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“The Constitution should provide, in cases of potential conflict of interests with the PG [prosecutor general] and his/her deputies, for a special independent investigative/prosecution mechanism: the PG who is under criminal investigation or prosecution should be suspended and an acting independent prosecutor should be appointed.”

This language appeared in an urgent opinion submitted to the government of Bulgaria on Dec. 11 by the Venice Commission (officially called the European Commission for Democracy through Law), a body that advises EU countries on their judicial systems.

The Venice Commission’s critical response to Bulgaria’s recent draft of a new constitution included a section about prosecutorial reform. On several occasions, the commission has urged the Bulgarian government to address the lack of constraints on the immense power held by its prosecutor general.

The commission observed that the prosecutors have a monopoly on the right to bring criminal charges, that the prosecutor general appoints all prosecutors, and that the prosecutor general’s subordinates sit in the very body that can decide to dismiss him. In effect, the commission observed, the prosecutor general is untouchable.

The commission condemned a system in which the organizational efficiency of the prosecution service and its organizational pressure, which functions in both tangible and intangible ways, precludes any possibility of the prosecutor general being indicted even if he breaks the law. It’s a system in which the prosecutor general would never be dismissed as the law mandates even if his behavior offers grounds for disciplinary action.

The context of the commission’s opinion is political turmoil that has roiled Bulgaria since this past summer. Amid a conflict between President Rumen Radev, who is elected directly, and Prime Minister Boyko Borissov, who is head of the country’s majority party, a corruption scandal erupted around Borissov and his party.

When President Radev took action to deal with the scandal, the country’s prosecution service launched an investigation that led to the abrupt arrests of figures close to the president on charges of abuse of power and leaking state secrets. This unleashed massive demonstrations calling for the resignation of the prime minister and the prosecutor general.

Prosecutor General Ivan Geshev, who is reportedly close to the majority party, faces criticism for exploiting the prosecutors’ power to serve the prime minister’s political interests and for delaying the investigation into corrupt politicians.

Bulgaria’s judges have argued that the prosecution service’s transformation into a political body has damaged the dignity of the judicial system and have called for a thorough investigation into the degradation of the prosecutor general’s political neutrality and the initiation of a process for his dismissal.

Protesters are still calling for the prosecutor general’s resignation. In an attempt to resolve the situation, the majority party is pushing to revise the constitution. But critics say the new draft constitution actually strengthens the prosecutor general’s authority and reduces democratic controls embodied in the president and justice minister.

The roots of this conflict go back to the democratization that took place after the iron curtain fell in Eastern Europe in the late 1980s. In a reaction to the former socialist regime’s domination of the judiciary, the new constitution endowed the prosecution service with sweeping powers and a high degree of autonomy. But the unintended consequences of those decisions are revealed when political figures such as the current prosecutor general are put in control of the prosecution service, which then selects investigations and indictments for political purposes.

“This is a political attack that is disguised as a fight for democracy, but which actually seeks to topple the prosecution service. This is a threat to the rule of law that regards prosecutorial independence as a central principle,” Geshev said in a meeting with 700 prosecutors and investigators.

But as can be seen in its latest opinion, even the Venice Commission, which itself emphasizes prosecutorial independence, is concerned that democratic controls over the prosecution service aren’t working. While Bulgaria’s democratic achievements haven’t received the same amount of international praise as South Korea’s, the two countries seem to be waging a similar struggle over their prosecution services.

By Park Yong-hyoun, editorial writer

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