PP-DB held a protest in front of the Sofia City Court in support of the arrested Lachezar Stavrev, who was a former expert in the Ministry of Finance during the time of Asen Vassilev. The Prosecutor's Office wants the immunities of Kiril Petkov and Lena Borislavova… Can the Prime Minister order an arrest… Assoc. Prof. Milen Ivanov, former deputy rector of the Ministry of Interior Academy, spoke to FACTI.
- Mr. Ivanov, the acting Prosecutor General Borislav Sarafov requested two parliamentary immunities from members of “We continue the change“ – of Kiril Petkov and Lena Borislavova, and detained the former expert in the Ministry of Finance, Lachezar Stavrev, who is associated with Assen Vassilev. How do you view this at this particular moment?
- All these actions of the prosecutor's office are probably a consequence of various pre-trial proceedings. At a certain stage of a pre-trial proceeding, it is assessed whether it is necessary to determine some measure of non-detention of the accused, or if they have immunity, whether it is necessary to take action to remove this immunity in view of subsequent actions in the investigation against such persons. Whether this is a political game on the part of the prosecutor's office - we cannot determine it unequivocally… The last three years have been a period of turbulent political passions and have always put the investigative bodies in a position where one or another politician feels subject to political repression. But these are sensations and if the Prosecutor's Office starts to take these sensations into account, this means that it will have to stop working, which is not useful for the state. All citizens are equal before the law and even politicians should accept this. Another issue is the low public trust in the Prosecutor's Office of the Republic of Bulgaria and the judiciary as a whole. It is this low trust that always brings a taste of political bias to the actions of one or another state body.
- Let's talk specifically about the case of Kiril Petkov, who in his capacity as Prime Minister issued an order for the arrest of GERB leader Boyko Brisov. How does a Prime Minister order an arrest on an urgent basis?
- Simply put - there is no option for a Prime Minister to order the detention of a person. The Prime Minister exercises general leadership of the state bodies in the executive branch,
but he is not their boss.
It is good for politicians to finally learn the Constitution and laws of Bulgaria. The Prime Minister can provide the competent authorities with information about possible crimes. But the competent authorities have the so-called discretion (operational freedom) on the basis of which they are obliged to fulfill the functions assigned to them by law. If the information received is not within their competence, then they are obliged to send it to the relevant competent authority. If the information is unclear and relative, the Ministry of Interior authorities verify it. If it turns out to be part of the objective reality and there is evidence of a crime being committed, they must notify the competent prosecutor's office and act according to its instructions. This is the reality after the adoption in 2005 of the currently valid Criminal Procedure Code. Is it effective? No! But such is the law…
- What is the weight of a Prime Minister's verbal order?
- The Prime Minister cannot issue verbal orders and instructions, except, for example, what kind of coffee to bring him. This is a higher state administration. All meetings of the Prime Minister (except those of a personal/family nature) must be recorded and, if necessary, written orders and instructions must be issued. But this must be done on the basis of his legal powers as the head of the executive branch. Gatherings, meetings, conferences, events, etc., in which the Prime Minister participates, are of exceptional public interest and written records must remain for them. Of course, when they concern state secrets, they will be classified.
- Prime Minister, Minister of the Interior, subordinates and execution. Who has what powers to make an arrest…
- This case clearly showed the main defect in state construction in Bulgaria and especially in the organizational chart and the vertical of subordination. The Law on Administration defines the Prime Minister and the ministers as the appointing authorities for state bodies. This is a legal absurdity, because they are politicians and are temporarily at the top of the management pyramid. We constantly complain about the political influence they exert on state bodies, but it is laid down in the law and although it is ridiculous - it is a fact. If someone appoints you, then he also dismisses you, which means that even though he is not hierarchically dependent on the minister, the civil servant depends on him. I will not give examples of how many civil servants have been dismissed as inconvenient as a result of an order from this or that minister. What responsibility do they bear? Well, none! Until the political/party vertical in the executive branch is broken, we will continue to witness political influence.
