Volume 8 Numbers 1-2

Winter/ Spring 1999

Feature

The Procuracy and its Problems
     Bulgaria
     Zdravka Kalaydjieva

By what principles does a society structure relations between the government and private individuals? The most economical way to answer this question is to examine the society's system of criminal justice. For one thing, specifying how a state "coerces and punishes" helps distinguish plainly between authoritarian and liberal-democratic political systems. Does a citizen's fate hinge on the discretionary whim of unaccountable officials? Or does a citizen possess rights that give him or her a chance to confront the state on an equal footing in a fair trial administered by independent judges? To pose such questions is to take a first step toward the comparative analysis of political regimes and of their sometimes dependent, sometimes independent, judiciaries.

Inspiring postcommunist constitutional and legal reforms, throughout Eastern Europe, has been a firm resolve to jettison an old Soviet-style inculcation of values through the criminal-justice system. Judicial reformers have striven to design new and independent systems capable of striking a fair balance between the interests of society and the rights of individuals. Defining the rights of citizens during criminal investigations and trials, imposing limits on the authority of state officials, and establishing procedural rules to ensure that the principles of equality and impartiality are guaranteed were among the formidable tasks that confronted East Europeans after 1989. And as discussions about "judicial reform" descended from abstract speculations to concrete policy proposals, one thing became clear: none of the objectives of legal reform could be achieved without a comprehensive rethinking of the structure and function of the procuracy.

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Article 126
1. The structure of the Procuratorls Office shall correspond to that of the courts.
2. The Chief Procurator shall oversee the legality and provide methodological guidance to all other procurators.

Article 127
The Procurator's Office shall ensure that legality is observed:
1. by bringing charges against criminal suspects and supporting the charges in common crimonal trials;
2. by overseeing the enforcment of penalties and other mesasures of compulsion;
3. by acting for the rescindment of all ilegitimate acts;
4. by taking part in civil and administrative suits whenever required to do so by law.

The Constitution of the Republic of Bulgaria (1991).

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The totalitarian procuracy and its legacies

Procurators are generally described either as the accusatory party in criminal trials or as the representatives of the state in ordinary court proceedings. Formally, this description would have applied to the Soviet procuracy as well. Yet the office's actual responsibilities were far broader. While it represented and was subservient to the interests of an authoritarian state, it was specifically designed to subjugate the individual. The procurator was in no way an "equal" participant in court proceedings but was, instead, the agent of an irresistible political authority. Its principal task was to oversee the "legality" of all activities, including judicial proceedings, and to dictate and impose the party-state's interests where it deemed this necessary. The selection and appointment of judges, procurators, and investigatory agents were therefore carefully monitored by the party-state. After being appointed, each member of the procuratorial hierarchy was subject to disciplinary supervision by procurators of superior rank.

Drafted against this background, the postcommunist Bulgarian Constitution of 1991 sought to lay an institutional foundation for judicial independence. But the detailed restructuring of the procuracy attracted little public attention. Instead, it was seen as just another facet of "judicial reform" and treated accordingly, as if the creation of an "independent judicial system" would fix the procuracy as well. Bulgaria's constitutional debate, as has been the case with many other states in the thick of the constitution-making moment, was a peculiar mix of last-minute haste and institutional inertia. Sound arguments were rare, and a clear picture of how the judicial branch should be redesigned never emerged. The primary concern of reformers, during this euphoric early period of democratization, was to emancipate the judicial power from executive supervision and to draw sharp lines between the three branches of government, rather than to spell out clearly their appropriate internal functions.

The Bulgarian Constitution of 1991 kept procurators inside "the judicial branch of government" (Art. 117), alongside judges and investigative agents. Like other members of the judiciary, procurators are elected, promoted, demoted, reassigned, and dismissed by the Supreme Judicial Council—an independent body consisting of members of the judiciary and practicing lawyers. The chairmen of the Supreme Court of Cassation and Supreme Administrative Court and the chief procurator are all appointed and dismissed by the president of the republic on a motion from the Supreme Judicial Council (Art. 129). All judges, procurators, and investigating officers acquire life tenure after three years of service. They step down only when they retire, or when they are required to resign (if sentenced for a premeditated crime), or if a permanent disability keeps them from working for more than a year (Art. 129.3).

Justices, procurators, and investigating magistrates enjoy the same immunity as members of parliament; and only the Supreme Judicial Council has the authority to lift their immunity. Apart from these general provisions, the Constitution says very little about the specific functions of the different representatives of the judicial branch and how these functions are coordinated. But it does stipulate that justice is administered by the courts, which must guarantee the principle of equal rights for all parties involved in court proceedings.

