74 from 2002, № 8 from 2003, № 38 from 2004, № 105 from 2005, № 38 and 73 from 2006, № 109 from 2007, № 33, 69 and 94 from 2008, № 93 from 2009, № 18 and 62 from 2010, № 38 from 2012, № 30 and 71 from 2013, № 12 and 17 from 2015 and № 39, 43 and 62 from 2016).
§ 6. Art. 4, para 1, Item 4 of the State Agency for National Security Law (promulgated, SG, № 109 from 2007; amended, № 69 and 94 from 2008, № 22, 35, 42, 82 and 93 from 2009, № 16, 80 and 97 from 2010, № 9 and 100 from 2011, № 38 from 2012, № 15, 30, 52, 65 and 71 from 2013 , № 53 from 2014 , №14, 24 and 61 from 2015; № 15, 101, 103 and 105 from 2016) shall be repealed.
§ 7. The following amendments and supplements to the Criminal Procedure Code ((promulgated, SG, № 86 from 28 October 2005, amended SG, № 46 from 12 June 2007, amended SG, № 109 from 20 December 2007, amended SG, № 69 from 5 August 2008, amended SG, № 109 from 23 December 2008, amended SG, № 12 from 13 February 2009, amended SG, № 27 from 10 April 2009, amended SG, № 32 from 28 April 2009, amended SG, № 33 from 30 April 2009, amended SG, № 15 from 23 February 2010, amended SG, № 32 from 27 April 2010, amended SG, № 101 from 28 December 2010, amended SG, № 13 from 11 February 2011, amended SG, № 33 from 26 April 2011, amended SG, № 60 from 5 August 2011, amended SG, № 61 from 9 August 2011, amended SG, № 93 from 25 November 2011, amended and supplemented SG, № 19 from 6 March 2012, amended SG, № 20 from 9 March 2012, amended and supplemented SG, № 25 from 27 March 2012, supplemented SG, № 60 from 7 August 2012, supplemented SG, № 17 from 21 February 2013, supplemented SG, № 52 from 14 June 2013, amended and supplemented SG, № 70 from 9 August 2013, amended and supplemented SG, № 71 from 13 August 2013, amended and supplemented SG, № 21 from 8 March 2014, amended and supplemented SG, № 14 from 20 February 2015, amended and supplemented SG, № 24 from 31 March 2015, amended and supplemented SG, № 41 from 5 June 2015, amended and supplemented SG, № 42 from 9 June 2015, supplemented SG, № 60 from 7 August 2015, amended and supplemented SG, № 74 from 26 September 2015, amended SG, № 79 from 13 October 2015, amended SG, № 32 from 22 April 2016, amended and supplemented SG, № 39 from 26 May 2016, amended and supplemented SG, № 62 from 9 August 2016, supplemented SG, № 81 from 14 October 2016, supplemented SG, № 95 from 29 November 2016, amended and supplemented SG, № 13 from 7 February 2017, amended and supplemented SG, № 63 from 4 August 2017) shall be made:
1. In art. 52, para 1, item 2, after the words “investigating police officer” a comma shall be inserted and the phrase “the investigating agents from the Special Anti-Corruption Agency, determined by an order of the Head of the Agency” shall be added, followed by a comma.
2. In art. 194, para 1, item 2 after the words “National security” a comma shall be inserted and the phrase “or under art. 48, para 1, item 1 from the Special Anti-Corruption Agency Law” shall be added.
3. A new article 194a shall be drafted:
“Investigation by the Special Anti-Corruption Agency bodies”
Art. 194a. (1) The investigation of crimes under art. 201-205, art. 219, para 3 and para 4, annex 2, art. 220, art. 225c, art. 282 – 283b, art. 285, art. 288, art. 289, art. 294, art. 295, art. 301 – 307 from the Criminal Code, for which there is data that they have been committed by persons under art 5, para 1 from the Special Anti-Corruption Agency Law, shall be carried out by investigating agents of the Special Anti-Corruption Agency.
(2) The investigating agents under para 1 shall be determined by force of an order of the Head of the Special Anti-Corruption Agency.
4. In art 411c, para 2, the conjunction “and” between the words “internal affairs” and “investigating customs inspectors” shall be replaced by a comma and after the word “Customs” a comma is inserted and the phrase “and the investigating agents of the Special Anti-Corruption Agency, determined by force of an order of the Head of the Agency” shall be added.
§ 8. The law shall enter into force as of ….
The fight against high and medium level corruption in Bulgaria is not yielding the necessary results. Both the Bulgarian society and international observers share this conclusion. One of the main reasons for this is the unconvincing investigation of this complex crime, as well as the existing possibilities for intervention in the work of investigating authorities. Because of the latter, the European Commission recommended to Bulgaria to “set up an effective anti-corruption authority”. This is precisely the main objective of the proposed bill.
