MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-10

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-10 S.Z. group / Kolevi v. Bulgaria (Applications Nos. 29263/12 and 1108/02) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)171; DH-DD(2024)410; CM/Del/Dec(2023)1483/H46-10

 

Application	Case	Judgment of	Final on	Indicator for the classification
29263/12	S.Z.	03/03/2015	03/06/2015	Structural problem
41990/18	Y	20/02/2020	07/09/2020
23614/20	Y.P.	17/05/2022	17/05/2022
22457/16	X AND OTHERS	02/02/2021	02/02/2021
39257/17	Z	28/05/2020	12/10/2020	Complex problem
1108/02	KOLEVI	05/11/2009	05/02/2010	Complex problem

Case description

The group S.Z., which includes also the cases X. and Others, Y., Y.P. and Z., concerns ineffective investigations into rape, false imprisonment and incitement to prostitution and allegations of sexual abuse in a social care home (procedural violations of Articles 3 or 8). In the S.Z. case, the European Court found a “systemic problem” of ineffectiveness of criminal investigations in Bulgaria.^[1] The Z. case concerns in addition two additional shortcomings in a criminal investigation into an alleged rape, a failure to examine in a meaningful manner whether the evidence indicated a lack of consent on the applicant’s part (who was 13 years old at the time) and whether charges for rape should have been filed.

The Kolevi case relates primarily to the ineffectiveness of the investigation into the murder of the first applicant (a high-ranking prosecutor) committed in 2002, owing to the lack of guarantees in Bulgarian law for the independence of criminal investigations concerning the Chief Prosecutor (who was suspected by the relatives of the first applicant to be implicated in the murder) and “high-ranking officials close to him” (procedural violation of Article 2).^[2] 

Status of execution

The authorities provided most recently information on 10 April 2024 (DH-DD(2023)1303), referring to public information and media publications.

Individual measures:  At its meeting in September 2023, the Committee recalled that no further individual measures were possible in the Z. case and reiterated its invitation to the authorities to clarify whether any alternative measures could be adopted to shed light on the facts in the Kolevi case.

It also requested the authorities to provide information on how the new investigation and decisions on suspension have addressed the shortcomings of the investigation in the Y. case and invited them to continue providing information on developments in the investigation in the Y.P. and X. and Others cases.

In October 2023, the authorities indicated that the investigation in the Y. case remained suspended.

No substantial new information was provided on individual measures since then.

General measures:

A.    Measures aimed at resolving the systemic problem of ineffective investigations (S.Z. group) [3]

- Reforms of May 2023 and further proposals: Judicial review of refusal to open an investigation was introduced in May 2023.

In September 2023, the Committee recalled this important reform and invited the authorities to pursue their work on adopting certain measures and to provide their analysis on other aspects.

A draft bill of March 2024 provides that there will be deemed to be sufficient evidence for the opening of criminal investigation when the report of a crime is made by an eyewitness, by a victim, by a doctor who has examined the victim or by a public authority. It also proposes to regulate the preliminary inquiry (pre-investigation stage) in the Code of Criminal Procedure.

- Request for technical assistance for the elaboration of measures in some areas: In 2024 the authorities and the Secretariat held several meetings to prepare the work on this technical assistance.

B.    Legislative and constitutional guarantees for the independence of an investigation against the Chief Prosecutor (Kolevi case)[4]

The legislative reform of May 2023 and constitutional amendments presented below have entered into force, but their constitutionality has been challenged. The proceeding before the Constitutional Court are pending.

1)     Legislative reform of May 2023

The reform introduced a mechanism for independent investigation of a Chief Prosecutor. It provided, inter alia, for the selection of a judge at random, from the list of experienced judges, to serve as ad hoc prosecutor in an investigation concerning a Chief Prosecutor or his or her deputies.[5]

In December 2023, the Committee welcomed the first appointment of an ad hoc prosecutor, to examine notifications concerning the Chief Prosecutor a.i., stressed the need to address practical questions and requested clarifications on the functioning of the new mechanism. It reiterated its support for the proposal for creating a constitutional basis for the investigative mechanism concerning a Chief Prosecutor. It also encouraged the authorities to provide their analysis whether the draft provision requires development in some respects, indicating also the importance of arrangements that limit the risks of politicisation or voting patterns that undermine the effectiveness of the investigation mechanism. The Committee encouraged again the authorities to consider the need for specific arrangements on hierarchical independence and management; judicial review; safeguards in the event of suspension or dismissal from office of an ad hoc prosecutor.

