OBEKTIV DISCUSSION CLUB
ARE THERE EUROPEAN STANDARDS IN TAPPING? Lately hardly a month has gone by without a scandalous report of illegal telephone tapping of politicians and businessmen in the media. In addition, the compromising information gathered via so called Special Intelligence Means (SIM), tapping, undercover filming, and photos etc. - has become so common that we hardly notice it anymore even if information received via secret means should be retained for investigation purposes only. Government services are straining an ear just about everywhere in Bulgaria. Certain publications claim that as many as 10,000 approvals for deployment of SIM are being issued every month, all this is ostensibly for the noble cause of exposure and fighting of organised crime, human trafficking, car and drug trafficking, as well as catching corrupt government officers, cops and politicians ”pants down”. However, by ”hearing” us, the wire tappers receive a sea of information - who loves/hates who, who is knee deep in lies, who owes what to who, whose lover is whose, and sometimes, inbetween, there is lots of useful information that would stand as evidence in court. According to various newspaper articles it only amounts 5% of all of it. Our personal data, however, is protected by the Constitution and other laws, and applying SIM for acquiring information is subject not only to SIM Law but also the Penal Procedure Code (PPC) and the Penal Code (PC). The latter criminalises the publicity of data gathered legally through SIM. Judging by the amount of circulated information the origin of which no one seems to think necessary to hide, there are serious gaps in regulation. What is more, no information is available as to whether there are cases of unlawful blackmailing by Ministry of Interior (MI) officials of people likely to pay to be left in peace, and if yes, how many cases this amounts to. Around the end of May, yet another scandal became the centre of attention because of its eccentricity. An ad-hoc Committee chaired by Borislav Balgarinov, member of the parliamentary group of the Bulgarian People’s Union (BNU), refused to approve the cancellation of the immunity of Toma Tomov MP, as Boris Velchev, the Chief Prosecutor’s claim contained accusations based on unauthorised use of tapping. This was the topic of discussion held on 6 June at Obektiv’s editor’s office between Balgarinov and the eminent human rights lawyer Yonko Grozev. Prosecutor Malena Filipova, who defended the Chief Prosecutor’s claim before the Committee, and her boss Deputy-Chief Prosecutor Valeri Parvanov were also invited but both refused to direct us to their boss who was at that time far away in China. This is how there was no one to support the Prosecutor’s Office (PO) position, which was ultimately defeated. Obektiv is hoping that Mr Velchev or a representative will present their arguments to our readers in a subsequent issue. What needs to change in the legislative regulation of tapping in order to preserve people’s honour and dignity? Are persons with immunity protected against SIM use? What do we need to do to ensure better public awareness of who, albeit legally, is rummaging in their private life, how they are doing it, and why, and what the European standard is in this area? These were the suggested topics. This discussion was mediated and later transcribed by Emil COHEN OBEKTIV 1
OBEKTIV DISCUSSION CLUB
YONKO GROZEV
BORISLAV BALGARINOV
OBEKTIV: Today’s topic is the SIM and its misuse. This is a significant human rights issue, as tapping, following, taking pictures, and filming are all an intrusion into a person’s private life, and if it is done outside the rules, may result in a blow to a person’s rights and dignity. Do you think the SIM Law needs “repaired”? BORISLAV BALGARINOV: There is no such thing as a perfect law. On the whole, the current SIM law is good but some things need to be changed. There is a disparity between those government services which can use SIM and those which can be ordered to do so. A new law needs to be adopted for the latter limiting the people with access and right to dispose of SIM who would, theoretically, be in a position to blackmail others. Considering the last few cases, my view is that SIM may not be employed for tapping of a person’s conversations without specific approval. The scandal between Ovcharov and Aleksandrov serves to confirm this: bugging one person provides information on others with no relevance to the current case. Following changes in the Penal Procedure Code 2 OBEKTIV
(PPC), SIM use requires instituted proceedings. This is why I believe that information acquired in this way (i.e. we are tapping someone but interested by someone else) may not be used. Currently, this is not regulated. OBEKTIV: Art.33 of the SIM Law obliges those in possession of information legally obtained through SIM not to divulge that information. But it does not say what happens if they do. BORISLAV BALGARINOV: This is why there needs to be strict limitations with regard to the people with access to information acquired through SIM. Currently, this information is available to, starting with the respective service chief, anyone below and above in the chain, up to the minister. YONKO GROZEV: I agree with this aspect of the issue. Part of it stems from the way this information is handled by MI officials. And that is done following the Ministry’s militarised logic where the chief always knows more than his subordinates (reports). It allows for the dissemination of all data without this being required by the specific investigation. This is a problem which also appeared