Geshev asks the Constitutional Court: Can SJC with expired term in office take decisions on the Prosecutor General and the heads of courts?
The Prosecutor General submitted a request to the Constitutional Court (CC) for a mandatory interpretation of Article 130, paragraph 4, clause 1 of the Constitution of the Republic of Bulgaria (CRB), the press office of the Prosecutor's Office announced on May 29.
The request raises three main issues related to the most representative body of the judiciary - the Supreme Judicial Council.
Two of the questions are - whether the functions of the council are terminated with the expiration of its term and whether it is permissible to form a new one with the members elected in 2022 from the professional quota of judges and prosecutors together with the members by right - the presidents of the Supreme Court of Cassation (SCC) and the Supreme Administrative Court (SAC) and the Prosecutor General.
The third question is whether it is constitutionally permissible for a Supreme Judicial Council with an expired term in office to take decisions regarding the Presidents of the SCC, the SAC, the Prosecutor General and other administrative heads in the judiciary.
The Prosecutor’s office states that the request for a binding interpretation is of crucial importance for the formation and functioning of the SJC. It concerns a real problem - the highest personnel body of the judiciary is functioning past its term in office, although new members from the professional quota have been elected.
The constitutionally established term in office of the members of the SJC is 5 years. The current Supreme Judicial Council was constituted on October 3,2017 and its term in office expired on October 3, 2022.
In the period 4 June - 9 July 2022, 11 new members of the SJC were elected at the general assemblies of judges (June 18 and 25, 2022), prosecutors (July 2 and 9, 2022) and investigators (June 6 and 11, 2022). However, they have not taken office so far as the National Assembly has not exercised its powers to elect the remaining 11 new members of the personnel body of the judiciary. Thus, the current composition of the SJC continues to function beyond the term in office defined in the Basic Law. This raises the question of the legitimacy of its decisions and doubts about their validity threaten legal certainty, the request to the Constitutional Court states.
The Prosecutor General's request to the Constitutional Court reviews the different interpretations of possible solutions to the problem of the expired term of the current SJC and its legitimacy to take personnel decisions.
Attention is drawn to the case law of the CC, including Decision No. 12 of 27.09.2022 of the CC in case No. 7/2022. It explicitly states that "the constitutionally provided powers of state organs cannot be taken away by the inaction of another organ which is responsible for their constitution and the National Assembly is no exception".
The Prosecutor General draws attention to the fact that the non-judicial extension of the term in office of the Inspectorate of the Supreme Judicial Council has been defined by the Constitutional Court as "a protective mechanism applicable in exceptional situations where the members of the composition of a certain collective constitutionally established body, which are minimally necessary for it to function, have not been elected". In the present case, however, the members were elected from the professional quota of the SJC.
The existence of contradictions and different interpretations of the provision of Article 130(4)(1) of the Constitution poses a real threat to legal certainty and affects important public relations, the Prosecutor's office argued.
The legality of the actions of the Supreme Judicial Council, and thus of the judiciary, is called into question, the request for interpretation addressed to the Constitutional Court states.
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At a meeting on Thursday last week, the Supreme Judicial Council voted 14-4 to open a procedure for the early dismissal of Prosecutor General, Ivan Geshev.
