ACF: the amendments to the Criminal Procedure Code discussed in the National Assembly do not guarantee the effective investigation of the Prosecutor General and should not be adopted

The Anti-Corruption Fund (ACF) submitted an expert analysis and opinion to the National Assembly criticizing the Bill on Supplementing the Criminal Procedure Code (CPC) submitted on December 3, 2020, by Krassimir G. Tsipov and a group of MPs. The bill, quickly adopted at first reading, proposes a new figure of a Special Prosecutor who can investigate the Prosecutor General.

“We believe that the problems identified in the bill are conceptual. They cannot be overcome by changing one or another of its provisions between the two readings,” said the author of the ACF analysis, attorney Andrey Yankulov. Atty. Yankulov is ACF’s senior legal expert and a former longtime prosecutor at the Sofia District and Sofia City Prosecutor’s Offices. According to him, there are two main problems with the bill. On the one hand, the bill does not provide the necessary guarantees that the new Special Prosecutor will be independent of the Prosecutor General he is called to investigate. On the other hand, it places all investigation and accusation of the Prosecutor’s Office’s head in a single person’s hands.

The draft law under consideration by the National Assembly aims to address the impossibility of an independent and effective criminal investigation of the Prosecutor General identified by the European Court of Human Rights (ECHR). This problem was placed in the ECHR judgment in Kolevi v. Bulgaria in 2009. It has been the subject of much criticism from various international organizations since then.

In the last year and a half, after ten years of legislative inaction following the Strasbourg court ruling, several bills amending the Criminal Procedure Code and the Judiciary Act have been announced concerning the possibility of an independent and effective criminal investigation of the Prosecutor General. The 2019 projects were abandoned after critical opinions from the Venice Commission, which expressed doubts that the proposed mechanisms would eliminate the systemic shortcomings.

According to the ACF, the current bill also fails to address these systemic shortcomings. In it, the envisaged Special Prosecutor will be elected by the Plenum of the Supreme Judicial Council, in which the Prosecutor General continues to have considerable influence. Simultaneously, the decision not to investigate or prosecute the Prosecutor General will remain locked within the Prosecutor’s Office. According to the project in its current form – it will even stay in the hands of only the Special Prosecutor, whose acts cannot be revised.

Along with the lack of the required guarantees of independence, the project suffers from other weaknesses that could lead to a real danger either of a de facto or legal blocking of a potential investigation against the Prosecutor General or his unjustified prosecution on political or other grounds.

“The effective criminal investigation of the Prosecutor General passes through sacrificing the “sacred cow” of Bulgarian criminal justice – the Prosecutor’s Office’s monopoly on the function of criminal prosecution,” said attorney Yankulov.

The analysis offers a detailed concept for a criminal investigation of the Prosecutor General and other high-ranking prosecutors. According to it, the Prosecutor’s Office will not lead the investigation against them nor decide its final fate. Instead, the analysis proposes forming a collective body with specific competence from randomly selected on a case-by-case basis appellate, supreme or constitutional judges or retired judges, and the investigation itself to be conducted by investigative bodies of the Ministry of Interior or other executive bodies.

You can read the complete ACF analysis “The Bulgarian Lawmaker’s Chimera: Creating a Mechanism for Effective Investigation of the Prosecutor General” here:

You can read a summary of the analysis here: