The Sofia Court of Appeals has finally decided that Evelin Banev - Brendo will serve a total sentence of ten and a half years in our country under an initial strict regime. Almost one year in custody in Italy will be deducted from this amount, as well as the time that Banev is in prison in Sofia. The prosecutor's protest to overturn the decision and recalculate the total sentence was not accepted by the court. The magistrates explicitly pointed out that the protest filed by the state prosecution did not request an increase in the determined total most severe sentence by at most one-half for the convicted person, which is why the court cannot even consider it. Is this how the saga ends… Andrey Yankulov, a senior legal expert at the Anti-Corruption Fund (ACF), spoke to FACTI.
- Mr. Yankulov, is the “Brendo” judicial saga over? Cases in three countries, three different sentences… Finally, he surrendered to serve 10 and a half years in our country. Is this the end of the mega-case?
- Yes, with the decision of the Court of Appeal - Sofia from last week, the case of what punishment Evelin Banev will suffer is finally closed. Of course, there is an option for the prosecutor's office to request a retrial of the case, i.e. its re-examination, but this is a rarely used extraordinary method for checking judicial acts that have entered into force. Here we are only talking about the decision of the Bulgarian court on how Banev's punishments imposed in Italy and Romania will be executed in our country. Foreign sentences themselves cannot be reviewed in Bulgaria in any way, but Italy and Romania transfer to Bulgaria the right to enforce the sentences imposed by their courts.
- Three different sentences in three different EU countries. How is the law applied to reach 10 and a half years in our country?
- When a citizen of one country is sentenced in another country, there is a possibility that the foreign sentence will be accepted for enforcement in the country of origin of the convicted person. When at home, there are more chances that the corrective purpose of the sentence, in particular imprisonment, will be more easily achieved.
When it comes to the EU, the matter is regulated by a Framework Decision of the Council of the EU, which is transposed by an internal legislative act of each member state. And under EU law, Bulgarian, Italian and Romanian law, Banev's Italian sentence of 20 years in prison and his Romanian sentence of 10 and a half years were sent for execution in his country of origin, Bulgaria, where he is currently located.
When receiving the sentences, among a number of other circumstances, the Bulgarian court must also assess which text of the Bulgarian Criminal Code the crimes for which he was punished in the other countries correspond to. The rule is that the sentences are executed as imposed by the foreign court. However, there is an exception to this, that if the imposed foreign sentence is more severe than even the most severe that our law provides for this crime, our court may reduce it to the highest amount for this crime under our law. It is on the basis of this exception that the Bulgarian court reduced Banev's Italian sentence by half, because it considers the crimes for which he was convicted in Italy to be equivalent to those under our Criminal Code with a maximum penalty of 10 years' imprisonment.
Under Bulgarian law, when a person has committed several separate crimes before a final judgment has been entered for any of them, the court, after determining a sentence for each crime separately, imposes the most severe of them. In this case, this was accepted by our court as applicable because Banev was convicted at different times in Italy, Romania and Bulgaria, but without having a previous conviction. Thus, by virtue of this provision of our Criminal Code, the court "unifies" or "cumulates" the Italian and Romanian sentences into the most severe, which after the reduction of the Italian sentence turns out to be the Romanian sentence of 10 and a half years. It also includes Banev's sentence under his Bulgarian sentence, which is the lowest of the three.
- In Italy, Brendo was sentenced to 20 years because he was recognized as a leader. And what has changed in our country…
- In our country, the Italian sentence has not and cannot be reviewed – he remains convicted for what he was convicted of by the Italian court. I have already explained how the sentence was reduced.
- Whenever we talk about the case surrounding Evelyn Banev – Brendo, we only talk about him. But he is not the only one convicted in this case. You follow the process very briefly. Who are the others and what is happening to them. Where are they serving their sentences…
- Together with Banev, two more Bulgarians were convicted in Italy - T.G. and M.B., who are believed to be part of his group. Banev received a sentence of 20 years in prison, T.G. - 15 years and M.B. - 12 years.
I mention them with initials because they may have already served their sentences, respectively been released early, which is a completely normal procedure, or even been rehabilitated, i.e. the state should now treat them as unconvicted.
All three were convicted of an organized criminal group and failed due to the discovery of the group by the Italian and Spanish authorities to import 1500 kg of cocaine.
T.G. and M.B. were handed over from Bulgaria to Italy under a European arrest warrant to be tried. And after being convicted, they were returned to Bulgaria to serve their sentence - i.e. have gone through a similar court procedure as Banev's for the recognition and enforcement of the Italian sentence.
- It turns out that Brendo's sentence has been reduced, but the other two have not. Why is this so?
- Their sentences have not been reduced because in 2018, the Court of Appeal - Plovdiv and the Court of Appeal - Sofia, which decided with final judicial acts the issues related to the enforcement of their Italian sentences in our country, have accepted that under the Bulgarian Criminal Code the crimes for which they were convicted under the Italian Criminal Code correspond to qualified members of an organized criminal group and drug smuggling. The maximum sentence that our Criminal Code provides for these crimes is not lower than that imposed by the foreign court, which would be grounds for reducing the foreign sentence to the maximum amount under Bulgarian law. In Banev, on the contrary, the Bulgarian court accepts lighter crimes corresponding to the Italian crimes under our law and therefore arrives at the described reduction.
- How should EU law be implemented in our country when a provision of our Criminal Code (CC) is applied to sentences accepted for execution in foreign jurisdictions. Is there a certain unified approach, or does it all depend on the Criminal Code of the individual country…
- Whether the “unification“ under our CC of sentences of deprivation of liberty accepted for execution by EU countries is at all permissible under Union law, or if it is permissible in principle, then under what specific conditions, is the most key legal question that the described case raises. Unfortunately, the Bulgarian court did not turn to the Court of Justice of the EU with a preliminary ruling to obtain its answer, but hastily decided the case with controversial reasons.
As I have already mentioned, the rule of the Framework Decision regulating the matter is that the foreign sentence is enforced in the receiving state as it was imposed by the convicting state, because the principles of mutual recognition and mutual trust between the Member States apply. And if there is still a legal basis in the EU law act for the reduction of the sentence (a separate question is whether what was adopted in this case is applicable), then for the complete cancellation of a foreign sentence accepted for enforcement, such a basis cannot be directly derived from anywhere.
And in this case, in practice, this is exactly what happened with the Italian sentence – it is both “accepted for execution“ and in reality it is literally erased from the legal peace with the “unification“ or “cumulation“ of the punishments made with the same judicial act by absorbing the lighter ones from the most severe.
Then what exactly is accepted for execution? Would Italy send its sentence to us, thereby giving up its sovereignty to execute the punishment imposed by its own court and transferring the competence for execution to Bulgaria, if it knew that its punishment would not actually be executed at all, even though it was formally accepted for execution? There is no answer to these questions.
On the other hand, if, for example, a rule for “cumulation“ of penalties like ours is contained in the criminal laws of both Italy and Romania, it would be reasonable to ask whether the convicted person should be treated more severely just because he was convicted by different jurisdictions in the Union, because if he were convicted in the same one - his penalties would be cumulated under its domestic law. And the principle of EU law is that it should not matter where exactly he was convicted.
Different principles are intertwined - of state sovereignty, of mutual recognition and trust between member states, of equal treatment, and that is precisely why the case is very interesting from a legal perspective and it would be good to have a ruling on it by the Court of Justice of the EU.