Consequences After the SJC’s Refusal to Consider the Removal of the Prosecutor General

By 12 to 8 votes, the plenum of the Supreme Judicial Council (SJC) rejected the request of the Minister of Justice Yanaki Stoilov as inadmissible as to whether Ivan Geshev should be dismissed from the position of Prosecutor General on the grounds provided for in the Constitution. The proposal of the Minister of Justice is based on data presented by the Minister of Interior Boyko Rashkov, which give reasons that Ivan Geshev with his actions has committed a serious violation, systematic failure to perform official duties, as well as actions that damage the prestige of the judiciary power.

The majority in the SJC accepted the thesis of the investigator close to the Movement for Rights and Freedom (MRF), Stefan Petrov, that the Minister of Justice does not have the competence to make a proposal for the release of the Prosecutor General. That is why, there was no procedural discussion on the merits of whether there were reasons for Geshev’s dismissal. The decision of the Judicial Council in practice leads to the non-application of the Judiciary Act, which is a gross offense and in itself is a prerequisite for seeking responsibility from the members of the SJC. The procedure for dismissal of the Prosecutor General is a specular of that of the election and leaves no doubt as to whether the Minister of Justice can initiate the termination of the term – the one who can nominate, may also request the removal.

What to do with the majority in this composition of the SJC?

The irresponsible behavior of the members of the SJC is not accompanied by any possibility of sanction. The assesments they are given after the end of their term of office are limited to the definition of “relevant” – without a qualitative criterion, without an evaluation element and without consequences for their further career.

Early dismissal is possible in this case for disciplinary reasons as disciplinary proceedings are a necessary prerequisite for one-fifth of the deputies elected by the National Assembly to request this, respectively one-fifth of the judges and prosecutors for those who filled the judicial and prosecutorial quota. The procedure is complicated, clumsy and would hardly lead to a result.

Thus, in practice, both the SJC and the Prosecutor General are self-sufficient bodies unrelated to the system of state bodies, which are in no way accountable to the Bulgarian citizens.

From now on, however, with this behavior the members of the SJC prove the inability of this body to fulfill its legal obligations. In the remaining year of the mandate of the eighth panel of the Council, the most important thing ahead of it is the election of a chairman of the Supreme Court of Cassation, given the expiring term of Lozan Panov. In our recent history, several mandates of the SJC have been prematurely terminated through amendments to the Judicial Act, undertaken by the National Assembly. This type of action is risky for legal certainty, but it remains the only way to prevent worse consequences for the society. It would be true to say that this is becoming a weapon for each subsequent majority in the National Assembly to release uncomfortable members of the SJC, but it seems that at the present moment such an action is legitimate.

The members of Parliament also have the procedural option before taking final measures to request a hearing of the members of the SJC in the National Assembly in order to explain their decision to the Bulgarian citizens – Art. 84, item 17 of the Constitution presupposes such an action.

Will Geshev continue to be an autocrat beyond the established constitutional order?

A possible move to have some reporting of his actions from now on is precisely the election of a new composition of the SJC and the use of the opportunity under Art. 84, item 16 of the Constitution. This possibility entitles the National Assembly to request a hearing of the Prosecutor General without, however, asking questions in specific cases.

We know the rest – it seems that at the present moment our society is unable to elect a constitutional majority to implement a comprehensive judicial reform.