Concerning the procuracy, the Constitution lays down that procurators must ensure that the law is observed "by bringing charges against criminal suspects and supporting the charges in ordinary criminal trials; by overseeing the enforcement of penalties and other measures of compulsion; by acting for the annulment of all illegitimate acts; and by taking part in civil and administrative suits whenever required to do so by law" (Art. 127). The Constitution postponed to a later stage of reform the task of defining the roles and functions of the different parties in a trial, requiring only that the National Assembly (parliament) adopt new laws on the structure and procedures of the judicial system within one year. This deadline was simply ignored by subsequent parliaments, however. Only a portion of the requisite laws have been passed, and these only after a significant delay.

The 1991 Constitution's telegraphic treatment of the judicial branch is one of the principal reasons why—despite sincere efforts to protect the judiciary from executive interference—the idea that state interests take priority over the rights of individuals has continued to inform the practice of Bulgarian courts. In 1994, after several years of debate, parliament passed the Law on Judicial Power. Intended to lay the institutional groundwork for a renewed judicial system, this law contains provisions regulating appointments and dismissals to the judicial branch. It also empowers the Supreme Judicial Council to impose disciplinary sanctions on members of the judiciary. However, the specific acts that should be punished are not specified in any satisfactory way, and there is no mention of the procedure by which the sanctions were to be imposed. As a result, the law's provisions have been rarely applied.

The inadequacy of the law in this respect became clear when the council initiated proceedings against two procurators—one from the Office of the Procurator General and another from the Sofia Procurator's Office. As soon as the disciplinary punishment was announced—"temporary demotion to a lower-ranking position"—the two delinquent procurators were commissioned by the procurator general to work in his office, and the council had no legal means to overrule or even protest his decision. In other words, the discretionary powers of the procurator general render null and void the disciplinary provisions of the law.

The functional scope of discretion

Many of the rules and legal provisions governing the procuracy have been amended over the last several years, but the office's functions have remained essentially unchanged. Procurators still perform their pre-1989 roles and enjoy a extremely broad and ill-defined discretion. In addition, after serving three years and acquiring life tenure, they are no longer subject to monitoring or serious discipline. With tenure, in a sense, they become, "independent" actors inside the judiciary; and some Bulgarian procurators no longer feel accountable in any way for the untrammeled discretion they exercise. The prerogatives of the procuracy during pretrial proceedings are telling in this regard.

In stark contrast to Western legal practice, pretrial procedure in Bulgaria, as in many of the other former socialist countries, represents the pivotal element in any criminal proceeding. According to the Code of Criminal Procedure, the procuracy is not limited to performing the functions of an accusatory party at the trial stage. The procurator also monitors the legality of pretrial investigations. Thus, the very same person who will later represent the state, appearing in court as a hostile party against a defendant, is entrusted at this preliminary stage with ensuring that the defendant's rights are properly respected by investigative officers. These officers, it is worth recalling, act according to the instructions and under the watchful eye of the procuracy and endeavor to produce evidence to assist the procurator in his future capacity as accuser. This whole situation is ripe for bias and abuse, and it casts serious doubts on the impartiality and objectivity of pretrial proceedings.

The procuracy alone has the sole discretion to decide if there is insufficient evidence to initiate an investigation and, consequently, to close a proceeding and refuse to investigate any further. Not even in the case of a recklessly arbitrary decision to drop or continue a case may a victim or accused party appeal to a court of law. In addition, procurators are free to determine the precise nature of the crime for which they will initiate pretrial proceedings, and this decision cannot be effectively challenged until the beginning of the trial stage. According to the Code of Criminal Procedure, investigations are subordinated to, and take place under, the instructions and supervision of the procuracy. A procurator's options are many: he may issue mandatory instructions, remand a completed investigation for reinvestigation and demand further inquiries, or even opt to carry out the entire investigation himself.

