The Prosecutor General submitted to the Constitutional Court 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 independent investigation mechanism of the Prosecutor General and the election of members of the Supreme Judicial Council (SJC).
Detailed arguments for unconstitutionality are set out, some of which are as follows:
The introduction of judicial review for most of the prosecutor'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 fairness 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's functions and affect his ability to make his decision according to his own internal conviction, and in a state governed by the rule of law it is unacceptable for a public authority to seize the powers of another.
The implementation 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 provisions of the Criminal Procedure Code (CPC), which introduce a mechanism for independent investigation of the Prosecutor General, do not comply with the opinions and recommendations of the Venice Commission, with the basic principles of the Constitution and with the practice of the Constitutional Court, which has already twice ruled on the responsibility of the Prosecutor General with Decision No. 11 of 23.07.2020 of the Constitutional Court in case No. 15 of 2019 and Decision No. 7 of 11.05.2021 in case No. 4/2021.
According to these decisions, without an explicit change in the basic law, it is impossible to create a state body that is part of the prosecution service and at the same time excluded from the general control procedure in its system. At present, under current legislation, there is no obstacle to an independent investigation against the Prosecutor General.
The amendments to the Criminal Procedure Code establish a different procedure than the general one for initiating an investigation against the Prosecutor General, which puts him in a less favorable position than all other citizens - only a legal reason is sufficient, but not sufficient evidence of a crime. Restrictions are created on the basis of his public standing, and the constitution explicitly states that "no restrictions" on the rights of citizens are allowed.
The request to the Constitutional Court states that it is inadmissible to create a special criminal procedure regulation that would act only against a specific person.
Furthermore, the Criminal Procedure Code (Article 411b, para 5) introduces the absurd principle that a decree refusing to initiate pre-trial proceedings against the Prosecutor General, confirmed by the court, is not an obstacle to the initiation of such proceedings in the presence of new circumstances. In a state governed by the rule of law, such disregard of court decisions is unacceptable and completely defeats judicial review.
It is noteworthy that the 'independent investigating prosecutor' will not have an independent and autonomous investigative apparatus, but the investigating police officers and customs inspectors will be appointed at the discretion of the Ministers of the Interior and Finance respectively.
The investigating judge will be selected randomly from a certain category of magistrates, but the investigating authorities will be appointed by the relevant ministers - bodies of the executive which are under political control. This creates the possibility of direct interference by the executive in the investigation against the Prosecutor General. Moreover, he can be investigated by executive authorities, unlike all other magistrates, who, according to the Criminal Procedure Code, are investigated by investigators. In practice, this creates a system of bodies with features of exceptionalism and ignores the principle of random selection in the allocation of cases and files.
The amendments to the Judiciary System Act introduce a different procedure for the election and dismissal of the presidents of the Supreme Cassation Court and the Supreme Administrative Court and the Prosecutor General by the Plenum of the Supreme Judicial Council - for them by a majority of 17 votes, and for the Prosecutor General - by 13 votes. Such inequality is unacceptable for any state governed by the rule of law. The Constitution dictates that personnel changes in the posts of the three senior members of the judiciary be made by qualified majority because of the principle of legal certainty.
The amendments to the Transitional and Final Provisions of the Judiciary System Act, which concern the election of the members of the Supreme Judicial Council from the professional quota, are also contrary to the Constitution. In practice, they annul the decisions taken in accordance with the law at the general assemblies of judges, prosecutors and investigators held between 4 June and 9 July 2022, as well as the decisions of the 5-member joint chambers of the Supreme Cassation Court and the Supreme Administrative Court on the elections held. In doing so, the legislature seizes functions from the judiciary, violates the separation of powers and interferes with the judiciary.