- You know the system of the Ministry of Interior. How to work on urgency to arrest someone…
- Police authorities can act on urgency in situations where there is a need to take immediate action to prevent serious harm, a threat to life, health, property or public order. This usually includes actions that do not allow for delay in obtaining prior authorisation or a court order.
Such actions are, for example, appropriate to prevent a crime where there is an imminent risk of a crime being committed (for example, preventing an assault, terrorist act or robbery), to apprehend a perpetrator of a crime where there is a risk of the perpetrator fleeing or absconding or destroying evidence, where the alleged perpetrator is present and there is a risk of harm to others.
In urgent circumstances, action may also be taken to protect public order and safety in the event of mass disorder, accidents or disasters where the life and health of many people are at risk. Also in disasters, accidents or other emergencies, when it is necessary to save human lives or prevent large-scale damage to property or when a citizen is in immediate danger and this requires intervention (for example, domestic violence, serious car accident, incident with hazardous substances).
In conditions of urgency, action may also be taken when there are serious grounds to believe that evidence of a crime is found in a given object and there is a risk that it will be destroyed or hidden before obtaining a court permit.
In Bulgaria, the actions of the police authorities in emergencies are regulated in several basic laws that provide the framework for their authority and responsibilities. This includes the Law on the Ministry of Interior (LMI), the Code of Criminal Procedure (CPC) and other specialized laws.
The Law on the Ministry of Interior (LMI) describes the powers of the police authorities to act in emergency situations related to public safety:
Art. 72 of the Law on the Interior Ministry - Detention of a person: Police authorities may detain a person without a prior warrant, in several different cases, some of which are:
- there is evidence that the person has committed a crime
- he is caught at the time of committing a crime
- there are reasons to believe that the person will commit a crime
- the person refuses to comply with a lawful order of a police authority
- the person is wanted
Here the term "there is evidence" is quite broad, but in all circumstances, after the person is detained, a detention order must be issued and the crime or crimes, the existence of evidence of which became the basis for its issuance, must be specifically entered in it. The term of detention under such an order is up to 24 hours.
The Code of Criminal Procedure (CCP) in Articles 161 and 163 - Search and seizure under urgency stipulates that a search or seizure may be carried out without prior court authorization if there is a risk that the evidence will be destroyed, concealed or used to continue criminal activity. In such cases, the police authorities shall notify the prosecutor immediately and the court shall confirm or reject the actions within 24 hours.
All actions under urgency shall be subject to subsequent approval by a court or prosecutor within 24 hours. The actions must be proportionate to the threat and shall be taken only if there is no other option. The affected persons have the right to appeal the actions of the police before the court.
The actions of the police authorities in emergency situations in Bulgaria are clearly regulated by law in order to ensure a balance between protecting public order and respecting the rights of citizens. They are permitted only in specific, extraordinary circumstances and are subject to strict control.
- What is the subordination in the Ministry of Interior in order to carry out an arrest. Who orders whom and what traces are left?
- In the Ministry of Interior, there is no way to “order” an arrest. The detention of a person must achieve a goal stipulated by law. We have described these goals above. If the Ministry of Interior body finds itself in a situation where there is a legal basis for this, it is obliged to detain a person. This is their official duty. The other option is when, at a given stage of development, the advisability of moving to open measures to intercept or prevent their possible criminal activity is discussed for a given person or group. In this case, either at the suggestion of the project leader or by decision of his supervisor, but in both cases in coordination with a prosecutor, a corresponding plan for the so-called "implementation" is prepared, which is sanctioned departmentally. But this is done on the basis of sufficient data on criminal activity. Because otherwise it will either be illegal, or the perpetrators will hide, or evidence will be destroyed.
- What do you expect to happen with the case with Kiril Petkov if it reaches the judicial phase. Will we see word for word?
- It all depends on the evidence collected. The court will decide who is guilty and who is not. But, unfortunately, the aggravated political situation in the country and the low public trust in the judiciary leave a bitter taste for all actions of state bodies.
The best way to restore trust in the legal order is for the judiciary itself to prove that it is politically and party independent. Politicians should adopt relevant laws to eliminate political quotas in the governing bodies of the judiciary and to stop the direct management of state bodies by politicians.