Decision No. 14 of 26 July 2024 on Constitutional Case No. 10/2023
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the Prosecutor General of the Republic of Bulgaria. The subject matter of the case is the constitutionality of the following statutory provisions: Article 213, paragraphs 4-6; Article 247b, paragraph 2; Article 250, paragraph 1, item 2; and Articles 411a-411i of the Criminal Procedure Code (CPC); Article 30, paragraph 5, items 21 and 22 and paragraph 7; Article 33, paragraph 3; Article 112, paragraph 6; Article 147, paragraph 7; Article 173, paragraphs 11 and 12; Article 173a; Article 230, paragraph 1, third sentence; and Article 230a of the Judiciary System Act (JSA); §31, paragraph 2 and §41 of the Transitional and Final Provisions of the Law Amending and Supplementing the Criminal Procedure Code (TFPLASCPC) (promulgated, SG No. 48 of 02.06.2023, in force as of 06.06.2023). The request identifies as the main argument for unconstitutionality the alleged inconsistency with Article 4, paragraph 1; Article 6, paragraph 2; Article 119, paragraph 1; Article 121, paragraph 1; and Article 127, item 3 of the Constitution.
Summary of the Court’s Reasoning
Regarding the constitutional status of the Prosecutor General and the procedure for investigating crimes allegedly committed by him or his deputies, the Court holds that the prosecutor investigating the Prosecutor General exercises his powers within the structure of the prosecution and derives legitimacy from its constitutional status, insofar as his establishment as an organ of the judiciary is based on delegation within the meaning of Article 133 of the Constitution. Like any other prosecutor, he is bound by the constitutional imperative of Article 127 of the Constitution, exercising his powers to perform the prosecution’s constitutional task of ensuring compliance with the law through explicitly provided means, while simultaneously observing the constitutional limits of the prosecution’s activities.
With regard to the structure of the Prosecution of the Republic of Bulgaria and the position within it of the prosecutor investigating the Prosecutor General and the supervising prosecutor, the Court considers that, from a constitutional perspective, the existence of specialized internal units with subject-matter specialization within the unified structure of the prosecution is constitutionally permissible, provided that the general principles of internal organization within the prosecution apply to this prosecutor.
With regard to the contested provisions of Article 33, paragraph 3 and Article 173, paragraphs 11 and 12 of the Judiciary System Act (JSA) and §31, paragraph 2 of the Transitional and Final Provisions of the Law Amending and Supplementing the Criminal Procedure Code (TFPLASCPC), which concern the procedure by which the Plenum of the Supreme Judicial Council (SJC) adopts decisions proposing to the President the appointment and dismissal of the Prosecutor General and the Chairpersons of the Supreme Court of Cassation (SCC) and the Supreme Administrative Court (SAC), as well as terminating the mandate of an elected member of the SJC under the conditions of Article 130, paragraph 8 of the Constitution, the Court finds that there is no unconstitutionality, since there is no constitutional requirement that the Prosecutor General and the Chairpersons of the SCC and SAC be treated identically by the legislator when regulating the procedure (including the majority required) for the SJC to adopt a decision proposing their appointment and dismissal by the President. It should be noted that this matter is not regulated by the Constitution and therefore falls within the discretion of the ordinary legislator under Article 133 of the Constitution.
Regarding the procedure for examining cases of crimes committed by the Prosecutor General or by their deputy
Firstly, it encompasses the provisions regulating the appointment, status, and functions of the judge assigned the role of prosecutor to investigate crimes committed by the Prosecutor General or their deputy, as well as the judge from the Criminal Chamber of the Supreme Court of Cassation (SCC) appointed as deputy to the Prosecutor General, who exercises oversight over the prosecutor’s actions in investigating crimes committed by the Prosecutor General or their deputy (Article 30, paragraph 5, items 21 and 22 and paragraph 7; Article 112, paragraph 6; Article 147, paragraph 7; Article 173a; Article 230, paragraph 1, third sentence; and Article 230a of JSA). With respect to them, the Constitutional Court finds that the contested statutory provisions do not contravene the Basic Law and comply with the criteria for constitutionality of these bodies as established in the reasoning of Decision No. 7/2021 on Constitutional Case No. 4/2021. By appointing these judges respectively as prosecutor in the Supreme Prosecutor’s Office and as deputy Prosecutor General, they become part of the structures of the prosecution, organized in accordance with the structure of the courts handling criminal cases. Accordingly, there is no incompatibility between the functions of judge and prosecutor, precisely because appointment as a prosecutor requires release from judicial office.