The defendant and the victim, who are considered equal parties in the putatively impartial pretrial proceedings, may also request that certain investigative actions be undertaken, but their motions need not be acted upon. They are, in reality, powerless to affect the course of pretrial proceedings. Despite officially prescribed time limits, the duration of pretrial proceedings is not effectively limited by law. While the victims and the accused have no right to challenge undue delays, a procurator can demand at any time that an investigation be quickly wrapped up. He may also refer a case to a different investigative officer, thereby prolonging it. If and when the investigation is concluded, the procuracy is obliged to prepare the indictment. Yet no set deadline for indictment is prescribed: a procurator goes to court at a time of his own choosing. Whether proceedings will be initiated, what accusations will be made, the manner in which an investigation is conducted, and how long the pretrial procedure will last are all matters of procuratorial discretion. A procurator is responsible for his acts only to a superior procurator. And the discretion given the institution—as well as its independence from the other branches of government—leaves a wide range of social interests in the procurator's hands, at the mercy of his good or ill will.

As a result, many serious crimes remain unprosecuted until the statute of limitations expires. Alternatively, dubious accusations may continue to dangle ominously over the heads of the accused during protracted pretrial proceedings. Defendants may wait a long time before being brought to a court, and thus their right to a good public reputation may be irredeemably damaged. The rights of victims also depend on the way in which procurators carry out their functions or refuse to do so. Judges in civil trials cannot act to remedy a victim's violated rights so long as criminal proceedings are pending. Even though the rules of the Code of Civil Procedure have been amended, criminal litigation still takes precedence over civil justice, thus postponing potential compensation for damages, resulting from crimes, until criminal charges are resolved. The discretion of the procuracy thus affects both criminal and civil justice. But it can be monitored only from within the hierarchical system of the procuracy itself. Neither the accused nor the victim may seek redress in court against any act of a procurator during the pretrial stage.

A recent sociological survey suggests that more than five million crimes, including petty misdemeanors, are committed annually in Bulgaria. Not all crimes are reported to the police, needless to say, and a significantly lower number go to trial. An extremely small percentage of crimes are actually punished. So how do procurators decide which cases are worth pursuing?

As it turns out, criminal courts are faced primarily with minor cases, while more serious crimes may, and often do, remain unpunished. This fact speaks volumes about the nature of procuratorial discretion. In many serious cases, no proceedings are initiated, the process remains stuck at the pretrial stage, or an indictment is never issued. Whatever the reasons for the procuracy's inability or unwillingness to exercise its broad discretion in such circumstances, the consequences are obvious: a scandalously large percentage of serious crimes remain unpunished. In fact, procuratorial inaction amounts to acquittal without trial—where proceedings either were not set in motion or remain pending for long stretches of time.

A procurator, on the other hand, can effectively sentence suspects without trial. This aspect of his discretionary power may, and often does, lead to imprisonment as well. As already pointed out, procurators decide when to bring a suspect to court. And in the meantime, it is the procurator and his subordinate—the investigative officer—who decide whether to release arrested suspects on bail or detain them. The arrangement has been criticized as contrary to the requirements of the European Convention on Human Rights, Art. 5, namely, that such decisions should be taken not by the accusing party but by an independent representative of the judiciary; this was held to violate the right to personal freedom and security.

Because of the European Court of Human Rights' ruling in Assenov v. Bulgaria of 1998, an amendment to the Code of Criminal Procedure is currently being considered by the Bulgarian parliament. Until recently, deciding on both the need for pretrial detention and its duration fell squarely within the procuracy's discretion. While pretrial detention could be reviewed by superior procurators any number of times, it could be challenged in court only once. In other words, who remained in custody and for how long were basically decided by the accusing party. A decision about the proper length of pretrial detention was based on considerations of expediency, with little or no attention being paid to the rights of the detained.

Ironically, the procuracy's unilateral power over detention was reaffirmed by responsibility-shy judges wary of judicial overreaching. Bulgarian courts regularly refused to reconsider the appropriateness of pretrial detention on the grounds that, if they did, they would be infringing on "the independence of the procuracy." A recent amendment to the Code of Criminal Procedure has helped overcome this impasse by entitling detained persons to periodic judicial appeal against pretrial detention and limiting the maximum period of custody during investigations to one or, in serious accusations, two years. Once an investigation is completed, however, suspects can be held in custody until a verdict is handed down. This arrangement poses a serious risk of abuse because the procurator is not constrained by any deadline to bring an indictment before the court.

According to available data, since the transition more than 2,000 people have been detained in Bulgaria for more than two years without being brought to trial. If and when such cases reach the courts, moreover, the sentencing judge usually takes account of the length of the defendant's already-served pretrial detention. If the prison term imposed turns out to be shorter than the time already spent behind bars, the convicted individual is entitled to compensation. Such monetary damages would have to be paid from the judicial system's own budget. This means, in practice, that no sentence will ever be less than the length of pretrial detention. Formulated differently, sentences handed down by judges are predetermined by the duration of pretrial detention set by procurators.