with the fundamental PPC reform, namely with the creation of the preliminary investigation mechanism. The reform never really worked out, as the MI could not deal with the fact that department chiefs were to be paid less than investigators, seeing as the latter’s job would require higher qualification. The underlying logic that the chief should always check on what the subordinate is doing needs to be revoked with respect to SIM; handling and use of data needs to be confined to the investigating team (prosecutor-investigator), so as to prevent leaks and their misuse. OBEKTIV: Art.31 of the SIM Law reads that “media carrying information which does not constitute evidence shall be destroyed.... within 10 days”. Fair enough but one could make a hundred copies of it! BORISLAV BALGARINOV: There have been cases of leaks but this is not the norm. YONKO GROZEV: Besides the issue of information handling within the MI and the possibility of leaks outside specific investigations, the other fundamental issue is the lack sufficiently aggressive, efficient, and regular parliamentary control. Following the overall logic of state organisation, the Internal Security and Public Order Committee with the National Assembly (NA) should perform periodic control of government services as a means of preventing unauthorised SIM use. The problem here is the somewhat childish understanding of the scope of control. Not long ago the Chief Prosecutor announced that they weren’t going to provide the NA with any information, and only a few days ago the Minister of Interior stated, “then my staff are not going to do so either.” This has to change! OBEKTIV: This is in conflict with the Constitution where it says that parliamentary committees may
OBEKTIV DISCUSSION CLUB request any presence. YONKO GROZEV: If parliamentary control does not become more aggressive, whatever the laws they will never be upheld by themselves, and there will always be a side door for arbitrariness and abuse of power. Therefore, all effort should be directed towards efficient parliamentary control. BORISLAV BALGARINOV: There have been situations where particular people know more than the MPs and even the committee members. A lot, however, is not to be disclosed to the special services. We are currently looking into the two suicide cases (of the Head of Archive, and the one in Panagyurishte). We are also looking into the cases with Toplofikacia, cases of escort in the Courts of Justice but I guess we are not really aggressive. There are many well-meaning ministers who would tell you anything but Rumen Petkov is a tough nut when it comes to information. As an instrument, parliamentary control is far from being efficiently utilised by ours and in other committees as well.
We Need Changes in Publicity YONKO GROZEV: We need to change the publicity status of SIM. The public should be informed of their use in terms of frequency, costs and efficiency. You cannot have 100,000 SIM approvals while the US announces a thousand. There should be annual reports on SIM use. Their use should be tied to their efficiency, which is in what percentage of the cases the obtained information is used at the proceedings to prove guilt, and to what extent this has led to effective prosecution. There should also be a certain degree of control in the use of SIM in the event of threats to national security, as judicial control here is very limited, while effective ex post control though examination of evidence never really takes place (as these are not SIM aimed at gathering evidence). This is why regular control needs to be exercised in this area to provide more reliable detail. BORISLAV BALGARINOV: I have this idea of a new law on special services with a special procedure for director/chief selection. There was a draft but it transpired that the government is not exactly willing to see someone else running the services. If the use of SIM does not result in evidential material and the information is destroyed, the subject should be notified. YONKO GROZEV: Yes, this needs to be introduced, as it is also a standard in the EU and the US. We need to regulate the growing influence of the prosecutor in SIM use request. The PPC was amended to the effect that the prosecutor is involved from the very launch of the investigation so as to be aware of the amount of evidence and its extent of relevance and to be able to make an overall assessment when
making the case in court. Therefore, MI services should only initiate information gathering as an exception. The leading practice should be for this to happen as a result of a prosecutor’s request. BORISLAV BALGARINOV: Some aspects of SIM Law are in contradiction to the PPC. It needs to be amended. I absolutely agree with you. OBEKTIV: In the event of ”repairs” of the SIM Law, it should be noted that SIM use in circumstances other than open penal proceedings is illegal. BORISLAV BALGARINOV: The judge will not allow the use unless there is an open preliminary investigation. Currently what happens is that one person is tapped while the officials look for information on other people. Circumvention is a fact. This information should not be acceptable. OBEKTIV: We are seeing more and more cases of information obtained by tapping being brandished in the media; it is being used in political battles and disputes, and normally followed by a scandal related to unauthorised SIM use. In this case, Toma Tomov MP questioned its lawful use. And this brings us to the second area of issue, namely whether the wording of Art.339 and 260 of the PC is efficient enough to prevent gossiping using information gained in such ways.