These bodies are not established in the legislation for a specific period of time or solely for the investigation of crimes committed by individually designated persons; rather, their regulation is designed for repeated and ongoing application over time with respect to all individuals who may, in the future, fall within the scope of the law by virtue of the office they hold. Therefore, there is no unconstitutionality arising from the claim in the petition regarding the “extraordinary nature” of the bodies in question.
The Court also does not share the petitioner’s claim of unconstitutionality arising from an alleged violation of the prohibition of unequal treatment under Article 6, paragraph 2 of the Constitution. In this case, the provision allowing for the removal of the Prosecutor General for a broader range of crimes compared to other judges, prosecutors, and investigators is based both on an objective criterion related to holding a high state office and on the specific characteristics of that office, which entail significant exercise of authority. This justifies the need for enhanced public and institutional oversight to ensure that such authority is exercised in compliance with the legal requirements governing actions both within and outside the performance of official duties.
Second, it also encompasses the provisions of Chapter Thirty-One “A” of the CPC “Special Rules for the Examination of Cases of Crimes of a General Nature Committed by the Prosecutor General or Their Deputies” (Articles 411a – 411i), which include special rules regarding the initiation of pre-trial proceedings; the applicable procedure for appealing a refusal to initiate pre-trial proceedings; the competent investigative authorities; the supervision of the specialized prosecutor’s actions; the applicable procedure for revoking an order to discontinue pre-trial proceedings; the grounds and procedure for recusal of the investigating prosecutor; the jurisdiction over cases involving crimes committed by the Prosecutor General or their deputies; and the application of these rules with respect to deputies of the Prosecutor General and their accomplices in the commission of crimes.
Regarding the exceptional nature of the cited provisions, the Constitutional Court holds that, pursuant to Art. 411i, in the absence of special rules in this chapter, the general rules of criminal procedure shall apply. This means that the prosecutor investigating the Prosecutor General, as well as the supervising prosecutor, must ensure that the accused Prosecutor General or their deputy is afforded all rights under the CPC, apply the rules concerning the evidentiary process, the initiation and conduct of investigations, the manner of drafting and the content of prosecutorial acts, and the mechanisms for supervising them, as well as control over the investigative authorities. The need to establish a special procedure is a matter of state policy and legislative expediency, not constitutional compliance, and therefore the Constitutional Court cannot review the necessity of creating a special procedure for investigating the Prosecutor General.
Regarding the supervision of the prosecutor investigating the Prosecutor General, the Constitutional Court holds that no unconstitutionality exists, as such supervision contains the fundamental features of hierarchical control inherent to the prosecution system as a whole: the acts and actions of the prosecutor investigating the Prosecutor General may be appealed to the immediately superior prosecutor, unless subject to judicial review; the superior prosecutor may carry out actions falling within the competence of the subordinate prosecutor, and may, in writing and with justification, suspend, revoke, or amend their decisions in cases provided by law; their written instructions are binding on the subordinate prosecutor.
With regard to the powers of the prosecutor investigating the Prosecutor General, as well as their personal specialization, the Constitutional Court finds that the challenged legal provisions are not unconstitutional. The specific features of exercising the powers of the prosecutor investigating the Prosecutor General do not prevent them from performing the procedural functions assigned, nor do they impede the constitutionally compliant and lawful conduct of criminal proceedings at any stage. There is no constitutional obstacle to a high-ranking prosecutor acting as prosecutor before lower courts, nor is there a requirement that every prosecutorial body exercise all powers granted to the prosecution under Article 127 of the Constitution at all times and in every proceeding.
The Constitutional Court has a consistent practice regarding specialization within the judicial authorities, according to which the choice of criteria for specialization is entirely within the discretion of the legislator, without constitutional constraints on selecting one approach over another. Specialization may be functional, personal, or a combination of both. The legislator’s decision is guided by the specific needs of practice, as well as the objectives and tasks of criminal policy at the given time.
