The Bulgarian Helsinki Committee, the Anti-Corruption Fund Foundation (ACF), the Institute for Market Economics, and the Bulgarian Lawyers for Human Rights Foundation presented today in Parliament a joint opinion on the draft legislative amendments to the Criminal Procedure Code.
The proposed legislation builds upon previous attempts to amend the Criminal Procedure Code and to correct identified weaknesses in the area of criminal justice and particularly in the work of the Prosecutor’s Office.
The Committee on Legal Affairs of the National Assembly will discuss the draft amendments today.
The four non-governmental organizations expressed their support for the proposed draft amendments, adding that their adoption is “absolutely essential and much delayed.”
“The proposed amendments represent an important step towards increasing the effectiveness of criminal proceedings through the provision of more opportunities for external review of how the Prosecutor’s Office exercises its public authority, as well as by the creation of a mechanism for an independent investigation of the Prosecutor General,” reads the text of the opinion.
The need to increase the effectiveness of criminal proceedings has been pointed out repeatedly as a “systemic problem” of Bulgaria’s criminal justice system in the European Court of Human Rights (ECHR) decisions. For almost 15 years, it has also been stressed repeatedly in the recommendations of the Venice Commission and the Council of Europe. According to ECHR’s decisions and the recommendations of the two other bodies, the lack of effectiveness of Bulgaria’s criminal justice system is directly linked to two main issues: 1) the lack of external control (by institutions other than the Prosecutor’s Office) over decisions of the Prosecutor General and 2) the legal system’s lack of guarantees for independent investigation against the Prosecutor General which includes no mechanism for criminal liability of the Prosecutor General.
Within the past 15 years, no measures have been taken to reform the criminal justice system and overcome the abovementioned problems. Judicial reform was a key priority for the previous Bulgarian government and is also one of the conditions the country must meet to receive funding under the NextGeneration EU recovery package.
The four NGOs maintain that complete reform of the judicial system in Bulgaria is only possible through constitutional amendments that promote greater independence of the courts and make the Prosecutor’s Office more accountable.
Still, the proposed amendments will initiate many of the much-needed criminal justice reforms which are possible without amending the Constitution. The draft legislation also covers many of the longstanding recommendations of the Venice Commission and the Committee of Ministers of the Council of Europe.
In their opinion, the organizations have also put forward several proposals to improve the draft legislation further:
– The opinion supports the proposal to introduce judicial review over decisions by the Prosecutor’s Office not to initiate pre-trial proceedings. The proposed draft legislation limits the scope of judicial review over such decisions to avoid placing a significant burden on the courts. However, according to the four NGOs, the risk of burdening the courts is small, while the proposed limited judicial review over decisions not to initiate pre-trial proceedings creates tangible risks of leaving cases of high public interest and significance outside of the scope of judicial oversight;
– The opinion supports the proposal to have the Prosecutor General submit to the National Assembly an annual report on how the prosecution is countering corruption crimes.
At the same time, the organizations are expressing concern over the fact that, at present, the Prosecutor General is not meeting his obligation to publish all his decisions on the website of the Prosecutor’s Office of the Republic of Bulgaria. “This is why it is important to consider whether the Prosecutor General meets his obligations under the legislation and to introduce a deadline for compliance,” reads the opinion.
– The opinion expresses reservations about a proposal to introduce a legal definition for the crime of torture. The proposed amendment does not contain a clear definition of what constitutes torture and does not comply with the ECHR case law as it does not specify a statute of limitations for this type of crime. In addition, the proposed punishment does not correspond to the severity of the crime.
The full test of the opinion is available here