The leadership of the Prosecutor's Office of the Republic of Bulgaria categorically opposes the attempts to link the failures of the legislative and executive power with the functions of the Prosecutor's Office and the figure of the Prosecutor General. Every day we witness statements by politicians who, in addition to not meeting the objective reality, aim to suggest that the development and prosperity of the Bulgaria is directly dependent on the personality of the Prosecutor General. As a result of this approach, instead of seeking, discussing and finding solutions to real problems, the public's focus is shifting and concentrating on the Prosecutor General.
The truth is that the Recovery and Resilience Plan is in no way linked to the above and the purpose of these statements is to manipulate public opinion in order to remove the current Prosecutor General and control the Prosecution.
Actually, the facts are as follows:
The introduction of measures related to the judicial reform is at the explicit insistence of the caretaker government, not the European Commission.
It is claimed that Bulgaria will lose billions of euros due to the lack of accountability and responsibility of the Prosecutor General, and that the European institutions, in order to approve the National Recovery and Resilience Plan, require measures in this direction. We are obliged to explain to the Bulgarian society that the Recovery and Resilience Mechanism is the main pillar of the European Recovery Plan, which provides financial support to EU countries to mitigate the social and economic consequences of the COVID -19 crisis.
The funds allocated are based on Member States' national plans for reform and public investment, which must be in line with EU priorities, support the green transition, reflect country-specific challenges and strengthen the digital transformation. Although the plans are subject to evaluation and adoption by the European Commission and the Council of the EU, the European institutions cannot set requirements for specific measures and interfere in internal processes.
In this regard, the suggestions about the urgent need for reforms in the Prosecutor's Office and, in particular, the accountability of the Prosecutor General are absolutely untenable. It is obvious that such measures cannot be the basis for the social and economic recovery of Bulgaria, do not require funding and could not be set as a condition by the EC. Given this, it is clear that the allegations of the central executive bodies are intended to serve only political interests and to generate a negative attitude towards the Prosecutor's Office and the Prosecutor General. It is a fact that the comments on the last return of the Plan of October 15, 2021. and its supplements of 17-19 November 2021, which are 207 and consist of 43 pages, are mainly focused on proposals requiring funding and those related to health reform. It is not our European partners who demand it, but our caretaker government has proposed reforms in the Prosecution and the figure of the Prosecutor General, dictated not by necessity and by a specific individual, holding the position.
Differences in the different versions of the Plan for Reconstruction and Development of Bulgaria in chronological aspect are indicative. The initial version of the plan dates back to the fall of 2020, and the second one was sent to the EC at the beginning of February 2021. The comments of the European Commission on the second version are on the formulation of the reforms envisaged in the plan, as well as on the horizontal elements of planned investments and projects related to digitalization in public administration, the unified information system for e-justice, management of public enterprises, changes in the legal framework in the field of money laundering and the need to include measures in implementation of the recommendations of the EU Rule of Law Mechanism.
Taking into account the comments made, some projects have been replaced by others and new proposals for reforms have been introduced, including reforms in the judiciary. Initially, the proposals concerned principles, but later the caretaker government added emphasis on the Prosecution and the accountability and responsibility of the Prosecutor General, which were inconsistent and in no way related to the idea of financing activities supporting economic stability. Despite the objections of the Prosecutor's Office and the interim opinions expressed, the accents have not changed, but have acquired the appearance of an inadequate appendix for the specific topic.
In the last draft dated 15th October 2021, Section 2.D.1 Business environment, Reform 2: Countering Corruption, point 6.2 is entitled „Increased accountability of the Prosecutor General and his deputies“/p.192-193/. The reason why business environment and countering corruption are bound namely with the accountability of the Prosecutor General is not clear. The analysis of specific measures shows that part of them has already been implemented in the domestic law, and the implementation of another part is conditioned by Constitutional amendments. It takes to the logical conclusion that introduction of these measures results either of unfamiliarity with the current legislation and jurisprudence of the Constitutional Court, or are they deliberately formulated so as to presuppose the impossibility of their implementation in the foreseeable/near future. Thus, the lack of European funds under the Reconstruction and Development Mechanism, their delay or reduction, will be explained by the insufficient accountability of the Prosecutor General. This will put the Prosecutor's Office and the Prosecutor General in the focus of public discontent and will turn them into a means of pressure on the relevant representatives of the executive the legislature.
For example, measure 2.1. to item 6 / see p.192 of the Plan / provides for the obligation of the Prosecutor General to respond to the questions raised during the public discussion of the report on the activities of the Prosecution on law enforcement, crime prevention and implementation of penal policy, received during the public discussion of the report.
Paragraph 4, sentence 3 of Article 138a of the JSA / SG, issue 62 of 2016 / stipulates that when discussing the reports of the Prosecutor General, MPs may also ask written questions received by citizens, institutions and non-governmental organizations.
Therefore, presently, the Prosecutor General is obliged to answer the questions, as the limit of these questions is clearly set by Decision №6 of 06.06.2017. of the Constitutional Court under constitutional case№15/2016. In fact, the boundaries of the interaction between the legislature and the Prosecution have been outlined by the Constitutional Court with Decision №9 of 4 October 2011 according to constitutional case №7 / 2011.
The situation is similar to the planned introduction of effective annual reporting of investigations and convictions for corruption, which already exists in the Prosecutor`s Office. If it needs to be improved, it could be achieved quickly at the internal – organizational level, without any special measures. In this sense, these kinds of measures, which do not require any funding and have nothing to do with the economic stability of the country, remain unexplainable.
The measures entitled "Introduction of an effective mechanism for accountability of the Prosecutor General and his deputies by creating guarantees for the practical, institutional and hierarchical independence of the investigation against them" / see p.193 of the Plan /, with the exception of the one under item 3.1., existing under the current CPC, are incompatible with the Constitution and can be implemented only after appropriate changes. Moreover, some of them have already been the subject of amendments to the Criminal Procedure Code and the JSA since the beginning of 2021, declared unconstitutional.
In this regard, it is recommended to get acquainted in detail and comply with Decision №7 dated 11th May 2021 of the Constitutional Court under constitutional case №4 / 2021, with Decision №11 dated 23th July 2020 under constitutional case №15 / 2019 and with Opinion №968 / 09.12.2019 of the European Commission for Democracy through law, containing a position on the Draft amending and supplementing the Code of Criminal Procedure and the Judiciary System Act related to criminal investigation against high level magistrates from 2019.
Without going into details about the problems related to the ECHR “Kolevi“ judgеment which have been the subject of attention for the last ten years, we would like to note that the implementation of that judgment is a commitment of the Bulgarian state and not of the law enforcement agencies. The Prosecutor's Office of the Republic of Bulgaria is not and cannot be responsible for the action or inaction of the legislative body or the executive bodies.
The transfer of such responsibility is inadmissible and any suggestions in this regard affect the basic principles of the rule of law. The Prosecution is implementing and will continue to implement the law as it is, because it is its duty, and will not allow it to be used as an excuse for the failures of the legislature and the executive.
We would like to remind that only in the conditions of interaction between the three powers it is possible to achieve the rule of law and realize the priorities of the Bulgarian state.
The current position of the Prosecutor's Office of the Republic of Bulgaria will be sent to the European Commission, the European Parliament, the Embassies of EU Member States, the Embassies of the United States and the United Kingdom.
* The position was presented to the media by Deputy Prosecutor General Krassimira Filipova