Regarding the investigative authorities, the Court finds that investigating police officers and investigating customs inspectors are, on a general basis, considered investigative bodies within the meaning of Article 52, paragraph 1, item 2 of the CPC. The fact that the scope of investigating police officers and investigating customs inspectors is determined by the respective minister through an official order does not place them in functional dependence on the minister, since the only authority entitled to issue instructions to the investigative body during the investigation and to supervise its actions is the prosecutor, who exercises direction and oversight to ensure the lawfulness of the investigation.
No violation of constitutional norms and principles is established with regard to the claim that the Prosecutor General and their deputies are treated differently compared to any other magistrate, whose investigation is conducted by an investigator pursuant to Article 194, paragraph 1, item 2 of the CPC. According to Article 128 of the Constitution, investigative bodies are part of the judiciary and are appointed, promoted, demoted, transferred, and disciplinarily sanctioned by the Prosecutorial Section of the Supreme Judicial Council, in which the Prosecutor General also participates. They are administratively and organizationally subordinate to the Prosecutor General and their deputies, one of whom is the head of the National Investigative Service. To ensure the fundamental principles of independence of investigative bodies and the ascertainment of the objective truth in every criminal proceeding, it is constitutionally justified that investigations against the Prosecutor General and their deputies are not conducted by an investigative body that is organizationally and administratively dependent on these potential subjects of criminal liability. The Constitution does not mandate which investigative bodies must act in any specific criminal case; therefore, this assessment falls within legislative discretion. Given that, in the present case, it is based on a socially significant objective of the legislature - to guarantee the independence of the investigative body and the ascertainment of the objective truth in cases - it cannot be subject to constitutional review.
With regard to the procedure for initiating criminal proceedings, the Constitutional Court considers that the arguments set forth in the petition for the unconstitutionality of the provisions introducing a special procedure for initiating criminal proceedings against the Prosecutor General are unfounded. The allocation of powers to the Chair of the Criminal Chamber of the Supreme Court of Cassation in the initiation of criminal proceedings does not deprive the prosecutor investigating the Prosecutor General of any of their powers under Article 127 of the Constitution. Notification of the Chair of the Criminal Chamber about the existence of a legal basis to initiate an investigation against the Prosecutor General or their deputies, as well as regarding the circumstances under Article 212, paragraph 2 of the CPC, is intended to prevent any dependence between any prosecutor and the Prosecutor General within the hierarchical structure of the prosecution. The petitioner’s claim that criminal proceedings against the Prosecutor General or their deputies can only be initiated when there is a legal basis, without sufficient evidence of a committed crime, as required by Article 207, paragraph 1 of the CPC, is unfounded. A systematic analysis of Articles 411a, paragraph 3, and 411b, paragraph 1 of the CPC leads to the clear conclusion that the assessment of the presence or absence of the prerequisites for initiating pre-trial proceedings against the Prosecutor General falls within the competence of the prosecutor investigating the Prosecutor General, and that this assessment is carried out on the basis of the combined evaluation of the existence of a legal basis and sufficient evidence of a committed crime. The established complex procedure for assessing the initiation of pre-trial proceedings against the Prosecutor General does not infringe upon their procedural rights, nor does it place them in a less favorable position compared to other citizens. On the contrary, it provides a proper protective mechanism, and therefore, there are no grounds to find a violation of Article 6, paragraph 2 of the Constitution.
Regarding judicial review of a prosecutor’s refusal to initiate pre-trial proceedings (Article 213, paragraphs 4-6 of the CPC), the Constitutional Court holds that the introduction of judicial review over a prosecutor’s decision to refuse initiation of pre-trial proceedings is not unconstitutional, insofar as this judicial authority does not conflict with the constitutionally established competence of the prosecution under Article 127, item 3 of the Constitution. This competence of the prosecution does not extend to actions and acts of the prosecutor regarding the initiation and termination of criminal proceedings, and there are no constitutional obstacles to providing for judicial review in this respect. When comparing a decision to terminate proceedings with a decision to refuse to initiate proceedings, there is no substantive difference. Both mechanisms have identical grounds for application under Article 24 of the CPC. In both cases, the proceedings do not conclude with a decision on the merits, but either are terminated (if already initiated) or are refused initiation when one of the grounds under Article 24 of the CPC exists. The only difference between the two mechanisms is the timing of their application. In essence, a refusal is a deferred termination of the case, even though the same termination could have been applied after initiation. Whether one or the other mechanism is applied depends on the moment at which the ground preventing the initiation of proceedings or affecting the continuation of an already initiated case is established. Given the similarities between these two mechanisms, it is constitutionally permissible for the method, content, and instance of subsequent judicial review to be identical. Under judicial review of a refusal to initiate pre-trial proceedings, mandatory instructions regarding the application of the law - both procedural and substantive - exclude the possibility of giving directions concerning a specific outcome of the file or interfering with the prosecutor’s internal conviction. In this regard, the prosecutor, as a judicial officer, enjoys independence guaranteed by the Constitution.