2)     Constitutional reform of December 2023

- Opinion of the Venice Commission of 7 October 2023: In its opinion on the draft constitutional amendments, the Venice Commission supported the creation of independent Prosecutorial and Judicial councils. The proposed composition of the Supreme Judicial Council for judges (“new SJC”) was in line with its recommendations.

The composition of [Supreme] Prosecutorial Council (“SPC”) secured however “very little representation to the prosecutors” and had to be reviewed to allow for a balanced representation of prosecutors, to equip it with the required professional expertise and exclude the control by the political majority and by the prosecution service.

As regards the investigation of a Chief Prosecutor, it considered that the Constitution could identify the body appointing an ad hoc prosecutor; and that the constitutional provision would need to be complemented by legislative arrangements on appointment, accountability, and review of the decisions, different from the arrangements for ordinary prosecutors.

- Constitutional amendments of December 2023: The new rules provide for separate new SJC and SPC. The old Plenary Supreme Judicial Council and its Chambers were abolished. A General Assembly of the new SJC and the SPC will have coordinating functions, i.e. approving the budget of the judiciary upon proposal by the SJC and SPC, opinions on organisational issues common for the judiciary and on the management of the judiciary’s real estate, as well as on common issues concerning the independence of the judiciary, provided by law.   The new SJC shall be composed of 15 members, with a majority of members elected by judges. The SPC shall be composed of 10 members: the Chief Prosecutor, two members elected by prosecutors, one member elected by the investigating magistrates, and six members elected by Parliament. Parliament shall elect the members for its quota in the two councils with two thirds majority among legal professionals, who are not prosecutors or investigating magistrates. The amendments provided for the adoption of implementing legislation within six months. In the transitional period, the SJC Judicial and Prosecutorial Chambers shall function as new SJC and SPC, with some restrictions.

The Chief Prosecutor shall be appointed by the SPC for a term of five years. He shall represent the Prosecutor’s Office (PO) and headthe Supreme Prosecutor's Office (SPO) and shall no longer carry out legality supervision of the acts of all prosecutors. The powers of the PO outside the sphere of criminal law were restricted to cases of protection of significant public interest or in the interest of persons in need of special protection. A Chief prosecutor or his deputy is investigated and prosecuted by a prosecutor who, until the time of his appointment as ad hoc prosecutor, had held the position of judge in the Criminal Law Division of the Supreme Court of Cassation (SCC) or in the criminal law divisions of appellate or regional courts. The procedure for selection and appointment is defined in law.

3)     Draft Judiciary Act of 25 March 2024

A draft Judiciary Act published on 25 March 2024 provides that candidates for members of the SJC and the SPC from the parliamentary quota may be proposed by members of parliament, the Supreme Bar Council, and the three most prestigious Law Faculties for the respective year according to the rating system of the Ministry of Education. NGOs may propose candidates, but only through a member of the parliament A special nomination committee of five members shall be established, whose members are proposed by the SCC, the Supreme Administrative Court, the SPO, the Ministry of Justice and the Ombudsperson. After hearing the candidates, it shall draw up a detailed and reasoned report containing an opinion on the candidate’s performance and a recommended assessment.

The administrative heads in the PO shall be subject to control by and accountability to the superior administrative heads and the Chief Prosecutor. The Chief Prosecutor shall represent the PO, direct the SPO, organise the activity of the administrative heads and direct the controlling activities in the PO including in disciplinary matters. The above powers shall not apply to the ad hoc prosecutor appointed to investigate the Chief Prosecutor and his or her Deputies. The provisions on annulling the acts of lower prosecutor by a higher prosecutor shall not apply to the ad hoc prosecutor.

The public consultations on the draft bill were extended up to 7 May 2024. The comments submitted by stakeholders will be analysed before further steps are taken in the legislative process, which means that some legislative proposals might still be modified. The Minister of Justice announced that the draft bill would be submitted to the parliament after the anticipated elections of 9 June 2024.

