Is only God above the Prosecutor General and what will happen after the changes to the Judicial Power Act have already entered into force. Adv. Petar Slavov - Doctor of Constitutional Law, member of the Sofia Bar Association and the Supreme Bar Council with an advisory vote, spoke to FACTI.
- Lawyer Slavov, we have heard the words that only God is above the Prosecutor General, but is that so? It seems that politicians are definitely above the Prosecutor General. The parliament adopted changes to the Judicial Power Act (JPA) to stop the procedure for Borislav Sarafov to become Prosecutor General. Where is God in this arrangement…
- The words you quote concern an acting prosecutor general, i.e. one who has already taken office and has the entire toolkit of state repression at his disposal if he decides to misuse his powers. Here, the legal possibilities for counteraction remain very limited at the moment – the simplest proof is to look at the voting method of the Prosecutorial College in the Supreme Judicial Council. Traditionally, it votes as one, aligning itself with the vote of the acting prosecutor general. As for the suspended procedure – the so-called “competition with one candidate“ with a predetermined end… On 21 January, the amendments to the Judiciary Act were promulgated, which put an end to this vicious procedure and let us hope that the election of a regular SJC will finally follow, which will also implement a real competition with several competing candidates!
- Why has the role of the Prosecutor General suddenly turned out to be so important in recent years…
- The role of the Prosecutor General has always been important, and the problem dates back to the adoption of the current Constitution in 1991, when mysteriously, during the 3rd reading of the bill, para. 2 of Art. 126 appeared and was adopted, namely: “The Prosecutor General shall supervise the legality and methodological guidance of the activities of all prosecutors.“ The latter has been the reason over the years for texts (currently repealed) to be written into the SJC that “each prosecutor is subordinate to the superior, and all of them – are subordinate to the Prosecutor General“. I think it becomes clear what enormous power we are talking about here to initiate or block criminal repression against one or more persons, namely by a single decision of the Prosecutor General, and especially if he is not independent of political interference in decision-making!
- The Parliament adopted that the SJC with an expired mandate cannot elect the three big ones in the judicial system – the heads of the SAC, the Supreme Court of Cassation and the Prosecutor General. Why was this adopted only now… Just because of Sarafov or…
- The exact text that was adopted is that only members of the SJC whose regular mandate has not expired participate in the vote to elect the “three big ones“. And this is correct, since it is constitutionally intolerable for a body whose mandate (or that of its members) has expired to elect a new body - i.e. to draw legitimacy beyond the term for which he was elected and to make such important decisions, and for 7 years to come! In fact, according to the design of the constitutional texts, such a hypothesis would not exist at all if the parliament had fulfilled its obligation to choose its so-called “quota“ in the SJC in good faith - something that it has not been able to do for more than 2 years - hence the problem with the expired mandates of its elected members and the need for interpretation by the Constitutional Court.
- How do you generally view the role of the SJC? It will also lead to a replacement of the composition, and until then…
- Once again, with these amendments to the Judiciary Act, the deputies set themselves a 6-month deadline to choose their “parliamentary quota“ in the SJC. Let's hope that this time the deputies will abide by the law and elect a new composition of the SJC. And not only to comply with the letter, but also the spirit of the law and not to see a repeat of the 2017 SJC election, when some SJC members were elected based on a list and party-quota bargaining, for whom their proposers did not know what they had worked for before - whether they were judges, prosecutors or lawyers!
- Can we have the next Prosecutor General, in whose professional integrity we will have no doubt…
- Of course we can. If, first of all, a SJC is elected with members with proven integrity, professional and moral qualities and who obey only the law and their inner convictions. Secondly, this new SJC organizes a real competitive procedure with multiple nominations and real competition between candidates with publicity at every step of the procedures! It will not be easy, but it is necessary if we want to once and for all have an independent and impartial court and an accountable prosecutor's office and get rid of the “rotten apples“ and political interference in the judicial system.
- A new election of members of the Supreme Bar Council is due at the end of February. What is happening in your guild in this direction?
- The General Assembly of the Bulgarian Bar Association (BAA) is indeed scheduled for the end of February - the supreme forum of the Bulgarian Bar Association, which must accept the reports of the current higher bodies and elect a new Supreme Bar Council, Supreme Disciplinary Court and Supreme Control Council.
However, before this election and at the end of this month, there will be elections for delegates to the BAA. They are held in every bar association and in which, once again, in the Sofia Bar Association (SBA), we are faced with the problem of voting “by list“, called by colleagues “list voting“. In this case and following the model of the 2017 SJC elections, many colleagues vote according to a list given to them in advance by a given candidate and thus often cast their votes for candidate delegates who they do not know, nor do they know their work and concepts. The problem comes from the fact that the SAK has over 5,000 members and they elect about 150 delegates, i.e. you vote for 150 people at the same time and logically it is very difficult to know all of them by name.
The solution to the problem, which we have proposed with our colleagues from the Initiative Committee for an Independent and Authoritative Bar, is to amend the Bar Act to eliminate the “delegate“, i.e. “mediated“ election of higher bodies of the bar, and to do this on the principle of “direct election and one lawyer - one vote”. Including by introducing remote electronic voting in the future. In this way, voting will now be direct for the candidates that a colleague believes should represent him in the BAdvS or other higher bodies and it will not be possible to conduct “list voting“ for delegates, as the latter will no longer elect the higher bodies of the bar, while retaining the remaining functions of the General Assembly of delegates from the country.