Court authorization to use the SRS against the MP Ceyhan Ibryamov in within the framework of operational actions is permissible and lawful.
When the application of the SRS is not aimed at gathering evidence, but at operational information, even though they constitute a substantial intrusion into the personal sphere of each person, including one with parliamentary immunity, precisely for which it is provided only and judicial control only for them, no permission from the Supreme Court is required.
This is recorded in the opinion of the Deputy Chairman of the Sofia City Court, Rusi Alexiev, prepared in connection with the many questions posed by journalists. This was reported by the court.
Judge Alexiev points out that the National Assembly or its chairman, when it is not in session, issues permission to remove parliamentary immunity only for criminal liability of a national representative within the framework of a pre-trial proceeding, but not for extra-procedural actions.
When the application of the SRS is not aimed at gathering evidence, but at operational information, although they constitute a significant intrusion into the personal sphere of each person, including one with parliamentary immunity, for which it is intended only and only for them judicial review, no permission from the Supreme Court is required. This is because the exploitation of the SRS outside the criminal proceedings cannot in itself lead to the criminal liability of the person with parliamentary immunity. Otherwise, if the use of the SRS against a deputy begins only after the removal of his immunity by the National Assembly, then this method becomes meaningless and logically would not lead to any result.
In his opinion, Judge Alexiev also points out that the immunities of the head of state and the people's representatives are significantly different, both in their nature and because of their very different functions provided for in the Constitution.
Here is the judge's full opinion:
Regarding the decision of the Constitutional Court No. 10/27.07.92 under const. case No. 13/92 and decision of the Supreme Court No. 12/30.07.2020 under the Code of Criminal Procedure No. 12/2020
The grounds regarding the parts of the issues maintained in the public space, i.e. those clarifying the provision of Art. 70, para. 1, ex. 1 of the Constitution (K) – r.1, b. “b“, item 2 of the decision - regarding the expression “criminal prosecution may be initiated“.
The essential thing in it is that a permission from the National Assembly, respectively from its chairman, when the National Assembly is not in session, to remove the parliamentary immunity is required only for engaging a deputy in criminal liability, including for detention, as well as for attracting him in the capacity of the accused and carrying out investigative actions.
This means that for actions that are taken against a person with parliamentary immunity, outside of the circle thus indicated and which are not within the scope of criminal proceedings, respectively are not actions under the investigation ("investigative actions"), are not requires prior permission from the National Assembly or its chairman, since the same are not “covered" from his parliamentary immunity, i.e. are not covered by this specific form of constitutional, institutional protection and do not constitute an "encroachment on the immunity of the representative of the people, and more precisely on his criminal immunity". This is so because by themselves these extra-procedural actions, whatever they are - as long as they are not from the category of those listed in the provision of Art. 212, para. 2 of the Code of Criminal Procedure, with the drawing up of the protocol for which the criminal proceedings are considered to have been initiated and which substantially affect the rights of the person with parliamentary immunity, more specifically the examination of a person (certification), search and/or seizure - cannot lead to engaging the criminal liability of the person with parliamentary immunity, which is why they do not affect him.
In other words, according to the present, current legislation - art. 70, para. 1, ex. 1 of the K, and its mandatory interpretation for all law-enforcement and law-enforcement bodies, state and municipal institutions, legal entities and individuals by the Constitutional Court (decision No. 10/27.07.1992), permission from the National Assembly or its chairman, in cases, when the National Assembly is not in session, it is required only and only for (1) the detention of the person and (2) his constitution in the procedural capacity of an accused, within the framework of initiated criminal proceedings, (this is legally impossible even outside of initiated criminal proceedings), through the formal filing of an accusation - art. 219, para. 1 of the Code of Criminal Procedure, or by bringing him in as an accused with the drawing up of the protocol for the first action of the investigation against him - for detention according to the procedure of the Code of Criminal Procedure, for his inspection (certification), for his search - personally (search) or on a used/ and from him or preferentially from him premises, and/or for seizure - art. 219, para. 2 of the Code of Civil Procedure.
For any other actions, especially those that are not undertaken/performed within the framework of existing criminal proceedings, but in some extra-procedural activity of the relevant law enforcement authorities, no permission is required from the National Assembly or its chairman, as they do not fall under within the scope of the protection of the parliamentary immunity, as not leading to the involvement of the criminal liability of the person under the law - NPK, legal order.
This number includes all activities carried out by law enforcement bodies in the extra-procedural and in fulfillment of their legal powers, such as taking information from the person with parliamentary immunity, demanding and collecting information concerning this person and/or his activities and/or receiving from him or by third parties - physical and legal, private and state or municipal bodies and/or institutions, on various documents, taking samples of handwriting, signature, etc., for the needs of the relevant expert examination, application of the SRS to it , in the presence of the legally established prerequisites for this, in accordance with the order of the ZSRS (not the NPK!).
For the latter, it should be explicitly noted that when they are exploited within the framework of extra-procedural activity, i.e. they are not aimed at collecting evidentiary sources, but at extra-procedural, operational information, although they constitute a significant intrusion into the personal sphere of each person, incl. and one with parliamentary immunity, precisely for which judicial control is provided for and only for them, no permission is required from the National Assembly or its chairman when it is not in session.
This is because the exploitation of the SRS outside of criminal proceedings cannot in itself lead to the criminal liability of the person with parliamentary immunity. In order for the latter to happen, VAT should first be prepared from them, i.e. that there is some evidence of a possibly committed serious crime of a general nature, secondly, that pre-trial proceedings be instituted, thirdly, within the framework of the investigation conducted on it, that the prepared VAT be included in accordance with the procedure of Art. 177, para. 3 of the Criminal Procedure Code and fourthly, to request from the National Assembly, based on the collected evidence, to grant permission to bring the relevant national representative into the procedural capacity of an accused