Sofia City Prosecutor’s Office with an opinion on the Law on Judicial Power

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The Administrative Head – City Prosecutor of the Sofia City Prosecutor’s Office, Iliana Kirilova, sent on behalf of the prosecutors to the SGP a summary opinion on the draft Law on the Judiciary, published for public discussion on 25.03.2024.

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The opinion contains an analysis of the tests of the ZSV project, which to the greatest extent concern the activities of prosecutors from the SGP without exhausting the criticisms of it.

The proposed project was prepared before the decision of the Constitutional Court on the pending k. e. No. 1 of 2024, to which was added k. e. No. 2 of 2024, concerning the structural changes in the judiciary and in this sense is hasty.

The analysis of the texts in the said project reveals a number of provisions that are in conflict with the Basic Law – in itself the subject of consideration by the Constitutional Court. The project is not able to fulfill the goals set in the reasons for it – some of which are unclear, and it does not contain a regulation that could provide conditions for improving the work of the judiciary.

The opinion contests the decisions that require mandatory initiation of pre-trial proceedings in cases of annulment of a decree refusing to initiate pre-trial proceedings, as well as in cases where the author of the report is a certain person or state body.

The regulation of the preliminary inspection, which is introduced in Art. 211a of the Civil Code. Apart from the fact that its place in the procedural law is not suitable, it is absolutely unclear who are the holders of the right to legal protection, what the content of the right to legal protection will be, as well as with what guarantees this right is attached. The term for the preliminary examination does not take into account the nature and complexity of a large part of the cases that are brought to the attention of the prosecutor’s office and which are impossible to examine in such a short two-month period without the possibility of its extension. In this regard, the SGP calls to take into account the fact that for the past year 2023, only 0.087% of the total number of rulings on refusal to initiate pre-trial proceedings were canceled by the Sofia City Court. This shows that the prosecutors in the SGP carry out quality checks and correctly issue rulings on refusal to initiate pre-trial proceedings precisely in these factually and legally complex cases.

The essential importance of the regulations concerning the composition of the High Prosecutorial Council (HCC) and its functions is noted, since these regulations contain the legislative idea to put the Prosecutor’s Office of the Republic of Bulgaria under full control for the current political situation, and not just formally, but in a way that it can actually be managed by her. This is where all the other dimensions of the debate regarding the draft of the Civil Procedure Act (and the constitutional one regarding the judiciary) stem from, expressed in the unjustified division between judges on the one hand and prosecutors and investigators on the other (taking into account the indisputable fact that they do not have they do not need to have exactly the same status), limiting the functions of the Prosecutor General in such a way that he is almost deprived of the opportunity to lead the prosecution, but at the same time demanding accountability from him, bordering on responsibility, etc.

It is objected to the provisions that limit the possibility of the professional quota of prosecutors and investigators to participate in the VPS at the expense of the party usually opposed to the prosecution in the process – the legal profession, which does not bear the obligation to reveal the objective truth. Serious criticism has been leveled at the prioritization of certain non-governmental organizations at the expense of others, on the basis of stereotyped experience, determined according to vague criteria, as a prerequisite for them to be able to make proposals for candidates in both councils. Continuing in this direction, the project introduces the unclear in its content and extremely controversial requirement to the candidates, related to their public reputation and public support.

Disagreement with the secondment period is expressed, giving detailed reasons for the thesis that it will not solve the staffing problem, but will deepen the problems. In addition to the arguments related to the character and nature of the cases that are considered by the SGP, it is also noted that the prosecutor’s office does not work independently, but in close connection and interactions with other state bodies, which are also unable to provide an investigation in the main two-month term. Last but not least, the exercise by defendants and victims of their right to appeal the acts of the pre-trial proceedings bodies either before the court or before the upper levels of the prosecutor’s office, which they exercise of their own free will, is also important for the duration of the proceedings.

As a party to the process, the SGP also disagrees with the secondment period provided for judges.

On the other hand, the posting period should be tied to the competition procedures in such a way that the regular and rhythmic conduct of the latter ensures the filling of the jobs in the relevant prosecutor’s offices and investigative departments and that the posting as a measure is only exceptional. In fact, although instructional deadlines are set for the announcement and holding of the tenders – which is similarly laid down in the current ZSV, the tender procedure itself does not suffer any change in the project under discussion, which is why it cannot be expected to lead to rhythmicity and speed in conducting the tenders, respectively to reducing the need for secondments.

The formal approach adopted in the attestation, without taking into account the real work of the magistrate, as well as the transfer of disciplinary activity to the Air Force by removing the possibility of the administrative head to impose a “remark” penalty, is criticized.

Disagreement is expressed with the decision to impose a disciplinary penalty of “disciplinary dismissal” for actions that damage the prestige of the judiciary, as it contains a real danger that magistrates who exercise the right to express their views will be removed from the judiciary for subjective and conjunctural reasons in matters concerning the judiciary.

A contradiction with the Constitution is found in the provision that introduces additional prerequisites for the dismissal of an irreplaceable magistrate beyond those listed in art. 129, para. 5 of the Basic Law.

Ambiguity in the content of the duty of magistrates to declare activities and memberships in “secret and/or informal organizations and societies” is argued. To the extent that there is a lack of definition of the terminology used both in the draft of the Civil Code and in another legal act, there is a complete misunderstanding of what circumstances are subject to declaration, respectively verification when a declaration is submitted.

The organization of the activities of the prosecutor’s office by departments is defined as an internal organizational matter, the place of which is not found in the law.

It is proposed to rethink the provisions on the remuneration of judicial officers, as well as on the requirement to declare assets and interests.

It is justified the need for the structure of the National Institute of Justice and the number of employees in its administration to be determined by the General Assembly of the two councils – SJC and VPS.

It is indicated that the activity of the SGP, which is the largest prosecutor’s office in the country, would be significantly hampered without interaction with the administration of the Prosecutor General. The need for a corresponding addition in terms of administration to the Prosecutor General, which will be charged with a number of functions serving the activities of the Prosecutor’s Office, is defended.

Other issues raised by the project of ZSV are also highlighted.

All the deficits of the mentioned project – logical, technical, clearly unconstitutional, are so deep that it is necessary to build a completely new project, and that after the ruling of the Constitutional Court.

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