4)     Functioning of the investigation mechanism regarding a Chief Prosecutor and related background events

Following the May 2023 reform, the former Chief Prosecutor, Mr G., was dismissed, against a background of mediatised conflict between him and other high-ranking prosecutors, and his Deputy Mr S. was appointed Chief Prosecutor a.i. The elections of new Chief Prosecutor and SJC were postponed.[6] Various steps were taken to implement in practice the new investigative mechanism, partly influenced by high-profile investigations by ordinary prosecutors or other developments in the judiciary.

a)     Background events which intertwined with the ad hoc prosecutor’s inquiries

The so-called “Eight dwarfs” and the “M.B.” events (also presented in a recent NGO communication) concern allegations of undue influence on judicial processes respectively by Mr P.P. (lawyer in private practice) or by the late Mr M.B. (private adviser), by prosecutors and legal professionals, which prompted many institutional reactions after May 2023. These reactions are presented in a non-exhaustive manner based on public documents and as far as they are relevant for the present examination.^[7]

In May 2023 the Sofia District PO (SDPO) opened an investigation related to the “Eight Dwarfs” events and collected witness statements concerning, inter alia, Mr. P.P., the head of the Sofia City PO (SCPO), the Chief Prosecutor a.i. and senior prosecutors. Mr. P.P. was charged. On 9 June 2023, the file was sent to the SCPO (competent to investigate magistrates), and to the SCC (for examination by an ad hoc prosecutor).

In July 2023 the Chief Prosecutor a.i., Mr. S., informed that the former Chief Prosecutor had not taken action based on an in-house inspection report concerning the “Eight Dwarfs” events and ordered checks.

Later, the SCPO prosecutor, Mr. Y.P. was granted access to the file transferred by the SDPO to the SCC (see below). He charged Mr P.P. with a criminal offence. Two other investigations were directed against the actions of district prosecutors in the SDPO investigation. One was terminated by a decision of 13 October 2023, which indicated that several of the district prosecutors had acted outside their competence by gathering evidence concerning the Chief Prosecutor a.i. and prosecutors. However, there was no ground to bring charges against these prosecutors; a disciplinary action could be considered. In a second investigation, a district prosecutor, Mr. K.S., was indicted for having brought illegal charges against Mr. P.P. The Chief Prosecutor a.i. filed request for his suspension, rejected by the SPC. In April 2024, the Sofia City Court held that the facts did not constitute a criminal offence and terminated the proceedings. A SCPO press release of February 2024 indicates that the SDPO investigation was conducted in a manner to discredit certain persons in the judicial system and raised suspicions^[8] of manipulation.

b)     Taking of office and high-profile notifications pending before the ad hocprosecutor

On 7 and 9 June 2023, prosecutors sent to the SCC notifications of possible grounds for opening an investigation (hereafter “notifications”) concerning Mr S. On 18 October 2023 Ms T. was appointed as ad hoc prosecutor in the Supreme Cassation PO and she took office on 7 December 2023. She was offered place of work and the assistance of two administrative staff and three investigating police officers. A separate module was created in the prosecutorial case-management system where the ad hoc prosecutor’s acts can be accessed only by her team. On 25 January 2024, she completed her examination of a notification concerning property transactions by family members of the Chief Prosecutor a.i. and declined to open an investigation.

Another initial notification concerned the “Eight Dwarfs” file (see above). According to information provided by the SCC to an NGO, this file originating in the SDPO investigation contained classified materials, which were examined by the SCPO prosecutor Y. P. upon his request. Subsequently, a protected witness complained of anonymous threat. Y.P. filed a request for the SCC to transmit the materials to the SCPO, which was granted, because the SCPO investigation did not concern only the Chief Prosecutor a.i. In interviews, the President of the Criminal Law Division of the SCC indicated that a refusal to pass the evidence to the SCPO prosecutor might be considered a criminal offence. In April 2024, the ad hoc prosecutor extended by two months the preliminary inquiry in this file to hear additional witnesses or collect evidence.  

