Fiches Belges

Expert evaluation is a method for collecting and verifying of evidence. In cases when special knowledge in the field of science, art or technique is necessary for clarification of certain facts of the case, the court or the body holding the pre-trial proceedings by a written act assigns the performance of an expert evaluation, appoints a person who is proved to have such knowledge /an expert/ and assigns particular tasks to that expert. After performance of the necessary examination the expert shall draw a written opinion in which he/she shall state: the name of the expert and the grounds for performance of the expert evaluation; where it was performed; the assigned task; the materials used; the examinations performed and the applied scientific and technical means; the received results and the conclusions drawn by the expert. In case at performance of the expert evaluation new materials are discovered, which are of significance for the case, but with regard to which no tasks were assigned, the expert is obliged to describe them in the expert opinion so that they be included in the materials under the case. The assigning, elaboration and acceptance of the expert opinion is performed in both stages of criminal proceedings – pre-trial and court stage.

The Bulgarian Criminal Procedure Code The Bulgarian EIO Act Directive 2014/41/EU on EIOs EU MLA Convention 2000, The European Convention on Mutual Assistance in Criminal Matters of 1959

The competent authorities to recognize an EIO for technical and scientific examination, issued by a competent authority of another Member State, are : 1. in the pre-trial proceedings - a prosecutor from the respective district or military-district prosecutor's office within whose judicial region the relevant investigative measure is requested to be carried out or evidence which is already in possession is requested to be transferred; 2. in the court proceedings or in case the EIO is issued by an administrative authority - the respective district or military court within whose judicial region the judicial investigation measure concerned is requested to be carried out or evidence which is already in possession is requested to be transferred. When the EIO has been sent to a body, which is not competent to recognize it, it shall send it ex officio to the respective competent authority and shall immediately notify the issuing body thereof in a manner allowing written certification of the authenticity of the receipt and of its content. The competent authorities to recognize an MLA request for technical and scientific examination – in cases where the EU MLA Convention 2000 applies, are the respective local District/Regional Courts and District/Regional Prosecution offices – with regards of the stage of criminal proceedings and the type of crime under investigation. The competent authorities to recognize an MLA request for technical and scientific examination – in cases where the CoE European Convention on Mutual Assistance in Criminal Matters applies, are as follows: -in the pre-trial proceedings - the Supreme Cassation Prosecutor's Office of the Republic of Bulgaria; -in the trial proceedings - the Ministry of Justice of the Republic of Bulgaria.

EIO: The EIO should be sent to the competent authorities translated into Bulgarian or English. MLA: The request and enclosed documents should be accompanied by translation in Bulgarian language or in one of the official languages of the Council of Europe. With regard to the prompt administration and fulfillment of the request it is recommended the latter to be translated in Bulgarian language in advance.

No later than 30 days from the receipt of the EIO the competent authority has to take a decision for its recognition and execution. This term may be extended by not more than 30 days after indicating the reasons for the delay and after consultations between the competent authority and the issuing body. The competent authority for the execution of the EIO shall carry out actions for the investigation and other judicial investigation measures within no later than 90 days from the date of its recognition. When it is not possible to observe the above terms, the competent authority shall immediately notify the issuing body of the reasons for the delay and after conducting consultations the necessary additional time for execution of an investigation action and other judicial investigation measures shall be determined. When the issuing body has indicated in the EIO that due to the determined procedural terms, the gravity of the crime, or other especially urgent circumstances a shorter term is necessary or that investigative and other judicial investigation measures must be carried out on a specific date, the competent authority for the execution of the EIO shall comply with this requirement as far as possible. When it is not possible to comply with the term or the specific date, the competent authority shall immediately notify the issuing body of the reasons and after conducting consultations the necessary additional time for implementation of activities under investigation and other judicial investigation measures shall be determined. In case of a MLA request no specific deadlines are envisaged. The practice necessitated, when the requesting state did not set a specific term, the requests for legal assistance are to be fulfilled as soon as possible, which usually takes between two and four months according to the factual and legal complexity of the particular request.

As a special requirement for the measure should be stressed that it is strongly recommended undertaking complex prior arrangements with regards to payment of the experts' remuneration - i.e. applicable documents, specific payment documents/invoices, clarification of payer/beneficiary, way/terms/deadlines of payment etc. The authority that assigns the performance of expert evaluation may require the accused or the witness to provide samples for comparative survey when it is not possible such samples to be received by other means. The same persons are obliged to provide the required samples for comparative survey and if they refuse to do so, the samples can be taken by compulsory measures after permission of the respective first instance court. When the samples for comparative survey are related to taking of blood samples or with other similar invasive interventions, the taking of the samples must be performed by a person with medical qualification under surveillance of a medical doctor in conformity to the rules of medical practice and without risk for the health of the person. The appearance of an expert before foreign judicial authorities is admissible only if a guarantee is received that the expert regardless of his/her citizenship shall not be subjected to penal liability for crimes committed until the day of the service of the relevant subpoena. If the expert refuses to appear he/she may not be subject to compulsory measures. Judicial authority of another state may interrogate an expert who remains on the territory of Bulgaria by means of video conference or telephone conference. The assignment of additional expert evaluation may be requested if the presented expert opinion is not complete and clear enough or a second expert evaluation – if the expert opinion is not motivated and gives raise to doubts in its correctness. The measure may be performed according to the procedure of the requesting state when it explicitly required so. In these cases the request must be accompanied by respective extracts of the relative legislation, the application of which is requested. Bulgaria may allow officials and interested persons from the requesting state to be present at performance of the measure if an explicit request in this regard is made. In respect of cooperation with States outside the EU, the European Convention on Mutual Assistance in Criminal Matters of 1959 and the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 are applicable.