Comment by Daniel Smilov:
Read carefully the provision of the Judicial System Law quoted below and answer for yourself the question whether Borislav Sarafov can continue to be Acting Prosecutor General. He has been in this post for a total of two years and eight months, of which more than a year after the adoption of the amendment to the law in question:
Art. 173 (15) (New - SG, issue 6 of 2025, effective 21.01.2025) Upon early termination or expiration of the mandate of the Prosecutor General, the President of the Supreme Court of Cassation or the President of the Supreme Administrative Court shall be designated to temporarily perform the relevant functions, subject to the following condition: the same person shall not have the right to perform the relevant functions for a period longer than 6 months, regardless of whether there have been interruptions in the performance of the functions.
This is a third-grade task. Mr. Sarafov is a person. The law does not say anywhere that it applies to all other persons, but not to Mr. Sarafov. In fact, the provision was adopted precisely for Mr. Sarafov and his existing situation, as can be seen from the motives and debates during its adoption in parliament.
In a conquered country...
For lovers of legal technology, if the law does not explicitly state that it acts backwards (i.e. retroactively), it is assumed that it acts forwards. Therefore, at least from mid-2025, Mr. Sarafov is an illegal acting prosecutor general and this is the opinion of the Constitutional Court, which refuses to accept opinions on cases from him at all. The criminal panel of the Supreme Court of Cassation, which actually brings together the highest judges in criminal cases in Bulgaria, is of the same opinion. Yes, there are other court panels down the hierarchy that, for various reasons, still treat Sarafov as (semi)legal, but the very fact that the highest and most authoritative judges in the country are of the opposite opinion is indicative enough.
In a conquered country, there will always be professionals who will put their expertise at the service of the powerful of the day. The fact that professors and other experts are practicing in the media in this way is not surprising. The problem here is that we are talking about an obvious and flagrant violation of the law, which is understandable to everyone and cannot be covered up with flowery talk.
The law enters the language as a basic social convention and a common good. The language is accessible and shared by everyone. Yes, there are also specialized terms that not everyone understands. But in the phrase "the same person does not have the right to perform the relevant functions for a period longer than 6 months, regardless of whether there have been interruptions in the performance of the functions" There are no such concepts. The great philosopher of law H.L.A. Hart is famous for his thesis that due to its linguistic nature, law is "open-weave": every linguistic concept has a core in which it is defined, and a wide periphery in which it becomes unclear. There is no linguistic ambiguity in the provision of 173 (15): six months are six months, and no matter how you count them, they have long expired.
Therefore, the attempts of the members of the Supreme Judicial Council to "philosophize" and create extravagant interpretations of their own legal provisions are pitiful and a waste of time. Their goal is simply to buy additional months for Borislav Sarafov, so that he can continue his illegal stay in office.
The interpretation of law is an important thing. As Ronald Dworkin, the successor to Hart's chair of jurisprudence at Oxford, argued in his seminars and books, law itself is an interpretive activity. According to Dworkin, judges should be philosophers who base their decisions on the basic constitutional principles of the legal system. They should also avoid not only logical contradictions, but also contradictory applications of principles, so that the law can be an internally coherent system. A system with internal integrity.
In yesterday's discussions at the plenary session of the Supreme Judicial Council, some of the speakers failed to avoid even logical contradictions, let alone reach the level of integrity. At the same time, it was claimed, for example, that:
1) The 6-month restriction did not apply to Sarafov, because due to the lack of transitional and final provisions it could not be said whether the requirement of the law covered him as a "status quo";
2) From the discussions in the National Assembly and the motives of the lawmakers, it was clear that the law was adopted intuitu personae against Sarafov (i.e. it explicitly applies to him).
Both things cannot be true at the same time. As became clear above, the 6-month restriction was introduced precisely because of the "status quo". There would have been a need for transitional and final provisions if the legislators believed that the restriction did not apply to Sarafov.
Why is all this drama being made about keeping Borislav Sarafov in his post? Is there any deep constitutional principle that justifies all this? Some of the magistrates claim that since the SJC itself is illegitimate and has expired, this body should not replace Sarafov. But nothing follows from the illegitimate nature of the SJC. At the very least, it follows that the SJC must stop applying the law. Parliament has adopted laws specifically for the SJC with an expired mandate, and these laws require the following: the SJC cannot elect a titular Prosecutor General and must elect an Acting Prosecutor General every six months until the titular one is elected. The same person cannot hold this position for more than six months.
Yesterday, the SJC decided that its prosecutorial college is competent to elect an Acting Prosecutor General. This is a possible and permissible interpretation of the law on the matter. The judicial college has already elected an Acting Prosecutor General. chairman of a supreme court. From this point of view, the question now is: why does the prosecutor's college refuse to implement the law, as the judicial college did?
This question, as became clear above, cannot be avoided by saying that the prosecutors "interpreted" the law in a different way. By this logic, every criminal can say that he has his own interpretation of the Criminal Code and want to be acquitted because of it.
Such magistrates must be removed
When senior magistrates – members of the Supreme Judicial Council – claim that an obvious and clear text means exactly the opposite of what it means, they actually undermine the foundations of the rule of law. In "Alice Through the Looking Glass" Humpty Dumpty states: "When I use a word, it means what I want it to mean". This is Lewis Carroll's irony, of course, and anyone tempted by the philosophy of language or at least by Wittgenstein knows that there can be no "private" language. However, our Supreme Judicial Council seems to want to convince people that words mean what its members want them to mean. Illegal privatization has been happening in Bulgaria, but let's not allow the illegal privatization of the Bulgarian language either.
Both the one who eats the pie (Borislav Sarafov and his patrons) and those who officially give it to him are guilty. And this is the Supreme Judicial Council and in particular the prosecutorial college of the Supreme Judicial Council. Responsibility for the guilt of such senior magistrates, who twist their souls and hide behind their own, private interpretations of the law, must be sought.
In short and without evasion or philosophizing, members of the Supreme Judicial Council, who refuse to implement the law and elect a new acting prosecutor general, undermine the prestige of the judiciary and commit a serious breach of their official duties. Senior magistrates cannot afford to ignore the law.
Therefore, such magistrates must be removed from the judiciary. At the latest by a new Supreme Judicial Council. Here is finally another extremely clear legal text:
Constitution of the Republic of Bulgaria Art. 129 (3)
Upon completing five years of service as a judge, prosecutor or investigator and after an attestation, by a decision of the judicial, respectively prosecutorial college of the Supreme Judicial Council, judges, prosecutors and investigators become irremovable. They, including the persons under para. 2, are dismissed from office only in the event of:
...
5. serious violation or systematic failure to fulfill official duties, as well as actions that harm the prestige of the judiciary.