In order for the new body to be “effective” it cannot consist simply of the mechanical sum of exiting institutions of dramatically different legal nature, essence, objectives, activities, functions and powers, proposals for which have already been made. Bodies such as the Illegal Asset Forfeiture Commission and the Commission for Prevention and Ascertainment of Conflict of Interests have their role to play in the fight against corruption but as independent and specialized bodies that respectively operate under a different legal order. The termination of their existence, by means of their merger, is going to be counter-indicative. This is in practice going to obliterate the results accomplished so far, especially in terms of the establishment of the legal institution “non-conviction-based confiscation” in Bulgaria. It is not by chance that in the above mentioned report the European Commission highlights: “…some features of the envisaged new institution, such as the merging of the Illegal Asset Forfeiture Commission into the new structure, should be carefully considered. Given the track record established by the Illegal Asset Forfeiture Commission, it is important that organizational changes do not undermine the progress already achieved.” As far as the other administrative body- the Commission for Prevention and Ascertainment of Conflict of Interests- is concerned, the complete lack of interest on behalf of the authorities in it, after the scandals connected with its chairperson and the guidance he used to receive, requires an overall review of the idea, composition, structure, function and powers of this body and not its automatic merging or transition into another body.
In order for the new anti-corruption body to be effective, it needs to cover only the powers that pertain to the prevention and counteraction of corruption crimes. This means that it needs to comprise analytical, operational and investigating potential. Currently, as far as senior officials are concerned, these three elements are scattered among several institutions, namely the respective unit of the Audit Office, connected with the activity under the Disclosure of Assets of Senior and Other Officials Law and the specialized directorate of the State Agency for National Security for the counteracting of instances of corruption among senior officials. With this bill we propose the merger of these individual units in a new Special Anti-Corruption Agency in a qualitatively new way and in full harmony, coordination and efficient cooperation among them.
The two shall be the two main operational directions of the new Agency to:
1. collect, disclose and check property declarations of senior officials, the list of whom is exhaustively described in art.5, para 1 of this law;
2. investigate crimes under art. 201-205, art. 219, para 3 and para 4, annex 2, art. 220, art. 225c, art. 282 – 283b, art. 285, art. 288, art. 289, art. 294, art. 295, art. 301 – 307 from the Criminal Code;
To perform these activities, the bodies of the Agency are to have the necessary operational, search and investigating powers. The employees who are going to carry out these competences directly shall be united in these specialized directorates and their status is going to be equal to the status of the agents of the State Agency for National Security.
The nature of the work does not presuppose collective decision-making, but clear responsibility, operational autonomy and strict confidentiality. The Head is going to be responsible for the overall management of the Agency as far as all its activities are concerned and is going to represent it in its relations with other state authorities and institutions. In order for the Head’s independence and autonomy to be guaranteed, it is proposed that the Head is appointed for a five-year period by force of a Decree of the President of the Republic of Bulgaria, with the possibility to be reappointed only for one consecutive term in office. It is common practice, through special laws and on the basis of art. 98, item 7 from the Constitution of the Republic of Bulgaria, the President to be assigned with the responsibility to make key appointments of bodies in the security sector. This is so because the constitutional position of the President, the President’s direct democratic legitimacy and unifying function, take the persons appointed by him away from the arena of political opposition and are a safeguard that the respective institution is not going to be “subjected” to one or several political powers. In this case this is of particular importance. On the other hand, the term of office, the restrictions to its extension, as well as the exhaustive list of reasons for the termination of the Head’s powers are additional safeguards for the independence of the Head of the Agency, including from the appointing authority.
It is proposed that the Head be supported by three Deputy-Heads who are to be elected by a qualified majority of two-thirds by the National Assembly. In view of the significant powers and important function of the new body, the National Assembly is to participate in its constitution. The qualified majority is necessary in order to prevent persons from owing the position they occupy to one party or a group of parties only. The term of office of the Deputy-Heads shall coincide with the term of office of the Head and once elected the Deputy-Heads are not going to be obliged to report to the Members of Parliament.
The investigation activity is focused on certain crimes which in criminal-law theory and case-law are characterized as corruption-embezzlement of officers, deliberate mismanagement, concluding of unfavorable deals, bribery, including in the commercial sphere, trade in influence, intermediariship for bribery, certain malfeasances of office as well as violations connected with impeding criminal proceedings. The criteria for their determination as such refer both to the capacity of the subject- official and to the self-serving motives of them being committed but also to the public sphere which the respective crime affects- not only the activity of the state apparatus, but also of the commercial sector and the administration of justice. All of these criminal violations contain the signs of corruption behavior to the greatest extent. Some of their main consequences are the damage to the public interest and the undermining of the trust in state institutions. That is why the activities, related to their detection and investigation are assigned to the new Special Anti-Corruption Agency.
The investigation of the crimes stipulated in the bill is going to be carried out by specially designated by the Head of the agency employees at the position “investigating agent”. The investigating agents must have a law degree and are not entitled to perform other activities. Investigations shall be carried out on the basis of mass media publications or alerts. Every alert is to be registered. The Agency is obliged to provide an answer only to alerts the whistleblowers for which are clearly identified.
The operational and search activities of the Agency are going to be carried out in the cases when information about any person under art.5, para 1 has been submitted for preparation or committing of the respective crime, upon request by the bodies of the pre-trial proceedings or the court or in the cases when a mismatch between the declared and the actual property status of senior officials is found.
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