The Prosecutor's Office against the Supreme Court of Cassation – do we have a prosecutor general… Bilyana Gyaurova-Wegertseder, director of the Bulgarian Institute for Legal Initiatives, spoke to FACTI.
- Ms. Gyaurova, do we or do we not have an acting prosecutor general, after the Supreme Court of Cassation announced that after July 21, 2025, Bulgaria will not have an acting prosecutor general, because his powers have been terminated by law…
- Almost immediately after this date, opinions were expressed by fellow lawyers that we de jure do not have a legitimate acting prosecutor general. And this is indeed the case by law. Things can be taken even further back in time, back in 2023, when Mr. Sarafov first became an I.F. This was done very hastily by the Prosecutorial College of the SJC without any clarity as to whether it should make such a decision or not. The so-called three big ones in the judiciary are elected by the Plenum of the SJC and by this logic, those performing the functions should also be elected in the same way. And here, by the way, there is a ruling by the Supreme Administrative Court, from which it is interpreted that the individual colleges will elect the I.F.s, which has obviously been accepted.
So the shadow of doubt has been hanging over this “election“ from its very beginning. Unfortunately, the Prosecutorial College went so far as to once again confirm its decision from 2023, and in a discussion held earlier this year, its members said that the provisions of the JSA are actually no obstacle for them. And these are facts that do not honor magistrates, who are supposed to be the most prepared and honorable, once they are elected members of the highest administrative body of the judiciary.
- Let's also explain why after July 21. What considerations does the Supreme Court of Cassation have to indicate this date…
- At the beginning of this year, changes were adopted in the Judiciary Act, which literally state that when the mandates of the chairmen of the Supreme Court of Cassation, the Supreme Administrative Court and the Prosecutor General expire or are terminated early, then a temporary acting head of the respective position must be appointed. It was also agreed that the same person cannot temporarily perform the relevant function for a period longer than 6 months, regardless of whether there was any interruption during this period.
The changes entered into force on January 21, 2025, and therefore the 6-month period expired on July 21.
In Bulgaria, this hypothesis of the law affects two of the so-called big three in the judicial system, namely - the Prosecutor General and the President of the Supreme Administrative Court. We all know that in the summer of 2023, Mr. Geshev's mandate was terminated early and Mr. Sarafov was appointed in his place. The mandate of the Chairman of the Supreme Administrative Court, Mr. Cholakov, also expired in the fall of 2024. For both of them, the 6 months expired, and therefore the Prosecutorial and Judicial Colleges of the SJC should appoint new acting chief prosecutors or launch a procedure for the election of a regular chief prosecutor and a regular chairman of the SAC. However, unlike the Judicial College, which decided to ask the judges of the Supreme Administrative Court by seniority who wants to become acting chairman /a rather unconventional decision in fact/, the Prosecutorial College was quick to reconfirm Mr. Sarafov as acting chief, saying that there is no legal basis for this.
- Then there was a reaction from the prosecutor's office, which issued an unsigned statement that Borislav Sarafov continues to be acting chief prosecutor because he is in a pre-existing position. How do you view things?
- I think that the reaction in defense of Sarafov by the prosecutor's office was political in nature. There is no other way to explain this extremely negative emotional outburst, and from an institution that is part of the Bulgarian judicial system and it is assumed that the level there should be highly professional and comply with the acts of the court, which according to the Constitution is the main bearer of this power. And Mr. Borislav Sarafov cannot be a judge precisely because he is in a pre-existing position. Many comments have already been made on this occasion, including in its orders the Supreme Court of Cassation says why it decided so and explains the non-essential retroactive effect of the provisions of the Judicial Power Act. The changes to the Judiciary Act were made following precisely this legal principle – to settle something for the future, which started from an existing legal relationship.
And, in fact, the prosecutor's office knows it very well and does not accept it.
Otherwise, a few months ago, it would not have asked the SAC to refer the matter to the Constitutional Court for another amended text of the JSA, namely that the SAC with an expired mandate does not have the right to elect the three senior members of the judiciary. The Constitutional Court has not yet ruled on this issue.
- The Supreme Court says that Bulgaria does not have an acting prosecutor general. How does the prosecution work then? Who governs it?
- From a public event by the prosecution, which was attended by the Prime Minister and the Minister of Justice, we can conclude that
that the executive branch legitimizes the prosecution.
It is difficult for me to answer the question of who governs it. From the outside, it seems as if the government is outside of it. It is no coincidence that more and more often people have started to comment on whether, in the current situation, the place of the prosecution is really in the judiciary.
- What is happening with the documents that Borislav Sarafov signed after July 21. Do they have legal value…
- We do not know what other documents Mr. Sarafov signed after that date,
but it can be said that after the orders of the Supreme Court of Cassation they become easily attackable.
This means that the risk of requesting that they be declared null and void increases significantly. Such nullity cannot be automatically presumed, but any interested party can request a declaration of nullity. There is already a high degree of legal uncertainty regarding the documents signed by him.
- Are we in a constitutional crisis and what is the outcome of the situation…
- The situation is truly unprecedented. And it can be said that we are heading headlong towards a constitutional crisis. It seems as if the court and the prosecutor's office are in deep conflict regarding the implementation of the law, and this does not look good at all to the expert, legal and general public. Let us also think about what kind of signal the parliament and the Supreme Judicial Council are giving by refusing, in practice, to also implement the law. This is almost on the verge of a constitutionality under Chapter One of the Special Part of the Criminal Code.
Steps are possible as long as there is truly a decisive political will to get out of this quagmire:
-- the prosecutor's college can decide to elect a new chief prosecutor.
-- Mr. Sarafov can resign himself and thus give the PC the opportunity to elect a new chief prosecutor.
-- the parliament can finally start elections for a new ISJC and a parliamentary quota in the Supreme Judicial Council. When the procedure starts, I am convinced that the professional quota will also start organizing elections
-- the elected members of the SJC will resign and thus force the parliament to start the procedure.
Each of these scenarios is possible, as long as there is a real, authentic desire for change. However, whether there is such a desire is a completely different question. The current stalemate does not help either the judicial system or the political class. The longer it continues over time, the more the rift will deepen and it may come to the point where the very development of the situation will force one or the other to take action. Here we must not lose sight of the Constitutional Court, whose decision regarding the changes to the JSA is expected to be issued. If the Constitutional Court declares them unconstitutional, then there would be no obstacle to the current composition of the SJC starting procedures for the election of a new Prosecutor General and a new President of the Supreme Administrative Court. And legally this will be possible. Another question is how morally legitimate and tolerable such elections would be.