Cabinet will ask Constitutional Court for controversial bill, although it was already introduced in Parliament

The PM’s ad-hoc idea for a prosecutor to overlook the Prosecutor General was initially framed by the PM as ‘compliance’ with the Venice Commission’s recommendations

Minister of Justice Danail Kirilov, BGNES

The Cabinet will ask the Constitutional Court if its latest idea for a reform, aimed at tackling the problem of the unaccountability of the Prosecutor General is consistent with the constitution. The gravest problem in the Bulgarian justice system is the position of the Prosecutor General and the fact that it is virtually untouchable and wholly unaccountable to any other. This is the prime criticism Bulgaria has received from its European partners for over a decade.

Last week PM Boyko Borissov announced the government will establish a new position, a special prosecutor, whose sole task would be to investigate and keep the Prosecutor General in check. Even at first glance it is clear that establishing supplemental bodies does not address the powers of the existing ones. However, this proposal has more serious problems.

The government said this prosecutor would stand above the Prosecutor General, but this falls into conflict with article 126 (2) of the constitution, which states the Prosecutor general governs all the prosecutors, no exceptions. The Constitutional Court will have to decide if it is possible to both have a prosecutor and for him or her to stand outside (or indeed above) the prosecutorial hierarchy under the constitution. Except for the PM and his justice minister, law experts find article 126 (2) very clear and unambiguous.

The Venice Commission requested that if the government decides to go forward with the bill, it should at least ask the Constitutional Court first, as it is – at the very least – constitutionally vulnerable. Instead of complying the government doubled down and introduced the bill to Parliament on Monday. This was met with heavy backlash, including from President Roumen Radev. Then the government took a step back and announced two days later it will seek a constitutional interpretation.

From the beginning the Venice Commission found the proposal inept and declared it incapable of achieving result; some lawyers in Bulgaria called it plain ridiculous, while prominent NGOs and think tanks working in the field of law and governance dismissed it as an “imitation [of a reform]” and called for the Minister of Justice Danail Kirilov’s resignation. 

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