Information newsletter
Issue 2(14), February 2005

The Supreme Administrative Council Closed Its Sessions after the Chief Prosecutor’s Intervention
The European Commission has still to wait for the implementation of transparency principles in the activity of the Prosecutor’s Office!
Kiril Terziisky, AIP

Just three months ago, during the last week of November 2004, the members of the Supreme Judicial Council (SJC) allowed the media for the first time to their sessions. The opportunity was given after the National Assembly passed the amendments to the Judiciary Act, which prescribed that the sessions of the Council be public¹. At the first session, after the promulgation of the amendments, most of the members of the Council formally agreed that the “sessions should be open,” though when convening in their own inviolable territory, they silently refused to apply the law. Four journalists from several media organizations appealed the refusal before a five-member panel of the Supreme Administrative Court (SAC). The Court decided that the activities of the SJC were illegal and ruled that the Council should follow the law.

The first one to respect the judgment of the SAC turned out to be the Chief Prosecutor, Nikola Filchev, who asked journalists why they were standing on the pavements outside and remembering that everyone should respect the laws, invited them to the session of the Council.

It came as a surprise then, that the same Chief Prosecutor proposed that the SJC discuss “in darkness” the report of the chief of the National Investigation Services on serious offences in the work of the Sofia Investigation Services. The grounds on which Mr. Filchev closed the session on 23 February 2005 were—“The report contained too much official information…” This statement is in conflict with the provisions of the Judiciary Act, under which all sessions of the Council should be open, with the exemption of discussions on immunity withdrawal or punishment of a magistrate.

More ridiculous is the statement of the Chief Prosecutor the next day in an interview for “24 Hours” newspaper that: “We want our work to be transparent, the law obstructs it.” The statement comes as an answer to the the European Commission's question about the lack of transparency in the work of the Prosecutor’s Office. The “obstruction,” according to the Chief Prosecutor, is the provision of the Constitution on the protection of the privacy of citizens and the application of that Constitutional norm in the Penal Proceedings Code (PPC), which disallows disclosure of information from the Investigation Services. An explanation of the jesuitical approach of Mr. Filchev is necessary since his statements and actions could distress everyone.

First, the deception of citizens that the problem of transparency is limited to the access of information concerning particular Investigation cases is completely unfounded. For reference, see the second paragraph of the current article, or the findings of the last annual report of the European Commission.

Second, it is also incorrect to state that the PPC contains a provision which prohibits information disclosure from the Investigation services. The quoted provision, under article 179, paragr. 1, states: “The materials for the preliminary proceedings should not be disclosed without the permission of the prosecutor.” This means that the prohibition stated in paragr. 2 of the same article affects all who are partially acquainted with the information except the prosecutor. He is entitled to decide whether particular information should be disclosed under request. The decisions taken, however, should be in compliance with Judgment 7/ 1996 of the Constitutional court, under which the right of access to information is the principle and all restrictions are exemptions to it. Consequently, the prosecutor should judge whether an exemption is imminent and under which law—the Personal Data Protection Act or the Protection of Classified Information Act for every particular case in respect to the requested information (for example, information on a case of assault on the Council of Ministers). This is what happens in life as well. The information provided by the Prosecutor’s Office on the case of the mayor of Sofia differs substantially from that on the case of the citizen X from the town of Y. This is absolutely predictable since most of the personal data of the mayor are public due to his public office. Thus, claiming that PPC contains a prohibition on the provision of any kind of information on investigation cases is at least a wrong statement.

Thus, the question remains: why does the law (the Judiciary Act), when necessary in one case, give power to the Chief Prosecutor to violate citizens’ rights and hamper transparency and when unnecessary in another case, another law (Penal Proceedings Code) becomes the culprit for the lack of transparency in the work of the Prosecutor’s Office?

1. See: Newsletter, issue 11, November 2004