Venice Commission calls for a real reform of the Prosecutor’s Office, again

The Prosecutor’s Office took heavy blows on three separate occasions this week from different European institutions. For its twelve years as EU member, the Bulgarian prosecution has received the most criticism by far from the EU. It is also the champion structure in terms of consistently ignoring all recommendations for reform. The heart of this resistance lies with the Prosecutor’s Office and the position of Prosecutor General. Both bare the fundamental traits of their predecessors: the all-powerful prosecution from communist times.  

In fact, Bulgaria’s justice system was far from ready to be part of the EU. It needed much reform, most of all in the prosecution, which - naturally had the most incentive to keep its powers intact. The compromise was the so-called cooperation and Verification Mechanism, which would monitor the justice system, oversee and guide the process of reforms. In its over-decade long work regarding Bulgaria, the CVM has failed. The most repeated and key recommendation in all reports to date has been the same. Solve the problem of the unaccountability and almost above-the-law status of the Prosecutor General. To no avail.

Bulgaria will have a new Prosecutor General form January. His candidacy sparked protests from its announcement in July and the protests are ongoing, still, after his election. Geshev is the current Prosecutor General Sotir Tsatsarov’s protege. He ran unopposed, which caused the president to veto his election: a move the president could only do once. The Supreme Justice Council repeated the vote in less than a week.

Ivan Geshev has graduated the police academy and is not just a continuation of Tsatsarov’s line of using the Prosecutor’s Office as a tool for political pressure. He is a far more severe and radical modification of his predecessor, which is clear from his flair for raids, over-the-top punitive measures and the now-famous quote he gave on national TV that he is not a particular fan of the separation of powers. His appointment was an explicit message to Bulgaria’s EU partners that the Prosecutor’s Office does not intend any changes in its conduct over the next seven years. On the contrary.

It seems the European institutions received the message loud and clear. This week Ivan Geshev attended a hearing at the European Parliament on corruption. He received harsh questions from MPs. One MP stated Geshev’s very presence compromises the hearing. He got roasted with questions regarding different cases in Bulgaria and the efficiency of the Prosecutor’s Office in handling them. His answers were vague and unconvincing.

A few days later the Committee of Ministers at the Council of Europe issued its arguably most critical and harsh resolution regarding the Bulgarian Prosecutor’s Office yet. It demanded (again) for Bulgaria to deal with the impossibility of the Prosecutor General be investigated. This is at the heart of the problem. Earlier this year the Minister of Justice Danail Kirilov proposed measures, which he packaged as an answer to the countless recommendations regarding the Prosecutor General. Except his proposal involved not just the Prosecutor General but the heads of the two supreme courts - administrative and cessation.

This proposal received the most severe attack: 

The committee noted “with deep concern that the draft bill […] not only fails to resolve the current shortcomings relating to the independence and effectiveness of investigation concerning a Chief Prosecutor, but could make such an investigation more difficult to initiate.” As for the minister’s claim that the idea came from EU recommendations, the resolution makes it clear that [it] ”does not require changes of the rules on investigation concerning the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court, and noting with concern that the draft bill of 14 June 2019 contains provisions for the automatic suspension of these two most senior judges which could threaten their 

The week ended with an announcement of a tough opinion by the Venice Commission on Bulgaria’s efforts (or indeed lack thereof) to take a step forward in reforming the Prosecutor’s Office. ”The opinion […] tresses that the proposed mechanism to suspend the Prosecutor General might fail to achieve its goals and should not be extended to two chief judges.”

The full text of the opinion will be published this Monday, December 9. According to Mediapool sources it criticizes in depth the so-called measures initiated by the government and characterizes the overall efforts towards reform as far from satisfactory.

PM Boyko Borissov held a cabinet meeting on Saturday and announced measures to meet the Venice Committee’s criticisms. Although the announcement came as such, in reality the government’s measures do not address the problems, as defined by the committee.

The government practically ignores all important points regarding the Supreme Judicial Council. As for the Prosecutor General, the PM declared there will be a new prosecutorial position, which will oversee (and will be able to investigate) the Prosecutor General. The measure, however, as stated contradicts the constitution, which does not allow for any prosecutor not to be a direct subordinate of the Prosecutor General. Which is the essence of the problem with the position in the first place. In addition, the procedure for choosing this mystical prosecutor will be in the hands of the prosecutors, who’s boss is the Prosecutor General.