Prosecutors and investigators from the Dobrich region with criticism of the new Law on the Judiciary

Prosecutors and investigators from the Dobrich judicial district issued an opinion regarding the draft Law on the Judiciary. The opinion was adopted at a meeting held on April 19 in Dobrich and sent to the Ministry of Justice.

The text was presented to journalists today by the district prosecutor Radoslav Bukhchev.

It says:

After having familiarized ourselves with the draft for a new Law on the Judiciary and the reasons for it, we express the following opinion:

From the reasons attached to the draft of the normative act, it is clear that the leitmotif for its adoption is the essential constitutional changes, which were carried out in 2023, according to the petitioners. As reasons that necessitate the adoption of a completely new Law on the Judiciary, the people’s representatives point to numerous legislative amendments and additions that should find a sub-constitutional regulation, as well as the need to adopt a completely new judicial law, reflecting the legislator’s new understanding of the system, which to reflect the special functions and powers of bodies in subsystems in the judiciary.

The goals that the legislator sets for himself when adopting the new Law on the Judiciary are: a) full implementation of the will of the constitutional legislator regarding the formation procedure, incl. new requirements for the elected members of the Supreme Judicial Council and the Supreme Prosecutor’s Council; b) reformulation of the powers of the prosecutor’s office and the chief prosecutor in accordance with the constitutional changes – subsidiarity when participating in civil and administrative proceedings; c) new regulations regarding the competitions for holding positions as judges, prosecutors and investigators, disciplinary liability and punishment of magistrates and administrative heads.

Although the draft law formally meets the requirements of Art. 28, para. 2 of the Law on Normative Acts, it should be noted that the reasons offered to our attention for the adoption of a completely new Law on Judicial Power are too incomprehensible. In practice, in the reasons for the bill for amending and supplementing the Law on Law, the petitioners have carried out a retelling of the previously carried out constitutional reform of the Basic Law (it is indicated what texts were adopted in the Constitution and what they provide). In this way, the legislator has tried to defend his position that the judicial law of the judiciary needs to be completely changed, without taking into account that the adopted texts in the KRB contradict the Constitution itself.

Special attention in this opinion should be paid to the new way of formation of the personnel body of the prosecutor’s office – the High Prosecutor’s Council – provided for in the draft of the Public Prosecution Service (Article 19, paragraph 3 of the Public Prosecution Service). According to the said provision, “The National Assembly may not elect as members of the two councils persons who hold the position of prosecutor or investigator at the time of election.” Apart from the fact that Art. 130a of the KRB, by which the Supreme Judicial Council was abolished in its previous form and two new bodies were created in its place – the Supreme Judicial Council and the Supreme Prosecution Council, contradicts the Basic Law, insofar as the said legislative change represents a change in the form of state government, which can only be carried out by a Grand National Assembly (Art. 158, Item 3 of the KRB), such a restriction is completely unconstitutional and unacceptable. Bulgarian prosecutors fully accept the rule of non-interference between the magistrates and the recommendations of the Venice Commission in this regard, as a guarantee for strengthening the self-governance of judges. If this intervention, which the petitioners point to as the basis for the adoption of a new Law on the Judiciary, is the actual and honestly sought effect of the change, then it could be achieved through a functional reform of the existing SJC, and not through restructuring alone. the prosecutor’s office.

The Bill for a new Law on the Judiciary stipulates that the staff of the High Prosecutorial Council is formed by 10 members, of which 1 by right, 6 elected by the National Assembly with a qualified majority from among persons who are not acting magistrates (prosecutors and investigators ), and only 3 selected from the professional quota in a ratio of 2:1. Such a legislative approach is in obvious contradiction with the principle of self-governance, including in the part for guaranteed qualification of the members. Since the prosecutor’s office exercises exclusive powers to charge on behalf of the state for crimes of a general nature and to refer to the court, and is deprived of an institutionality analogous to that of the judiciary, the control over it related to its accountability and responsibility can be more intense than that on the court. But this control cannot affect her independence and self-governance. Moreover, this control cannot be political or exercised with the participation of interested persons.

Self-government implies that prosecutorial affairs are decided by prosecutors, with and without the assistance of external factors. Where such external factors are involved, they must act impartially and not make decision-making processes dependent or potentially dependent on external interests. With the proposed amendment, such guarantees are practically absent, since the majority of the members of the VPS are formed by external actors. The combination of the small number of members of the Prosecutor’s Council, elected from the professional quota with the numerical preponderance of members who are not active magistrates (prosecutors and investigators), at the same time elected by the conjunctural political power, ensures political influence on the institution, which VIIThe Great National Assembly aimed to avoid. This means not just liquidating the self-government, but also mastering, humiliating and smashing the prosecutor’s office.

In modern countries, there is no model in which the prosecutor’s office is deprived of self-governance and at the same time dependent on the political power and it, and not they are responsible for its actions.

What has been said is also directly related to the provisions of Art. 52, para. 3 and Art. 55, para. 4, item 4 of the Civil Code, which regulate the nomination and election of the members of the Air Force. The proposed texts result in a drastic imbalance in the division of powers, which is to the detriment of the judiciary. Fundamental principles of a democratic society – the principle of the rule of law – art. 4 KRB, and the principle of separation of powers – Art. 8 KRB. If the regulations are adopted in their form, the balance between the authorities will be disturbed, which will directly reflect on the democratic foundations in our country.

Here, just for the sake of completeness of the statement, it should be pointed out that the prohibition in the parliamentary quota of the Ukrainian Armed Forces to elect acting prosecutors and investigators not only undermines the dignity and authority of the Bulgarian prosecutors and investigators, but also goes against basic constitutional principles – Art. 4, para. 1 CBD and Art. 6, para. 2 KRB – principle of prohibition of discrimination, as restrictions are introduced in the legal profession of magistrates, based on a social characteristic – profession.

We fully share the well-founded professional criticism of the prosecutors from the Sofia Appellate District regarding specific texts of the bill relating to the structure of the prosecutor’s office – art. 178, para. 2 et seq., the regulation of certain prosecutorial powers – Art. 181, para. 5 and para. 6 of the Civil Code, which conflict with the provisions of Art. 207, para. 1 of the Code of Civil Procedure, as well as the reservations to the so-called preliminary inspection.

In view of the above arguments, we believe that the proposed texts of the Bill for Amendments and Supplements to the Law on the Judiciary, concerning the activities and self-management of the Prosecutor’s Office, not only contradict the Constitution, but also that they are disproportionate to the legitimate public interest. In recent years, we have observed with alarm and disapproval the aggressive attempts by the political class to take away the autonomy and limit the independence of the prosecution. The proposed ZIDZSV categorically confirms these attempts. Basic legal principles that make up the demands for the development of modern Bulgarian society have been demonstrably ignored.

We express our conviction that justice will be preserved by preventing the said proposed amendments to the law from becoming part of the legal peace of our country.