Since 1992, Bulgaria has been a party to the European Convention on Human Rights and Fundamental Freedoms (hereinafter the Convention) and recognizes the jurisdiction of the European Court of Human Rights (hereinafter the Court).
On November 5, 2009, the Court issued a judgment on the Kolevi v. Bulgaria case, which identifies problems in two main areas that are the subject of the present analysis:
Institutional – the Prosecutor General’s dominance over all rank-and-file prosecutors puts him in a situation where he cannot be properly and effectively investigated provided he is suspected of a committed crime;
Legal – the lack of a legally established working procedure which allows the Prosecutor General to be investigated determines that actions should be undertaken to establish one.
The lasting conclusion is that the current state of the Bulgarian judiciary facilitates a poor accountability of the Prosecutor General, who is essentially immune to criminal prosecution and practically cannot be suspended and dismissed from office.
In view of the problems thus identified, in this analysis we review and propose specific remedies for them.
At this stage, the efforts of the Bulgarian Government are exhausted by the preparation of a Draft Bill on the Amendments to the Criminal Procedure Code. They extend to:
Involving the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court in the procedure for investigating the Prosecutor General, i.e. they will be subjected to the same investigative procedure as the Prosecutor General – an undertaking that makes the Presidents of these courts even more vulnerable to the Prosecutor’s Office and the Prosecutor General, something formally renounced1 by the Council of Europe;
Should the investigation be initiated, it will again be carried out by the Prosecutor General’s subordinates;
A number of ambiguities (for instance, how criminal prosecution or a rejection to carry out one will be appealed before an administrative court considering that the measure is criminal in nature; how the referral to the three SJC’s members authorized to make such a proposal will be made; is it admissible to introduce statutory amendments which establish a sort of an immunity to prosecution not stipulated by the Constitution, etc.).
As of the current moment, there are three statutory procedures by virtue of which the suspension from office of the Prosecutor General might be sought. They suffer from a number of flaws and are ultimately difficult to implement and ineffective, and therefore unusable.
The first one is provided for by the Judicial System Act (JSA). This is the ground for early release under Art. 175, para. 5 of the JSA. In this redaction, the provision has the character of a subsequent decision on previously made and established infringements.
The second possibility is the suspension from office of a judge, prosecutor and investigator in accordance with Art. 230 of the JSA. This provision is also absolutely inapplicable, since it is the Prosecutor General who has the legal power to make the request for suspension.
The third possibility is the following: at the moment, the Ministry of Justice (MoJ) is proposing the abrogation of Art. 230 of the JSA, so all magistrates, incl. the Prosecutor General, are to be subject to suspension from office under the general order of Art. 69 of the Criminal Procedure Code (CPC). The application of this procedural institute is too narrow to satisfy a case in which the Prosecutor General is affected (see the analysis for details).
Hence, both Art. 230 of the JSA and Art. 69 of the CPC do not provide an effective way to suspend the Prosecutor General from office. And the question of his status again does not find a solution – the efforts in that regard are obviously targeted at not finding a solution.
Option 1: Special procedure – ad hoc prosecutor
Under the present constitutional order, the Prosecutor General exercises supervision of legality and provides methodological guidance of the activities of all prosecutors and investigators by issuing written instructions and directions regarding the activities of the Prosecutor’s Office.
In a nutshell – he can do anything to all prosecutors in the system, including to impede actions undertaken against him, despite the amendments to the JSA in 2016, and in particular Art. 136, para. 5 in connection with Art. 138, it. 6.
That is, in order to investigate the Prosecutor General, the investigator must be someone external to the system. But who could that be?
The idea is to assign the investigation to an independent person holding a senior position in the judicial system outside the Prosecutor’s Office. That person is to be assisted by officials of the National Investigation Service (NSA). However, no authority other than the prosecutor’s office has the legal power to decide whether to prosecute someone under investigation or not.
Therefore, this should be done by a prosecutor who, however, remains outside the “methodological guidance” of the Prosecutor General, i.e. to have a provisional status of a prosecutor who is independent of the Prosecutor General.
This status should be interpreted as an immunity to disciplinary action, career impediments, and punitive attacks by the one being investigated against the investigator. Under this hypothesis, however, we also encounter practical and legal impediments:
Since all magistrates have been deprived of immunity (except for the functional one) following prior constitutional changes, granting a privilege to one magistrate is contrary to the principle of the basic law;
Who would be this one-time ad hoc independent prosecutor and if there are many occasions for investigations, would not that lead to status change of a number of prosecutors;
Establishing new uncontrollable figures might pose a threat and as evident from Georgia’s experience represented in the analysis, the Venice Commission indicates that many questions may arise as regards the existence of an ad hoc prosecutor in relation to the Prosecutor General’s investigation.
A number of other auxiliary issues arise that exclude such an option.
Option 2: Special body outside the system of the Prosecutor’s Office
The concept behind this option is that the function of an independent investigator who presses charges against the Prosecutor General when there is a ground for it, is exercised by a specially designated for that purpose body.
This hypothesis appears tempting as it would allow a wide range of experts, including outside the prosecutor’s office, to participate.
Such a body could be set up on an ad hoc basis or its activity could be carried out by the Constitutional Court, similar to other countries such as Slovakia and Georgia.
