Access to Information Program, together with five other expert civil society organisations - experts in the area of the rule of law - (The Anti-Corruption Fund, the Bulgarian Lawyers for Human Rights, the Bulgarian Institute for Legal Iniciatives, the Bulgarian Helsinki Committee and the Institute for Market Economy) sent an open letter concerning the compliance by the Bulgarian Government to the recommendations made by the Venice Commission. The latter recently issued specific recommendations as to how the investigation of Bulgaria's Prosecutor General can be done in an independent and effective way. The common position is addressed to the European Commission, the Council of Ministers to the EU, the heads of the EU member states' missions in Bulgaria, the Council of Europe Monitoring Committee and to the Prime Minister Boyko Borisov himself.
COUNCIL OF MINISTERS OF THE EUROPEAN UNION
HEADS OF EU MEMBER STATES’ MISSIONS TO BULGARIA
COUNCIL OF EUROPE MONITORING COMMITTEE
Mr BOYKO BORISOV - PRIME MINISTER OF THE REPUBLIC OF BULGARIA
Sofia, 12 December 2019
RE: Bulgaria’s Prime Minister’s commitment to comply with the recommendations made by the Venice Commission in relation to the draft bill proposed by the Bulgarian Government in execution of the ECtHR judgment in the case of Kolevi v. Bulgaria and the proposed subsequently second draft bill dated 7 December 2019 for amendments and supplements to the Criminal Procedure Code and Judicial System Act
DEAR LADIES AND GENTLEMEN,
As civil society organisations with extensive experience in monitoring the processes in the Bulgarian judiciary, human rights protection and the rule of law, we hereby express our strong concerns in relation to the action taken recently by the Bulgarian Government in execution of the Venice Commission recommendations.
The initially proposed to the attention of the Venice Commission draft bill by the justice minister Mr Danail Kirilov in relation to the liability of the Prosecutor General and presidents of the supreme courts, in execution of the ECtHR judgment in the case of Kolevi v. Bulgaria, was subjected to a series of critics not only in Bulgaria but also by the Committee of Ministers of the Council of Europe and the Venice Commission. The Committee of Ministers in particular noted in its most recent interim resolution that the proposed 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”.
On the eve of the Venice Commission announcing its opinion, the Bulgarian Council of Ministers adopted urgently a new draft bill, which we find to be not only legally unsustained but in sharp dissonance with the negative opinion of the Venice Commission on the initially presented other draft bill.
The new draft bill has not been the subject of discussions on national level. Furthermore, it not only discards the national rules applicable to the law-making process but also the resolution of the Committee of Ministers and recommendations made by the Venice Commission. We are of the opinion that this draft bill is an attempt to replace the subject matter considered by the Venice Commission. These actions are very similar to what the political party GERB (Bulgarian acronym of “Citizens for European Development of Bulgaria”) did in the end of 2015 in relation to the amendments of the Constitution, presenting to the Venice Commission one version of the draft bill amending and supplementing the basic law but submitting and voting a different version in Parliament, with different content not in compliance with the recommendations made. The reasons of the 7 December 2019 draft bill clearly indicate that it does not aim at complying with the recommendations of the Venice Commission but rather at ignoring them seeking to impress politically the EU Member States who are currently considering the execution of the recommendations in the last report under the Cooperation and Verification Mechanism.
We reiterate that in its judgment in the case of Kolevi v. Bulgaria the ECtHR established the lack of any statutory procedure for independent investigation and revocation of the Prosecutor General of the Republic of Bulgaria in case of a suspected crime. In practice this renders the Prosecutor General’s Office an uncontrollable and unaccountable institution with limitless power which the Venice Commission compared to the figure of an unremovable monarch, immune to any prosecution.
Both the ECHR and the Venice Commission have repeatedly stressed that arrangements envisaged to secure the independent investigation of the Prosecutor General must ensure hierarchical and institutional independence of all bodies supervising or conducting the investigation. The draft bill proposed at the ad hoc meeting of the Council of Ministers on 7 December 2019 does not meet these standards.
The Venice Commission has repeatedly recommended to Bulgaria to further reduce the influence of the Prosecutor General over the Prosecutorial Chamber of the Supreme Judicial Council (SJC) as well as the influence of the SJC members elected by peer prosecutors by means of a blocking veto in the investigations and submitting proposals to the President of the Republic for dismissal of the Prosecutor General.
In relation to the presented draft bill, the Venice Commission expressed its concerns as regards the risks for the independence of the court stemming from the institutional structure of the Supreme Judicial Council which allows decisions to be taken under the strong influence of the Prosecutor General. The election of Mr Ivan Geshev for Prosecutor General earlier this year demonstrated clearly this influence: Mr GGeshev was elected by 17 votes of the prosecutors and SJC members elected by the parliamentary represented parties.
Despite the critics, the initial draft bill that was presented to the attention of the Venice Commission granted competence to the same majority in the SJC Plenum to take decisions about prosecution and revocation of the presidents of the Supreme Court of Cassation and the Supreme Administrative Court. The new draft bill does not remedy this mechanism, which means that the presidents of the supreme courts will be elected by a majority of prosecutors who are dependent on the Prosecutor General and not by a majority of judges elected by the judges themselves as the Venice Commission recommends.
The longstanding failure to implement the recommendations of the Venice Commission related to the status of the prosecutor’s office and the structure of the Supreme Judicial Council, as well as the proposals for specific measures to address these issues have been presented in detail in the Venice Commission opinion from October 2017. Although this failure was reiterated in the fresh opinion of the Venice Commission from December 2019, the Prime Minister publicly refused to take part in debates about the changes required to ensure the independence of the court and accountability of the prosecutor’s office.
In view of the apparent attempts to frustrate a legislative solution to these problems, we are not convinced that the recommendations made in the last reports of the European Commission under the Cooperation and Verification Mechanism, in the opinion of the Venice Commission from 9 December 2019 and the resolutions of the Council of Ministers have been adequately implemented.
We call the Prime Minister to immediately seek the resignation of Mr Danail Kirilov as the author of the draft bills in question and the one responsible for the reform of the judiciary.
We insist on a judicial reform that would guarantee the independence of the court and the accountability, including liability, of the Prosecutor General, in line with the recommendations made by the Committee of Ministers of the Council of Europe and the Venice Commission to ensure the rule of law in the country.
Boyko Stankushev, Anti-Corruption Fund
Diliana Markova, Bulgarian Lawyers for Human Rights Foundation
Bilyana Gyaurova-Wegertseder, Bulgarian Institute for Legal initiatives
Krasimir Kanev, Bulgarian Helsinki Committee
Svetla Kostadinova, Institute for Market Economy
Dr. Gergana Zhouleva, Access to Information Programme