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 an European Investigation Order in the Republic of Bulgaria is - in the general case:
1. the respective prosecutor – in the pre-trial proceeding;
2. the respective court – in the trial proceeding.
The issuance of an 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.
According to the latest amendments to the EIO Act, such instrument in the pre-trial proceedings shall be issued:
- by the relevant prosecutor:
-by the relevant prosecutor: on the basis of a prior authorisation granted by a judge, where such authorisation is required by Bulgarian legislation in order to carry out the investigative measure; the judge shall assess the necessity and proportionality of issuing the EIO and shall adjudicate according to the procedure and within the time limits established in a similar domestic case;
-by the relevant court on a motion by the prosecutor, where the court is the sole authority to order the carrying out of an investigative measure in a domestic case.
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.