“The dark times in Bulgarian justice are yet to come. Prosecutor general Sotir Tsatsarov is targeting the chair of the chief judicial inspector. That institution will turn into the next center of oligarchic interests, the way it happened with the prosecution. Lists of “enemies” and “traitors” are published in newspapers, xenophobia and hatred have become national politics.” That statement was made by the chairman of the Supreme Court of Cassation, Lozan Panov, at a conference organized by the Justice for All Initiative.
Without urgent reforms the prosecution will get another assistant in the person of the judicial inspectorate and the “dark times” will become a fact. If add to this is the anticorruption body KPKONPI, even without the National Investigative Service, there we have “the three big” institutions that will rule over the judicial system.
However, the question here is not about the Bulgarian institutions, most of which function poorly, selectively or not at all, but about a configuration which is inherently wrong and on which all other state structures depend. That is the model of “the three big ones”, as the chairmen of the two supreme courts, the Supreme Court of Cassation and the Supreme Administrative Court, are commonly called, and the role of the prosecutor general in this setting.
The expiration of the prosecutor general’s term raises again an acute problem that has failed to find a solution for 30 years now. No one will stage a protest against the attachment of the prosecution to the judiciary and block a boulevard in the capital city carrying slogans “For judicial reform”, the way farmers, medical staff and people from other walks of life do. People do not need to know that the place of the prosecutor general is not next to the chairmen of the supreme courts and that such a position tips the balance of the entire system.
Simply said and as is often repeated, the dark times Lozan Panov talks about – and he knows that from practice – are the consequence of the prosecutor general’s figure. Not of his very figure, but of the uncontrolled power he constitutionally has.
The most important public protest was that of 39 members of parliament from the Union of Democratic Forces who staged a camp protest against the adoption of the current constitution. It was however adopted with the majority of the Bulgarian Socialist Party.
In an article Ivanka Ivanova, legal program director of Open Society and co-author of the comparative study “What do we (not) know about the prosecutors general in the EU member states”, concludes that in no other EU member state does the prosecutor general enjoy the same safeguards of independence as the chairmen of the two supreme courts. Only the judges enjoy constitutional protection.
For the first time the question arose at a constitutional level in 1946 when the so-called Dimitrov’s constitution was drafted. Ivanka Ivanov cites an article by Petko Staynov that stuns us with the revelation of how strategically important it was for the Bulgarian Socialist Party to rig the elections for Grand National Assembly in 1990.
“The Fatherland Front suggested equalizing the status of “the three big ones” in the form known from today’s constitution. That however was not adopted in the final version of the text. The draft was sent for review in Moscow and returned from there with the categorical instruction that the Supreme Administrative Court should be entirely removed from the judiciary, that the prosecutor’s office should exercise general supervision for legality, that the office of the prosecutor general should be set up as a separate body and the entire prosecution system should be under the authority of the National Assembly (…) Actually, it was not the National Assembly but a party. Thus Dimitrov’s constitution ensured an appointment procedure and status of the prosecutor general that differed from that of the Supreme Court’s chairman.”
In an interview late last year Sotir Tsatsarov answered a question about the control over the prosecutor general with the explanation that every prosecutor could file a motivated complaint against him (LOL!). As member of the Supreme Judicial Council he has a decisive vote about the career advancement of prosecutors. Besides prosecutors, he heads the National Investigative Service too. He can revoke acts of all prosecutors at his own discretion. He is the only one to enjoy these extras.
A few years ago the Structural Reform Support Service of the European Commission expressly recommended an option for an objective investigation in cases when the prosecutor general may be involved in a crime. Because, for now, he is above suspicion (“Investigation of a Citizen Above Suspicion” was a movie about an Italian police inspector who committed a crime and intentionally left clues to lead investigators towards himself in order to measure his power but nobody “noticed” them.)
Since it is a specialized matter that requires legal knowledge it does not reach the wide public, although, sooner or later, in one way or another, everyone will understand what it is about.
President Radev undertook a series of meetings with the heads of courts and other institutions in connection with the upcoming replacement of the prosecutor general after his term expires in late December. Unsurprisingly, Lozan Panov raised the topic about the status of the prosecutor general but obviously that was not the goal of the presidential shuttles. Who will succeed Sotir Tsatsarov can only be of an aesthetic importance if the model created by Moscow in 1946 is preserved.
We can now only rely on Europe to help Bulgaria carry out the vital justice reform, given that there is obviously no internal will and energy for that. It is no coincidental that Tsatsarov’s circle was infuriated by the nomination of Laura Kovesi as European chief prosecutor. That is why it does matter who will be the Bulgarian members of the next European Parliament, which will elect the chief prosecutor.