Open letter on the removal of the National Investigation Service from the prosecution system

On 06.06.2023 the National Assembly adopted at the second reading the draft law for amendment and supplement to the Judiciary Act No. 49-302-01-18/13.04.2023 (the JSA). It removes the National Investigation Service (NIS) from the prosecution system and restores its earlier position as an independent body of the judiciary until 2009.

Stressing the need for deep judicial reform in the Republic of Bulgaria, a central part of which is the possibility of an independent investigation of the Prosecutor General and his deputies in case of suspicion of a crime, and welcoming the adoption of the recent amendments to the Criminal Procedure Code in this direction, we express our concern about the draft law for amendment and supplementation of the Judiciary Act.

The specific moment of Bulgarian political life, the turmoil in the judiciary in the last month, and the division in society on important issues are also relevant in assessing the appropriateness of the relocation of the investigation. Taking serious steps in this direction should be done only after a careful assessment of their appropriateness and after extensive discussion by experts and representatives of the public, in compliance with all the rules of the legislative process.

In particular, we draw attention to the following:

1. The procedure for the adoption of this draft law went on with substantial violations of the legislative process - Article 88(1) of the Constitution, Article 26 of the Law on Statutory Acts (LSA), as well as Chapter Eight of the Rules of Organization and Procedure of the National Assembly (ROPNA).

2. Substantial parts of the provisions were adopted after only one reading, which is contrary to Article 88(1) of the Constitution. The amendments proposed between the two readings by MP Petar Petrov were thus extremely substantial, changing the place of the investigation in the judiciary system, they were adopted expressly, without public discussion and in violation of the norms of the Constitution and the ROPNA.

3. According to Article 79(1) of ROPNA, "A Bill which has been rejected on the first vote may be introduced and reconsidered only after changes in its main provisions, which shall be reflected in the grounds, and not earlier than three months after its rejection." According to Article 79(3), "Proposals made under Article 80(1) which are rejected by the National Assembly may not be introduced and reconsidered as a Bill unless the conditions set out in paragraph (1) have been met, except those relating to editorial or legal-technical amendments". The second sentence of Article 80(1) of the UNSCR makes a significant addition: "Motions which go beyond the subject-matter of the Bill as passed in the first vote shall not be considered and voted on as to substance." The Constitutional Court has had the opportunity to rule on a similar issue, with a strongly divided bench, in Decision No. 6 of 19 April 2007 in Constitutional Case No. 3/2007. The minority view is: "Indeed, the Constitution does not limit the legislature's ability to supplement or amend bills between two votes, as stated in the reasoning of Decision No. 14 of 2001. It does, however, require that amendments and additions be made to texts of law which have been debated and passed, albeit in principle, on the first vote. New provisions which have been included for the first time in a bill after the first reading are in fact discussed and adopted by only one vote (the second)." Although the Constitutional Court found that there was no unconstitutionality of the provisions adopted, the majority's basis for this opinion was derived from the then-existing ROPNA. In the current ROPNA, the order of action for the passage of a bill is spelt out in detail, and it is expressly stated that motions that fall outside the scope of the bill passed on first reading are not to be considered and voted upon on the merits. This sentence in Article 80(1) exists precisely to curb the vicious legislative technique that has been seen more than once in recent years of pushing through amendments between first and second readings that are fundamentally unrelated to the main subject under discussion, but which avoid the entire process of passing laws as set out.

4. The proposals to move the NSC out of the "control" of the prosecutor's office are not related to the main bill, which is being considered and voted on at the second reading in plenary on 02.06.2023.

5. It is an unacceptable technique when considering a different bill, to partially pass texts from another bill that has been successively rejected by the Committee on Legal Affairs and in plenary at first reading.

6. The actual background of the specific provisions, not just their formal "dressing up" in another signature with the relevant requisites, is also relevant for the assessment of a possible return of the bill.

6.1. On the one hand, according to the reasoning with which this bill was introduced, in certain cases the Director of the NSC can become the prosecutor in the investigation against the Chief Prosecutor. This objective cannot be shared as it creates legislative chaos and ignores the adopted amendments to the Code of Criminal Procedure and the Law on Criminal Procedure promulgated in the State Gazette on 02.06.2023. These legislative changes are the result of many years of effort and have been drafted following a careful review of the legislation, in consultation with a wide range of experts and members of the public, as well as international partners. The adoption of another possible mechanism for the investigation of the Attorney General on the very day of the promulgation of these changes ignores these efforts, introduces ambiguity into the legislation and is therefore capable of leading to a situation of impossibility to implement the mechanism for the investigation of the Chief Prosecutor.

6.2. On the other hand, the "return" of the independence of the NSS from the prosecution should be compared with the other changes and it should be seen what is the real purpose of this amendment, which seemed to be articulated by MP Radomir Cholakov from the rostrum of the National Assembly: 'The legislative body not only can, but is obliged to shake these people'. The conflict between Chief Prosecutor Ivan Geshev and his deputy Borislav Sarafov was mentioned. Such an argument for the adoption of a draft law cannot be supported, because behind it there are other, essentially vicious aims. Responding to an interpersonal conflict through such a radical legislative change is a frivolous approach to a structural problem of the Bulgarian justice system and should not be acceptable. It destroys rather than builds the rule of law.

In view of the foregoing, we call upon the President of the Republic of Bulgaria to exercise his powers under Art. 1 of the Constitution of the Republic of Bulgaria and to return the adopted Bill to the President for further consideration.

Signed:

Bulgarian Helsinki Committee
Anti-Corruption Fund
Bulgarian Institute for Legal Initiatives
Bulgarian Institute for Market Economics
Bulgarian Lawyers for Human Rights