Regarding judicial review of a prosecutor’s refusal to initiate pre-trial proceedings in the context of the principle of equality of citizens before the law, the Court holds that Article 213, paragraphs 4-6 of the CPC do not provide for unequal treatment of identical cases. Instead, it establishes a differentiated approach for the investigation of different types of offenses, for which the legislature has deemed, in view of the severity of the infringement on citizens’ rights and their societal significance, that it is constitutionally justified to introduce additional safeguards to ensure that the act does not go undiscovered or unpunished. The Constitutional Court considers fundamental that all victims of any one and the same offenses listed in Article 213, paragraph 4, have the right to initiate judicial review of a prosecutor’s refusal to initiate pre-trial proceedings for that offense. In this way, each victim of the specified category of offenses is treated by the legislature in the same manner as any other victim of the same offense.
Regarding the powers of the reporting judge and the court to terminate criminal proceedings under Article 247b, paragraph 2 and Article 250, paragraph 1, item 2 of the CPC, the Constitutional Court finds that no unconstitutionality exists, since these powers are provided as a safeguard to ensure that judicial investigation is conducted only with respect to charges capable of resulting in a conviction, whether brought by the prosecutor or by citizens, if proven. The legislative intent is clear and directed towards a socially justified objective - optimizing judicial activity by focusing the judicial process on verifying charges that, if proven during the trial, can objectively engage the defendant’s criminal liability. This interpretation of the powers of the reporting judge and the court protects the right of citizens not to be subjected to criminal prosecution based on inherently defective charges for acts that do not constitute criminal offenses. In essence, the exercise of this power constitutes a legality check by the court in defense of the public interest, in accordance with the aims and objectives of criminal procedure, ensuring cases are heard within a reasonable timeframe, promoting procedural efficiency, and preventing the judicial system from conducting costly but inherently pointless proceedings. The exclusive constitutional authority of the prosecution to bring individuals to criminal responsibility is not affected by the powers conferred on the reporting judge under Article 247b, paragraph 2, or on the court under Article 250, paragraph 1, item 2 of the CPC, as these powers are limited exclusively to terminating the criminal proceedings at the judicial stage when the facts set out in the indictment do not constitute a criminal offense. It would be constitutionally impermissible for the state prosecutor, under Article 127, paragraph 3 of the Constitution, to claim the right to prosecute individuals for acts that, based on the factual circumstances invoked by the prosecutor, do not constitute a crime.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the power to rule on requests for establishing the unconstitutionality of laws), the Constitutional Court dismisses the request for establishing the unconstitutionality of Article 213, paragraphs 4-6; Article 247b, paragraph 2; Article 250, paragraph 1, item 2; and Articles 411a-411i of the Criminal Procedure Code (promulgated, SG No. 86 of 28.10.2005, last amended and supplemented SG No. 39 of 01.05.2024); §31, paragraph 2 of the Transitional and Final Provisions of the Law Amending and Supplementing the Criminal Procedure Code (promulgated, SG No. 48 of 02.06.2023, in force as of 06.06.2023); and Article 30, paragraph 5, items 21 and 22 and paragraph 7; Article 33, paragraph 3; Article 112, paragraph 6; Article 147, paragraph 7; Article 173, paragraphs 11 and 12; Article 173a; Article 230, paragraph 1, third sentence; and Article 230a of the Judiciary System Act (promulgated, SG No. 64 of 07.08.2007, last amended and supplemented SG No. 18 of 01.03.2024).
Председател: Павлина Панова