The Anti-Corruption Fund Foundation (ACF) published today a concept for criminal justice reform which outlines a number of specific steps for lawmakers. The author of the text is Andrey Yankulov who is a senior legal advisor at ACF and a former prosecutor and former Deputy-Minister of Justice and Interiour.
The full report is available here.
“The litmus test for the state of Bulgarian criminal justice is how cases involving significant political and/or business interests are handled. This is precisely the area where our criminal justice system has been failing,” said Andrey Yankulov.
“The concept outlines the steps necessary to tackle the problems which cause systemic deficits in Bulgaria’s criminal justice system. The solutions we have put forward reflect the principles and key requirements set out in the criminal justice systems of European democracies,” he said. “Without a doubt, the implementation of these ideas requires political will for constitutional reforms.”
The text presents detailed arguments — including historical data and comparisons with the criminal justice systems in other countries — in support of the need to end the complete monopoly of public prosecutors over the decisions to prosecute parties or not. This monopoly is something unknown in most of Europe and excludes the possibility of exercising judicial control over the decisions of prosecutors. Ending the prosecution’s monopoly will also support the efforts to create mechanisms for independent investigation of the Prosecutor General which are in line with the Bulgarian constitution.
“The most important aspect of any successful attempt at reform is increasing the options for external control over the manner in which the public prosecution does or does not carry out criminal investigations,” said Yankulov.
Other problems that the concept has highlighted include the excessive influence of the Prosecutor General over the Supreme Judicial Council (SJC) and the de-facto supervisory control of the prosecution over administrative functions which lacks constitutional basis.
The concept calls for applying the European standard when determining the composition of the panels of judges and prosecutors of the SJC. In addition, the SJC’s plenary should be kept, however, the array of issues decided by it should be limited. One of the key responsibilities of the council will remain to select the Prosecutor General and initiate procedures to remove him from office.
The proposal calls for rethinking of some criminal procedure norms so that criminal proceedings achieve a better balance between the rights of defendants, victims and the public interest in sentencing those guilty of crimes. Also addressed are crucial issues with criminal law, for example, the need to rationalize the use of its means and provide
adequate protection of modern social relations. The proposal provides arguments in favour of applying a holistic approach when reforming criminal law and criminal procedure which should not be viewed separately from other aspects of criminal justice.
“Unless there is a real change in the most important aspect of the functioning of the criminal justice system — the handling of political and high-level corruption in the three branches of government and the related problems it creates in terms of misuse of public funds, undermining of free market competition, media capture and risky investment cli-mate — the topic of the need for reform will continue to resurface again and again,” said Yankulov.
“We believe that the concept put forward by ACF is a solid foundation for the discussions of how to steer criminal justice reforms in Bulgaria,” said Boyko Stankushev, di-rector of the ACF.