Fiches Belges

The legal definition of an “undercover agent” is given in Article 10c of the Special Intelligence Means Act. According to this text, such an agent is a person from the competent services under the Special Intelligence Means Act, the Ministry of Interior Act, the Defence and Armed Forces of the Republic of Bulgaria Act, the Military Intelligence Act or from the State Intelligence Agency, as well as from the State Agency for National Security. This person is authorised to establish or maintain contacts with a controlled person in order to receive or disclose information for the commission of a grave malicious criminal offence or for the organisation of the criminal activity. The services are specified in Article 20 of the Special Intelligence Means Act. Pursuant to Article 34k, in the cases referred to in Article 34i*, special intelligence means can be provided and applied by competent authorities of a foreign state. Pursuant to Article 34k, Paragraph 2, a foreign undercover agent shall have the powers and may be used for the achievement of the objectives under Article 10c (equal to the Bulgarian undercover agent) of the Special Intelligence Means Act, when this is provided for in an international treaty that has entered into force for the Republic of Bulgaria, or on a reciprocity basis an agreement is entered into on a case-by-case basis. Article 34i.(1) Special intelligence means may, other than in the cases referred to in Article 3, Paragraph 1, be also used when this is provided for in an international treaty that has entered into force for the Republic of Bulgaria. (2) In the cases referred to in Paragraph 1 special intelligence means may be used for the prevention and investigation of criminal offences that are explicitly set out in the international treaty, by virtue of which their use is allowed. In the next place, pursuant to the European Investigation Order Act, an European Investigation Order may also be issued for the purpose of a request to the Republic of Bulgaria to assist the issuing state in the conduction of investigations of the criminal offence by undercover agents. The issuing authority must specify in the European Investigation Order the grounds making it believe that the undercover investigation is relevant to the purpose of the respective criminal proceeding. The decision for the recognition and execution of an European Investigation Order is to be taken on a case-by-case basis by the competent authority under Article 9, Paragraph 1 of the European Investigation Order Act (see Subparagraph 3, point (а)) upon observance of the Bulgarian legislation. The undercover investigation on the territory of the Republic of Bulgaria is to be carried out in accordance with the Criminal Procedure Code and the Special Intelligence Means Act. The competent authority for the execution of the European Investigation Order is the only one that has the right to act, manage and control the operations related to the undercover investigation. The duration of the undercover investigation, the detailed conditions, as well as the legal status of the respective officers participating in undercover investigations, are to be agreed upon between the issuing state and the Republic of Bulgaria upon observance of their national legislation. When the European Investigation Order is issued by a competent authority under Article 5, Paragraph 1 of the European Investigation Order Act, it must specify therein the grounds making it believe that the investigation undercover is relevant to the purpose of the respective criminal proceeding. The authority competent to issue a European Investigation Order in the Republic of Bulgaria is: 1. the respective prosecutor – in the pre-trial proceeding; 2. the respective court – in the trial proceeding. The issue of a European Investigation Order may also be requested by the accused, criminal defendant or by the defender authorised by them for the implementation of the required defence in the criminal proceeding in accordance with the Criminal Procedure Code. The competent authorities shall not reveal the evidence or the information made available to them as a result from the execution of the European Investigation Order, except to the extent, in which their revealing is required for the purpose of the investigation or proceeding, as described in the European Investigation Order, unless otherwise specified by the executing state. The respective competent authority may request from competent authorities of the Republic of Bulgaria to take part in the execution of the European Investigation Order in support of the executing authority, if this is provided for in the legislation of the executing state or if this does not prejudice core interests in the field of its national security. The competent authorities referred to in the preceding sentence who are on the territory of the executing state shall be governed by its legislation during the execution of the European Investigation Order.

Criminal Procedure Code – Articles 172-177, section VIII, chapter XIV. Special intelligence means Act - Article 10c, Article 20, Article 6, Article 7, Article 34i, Article 34k. European Investigation Order Act – Article 5, Article 9, Article 10, Article 14, Article 33. Directive 2014/41/ EU of the European Parliament and of the Council of 03 April 2014. For Member States that have not transposed the above directive: -European convention on mutual assistance on criminal matters of 1959 and the Second Additional Protocol or -Convention on mutual assistance in criminal matters between the Member States of the European Union of 2000. -By virtue of bilateral agreements and UN conventions. The measure is possible within the international legal cooperation, as this is regulated in Article 476, Paragraph 4 of the Criminal Procedure Code. According to this text, the competent authority is the Supreme Prosecutor’s Office of the Republic of Bulgaria, on the condition that both states are governed by the European convention on mutual assistance on criminal matters of 1959 and the Second Additional Protocol or – for a EU Member State – Convention 2000, as well as by virtue of bilateral agreements and UN conventions.

The measure is possible within the international legal cooperation, as this is regulated in Article 476, Paragraph 4 of the Criminal Procedure Code. According to this text, the competent authority is the Supreme Prosecutor’s Office of the Republic of Bulgaria, on the condition that both states are governed by the European convention on mutual assistance on criminal matters of 1959 and the Second Additional Protocol or – for a EU Member State – Convention 2000, as well as by virtue of bilateral agreements and UN conventions. II. In accordance with the procedure of Directive 2014/41/EU of the European Parliament and of the Council of 03 April 2014 – regulated in Article 9 and Article 10 of the European Investigation Order Act. The authority competent to recognise a European Investigation Order in the Republic of Bulgaria issued by a competent authority of another Member State shall be: 1. in the pre-trial proceeding – a prosecutor of the respective district or military-district prosecutor’s office, in whose region the performance of the respective act of investigation or other procedural acts, or the handover of the proofs that are already available, are requested, or a prosecutor from the Sofia City Prosecutor’s Office; 2. in the trial proceeding – the respective district or military court, in whose region the performance of the respective judicial act of investigation, or the handover of the proofs that are already available, is requested, or the Sofia City Court.

The request for legal assistance and the documents enclosed thereto must be translated in Bulgarian. One of the official languages of the Council of Europe is also accepted. It is however recommendable to have the request translated in Bulgarian too. II. In accordance with the procedure of Directive 2014/41/EU of the European Parliament and of the Council of 03 April 2014. -Pursuant to Article 9, Paragraph 4 of the European Investigation Order Act, the European Investigation Order is to be send to the competent Bulgarian authorities translated in Bulgarian or in English.

- Authorization up to 60 days; - An option for an extension by further 120 days in exceptional cases; - Maximum period of 180 days. - In accordance with the procedure of Directive 2014/41/EU of the European Parliament and of the Council of 03 April 2014. The deadlines are provided for in Article 14 of the European Investigation Order Act: Article 14. (1) Upon receipt of a European Investigation Order by mail, email, fax or in any other way that allows written authentication of the receipt and of its contents, the competent authority under Article 9, Paragraph 1 shall initiate a recognition proceeding. (2) The competent authority referred to in Article 9, Paragraph 1 shall hear the received European Investigation Order in accordance with the procedure established in this law. (3) Not later than 30 days from the receipt of the European Investigation Order, the competent authority under Article 9, Paragraph 1 shall rule by the respective act on its recognition and execution. This time-limit may be extended by no more than 30 days after the indication of the reasons for the delay and after conducted consultations between the competent authority under Article 9, Paragraph 1 and the issuing authority. (4) The competent authority for the execution of the European Investigation Order shall carry out acts under the investigation and other procedural acts not later than 90 days from the date of ruling under Paragraph 3. (5) When it is not possible to comply with the deadline referred to in Paragraph 4, the competent authority under Article 9, Paragraph 1 shall immediately notify the issuing authority of the reasons for the delay and after the conduction of consultations, the necessary additional time for performance of an act under the investigation and other procedural acts shall be determined. (6) When the issuing authority has specified in the European Investigation Order that due to the determined procedural deadlines, the severity of the criminal offence or other particularly urgent circumstances a shorter period of time is required than those provided for in Paragraphs 3 and 4 or that acts under the investigation and other procedural acts must be performed on a specific date, the competent authority with respect to the execution of the European Investigation Order shall take into account this request to the extent possible. (7) When it is not possible to comply with the deadline or the specific date under Paragraph 6, the competent authority under Article 9, Paragraph 1 shall immediately notify the issuing authority of the reasons and after the conduction of consultations the necessary additional time for the performance of an act under the investigation and other procedural acts shall be determined.

The undercover agent shall be required to submit the following – a signed declaration by virtue of Article 173, Paragraph 3 of the Criminal Procedure Code that he/she is aware of his/her obligations and tasks under the specific investigation. This measure is usually accompanied by requests for the use of other special intelligence means – “tapping” and “video surveillance”, as the prosecutor must submit for these legal methods a request for authorization to the competent court. The deadline is provided for in Article 175, Paragraph 3 and Paragraph 4 of the Criminal Procedure Code. Article 175, Paragraph 6 of the Criminal Procedure Code provides for also the cases, in which the application of special intelligence means is to be discontinued. Pursuant to Article 476, Paragraph 5 of the Criminal Procedure Code, under the conditions of reciprocity, the foreign undercover agent may collect evidence in accordance with its national legislation. A separate agreement shall be required for such act, as it shall be given by an authority competent under the national legislation – in the case at hand, the Supreme Prosecutor’s Office of the Republic of Bulgaria. The Bulgarian special services shall render assistance and support the foreign undercover agent until the latter acts on the Bulgarian territory.