BHC: Mechanism for independent investigation of the Chief Prosecutor is not discrimination

Yesterday, the Bulgarian Helsinki Committee filed an additional position statement on the draft law for amendment to the Criminal Procedure Code (available in Bulgarian here), which introduces a mechanism for independent investigation of the Chief Prosecutor or their deputies. With it, the organisation responds to the criticisms raised in the position statements of the Supreme Judicial Council (SJC) and the Supreme Court of Cassation (SCC), that find the mechanism “discriminatory.”

Furthermore, in their statements on the draft law, the two institutions also described as discriminatory the proposal to limit the parliament in electing magistrates in the two quotas of the SJC and allow it to only appoint other high-esteemed lawyers. The idea behind this proposal is to prevent influence on council members who would later return as magistrates to the system.

“In these parts, the opinions are not substantiated,” the BHC wrote to MPs in the parliament’s legal affairs committee. “They do not comply with the understanding of discrimination enshrined in international legal standards, including the case law of the European Court of Human Rights,” the organisation said.

BHC analyses the understanding of the concept of discrimination by the UN Human Rights Committee and in the case law of the Strasbourg Court. According to these institutions, not every difference in treatment constitutes a violation of the prohibition of discrimination and the principle of equality before the law. One of the key criteria is that the group targeted for unequal treatment has historically been subjected to negative stereotyping, social exclusion and restrictions which have the purpose or effect of impeding the recognition or enjoyment on an equal basis of human rights and fundamental freedoms in the political, economic, social, cultural or any other area of public life. It can hardly be argued that prosecutors and investigators are the target of such public sentiments in Bulgarian society.

BHC recalls that the present statutory guarantees for the independence of prosecutors and investigators, most of which are not new in the Bulgarian constitution or in the procedural law, are not sufficient, as evidenced by the decision of the European Court of Human Rights in the case Kolevi v. Bulgaria, referring precisely to the lack of an independent mechanism for investigating suspicions or evidence of a crime committed by the Chief Prosecutor.

Both the need for a mechanism for an independent investigation of the chief prosecutor, different from the general procedure, and the proposal for the election to the parliamentary quotas of the SJC of lawyers who are not magistrates are the result of recommendations and prescriptions of the European Court of Human Rights, the Venice Commission and EU institutions. While stating that it supports the limitation of the parliamentary quota to the prosecutorial chamber only, the BHC points out in its opinion that it is not likely that experienced and reputable jurists—including eminent constitutional scholars from across the European continent, members of the Venice Commission—have failed to see existing discrimination or inequality before the law in the measures they prescribe.

“The sudden ‘discovery’ of the alleged discriminatory nature of the mechanism guaranteeing an independent investigation of the Chief Prosecutor and their deputies is frivolous, especially given that it is made on the eve of the consideration of the bill in Parliament and years after the beginning of the discussions on this issue,” said Adela Kachaunova, attorney-at-law, and director of the BHC’s legal defence program.

“It is necessary to recall that while they were part of the working group that drafted these proposals, neither the representatives from the Prosecutor’s Office nor judges of the Supreme Court of Cassation raised the issue of possible discrimination. Discussing discrimination when proposing a special procedure for investigating the Chief Prosecutor or when delimiting the categories of legal professions that the parliament could elect to the SJC only profanes the concept of discrimination and leaves the real victims of the phenomenon unprotected. It is not at all the same that the parliament should not be able to elect an acting prosecutor to their quota at the SJC, which is intended to ensure the institutional independence of the magistrate, and that some person is not admitted to the pool because she or he has a certain ethnic origin. The vehement opposition to the possibility of an independent mechanism to engage the potential accountability of the Chief Prosecutor should be a matter of concern to all citizens as to what forces are driving these processes,” said Kachaunova.