Alternative option for the temporary removal of the Prosecutor-General
One of the goals ingrained in the National Recovery and Resilience Plan (NRRP) is the introduction of an effective mechanism for seeking responsibility of the Prosecutor-General and his deputies by creating guarantees for the practical, institutional and hierarchical independence of a prosecution directed at them.
A forecasted means for the execution of the task is a regulation of the temporary removal from power of the Prosecutor-General and his deputies in case of a prosecution against them. The thought put into the NRRP is for that to be secured in the Law for the Judiciary via a decision of the Plenum of the Supreme Judicial Council (SJC), taken by a majority of 13 out of the 25 members. The execution of this proposal however, is again debatable given the structure of the SJC and the influence of the Prosecutor-General and the especially strong one of Prosecutor College (PC) in the council.
We have already explored in details the problem and the potential solutions (see here) but we will remind you why the current active normative instrumentation is difficult to apply and why we need to search for alternatives in the law.
At the present moment there exist two established normative procedures, through the power of which we could seek the opportunity for a temporary removal of the Prosecutor-General. They suffer from a series of weaknesses and are ultimately difficult and inefficient to enforce, thus unfit for use.
The first possibility is the temporary removal from position of a judge, prosecutor and investigator as specified in article 230 from the Law for the Judiciary. This provision is with a debatable application as namely the Prosecutor-General, through a proposition from the overseeing, is empowered to make the request for temporary removal. Currently, after a decision by the constitutional court which announced par. 1 and par. 2 of article 230 from the Law for the Judiciary to be anti-constitutional and so the following alteration of the two provisions the removal of a judge, prosecutor and investigator is no longer compulsory but dependent upon the decision of the SJC. A prerequisite for this request is the involvement as an accused of an intentional crime of a general nature. The decision for the enforcement of the measure should then be from the Prosecutor College of the SJC but with the power of the Prosecutor-General over the college this solution is unlikely to work.
The second possibility for a temporary removal from power is in the general order of article 69 from the Criminal Procedure Code (CPC). The application of this procedural institute is too narrowed for it to entertain a case in which the figure of the Prosecutor-General is involved. Firstly, the application field of article 69 from CPC is only for a crime “committed in connection to the work of the defendant.” In this case the execution of this measure for a procedural coercion will be only in connection to a limited set of circumstances which must undergo assessment. In light of historical experience however, the possibility of removal is diminished when a supposition of a different kind of crime – for instance ordered and/or committed homicide as it is detailed in the factual situation of the “Kolevi” case. Second in order is the condition the defendant to be “attracted for an intended crime of general order” – the problem is that it is difficult to reach such an accusation in the context of the Bulgarian prosecution and the absolute power of the Prosecutor-General. The third provision is for the defendant to “have enough grounds that his position will create barriers for the objective, all-encompassing and full clarification of the conditions surrounding the case.” This way the application of article 69 of CPC is with a significantly narrowed scope and in addition to this the labelling of the Prosecutor-General as defendant by his subordinates is practically impossible. Even is we assume the labelling of the Prosecutor-General as defendant, given his dominating position in the prosecuting body it would be easy to circumvent the measure for the temporary removal in pre-trial proceedings in the order of article 69, par. 5 of CPC itself. At this stage of the proceedings when the need for the measure taken diminishes, in the pre-trial proceedings the removal from position is cancelled by a prosecutor or from a request of the defendant or his attorney from the court in order of par. 1 and 2, even without court control, with the assessment being made by a prosecutor subordinate to the chief prosecutor. It is difficult for us to accept as a strong argument in favor of the application of article 69 from CPC as an effective means for the removal of the Prosecutor-General and the argument that the measure for the temporary removal from power could be activated at a later moment, for example in trial proceedings, including a second stage one
The two measures are trying to achieve different goals – the one regarding article 69 from CPC aims to ensure the normal proceeding of the penal process so that the defendant does not hinder the collection of proof. The measure regarding article 230 from the Law for the Judiciary is way stricter and follows a different aim – maintaining the prestige of the judiciary so that we do not reach the situation in which a defendant is carrying out the actions on the case of a defendant citizen. And so, in the existence of article 230 from the Law for the Judiciary and of article 69 from the CPC there is no effective means for the temporary removal of the Prosecutor-General.
Henceforth, an alternative which excludes the Prosecutor-General from the procedure and minimizes the Prosecutor College’s influence over the SJC must be sought. Such a measure is namely proposed in the NRRP but it nonetheless depends on 13 votes in the SJC. A bold move moving forward would be for the power to produce a decision for the removal of the Prosecutor-General to be relegated to the Judge’s College of the SJC. This way the powers of the SJC are not taken away and the approval becomes possible in a regular alteration in the Law for the Judiciary and not via heavy means such as additions to the constitution. Concurrently, the influence of the Prosecutor-General is smallest in the Judge’s College, though not negligible.
*This document is funded by Active Citizens Fund Bulgaria through the Financial Mechanism of the European Economic Area and Norwegian Financial Mechanism. All its contents are the sole responsibility of Institute for Market Economics and do not represent in any way the views of the Financial Mechanism of the European Economic Area and Norwegian Financial Mechanism and Active Citizens Fund Bulgaria. (www.activecitizensfund.bg)