Decision No. 6 of 6 June 2017 on Constitutional Case No. 15/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Prosecutor General of the Republic of Bulgaria seeking the issuance of a binding interpretation of the provision of Article 84, item 16, second sentence of the Constitution of the Republic of Bulgaria, concerning the scope of the expression: “other reports of the Prosecutor General on the activity of the prosecution service in the application of the law, the combating crime, and the implementation of criminal policy,” and whether it includes a report on a specific criminal proceeding.
Summary of the Court’s Reasoning
The Constitutional Court does not depart from its understanding that, with regard to the bodies of the judiciary, the powers of the National Assembly related to monitoring and analysing the results of the State policy on combating crime must not be equated with the classic forms of parliamentary oversight inherent in the relationship between the legislative and executive branches, as this would lead to an interference altering the very foundation upon which the constitutional model of the State is built.
A report under Article 84, item 16, second sentence of the Constitution must not be based on a specific criminal proceeding, because this would create a risk of affecting, in a constitutionally impermissible manner, the independence of the judiciary and of disrupting the balance among the branches of power established by the Constitution, contrary to the fundamental principles of the constitutional system of government founded upon the constitutional principle of separation of powers, an essential guarantee for the observance of which is the independence of the judiciary. This understanding also coincides with the position adopted by the Constitutional Court in Decision No. 9 of 2011 on Constitutional Case No. 7 of 2011, according to which “as state authorities, the prosecution service and the investigation authorities must not provide Members of Parliament with information and documents where these constitute investigation secrecy.” The pre-trial phase of criminal proceedings is not public, and the materials gathered in the course of the investigation may not be disclosed without the permission of the supervising prosecutor. The provision, at the request of the National Assembly, of information constituting investigation secrecy in a report of the Prosecutor General concerning a specific criminal proceeding creates a risk of obstructing the effectiveness and the prospects for the successful completion of the investigation, responsibility for which ultimately lies with the prosecution service. It creates the possibility of frustrating the establishment of the truth in the pre-trial proceedings. Informing Members of Parliament about the subject matter of a specific criminal proceeding, investigative actions undertaken, evidence collected, or forthcoming procedural acts may also result in violations of a number of rights, including the right to respect for private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as part of the national legal order, not only with regard to accused persons, but also with respect to victims of crime, witnesses in the proceedings, and the minimum standards concerning the rights, support, and protection of victims of crime.
It is also worth noting that the constituent legislator has provided, with regard to the “other reports” as well, that they are not only to be heard but also adopted by the National Assembly. Where such “other reports” contain information relating to specific criminal proceedings, the very act of their adoption involves an evaluative element through approval or disapproval and is capable of directly affecting the activity of the prosecution service and of the judiciary as a whole. The Constitutional Court points out that handling facts constituting investigation secrecy falls within the competence of the judicial authorities, and that the constitutional status of the prosecution service and the investigation authorities may not be impaired, nor may their activity be hindered through breaches of investigation secrecy. The protection of investigation secrecy forms part of the administration of justice by its bodies, which are independent in the performance of their functions, and the prosecution service forms part thereof.
In view of the foregoing, linking the expression “other reports” to a separate and specific criminal proceeding is constitutionally impermissible, both because of the limitations arising from the constitutionally established model of functioning of the three branches of power and because such “other reports” would be incapable of effectively serving the objectives embedded in the Fundamental Law.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 1 of the Constitution (the competence to issue binding interpretations), the Constitutional Court holds as follows:
The scope of the expression “other reports of the Prosecutor General on the activity of the prosecution service in the application of the law, the combating crime, and the implementation of criminal policy” within the meaning of Article 84, item 16, second sentence of the Constitution includes various generalised and analytical reports concerning the activities carried out by the prosecution service in the application of the law, the combating crime, and the implementation of criminal policy.
These reports differ in time and/or content from the annual reports under Article 84, item 16, first sentence of the Constitution and are intended to facilitate the exercise of the constitutional powers of the National Assembly.
The National Assembly may not request from the Prosecutor General a report concerning the activity of the prosecution service in relation to a specific criminal proceeding.
The decision was signed with a separate opinion by one judge.