Interim Resolution CM/ResDH(2019)367
Execution of the judgments of the European Court of Human Rights
S.Z. and Kolevi against Bulgaria
(Adopted by the Committee of Ministers on 5 December 2019 at the 1362nd meeting of the Ministers’ Deputies)
Application No.
Case
Judgment of
Final on
29263/12
S.Z.
03/03/2015
03/06/2015
1108/02
KOLEVI
05/11/2009
05/02/2010
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgments transmitted by the Court to the Committee in these cases, indicating a systemic problem of ineffective criminal investigations in Bulgaria and in addition a lack of guarantees for the independence of criminal investigations concerning the Chief Prosecutor;
Recalling that in March 2019 the Committee invited the authorities to provide, before 1 October 2019, information on proposals for concrete measures in three areas essential for upholding the rule of law, namely guarantees as regards the opening of criminal investigations, the independence of investigations concerning the Chief Prosecutor and the suspension of judges charged with a criminal offence;
Noting with regret, as concerns the strengthening of the guarantees for the opening of investigations, that the proposals for general measures presented by the authorities are not sufficiently concrete at this stage;
Noting also with deep concern that the draft bill of 14 June 2019 on the investigation of the Chief Prosecutor and the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court not only fails to resolve the current shortcomings relating to the independence and effectiveness of investigation concerning a Chief Prosecutor, but could make such an investigation more difficult to initiate;
Recalling that the execution of the Kolevi judgment does not require changes of the rules on investigation concerning the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court, and noting with concern that the draft bill of 14 June 2019 contains provisions for the automatic suspension of these two most senior judges which could threaten their independence;
Underlining the importance of interpreting the Constitution in a manner which allows risks to the rule of law to be addressed, including those highlighted by the Kolevi case, and stressing that arrangements envisaged to secure hierarchical and institutional independence of all bodies supervising or conducting the investigation should ensure also strong practical independence, inter alia through rules which make it impossible for a Chief Prosecutor to be able to influence the appointment or the career of persons responsible for investigating him or her;
Noting with interest that Parliament adopted at first reading amendments which seem to introduce adequate safeguards for the suspension of judges in general;
Noting that the lack of progress in the above three crucial areas, with the exception of the above reform concerning the suspension of judges in general, could render investigations of criminal offences ineffective;
Underlining the obligation of every State, under the terms of Article 46, paragraph 1, of the Convention to abide by the final judgments of the European Court in any case to which they are a party, fully, effectively and promptly;
STRESSED the importance of deploying all possible efforts to achieve results in the ongoing investigation in the Kolevi case;
URGED the authorities to introduce judicial review of prosecutorial refusals to open investigations, together with arrangements to avoid excessive workload for courts and prosecutors, and to provide it in due time with their detailed assessment of the scope and modalities that such judicial review should have;
URGED the authorities to introduce solid guarantees for institutional, hierarchical and practical independence of all the bodies supervising or conducting an investigation concerning a Chief Prosecutor, in all situations (with exceptions for urgent investigative acts) and at all stages of the proceedings, including the preliminary inquiry;
URGED the authorities to draw up, without delay, new legislative proposals guaranteeing the independence and effectiveness of an investigation concerning a Chief Prosecutor or, in the event that insurmountable constitutional obstacles are established, to propose the necessary constitutional amendments;
URGED the authorities to reconsider the proposals concerning the suspension of the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court provided for in the draft bill of 14 June 2019;
CALLED UPON them to adopt amendments abrogating the possibility of automatic suspension of judges at the request of the Chief Prosecutor;
DECIDED to resume consideration of this group of cases at its June 2020 meeting.
Full & Egal Universal Law Academy