The lack of transparency in the work of the procuracy and the ambiguous criteria by which it functions could not remain unnoticed. Several cases in which "Mafia bosses" were either released on bail or went unprosecuted were widely publicized by the press. The "Karamanski" and "Baron" affairs are worth mentioning in this context. Both involved leaders of criminal gangs who were apprehended and then released by the Office of the General Procurator. While major crime figures were inexplicably let go, suspects accused of petty crimes continued to languish in custody.

Various newspapers published information about alleged informal meetings between representatives of the procuracy and representatives of the underworld. The reaction of the procuracy to these reports was swift and merciless. According to the Code of Criminal Procedure, libel against official representatives is a crime to be prosecuted on the procuracy's initiative. Thus, dozens of criminal proceedings were initiated against journalists who published information and expressed negative opinions about representatives of the procuracy. Spearheading this effort, Procurator General Ivan Tatarchev even initiated proceedings against a journalist who asked him "provocative questions" during an interview. Although some of these proceedings ended in acquittals, many journalists were sentenced for libel and some to periods of imprisonment. Journalists throughout the country raised their voices and challenged the constitutionality of this restriction on freedom of the press. Recently, parliament abolished prison terms as punishment for journalists convicted of libel. Fines are now the only punishment provided for in the Code of Criminal Procedure.

To complete this survey of the workings of the procuracy, a review of its prerogatives in cases involving the management of state property will be useful. Procurators enjoy broad discretion in determining if those responsible for mismanaging state property did so deliberately, or if losses stemming from their actions were simply the result of calculated risk taking, justifiable on business grounds. One and the same act may be characterized either as a crime or as a poor business decision that does not fall within the purview of criminal law. The old planned economy had strict rules and requirements for decision making, just as the state had unified and coherently defined interests. The procuracy defended those interests under the absolute control of the party. In today's market economy, by contrast, many more variables and interests are at stake; and exact criteria for distinguishing proper from improper management decisions command no clear consensus. As an "autonomous supervisor" of what is lawful, the procuracy is therefore free to decide which acts of state-property management constitute criminal interference or misuse of power, and which do not. As a consequence, the procuracy may assert itself as a formidable player in the market in general, and in the privatization of state property in particular. Procurators have halted and declared illegal various acts of privatization even in cases where no objections were raised by the executive officials administering the privatization process.

Many other aspects of the procuracy's virtually unlimited discretion—the power to wiretap or otherwise intercept communications, to strip city mayors of their mandates, to deprive the accused of the right to continue working in their professions during pretrial proceedings—have all been subjects of public discussion and professional debate. Some of these powers have already been curbed, and there is a clear tendency, at present, to subject procuratorial discretion to judicial review. Nevertheless, the
1994 law on judicial powers still creates countless opportunities for arbitrary and selective action on part of the procuracy.

For one thing, a procurator may still opt not to prosecute in cases where crimes were unquestionably committed. And it may impose what amounts to a heavy criminal punishment even in the absence of a verdict reached by a court. Vast areas of the procuracy's discretionary power remain unhampered by judicial review. Wronged parties still depend on the procuracy for access to court and must wait patiently for it to act, which a procurator may simply refuse to do, without giving any reason. Or the procuracy may act as slowly as it wishes. Alternatively, it may act in defense of special interests, rather than for the broad interests of the general public. Numerous representatives of the executive branch, including the prime minister, Ivan Kostov, have expressed their dissatisfaction with arbitrary acts and selective rule-enforcement by the judicial system and especially by the procuracy. For the most part, this criticism has been cast in rather general terms. Politicians want procurators to do their job. But others have gone further and demanded that individuals suspected of criminal activities be charged and tried. The public, for its part, is under the general impression that justice in Bulgaria depends largely on, and is basically administered through, the procuracy.

It would not be an exaggeration to assert that, in the ongoing absence of further legal reform, Bulgaria is confronted with a systematic denial of justice. To lay blame for this state of affairs exclusively on the laws and norms governing the procuracy and its range of powers would be unfair. Procurators and investigative officers complain—with some justification, no doubt—that police work is carried out incompetently and is occasionally marred by incidents of brutality. The police, in turn, lament that they work in vain. They may track down and arrest a criminal; but the procurators are prone to spring any suspect who is an important figure. All judicial institutions, moreover, bewail their budgetary problems, enormous case loads, and the inexperienced and undermanned staffs. Meanwhile, citizens protest about inadequate protection from criminals and the sluggishness of the courts. Executive officials complain that the judicial system is not working, that it misuses its independence, blocking their efforts to combat criminality. And, finally, members of the judiciary grumble that the political branches and society at large disregard the grave problems with which the third branch has to cope on a daily basis. They are all right.