On 8 April 2024, the then Prime Minister reported allegations that the then Secretary General of the Ministry of the Interior (later charged with a criminal offence) was psychologically pressured by the Chief Prosecutor a.i. in the presence of the administrative head of the SCPO and other senior officials. This notification was also transferred to the ad hoc prosecutor.

c)     Views expressed by the President of the Criminal Law Division of the SCC

In an interview for  legal media,^[9] the President of the Criminal Law Division of the SCC noted that there was no clear regulation on handling initiated pretrial proceedings during a period before the appointment of an ad hoc prosecutor or after the expiry of the six-month period, when the ad hoc prosecutor is reinstated as a judge; and on how to handle pretrial materials, classified information, material evidence, if there is no appointed ad hoc prosecutor. Nevertheless, in view of the novelty of the procedure some solutions were reached by way of interpreting the present regulation, but further amendments and supplements should be sought.

She suggested supplementing the rules to regulate the institutional links of an ad hoc prosecutor within the PO; and to reinforce “housekeeping” arrangements capable of contributing to the de facto independence, such as providing the ad hoc prosecutor, through explicit rules, with a workplace remote from the persons under investigation, an administration not subordinate to the Chief prosecutor, a separate registry, a website, or e-mail address on a mail server different from that of the PO.

5)     Communication by an NGO

In a communication of May 2024, the Bulgarian Helsinki Committee (BHC) indicated that the functioning of the mechanism for the investigation of the Chief Prosecutor so far raised doubts about its effectiveness, because critical information on the investigation of the “Eight Dwarfs” events, possibly affecting the Chief Prosecutor a.i., was transmitted to the SCPO (hierarchically subordinate to the Chief Prosecutor a.i.). The future of the reforms adopted was highly uncertain, because of the constitutional review and political developments related to current political instability and early elections. The NGO provided information on the “Eight Dwarfs” and “M.B.” affairs, on recent notifications to the ad hoc prosecutor, on alleged inactivity of the PO to investigate repeated threats against a prominent judge (for more details see DH-DD(2024)537). The BHC expressed the opinion that the Committee should adopt a holistic approach on the execution of the Kolevi case, the Miroslava Todorova case and the new Pengezov case.[10]

In their reply, the Bulgarian authorities strongly contested the conclusion that the future of the execution of the Kolevi judgment was uncertain and pointed to concerted efforts to ensure well-functioning, professional and independent structure to serve the ad hoc mechanism, while acknowledging the concerns raised by the delayed execution of this judgment (DH-DD(2024)537).

Analysis of the Secretariat

Individual measures

Since no substantial new information has been provided after the examination in September 2023, the Committee could recall its decisions regarding the individual measures adopted at that meeting.

General measures

It is proposed to the Committee to focus on the developments concerning the mechanism for investigation of a Chief Prosecutor.

1) Measures concerning the lack of guarantees for the independence of an investigation against the Chief Prosecutor (Kolevi case)

- Assessment of relevant aspects of the constitutional reform of December 2023

It is proposed to the Committee to strongly welcome the adoption of a constitutional basis for the mechanism for investigation of a Chief Prosecutor. If interpreted as allowing specific legislative rules on appointment, accountability and judicial or other independent review regarding the ad hoc prosecutor, this amendment may help address previously established limitations of this mechanism. It is also positive that overall, the new constitutional arrangements limit, to some extent, the Chief Prosecutor’s influence over the PO and the magistracy, as previously suggested by the Committee, which could facilitate the implementation of a mechanism for independent investigation.

At the same time, an analysis of the powers foreseen in the draft Judiciary Act demonstrates that the Chief Prosecutor will remain the most influential figure in the PO and will preserve certain influence in the magistracy, also related to the exclusive competence of prosecutors to initiate criminal prosecution. Therefore, there remains a need to ensure that the mechanism in place for independent investigation concerning a (Deputy) Chief Prosecutor (and alleged accomplices) functions well in practice.

While the reform ensures more pluralistic composition of the SPC, which will not be controlled by the PO, it does not address per se the need for ensuring its balanced composition, as regards excluding control also by a political majority, as recommended by the Venice Commission. As previously noted, depending on political and other circumstances, a SPC thus composed could still be inclined to protect the interests of a Chief Prosecutor, in ways that undermine the effectiveness of the mechanism (e.g., as regards the procedure for temporary suspension of a Chief Prosecutor; risks of deadlock in the appointment of ad hoc prosecutor or inappropriate use of disciplinary tools or suspension of ad hoc prosecutor). Therefore, it is important to address those aspects in the ongoing legislative reforms (see below).

