The decision of the Court of Appeals – Sofia is a direct violation of the Constitution, one of the most popular lawyers in our country, Ina Lulcheva, commented to the specialized legal website defakto.bg.
Regarding the detention of MP Ibryamov – there is nothing complicated in the case study. There is a violation of the Constitution and suspicion of political interference.
According to publications in the media, which no one refuted, the Sofia Court of Appeal in the case of the People's Representative accepted that the authorization to initiate criminal proceedings was a “removal of immunity”, which is why an authorization for detention was not necessary. And the constitutional decision (No. 10/1992) was issued under a different regime of taking measures for non-abortion according to the Criminal Code.
This decision directly violates the Constitution:
concept “immunity“ it does not exist in the Basic Law. Criminal immunity is regulated in the Constitution as a ban on initiating criminal proceedings and a ban on detention in all its possible forms. As every lawyer knows, the two hypotheses are never necessarily connected;
– an interpretation according to which the content of constitutional norms changes when a law is changed is inadmissible, i.e. according to the will of the ordinary legislator. This is absolute arbitrariness, and in relation to one of the most important guarantees for the effective functioning of the legislative power, as pointed out by the Constitutional Court.
According to decision No. 10 of 1992 of the Constitutional Court of the Republic of Bulgaria “ Criminal immunity under Art. 70 of the Constitution … constitutes a ban on the detention and instigation of criminal prosecution against the people's representatives… Detention (of a representative – my note) is initially inadmissible in any form and on any occasion. Any detention, regardless of whether it is related to the implementation of a remand measure “retention in custody”, execution of a sentence of deprivation of liberty, preliminary detention by investigative and police authorities, or as an administrative or administrative-penal measure, is an infringement on their freedom and integrity. …The prohibition of arrest and prosecution covers all their forms and actions…. If a serious crime is found, the representative of the people can be detained without prior permission, but in this case, the request to the National Assembly for permission to initiate criminal prosecution must be requested to continue the detention.“
The text is absolutely clear. The Constitution, Art. 70, does not deal with the concept of “immunity”, but regulates “criminal immunity“, which contains two prohibitions – 1) to initiate criminal prosecution and 2) to detain the representative at any time and in any order.
Authorization to prosecute is not a “waiver of immunity” but an authorization to prosecute for a specific criminal act.
And this permission never automatically leads to a detention permission either. If a request is made to detain a member of parliament against whom permission has been given to initiate criminal proceedings – this must be done expressly by the Attorney General. And the National Assembly with an express act to allow or refuse it.
Detention of a deputy was requested once during the operation of the new Constitution – in July 1992 to Andrey Lukanov, and the request was for two permits – authorization to initiate criminal proceedings and authorization to detain. In December 1992, the National Assembly canceled one of them – the detention authorization given and the representative is immediately released.
This production was never in doubt. And in this case, the Prosecutor General requested two permits, but the Speaker of the National Assembly gave only one – to institute criminal proceedings. And the reasons for this are irrelevant.
The prosecutor's office is aware that MP Ibryamov has been detained in violation of the Constitution – the attorney general requested a warrant of arrest but did not receive it. And if he claims that the prosecutor's office is independent and subject only to the law, he should immediately release him.
De Facto: Out of over 50 immunities removed, only Ibryamov and Lukanov were requested to be detained
Ibryamov is the second Bulgarian MP to be detained. The only other was Andrey Lukanov, who in 1997 condemned the state in Strasbourg for his detention. Bulgaria then became the first Eastern European country to be sentenced for the arrest of its former prime minister.
Ina Lulcheva was the lawyer who convinced the ECtHR that the prosecutor's office went through the human rights convention like a door in a field.
From 1991 until now, the chief prosecutor (regardless of his name) has made requests to remove the immunities of more than 50 deputies. They run the entire gamut of the Penal Code for much more serious crimes – embezzlement, homelessness, fornication with children and many others.
For none other than the two of them – Ibryamov and Lukanov were not detained.
For Lukanov it was clear – the late chief prosecutor Ivan Tatarchev had promised that he would put the communists in prison.
The analogy imposes itself – did anyone want anything and who from i.f. attorney general and attorney general candidate? And has the contender for the high place promised that he will do his best to fulfill the request!?