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EU countries may not comply with arrest warrants from Bulgaria due to the lack of an effective mechanism to protect against arbitrariness of the prosecution. This is clear from the decision of the Court of Justice of the European Union in Luxembourg on a preliminary request from the British court, made after the refusal to execute a Bulgarian arrest warrant.
The Court of Justice has interpreted Article 47 of the EU Charter of Fundamental Rights. Therefore, it concludes that Bulgaria has not fulfilled all the requirements inherent to effective judicial protection, which must be enjoyed by all persons against whom European arrest warrants have been issued.
The European arrest warrant is issued by a prosecutor, but in Bulgaria it is not subject to judicial review. For years, Bulgaria has refused to allow its citizens to appeal to the court a series of acts of state prosecution.
The Court of Justice of the European Communities states that under the European arrest warrant, the prosecutor can be classified as an “issuing judicial authority” and must be subject to judicial review.
The judgment of the Court of Justice obliges the Bulgarian authorities to provide for judicial review only for procedural acts on the European arrest warrant. However, the problem can continue if prosecutors refuse to initiate criminal proceedings, which is a much bigger problem.
From Svishtov to Luxembourg
The case dates back to January 28 last year, when a prosecutor from the Svishtov District Prosecutor’s Office issued a European arrest warrant for a Bulgarian man suspected of stealing money and jewelry worth nearly BGN 15,000. The European arrest warrant was issued by the same prosecutor who opened the criminal case.
The suspect was arrested on March 11, 2020 in the UK. However, the detainee is challenging the Bulgarian arrest warrant in Westminster District Court. The suspect maintains that the Bulgarian judicial system does not comply with European law and refers to earlier decisions in similar cases from Germany and Lithuania.
The English court ruled that, in Bulgarian law, neither the act of the public prosecutor ordering the arrest of the wanted person nor the European arrest warrant issued by the same body are subject to judicial review. In this respect, Bulgarian legislation differs from that of other Member States.
The final judgment of the Court of Justice of the European Communities is that Bulgaria “has not fulfilled the inherent requirements of effective judicial protection, which must be enjoyed by a person against whom a European arrest warrant has been issued for the purpose of criminal prosecution. “.
Total power
The possibility of the Bulgarian Public Prosecutor’s Office refusing to initiate a case that cannot be appealed to a court is the basis of the total power of the Bulgarian Public Prosecutor.
Almost 80% of the preliminary proceedings and files for crimes committed in the country never reach the courts. His fate is entirely in the hands of the prosecution and there is no force that can compel the state prosecution to take a case to court if the institution does not want to do so.
The prosecution, of course, can take a totally wrong accusation to court, which is expected to lead to an acquittal, or take to court a case that should not have existed at all. However, these problems are not solved by rules of procedure, but by accountability.
The introduction of judicial control over the refusal of the prosecutor to initiate criminal proceedings will break this monopoly, but will also place a huge burden on the courts. For this reason, the judges’ union prefers not to press for a solution to this problem.
The EU Court of Justice and the Code of Criminal Procedure
The decision of the EU Court of Justice to appeal the European arrest warrant and the establishment of an independent special prosecutor (who can investigate the attorney general) forces the next National Assembly to solve some of these problems.
In February, the GERB approved a reform to the Criminal Procedure Code (CPC), which created the figure of a special prosecutor. In addition, it was anticipated that the refusal of this magistrate to initiate a process against the Attorney General would be subject to mandatory judicial review. However, other Bulgarian citizens do not have similar access to justice in their cases. The Constitution of Bulgaria stipulates that all citizens are equal before the law. This is one of the arguments with which President Rumen Radev attacks the changes in the Criminal Procedure Code before the Constitutional Court.
Former prosecutor Andrey Yankulov, who is now an analyst at the Anti-Corruption Fund, commented that after this decision, Bulgaria should provide an opportunity for an effective preliminary judicial review of the prosecutor’s arrest warrant.
“Unfortunately, it never happens without external pressure. The same game was played in the 1990s, but before the Strasbourg court,” Yankulov commented.
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