During its Human Rights meeting on 9-11 March, the Council of Europe Committee of Ministers examined the execution of the S.Z. and Kolevi group of cases against Bulgaria. These cases concern mainly the systemic problem of ineffective investigations into killings and ill-treatment and the lack of guarantees for the independence of criminal investigations concerning the Chief Prosecutor.
The Committee welcomed, as concerns the investigations into a Chief Prosecutor and his or her Deputies, the significant efforts made recently by the Bulgarian authorities to put forward legislative amendments. It noted that the recent legislative reform introducing a special prosecutor for the investigation of a Chief Prosecutor (“special prosecutor”) includes several positive arrangements and welcomed as an important step the introduction of judicial review of the refusals of a special prosecutor to open an investigation.
It noted however that this new framework reveals several gaps and deficiencies and that, in view of the current composition of the Supreme Judicial Council (SJC), it might not be sufficient to exclude the Chief Prosecutor’s influence on the appointment and accountability of a special prosecutor. It noted in particular that the 11 prosecutorial members of the SJC could veto such decisions, impose candidates accepted by a Chief Prosecutor or become the main component of a majority.
The Committee therefore urged the authorities to adopt legislative or, in the event that insurmountable constitutional obstacles are established, constitutional amendments, to fully respond to Interim Resolution and to provide their assessment as to whether a shorter term of office for the first-appointed special prosecutor is justified to allow the required changes to come into effect without undue delay.
The Committee stressed, in this context, the importance of reducing any potential influence by a Chief Prosecutor in the SJC and of considering appropriate measures to that effect before the election of a new SJC in 2022. It encouraged the authorities to assess whether procedural or institutional rules need to be amended, including as concerns extension of judicial review, to reduce to some extent a Chief Prosecutor’s influence within the magistracy or the Prosecutor’s Office.
The Committee also invited the authorities to introduce clear rules for the suspension from office of a Chief Prosecutor under the Judicial System Act and the involvement of an appropriate number of sufficiently independent investigators in the investigations against him or her. It invited them to introduce rules on independent replacement of a special prosecutor beyond situations of one-off urgent investigative acts or to consider a mechanism reliant on a list of magistrates competent to act as ad hoc prosecutors.
Furthermore, as concerns the effectiveness of investigations in general, the Committee insisted again on the introduction of judicial review of prosecutorial refusals to open an investigation, simultaneously to measures to avoid the considerable increase of workload of courts and prosecutors. It also requested the assessment of the possibility to take other steps to enhance the effectiveness of criminal investigations.
The Committee decided to examine again these cases at the latest in December 2021.
New item in Bulgarian (unofficial translation)
Latest notes and decisions of the Committee of Ministers concerning these cases (unofficial translation into Bulgarian)
Memorandum (unofficial translation into Bulgarian)