However, this option also seems unattainable because the state prosecution has a monopoly over its activity. This means that once again we get to a dead end which leads to the issue of initiating a constitutional debate. The transfer of the case to a body external to the prosecution system is impossible at this stage without constitutional amendments.
Option 3: Suspension from office of the Prosecutor General for the purpose of conducting an independent investigation
A similar option has been discussed and supported in the Structural and Functional Analysis of the Prosecutor’s Office. It is argued that the Prosecutor General should be suspended from office or otherwise be legally required to step back as a Prosecutor General for the duration of the investigation.
Undertaking such a normative solution undoubtedly requires amendment to the Constitution. The mission of society is either to complete the current constitutional model or to deny it and to build another one since behind the current elate principles for the independence of the prosecution in reality there exist bad practices.
And this type of model cannot be safeguarded as a constitutional value.
Specific Proposal for a Text of a Provision
A new item 9 of Art. 130a, para. 2 of the Constitution of the Republic of Bulgaria is established:
“The Plenum, at the request of 1/5 of the Members of the National Assembly, shall suspend from office the Prosecutor General in the event of a justified presumption that a publicly actionable crime has been committed.”
Reasons for choosing such an approach:
The need for a special authorization is justified by the impossibility to carry out an effective and independent investigation while the Prosecutor General is exercising his powers. The aim is to establish institutional and functional independence of prosecutors.
While functional independence is achievable with the act of the Prosecutor General’s suspension, the institutional independence remains difficult to implement in view of the structure of the SJC which would require except for the revision of Art. 130a of the Constitution also the restructuring of the Prosecutorial College to the SJC so as to limit the influence of the Prosecutor General;
The proposal does not create an imbalance between the legislature and the judiciary, since the main decision remains within the competence of the body administering the judiciary, which is also the body electing the Prosecutor General – the SJC.
In order to avoid the situation in which different bodies make the same decisions as provided for in the declared unconstitutional provision of Art. 129, para. 4 of the Constitution (SG. 27 of 2006), the Parliament at the initiative of 1/5 of the MPs, can only request the SJC to suspend the Prosecutor General. Powers are not seized from the SJC.
The necessary functional interaction between the three branches of power is ensured – the MPs as representatives of the sovereign gain the opportunity for initiative, while the decision for suspension remains within the competence of the SJC under 129, para. 1 of the Constitution;
Why should he be suspended – by law the Prosecutor General can not only repeal an act of another prosecutor, but he can also motivate a rank-and-file prosecutor to repeal an act of his/her colleague. If this relates to a prosecutor from the Supreme Prosecutor’s Office of Cassation, then the appeal of the lower instance’s prosecutor is brought before the Prosecutor General himself – Art. 143, para. 7 of the JSA;
The due process of suspension from office should provide for the right of defense to the Prosecutor General within the meaning of Art. 32 of the Constitution. When a procedure for suspending/removing magistrates is initiated, this protection guarantees the opportunity to challenge the findings;
The request for suspension made precisely by the Parliament fulfills the criterion for public supervision over the investigation and for raising public interest. The act of Parliament guarantees that;
Тhe appropriate number of MPs having the right to request a suspension from the SJC Plenum should not be too high as compared to parliamentary representation. Thus, the Prosecutor General will be deprived of the comfort of the support provided by a dominant political party in the National Assembly which renders his actions virtually uncontrollable.
In addition, the rights of minority represented in the National Assembly will be taken into account;
As a follow-up comprehensive measure pertaining to the powers and reconsideration of the functions of the Prosecutor’s Office, the application of legality oversight should be abolished or explicitly restricted in order to prevent the possibility of involvement of the Prosecutor’s Office in private disputes and to reduce the possibility of involvement of the Prosecutor’s Office in politically motivated actions;
Another issue that should be considered is the type of majority in the SJC needed to decide on the question of suspension. The abovementioned Structural and Functional Analysis highlights that this can be done by a simple majority.
Under the current structure of the SJC, we can hardly assume that suspension would actually take place. In the event that the Prosecutor General is convicted and sanctioned for committing a serious crime and s/he should finally be dismissed from office, the Analysis assumes that the President of the Republic should automatically dismiss her/him from office.
Where facts of a disciplinary nature have been found to the detriment of the Prosecutor General following a criminal investigation which concluded with acquittal (but the conduct in question is nevertheless considered incompatible with her/his occupation), we are of the opinion that the decision to propose a dismissal from office of the Prosecutor General on the part of the SJC should be taken by a simple majority.
In case such a proposal is supported, a detailed regulation should be further developed in the JSA.
The power under the newly proposed text of a provision of Art. 130a, para. 2 item 9 shall be exercised after a certain period of time has elapsed from the preceding request in order to avoid abuse of this right.
As evident from the examples reviewed in the analysis, when a country embarks on certain reforms, they should represent a complex of measures.
Written by: Ivan Bregov and Ekaterina Baksanova (Legal Program of the Institute for Market Economics)
The full analysis is available in Bulgarian here.
1 For more details see the Council of Europe’s publication: https://rm.coe.int/20190620-bgr-kolevi-roundtable-sofia-en/168094f5cf