In this context, it could be noted that without legislative amendments, the constitutional changes cannot take effect. It is thus concerning that, as a result of political instability, the legislative reform will not be adopted within the envisaged timeframe and the transitional period which was intended to be temporary will be prolonged (including the operation of the SJC and the SPC with an expired mandate; lack of legislative regulation of the modified powers of the Chief Prosecutor, etc.).

In view of the above, the Committee could call on the Bulgarian authorities to give full effect to the adopted constitutional reform by elaborating and adopting the necessary legislative reforms without undue delay. It could also encourage the authorities to make full use of further cooperation, particularly from the Venice Commission, in this process.

- Assessment of the first year of the functioning of the investigative mechanism

It is positive that the investigative mechanism is now operational, that the authorities have made concerted efforts to ensure its professional and independent operation and the ad hoc prosecutor has started examining notifications, including high-profile ones. However, certain developments raise questions, which could be explained by the novelty of the mechanism, but nevertheless require the authorities’ attention.

In particular, the interference by the SCPO in the “Eight Dwarfs” file, made possible by the delay in the appointment and taking office of the ad hoc prosecutor, is a source of concern, as classified materials were handed over to prosecutors who are in a hierarchical relationship with the Chief Prosecutor a.i. and senior prosecutors against whom there was witness testimony.

The delay in the appointment of the ad hoc prosecutor appears partly due to the practice whereby a selected judge first completes some of his or her cases, to avoid them having to restart with another judge, and then takes office as an ad hoc prosecutor. Such delay raises questions because it might impede the timely investigation by the ad hoc prosecutor. It could also prolong a situation where ordinary prosecutors may need to take urgent investigative steps or obtain evidence from a file transmitted to an ad hoc prosecutor, which creates risks of collusion and could compromise the independence of the investigation. It is moreover unclear whether an ad hoc prosecutor is to be reappointed as a judge after six months, if s(he) has not opened a criminal investigation but there are ongoing preliminary inquiries which may have to wait until another ad hoc prosecutor is selected and takes office. The authorities could reflect on solutions concerning these issues, as well as on the questions related to possible gaps or difference in the interpretation of the procedural rules, identified by the President of the Criminal Law Section of the SCC.

The above concerns are not alleviated by some of the recent instances of use of criminal law and disciplinary instruments against prosecutors.[11] The unusual institutional reactions regarding the district prosecutors in the SDOP “Eight dwarfs” case may have a chilling effect on ad hoc prosecutor(s), who may fear that his or her choice to initiate investigation or prosecution may expose him or her to  investigation or disciplinary liability at the initiative of ordinary prosecutors (for allegedly encroaching on the competence of the SCPO competent to investigate magistrates or if ad hoc investigation or charges are deemed by a SCPO prosecutor insufficiently justified). Ordinary prosecutors might also fear negative consequence, if engaged in initial evidence gathering regarding alleged joint criminal activity of a Chief Prosecutor and other prosecutors, with a view of notifying an ad hoc prosecutor. Since an ad hoc prosecutor is not a permanent body and it is unclear whether (s)he can act in the absence of notification, it is important that other prosecutorial bodies are able to feed the mechanism with notifications, if necessary.  

The above questions and the rule-of-law concerns raised by allegations of undue influence in judicial processes[12] confirm the need for some further measures to ensure the robustness of the investigatory mechanism regarding any (Deputy) Chief Prosecutor (including one serving ad interim) and guarantees for effective investigations.

- Draft Judiciary Act of March 2024

It is positive that the authorities have prepared a draft bill for the Judiciary Act, published in March 2024, which contains several proposals that could further reinforce the existing legislative framework.

As the SPC, composed by a majority of members elected by parliament, will be competent to decide on suspension of a Chief Prosecutor, it appears possible to mitigate to some extent the risk of politicised decisions by giving a strong role to the nomination committee proposed in the draft Judiciary Act of March 2024 for assessing and preferably ranking candidates to be appointed by parliament and by allowing sufficiently broad range of stakeholders including NGOs to directly or indirectly propose candidates.

