The recent legislative amendments with a focus on anti-corruption have led to the promulgation of a new Anti-Corruption Act (ACA). In accordance with §79 of the transitional and conclusive provisions, the law came into effect on the date of its publication – October 6, 2023, with the exception of changes to the Criminal Procedure Code (CPC), which are set to be applicable from March 1, 2024 and primarily relate to the assignment of investigative functions to the newly established Anti-Corruption Commission.
The amendments to procedural law shall be immediately applied to all ongoing procedural legal matters. An exception to this rule may be granted by the new procedural law, but only if its transitional and final provisions specifically state that pending legal matters will continue to be regulated by the old procedural law until their resolution. In this particular case, no such exception is outlined.
The Commission, functioning as an organ for the prevention and counteraction of corruption and the identification of conflicts of interest, is entrusted with executing the state's anti-corruption policy, implementing actions for the prevention, detection, disclosure, and investigation of corruption-related crimes, collection, analysis, and verification of information regarding acts of corruption by individuals holding public positions, along with supporting the activities of investigative inspectors and others.
The investigation of corruption-related crimes, as indicated by the adopted amendments, is now explicitly delegated to the Commission, introducing a new category of investigative authorities known as investigative inspectors within the Anti-Corruption Commission. Explicitly regulated are the types of crimes that will be investigated by them when the acts are committed by individuals holding high public positions.
In essence, this legislative change introduces a new mechanism for investigating corruption at high levels of the state apparatus, involving the delegation of investigative functions to inspectors within pre-trial proceedings.
Similar to investigative police officers and customs investigators, these inspectors will have the status of investigative authorities as defined by the Criminal Procedure Code. Their activities related to the investigation of the specified crimes will be carried out under the conditions and procedures outlined in the code. Activities other than investigating crimes shall not be delegated to them.
It should be noted that the law does not affect the constitutional right of the prosecutor to bind and direct pre-trial proceedings (Article 127, paragraph 1 of the Constitution of the Republic of Bulgaria) against an individual holding a higher public position for an offense specified in Article 194, paragraph 6 of the Criminal Procedure Code, as defined by the Criminal Code.
Reports on offenses under the Criminal Code, exhaustively listed in Article 194, paragraph 6 of the Criminal Procedure Code, may be filed with both the relevant district prosecutor's office and the Commission. If the prosecutor deems it necessary to gather sufficient data regarding the reported act, they may assign specific operational and investigative actions to the inspectors of the Commission. If the report contains sufficient information, the prosecutor issues an order initiating pre-trial proceedings, with the investigation to be assigned to an investigating inspector of the Commission.
While exercising their powers, inspectors should make decisions based on internal conviction, founded on an objective, comprehensive, and thorough examination of all circumstances in the case, guided by the law.
Given the mandatory cooperation between the prosecutor, as the supervising authority in the pre-trial phase, and the investigative inspectors conducting pre-trial proceedings, it is emphasized that the latter will have a degree of autonomy. Specifically, when conducting inspections based on received signals or data regarding corrupt offenses, initiating pre-trial proceedings with the creation of a protocol for the initial investigation according to Article 212, paragraph 2 of the Criminal Procedure Code, and collecting additional evidence at their discretion.
Despite the ongoing reform and the aforementioned changes, the fundamental principle remains unchanged that investigations in the Republic of Bulgaria are entirely conducted under the supervision of the prosecutor, who makes all essential decisions regarding its course and conclusion, may replace any investigative body, and can personally conduct actions in the investigation.
It remains unclear what exactly prompts the transfer of corruption investigations from high-ranking public officials to a new entity, as well as what results are expected to be achieved following this specific change.
The matter of individuals falling within specific categories as potential subjects of investigation, including but not limited to the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court, the Chief Prosecutor, their deputies, the administrative heads of judicial entities and their deputies, members of the Supreme Judicial Council, the Chief Inspector, inspectors in the Inspectorate at the Supreme Judicial Council, judges, prosecutors, investigators, and others, prompts considerable interest. In this context, a contentious issue may arise concerning the feasibility of representatives from the judiciary being subject to investigation by those within the executive branch, potentially giving rise to constitutional conflicts within the Republic of Bulgaria, as well as with certain EU acts and the European Convention on Human Rights. It is noteworthy, in this regard, that under the previous regulatory framework of criminal procedure in the Republic of Bulgaria, the authority to investigate individuals within such categories was exclusively vested in investigators as the designated investigating authorities.
In conclusion, it remains to be seen whether concentrating activities related to the detection and investigation of corruption offenses in the new anti-corruption body will lead to a qualitative change in the activity of investigating corruption or to unsatisfactory results and unnecessary changes in the functional competence of investigating authorities.
Highlights in Anti-Corruption Regulatory Framework and Corresponding Amendments in the Criminal Procedure Code
Jan. 11, 2024