We Need a New Penal Code BORISLAV BALGARINOV: We need a new penal code because this one is obsolete. We keep adapting it but it is difficult to reform. For instance, we tried to amend it in view of the ”Vanko 1” case but it did not work, as now we have to amend other wordings. Or, take, for instance, the case with the detained Romanian journalist in Ruse who was in the end acquitted. OBEKTIV: There have to be precise regulations of the use of tacit means of documenting actions of public figures in view of providing that information to the public. What the Romanian journalist did and the BBC did in the Ivan Slavkov case cannot be considered a compromise attempt. In this case, the EU court has a clear policy and it considers public figures’ right to protection of personal life and experiences lesser than other people’s identical rights. BORISLAV BALGARINOV: Legislation in this area should limit the use of this kind of information. Thus it will not be necessary to apply the rules of Art.339 and 360 of the PC. YONKO GROZEV: I don’t think anything much would happen if we changed these. They provide general limitations. Even with a new (or amended) PC, if the Military Prosecutor’s Office (MPO) is not willing to investigate, nothing will happen and we are reduced to gathering evidence and bringing charges. And that is always a huge problem. From a human rights point of view this is like police violence. They are never happy to bring people to book. OBEKTIV 3
OBEKTIV DISCUSSION CLUB There are other ways that need to work well together in order to avoid SIM misuse: internal Ministry of Interior (MI) control, legislation limiting the users, and parliamentary control. These should ensure sufficient guarantees against misuse. As for public interest, this is a matter of interpretation of the law. When the information is of substantial public interest, its disclosure should not be sanctioned. This is a basic principle of international law and directly applicable norms. This is how the Romanian journalist was released. BORISLAV BALGARINOV: The Slavkov and the Romanian journalist cases lie in different planes. The Romanian was found not guilty even though the law did not specify exactly which SIMs were the basis of this acquittal. OBEKTIV: Another important issue is SIM use with people with immunity. Mr Balgarinov’s Committee did not grant the Chief Prosecutor’s claim for cancelling Toma Tomov’s immunity because of, inter alia, alleged SIM misuse. BORISLAV BALGARINOV: As soon as I was elected Chair, I was determined to better familiarise myself with the PO’s materials, as none of the ad-hoc committees had been chaired by a member of the parliamentary opposition. I have often spoken up against MP immunity but in the end we only managed to pass the part about an MP’s right to request cancellation of their own immunity. After I acquainted myself with the materials provided by the Chief Prosecutor’s Office (CPO) and the position of Deputy-Chief Prosecutor Parvanov and Prosecutor Malena Filipova, it was clear to me that there was anything but information on a committed crime. The materials contained no evidence whatsoever. The request comprised of 6 basic points where none specified the type of crime committed. Here is an example: In the year so and so, in his capacity as district prosecutor, Mr Tomov organised the transportation of 120 tonnes of steel and cast-iron.” This is not a description of a crime. It doesn’t even state under which wording of the PC this act has been qualified. At the end, 5 articles of the PC were quoted whereas there were 6 accusations, so there was no clarity as to which article applied to which act. I noted that part of the evidence consisted only of plaintiff-witness interrogations or complaints filed with the court more than 10 years earlier, and no recent interrogation. The rest of the evidence was acquired solely by SIM. When the information is based on a plaintiff and SIM data only, this does not qualify as evidence. Currently, new witnesses have been interrogated claiming that Mr Tomov is innocent; several customs shift supervisors have been interrogated, too, and they claim they only ever had formal work relations with prosecutors Tomov and Vikentiev. The same goes for all six points. I knew that the PO and the public wouldn’t welcome our refusal and it was difficult to stick to it but 4 OBEKTIV
I did it with integrity and complete professionalism. Another indication was that the plenary hall supported us. So far cancellation of immunity has been requested for 8 or 9 colleagues, and Mr. Tomov is the only one who has retained it. I think that given what happened - i.e. requesting cancellation of Mr. Tomov’s immunity with no evidence to support accusations of a crime - requests for such ad-hoc parliamentary committees should not be allowed. OBEKTIV: An investigation is normally carried out to establish whether the statements accusing somebody of something are true. Without it we cannot judge whether the incriminating statements are true or not. YONKO GROZEV: One of the fundamental problems is the lack of clarity as to what is it the NA is judging, i.e. is it the presence of information which would stand in court or the lack thereof? The first case is the presence of some data. It does not need to be exhaustive or totally convincing but sufficient to arouse suspicion on the basis of which the NA will say, ”Yes, there is a justified suspicion”, and then criminal evidence will be sought. The second thing for the NA to do (and this is why it is a political body) is to say: ”At this point the investigation of this MP is not motivated by anything other than legal grounds”. These are the things the NA has judgment on according to the applicable rules on MP immunity. OBEKTIV: The refusal of Mr Balgarinov’s committee is well into the idea of SIM misuse against people of immunity. Tomov had been tapped as an MP as well, and that, according to the Committee, requires specific permission. And the Committee stated that this alone is sufficient for refusal grounding. What are the limits of SIM use with people of immunity? BORISLAV BALGARINOV: At the time, when we were adopting the Committee working rules, I said that we will not be a body to pass judgement on guilt. The NA regulations state that we need to determine whether sufficient information is at hand to point to an MP committing a crime or such under article so and so. If the above is the case, we need to allow the cancellation of immunity. The information against Mr Tomov was gathered in such a manner that, at the time of his actions, it would have allowed him to be blackmailed but it was not sufficient as evidence to justify searching for guilt on his part. In the period 1998-1999, permission was given for the use of SIM with Tomov and Vikentiev but now that he is an MP, permission must be sought from different bodies. There was this CPO statement that, besides information apparently available from 1997 and 1998, there was also information dating later than 2001 which was not, however, included in the Chief Prosecutor’s claim. Since Mr Tomov was also tapped while an MP, this demonstrated an improper attitude of those bodies toward the NA.