As concerns appointment and the accountability of ad hoc prosecutors, the Committee’s indication on the importance of entrusting these decisions to a pluralistic body, whose composition guarantees objectivity, and limits the risks of politicisation or voting patterns that undermine the effectiveness of the investigation mechanism, remains valid. If the SPC is retained as decision-making body, as proposed in the draft Judiciary Act, the considerations on reducing the risk of politicisation above will apply; and it would appear necessary to strengthen the rules on the availability and standing to initiate judicial review of decisions refusing the appointment of ad hoc prosecutor. Alternatively, the authorities may wish to consider entrusting such decisions to the new SJC, or the SJC and SPC’s General Assembly, which provide better guarantees against influence by a Chief Prosecutor or a political majority.

Moreover, the draft Judiciary Act of March 2024 proposes rules on the hierarchical and decision-making independence of an ad hoc prosecutor, which are very positive. As a safeguard for the effectiveness of the investigation it would be useful to clarify who is the entitled person to challenge a refusal to open an investigation if the notification is sent to the ad hoc prosecutor by an ordinary prosecutor. Consideration could also be given to extending the availability and standing to initiate judicial review of decisions of the ad hoc prosecutor, in particular as regards decisions to terminate or suspend investigations for victimless offences.

It appears also key to reinforce, in the context of the ongoing legislative work, the safeguards against risks of inappropriate use of criminal law and disciplinary instruments regarding an ad hoc prosecutor (also identified by the Venice Commission).[13] Such arrangement could include, for instance : (i) rules preventing immediate suspension of ad hoc prosecutor in the context of criminal prosecution or disciplinary dismissal (which could in practice lead to delay in ongoing investigations); such rules could include the need to obtain some form of judicial confirmation of such decisions before they produce effects;

(ii) and possibly payment of full salary in the event of suspension, at least until conviction or confirmation of a disciplinary dismissal by one level of court, to preserve to some extent “the privileges, rights, and emoluments of a judge”.

- Other areas in which reinforcement of the mechanism could be considered

A reinforcement of procedural arrangements also appears necessary to: (i) ensure a pragmatic procedure for the swift taking of office by an elected ad hoc prosecutor; (ii) clarify the arrangements on the duration of the ad hoc prosecutor's term of office, to avoid gaps in examination of pending notifications; (iii); strengthen procedural safeguards against interference in ad hoc prosecutor investigations by ordinary prosecutors, including through procedural rules on handling of investigations and materials in the period before the appointment of ad hoc prosecutor; (iv) ensure that an appointed ad hoc prosecutor may open investigation based on data directly discovered by him or her and to directly assess notifications[14] received by him or her.

The authorities could also provide their assessment whether further reinforcement of practical arrangements (on workplace, administrative staff, a separate registry, e-mail address that is on a mail server different from that of the PO) is necessary, as suggested by the President of the Criminal Law Division of the SCC. As previously noted, the administrative staff assisting the ad hoc prosecutor should be made available in a manner avoiding conflicts of interest (e.g., related to the competences of a Chief Prosecutor to appoint and dismiss such staff), in consultation with the ad hoc prosecutor. It would also be useful to explain how exactly the hierarchical links of the ad hoc prosecutor will be organised, as regards questions such as leave.

- Clarifications needed

In order to enable the Committee to make a more complete assessment of the new mechanism, theauthorities could again be invited to clarify : (i) how the rules on recusal are to be applied in inquiries and investigations, if there is no recognised victim, to allow thorough analysis of the application of rules to prevent potential conflicts; (ii) the reasons for allowing suspension of a Chief Prosecutor for all categories of offences (including privately prosecutable once), and the safeguards against abuse. It is also useful to clarify if ordinary investigation bodies may carry out urgent investigative acts, to avoid loss of evidence; and the safeguards for the independence of such bodies, in the light of the exclusive competence of the SCOP (even where a file contains information on the SCOP management).

2) Measures concerning the effectiveness of investigations in general and investigation of rape and sexual abuse

The Committee could recall its decisions adopted in September 2023 and note with interest a proposal in the draft Judiciary Act of March 2024 which creates a presumption in favour of the opening of criminal investigation in some situations and could contribute to more timely evidence-gathering.

Financing assured: YES