Opinion of Prosecutor's Office of the Republic of Bulgaria: The Draft Law on the Judiciary contains significant shortcomings and needs editing and further discussion

24 April 2024

Acting Prosecutor General Borislav Sarafov sent to the Minister of Justice, Maria Pavlova, Opinion on behalf of the Prosecutor’s Office on the Draft Law on the Judiciary System Act (JSA), published in March this year for public discussion.

The Draft Law on JSA contains serious shortcomings and contradicting provisions, requiring additional discussion and rewording of a significant part of the provisions. It contains unconstitutional norms and legislative decisions that can not be explained otherwise than as a conscious and politically motivated effort to treat judges, prosecutor, and investigators unequally, the Prosecutor General points out.

In the opinion, a thorough review of the amendments proposals was made and arguments were presented that some of them do not comply with the Constitution and contradict the principles of the rule of law. Others are vague, imprecise, self – contradictory, utterly inappropriate. Some of the constitutional norms have been transferred literally in the Draft Law on JSA without being further developed in detail.

Here are some of the main objections to the proposed amendments:

The Draft Law provides for structural reform of the Prosecution in a way that does not correspond to the structure of the courts, stipulated in the Constitution.

The closure of the Supreme Cassation Prosecutor's Office and the Supreme Administrative Prosecutor's Office and the creation of one Supreme Prosecutor's Office (SPO) represents a significant restructuring of the Prosecutor's Office, which does not correspond in type to the supreme courts. This is a structural reform that can only be carried by Grand National Assembly.  Prerequisites are being created for “shrinking” the law defending function of the Prosecutor’s Office to only one of the methods – the criminal one. It is indicated what directions should be created in the two departments of SPO without taking into account the specifics of its activity.


In this way, the Legislative seizes internal organizational functions of the Prosecutor's Office and thus damages the independence of the judiciary, guaranteed by the Constitution. In a democratic state governed by the rule of law, the excessive interference of one power in another power is unjustified, the opinion emphasizes.

Attention is drawn to the fact that the Draft Law on the JSA envisages that the members of the Supreme Judicial Council (SJC) and the Supreme Prosecutorial Council (SPC), who are magistrates, are simultanеously judges, prosecutors or investigators. However, such a decision in practice denies the status of SJC and SPC as permanent bodies

The draft provides that every judge, prosecutor and investigator, the members of the SJC and SPC, the chief inspector and inspectors must declare within one month of their entry all their activities and memberships in organizations, including secret and/or informal organizations and societies, civil societies and associations. However, there is no definition of what "secret and/or informal organizations and societies" means and it is not clear which circumstances are subject to declaration.

The envisaged procedure for holding competitions in the system and for announcing their results raises doubts that the principles of openness, transparency, publicity and justification will be respected.

The draft law retains the possibility to impose disciplinary dismissal for actions that undermine the prestige of the judiciary. However, it is not specified exactly which actions undermine the prestige of the judiciary, and this would lead to extreme subjectivism without clear criteria in advance for the behaviour of magistrates, which directly affects their independence in making decisions in accordance with the law and their internal conviction.

With regard to secondments, the proposed provisions in the Bill would create an uneven playing field between judges and prosecutors. It is proposed that judges can be seconded for 1 year and prosecutors for twice as short - up to 6 months within a year.  Such a period would not lead to the necessary improvement in performance. It may even delay criminal proceedings, as the completion of the secondment of one prosecutor would require another to look at the case file and take the action provided for by law.

The opinion argues for the need to supplement the draft law with regard to the need for an administration under the Prosecutor General to carry out a significant amount of activities such as legal representation in cases, public procurement, institutional and international relations, etc.

On 15th of April 2024 the Prosecutor's Office of the Republic of Bulgaria submitted to the Constitutional Court an opinion on Constitutional Case No. 1 of 2024 and the joined Constitutional Case No. 2 of 2024, initiated on requests of the President and 49 Members of Parliament, for establishing the unconstitutionality of the Draft Law on the Amendments and Supplementation of the Constitution adopted at the end of 2023. Some of its arguments are developed in the opinion on the Draft Law of the Judicial System Act (JSA) sent to the Minister of Justice in the caretaker government.

The entire text of the opinion can be found in the attached file.