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Communication on the presentation of a certificate of conviction for the purposes of investigating the reliability

Following questions about the statutory requirements in the Classified Information Protection Act (CIPA) for a certificate of conviction for the purposes of the vetting procedure of the reliability, the State Commission on Information Security expresses the following opinion:

With the amendment of the Act on Restricting Administrative Regulation and Administrative Control of Economic Activity is governed the determination ex officio of criminal records of an individual, in case that such a requirement is statutory. With a view to the statutory rules and conditions for access to classified information and the obligation on persons for provision of documents for the cleared, the above mentioned amendments are applied to the requirement the applicant to provide certificate for lack of convictions in order to be granted access to classified information.

With Section 31 of the Act on Restricting Administrative Regulation and Administrative Control of Economic Activity in connection with Article 40 of CIPA new paragraph 3 is created that circumstances on the conviction of the person guilty of intentionally committing a criminal offence, irrespective of rehabilitation should be established by organisational entity initiating the security clearance for access to classified information.

For the purposes of this amendment to the CIPA, as of 01.01.2018, the person is no longer obliged to provide certificate of conviction to the organisational entity initiating the vetting procedure, the relevant department (organisational entity within the meaning of § 1, item 3 of the Additional Provisions to the CIPA) should request from the Ministry of Justice on its own motion Electronic certificate of conviction, in accordance with Art. 35b of Regulation No 8 of 26.02.2018 on the functions and the operation of the Criminal Records Offices.

In accordance with the established hierarchy of norms in the Republic of Bulgaria and taking into account the amendment entered into force on 01.01.2018, the CIPA, as a higher-ranking law or regulation is directly applicable, even though the provisions of Art. 147, paragraph 1 (b) of the Regulation on the Implementation of the Classified Information Protection Act (RICIPA) shall retain the text concerning the obligation to provide a certificate of conviction of the applicant for being granted security clearance.

The competent authorities for granting, suspending, withdrawing or withholding of security clearances should request the organisational entity, initiating the vetting procedure to establish the circumstances under Art. 40, paragraph 1, item 4 of the CIPA and to objectify the established in accordance with the legal order.