site.btaProsecutor General Challenges Constitutionality of Judicial Reform Laws
Prosecutor General Ivan Geshev has submitted to the Constitutional Court (CC) a request to declare unconstitutional provisions of the Criminal Procedure Code (CPC) and the Judicial System Act (JSA) related to the refusal to initiate pre-trial proceedings, the mechanism for independent investigation of the Prosecutor General and the election of members of the Supreme Judicial Council (SJC), the Prosecution Office said on Monday.
Detailed arguments for unconstitutionality were set out, some of which are as follows:
The introduction of judicial review for most of the Prosecutor General's refusals to initiate pre-trial proceedings undermines the constitutionally mandated role of the court to be an independent arbiter and to ensure equality of the parties and competitiveness in the judicial process. It would also result in an unacceptable infringement of the prosecutor's power to decide sovereignly and independently whether to initiate or refuse to initiate an investigation. The court would encroach on the Prosecutor General's functions and affect his ability to make his decision according to his own internal conviction, and such seizing of power is unacceptable in a state governed by the rule of law.
The introduction of judicial review of refusals to initiate pre-trial proceedings only for a certain category of offences and not for all offences violates the fundamental constitutional principle of equality of citizens before the law.
The CPC provisions, which introduce a mechanism for an independent investigation of the Prosecutor General, are not in line with the opinions and recommendations of the Venice Commission, with the basic principles of the Constitution and with the practice of the CC, which has already twice - in 2020 and 2021 - ruled on the responsibility of the Prosecutor General.
According to these decisions, it is impossible to create a state body that is part of the prosecution service and at the same time is excluded from the general order of control in its system without an explicit change in the basic law.
The amendments to the CPC introduce a procedure, different from the general one, for initiating an investigation against the Prosecutor General, which puts him in a less favourable position than all other citizens - only a legal reason is sufficient, without sufficient evidence of a crime.
The request to the CC states that it is inadmissible to create a special criminal procedure regulation that would act only against a specific person.
The investigating judge of the Prosecutor General will be chosen by the rules of random selection from a certain category of magistrates, but the investigating authorities will be appointed by the relevant ministers - bodies of the executive power that are under political control. This creates the possibility of direct interference by the executive in the investigation against the Prosecutor General.