The Prosecutor's Office and the institution of the Prosecutor General are at the center of the proposed changes.
It is more than clear that there is a need for change - in recent years the prosecution has clearly shown its imperfections, but at the same time both the judiciary and the SJC (Supreme Judicial Council) as part of it, have shown that they have the strength and the means to purify themselves.
The Prosecutor's Office is one of the main state institutions. The dismantling and deconstruction of the Prosecutor's Office would be to the severe detriment not only of the judiciary, but also of the entire society. In recent years, it has become somehow fashionable to denigrate the Prosecutor's Office and to shift all the sins and responsibilities onto this institution.
But I will remind you that 10 years ago there was a period when the court was guilty of everything. There was an interior minister who named his police operations after specific Bulgarian judges. This was not a good practice. It did not lead to justice. It did not help justice and fairness in any way. That is why, now that the Prosecutor's Office is in the crosshairs, I expect unequivocal support from my colleagues in the court, including from their respected professional organization, the Bulgarian Judges Association.
At the same time, my colleagues and I are dismayed to see that all the changes that are being made are only increasing the formalism in the criminal process - instead of simplifying and improving procedures, including adapting them to changing social and economic conditions, we are complicating them. Here I will recall the words of my respected judge, Neli Kutskova: “Our criminal process is like a complex palace quadrille”.
Since the time when Judge Kutskova uttered those words 15 years ago, things have not changed for better, but on the contrary they have gotten worse. The balance has shifted heavily in the direction of protecting the rights of the accused, at the expense of the rights of the victim and the methods of gathering evidence. I will give one example of extreme formalism.
According to the criminal procedure, the Bulgarian Prosecutor's Office and investigating authorities are obliged to present the criminal proceedings to all relatives of the heirs of the 18 migrants who died in the Lokorsko case, to present them with the materials of the investigation. We should take the certificates of inheritance, certify who they are, summon them in due order and present them with the materials of the case.
My colleagues from the National Investigation Service and I made an attempt, we met with a representative of the Afghan embassy in Bulgaria and he said, “Yes, call them. They will all come because this is their way to enter legally the territory of the European Union”. How should we approach and conclude this criminal proceeding? Do you have any idea how many heirs these 18 Afghan citizens may have? They could be 200-300, and perhaps more. No exaggeration.
I will take this opportunity to share just a few reflections on the proposed constitutional draft. We are all clearly aware that the focus of the proposed changes is precisely the powers of the Prosecutor General. Why this discussion is mandatory and necessary, I know best of all. However, in voting on the law, Members of the Parliament should bear in mind several circumstances. In the absence of centralized oversight of the activities of all prosecutors, cases of local feudalism will inevitably arise. Someone should have the power to order inspections on the activities of all prosecutors who might be abusing their power.
If the Prosecutor General has no functional competence over the activities of this Prosecutor's Office, if he cannot propose inspections, audits and ultimately propose punishments, then every Prosecutor's Office will be literally privatized, feudalized and there will be no way to correct its activities. There is a real danger that, instead of introducing real, effective control over the Prosecutor General, the public will be left with a completely uncontrolled and omnipotent 28 district prosecutors over whom no one will have the right to exercise control, inspections, audits, to coordinate and control their activities. We get 28 local feudal lords.
As for methodological guidance, it must be timely and professional. This can only happen if it is the responsibility of one person who can mobilize a sufficient team of professionals. What is envisaged in the new Article 130b para.5 pt.4, namely that methodological guidance should be provided by the Prosecutorial Council is practically impossible - it is a collective body.
Moreover, the proposed composition of the Prosecutorial Council is such that it does not necessarily imply a good knowledge of prosecutorial work. Depriving the Prosecutor General of the ability to issue methodological instructions is in practice equivalent to depriving the Supreme Court of Cassation of the right to issue interpretative decisions. It is through methodological guidelines that the practice and procedures in pre-trial proceedings can be regulated.
Article 84, pt.16 preserves the obligation of the Prosecutor General to report to the National Assembly on "the activities of the Prosecutor’s Office and the investigative bodies" and to submit other reports on "the activities of the prosecution in the enforcement of the law, the fight against crime and the implementation of criminal policy". This obligation is important because it is a democratic achievement of our constitutional framework and must be preserved. It is through it that the accountability of the Prosecutor’s Office as an institution is realized. However, if the Prosecutor General has no functions in relation to the prosecution service as a whole, he cannot fulfil this duty and it becomes an empty and meaningless declaration.
In fact, fixated on the subject of the Prosecutor General accountability, we would effectively rule it out entirely. What is more, we are already excluding any accountability not only of the Prosecutor General, who administratively supervises only 80-90 prosecutors out of a total of around 2 000 prosecutors and investigators, but also of the entire prosecution service. Retaining the current duties of the Prosecutor General will also make it possible to maintain the accountability of both himself and the Prosecutor’s Office as a whole.