OBEKTIV DISCUSSION CLUB YONKO GROZEV: There are two different issues here. The first is to what extent the request for cancellation of Tomov’s immunity and the decision of your Committee were well-grounded. The second is to what extent the PO’s request and the manner of evidence gathering point to a problem with SIM use. For me, this decision of the ad-hoc committee is disturbing in two ways. The first is its choice to work behind closed doors. There is no reason for this since the investigation was more or less completed. That, too, has two aspects: legal-judicial and political. In order for the NA approach to be trusted, and to demonstrate that this is not about avoiding responsibility, the decision of why the NA determined lack of sufficient information should be made public. The other problem is the PO approach. It filed a claim but did not defend it in public. When we talk of penal liability of ministers and MPs, the issue becomes as much political as it is legal. It would be unreasonable to expect public trust in institutions, if decisions like this are made without disclosure of any information. The Committee did not answer the questions relating to specific data. Reading its statement, I could not get any idea of what information against Tomov was available, when it was collected, and to what extent it points to any suspected crime. Even with my professional knowledge, I still cannot form a complete picture in my head. Why did the PO make an accusation, and then not support it?! It practically classifies the process, and that is a serious issue with regard to its validity. As far as using SIM and the danger of misuse and blackmailing are concerned, I must say that with the former PO the trend was crystal clear, namely, to gather evidence but not effect prosecution in order to protect people from being compromised and/or blackmailed. I have doubts about the clear settlement of the immunity issue. The request for immunity and its cancellation stultifies the opportunity to use SIM. And why should there be immunity at all?! An arrangement which will not allow the use of SIM without knowledge on the part of the object makes SIM pointless anyway. I don’t think that currently this system is well organised. OBECTIV: I am surprised at the inaccuracy of the NA decision. The PPC prohibits treatment of people of immunity as defendants without the express permission of the NA. However, in order to convert a person into a defendant, there needs to be an ongoing investigation against them; they, however, may not become defendants without permission but that does not mean that an investigation is not allowed, including SIM use, if necessary. You say that the latter’s use against Tomov while he was an MP was illegal. If that is so, then it is practically impossible to launch an investigation against an MP. BORISLAV BALGARINOV: We need to follow things
through. The SIM Law specifies time limits within which these can be used. If they cannot achieve the set goal, they are to be destroyed. However, the SIM data remains available. A targeted amendment in the Constitution to the effect of cancellation of immunity would automatically nullify all other problems. And what is being done instead? We are employing a committee, allocating staff and costs, etc. I, personally, and a large portion of my colleagues, even some of the ruling coalition, including a substantial part of magistrates and the public, think that there should not be such a thing as immunity. It’s not that SIM cannot be used with an MP but that the procedure becomes too cumbersome. Let’s hope this amendment happens at some point in the next couple of years and it cancels immunity altogether. It has been cancelled for magistrates and everyone can see that their work is going on as normal.
An MP Cannot Have Immunity for Things They Have Done Before YONKO GROZEV: This is absurd, since as an MP, according to you, he or she has an immunity to cover for what they have done in the past. And the point of immunity is to protect the MP from political attacks here and now. BORISLAV BALGARINOV: Immunities should be cancelled altogether and with that the possibility of blackmailing. The SIM Law and the Constitution need to be amended, and a new Law on Special Services adopted. YONKO GROZEV: Have you discussed whether the report on Mr Tomov is to be presented behind closed doors? BORISLAV BALGARINOV: Our report says specifically that in order for a decision to be reached, some current investigations and open preliminary proceedings have had to be reviewed, including use of SIM where the obtained information is not to be disclosed; these were the reasons for the lack of publicity. YONKO GROZEV: Either the NA needs to embrace its position as a political body and then, as a consequence, everything will be public as it concerns public trust (i.e. its authority is full), or it needs to accept that it has a very limited part since the primary acting authority in cases like this is the judicial system, and information from current investigations may not be disclosed. Then all it would need to do is make sure there is no suspicion on the political side. It seems that these two have become confused. BORISLAV BALGARINOV: We cannot disclose information on cases that are currently at the investigation stage, and, besides, we are not like the PO which has had more media appearances on incomplete cases than it has had actions on investigating them of late. OBEKTIV 5