The urgency of reform

Today—eight years after the new Constitution came into effect—Bulgaria's judicial system is plunged in a deep institutional crisis. It first appeared that conflicts among agencies within the judicial branch stemmed from personal animosities and passions. Exposed to mutual finger-pointing by the heads of various judicial institutions, the public became acutely conscious of personal conflicts between the chiefs of the procuracy and the police. For their part, the police demanded greater discretion to investigate and take suspects to court. The procuracy, in turn, alleged that the police were incompetent and prone to abuse their power to make arrests. While the government wanted to see more criminals behind bars, the public simply wanted protection. Amid the cacophony of demands and complaints, the original, legal and conceptual problems underlying this "war" within the criminal justice system were rarely subject to any kind of critical analysis.

Some commentators traced the basic problem to unfortunate personnel choices: incompetent people have been appointed to important posts. But the truth is more complex. The way in which members of the judiciary are recruited needs to be reconsidered. But the 1994 Law on Judicial Power must itself be faulted for extending a wide and arbitrary discretion to the procuracy. Similarly, Art. 129 of the 1991 Constitution grants tenure to all members of the judiciary in Bulgaria after a mere three years in office. But three years provides too little time to evaluate intelligently the qualities of a jurist, especially if essentially no monitoring goes on during the entire period.

Today, the pendulum has begun to swing, if not in the opposite, then at least in a different direction. Whether the procuracy's structure should remain rigidly hierarchical is a matter of controversy. Some argue that the discretion of superior procurators should be limited, while important decisions should be left to the independent assessment of lower-ranking procurators. But should the procuracy itself fall under the control of the Minister of Justice, or should it continue to be a part of the independent judiciary?

This latter debate touches upon the provisions of the 1991 Constitution itself. Each variation and option carries risks for the misuse of discretionary power. While procurators once abused power by following the orders of their superiors (and the party-state), they may now abuse it because no superior has the authority to monitor their work. True, if the procuracy is placed under the auspices of the executive branch, then perhaps the procurators will be closely monitored, but who will watch over the members of the executive branch? Different solutions to this dilemma have been found in different countries, and these solutions help define the proper role and functions of judicial institutions.

So, how do we ensure the effectiveness of law enforcement without jeopardizing the rights of individuals? How can we guarantee procedural protections to suspects while defending society against criminals? Legislation must attempt to protect, simultaneously, such seemingly conflicting interests. Unless this sort of balanced approach becomes the starting point for legal reform efforts in Bulgaria, the chance that legislative changes can strengthen democratic legality and legitimacy are slim. Regardless of whether it remains a part of the judicial system or is assigned to the executive branch, a procuracy enjoying unchecked discretion will always pose a threat, and thus the protection of individual rights and the enforcement of justice will remain precariously dependent on an unmonitored procurator's personal good will.

After the European Court of Human Rights handed down its ruling in the 1998 Assenov v. Bulgaria case, the procuracy's broad discretion (and the corresponding lack of institutional guarantees for the rights of the individuals) came in for considerable criticism. This criticism, in turn, has now led to the preparation of a draft law, curbing some previously existing possibilities for legally abusing power. Meanwhile, public and political debates have focused primarily on the detailed way in which the procuracy is structured rather than on the dangerously broad way its functions are defined. Suffice it to say, the appointment of Nikola Filchev as the new procurator general, in February 1999, was certainly one of the most important decisions the country has taken. Filchev will face the arduous task of reconsidering the procuracy's discretionary powers and the way they are exercised, as well as revamping the entire institution to bring it into line with contemporary views of the proper role and function of participants in a criminal trial.

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Zdravka Kalaydjieva is a practicing lawyer in Bulgaria and a member of the Sofia bar since 1980. She is also a founding member of the Bulgarian Lawyers for Human Rights, one of the most active human-rights organizations in the country. Kalaydjieva represented the claimant in the landmark case, Assenov v. Bulgaria, in which the European Court of Human Rights, in Strasbourg, ruled that the rights of a Bulgarian Roma had been violated by the procuracy's refusal to investigate his allegations that he was a victim of police brutality.

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