Банкеръ Weekly

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INVESTIGATION UNDERMINES THE SECOND CONSTITUTIONAL AMENDMENT

The hot debate about the investigation pros and cons, provoked by the recently approved governmental bill for amendment of the Penal Procedure Code (PPC), became a controversial point of the forthcoming second amendment to the Constitution. Probably by chance, the temporary commission responsible for amendments to the country's main law held a meeting on September 7. The discussion took place less than a week after Meglena Kouneva, Minister of European Affairs, came back from Brussels. At the beginning of September she participated in the last consultations about the preparation of the European Commission's report on the progress of Bulgaria.One of the essential messages in the statements of the main negotiator following her return was that the second constitutional amendment within a year should be carried out no later than next March. The rush was explained by Bulgaria's desire to sign the EU Integration Agreement no later than next May. With that agreement Sofia will make a number of commitments that require some constitutional changes. According to art. 85, paragraph 3 of the Constitution, however, if an international agreement requires a change to be made in the Constitution, this change must be voted before the signing of the respective agreement. That requirement, as well as the limited time, made useless the debate that broke not long ago among the political forces because of the idea, launched by the National Movement Simeon II (NMSII), for convocation of a Great National Assembly to amend the Constitution. The members of the incumbent Parliament may therefore remain in history as the representatives who voted the first two amendments to the Constitution after it was adopted in 1991. As it is known, last September they adopted the texts in the main law referring to the immunity, election and mandates of the magistrates.However, instead of concentrating on the bill they themselves prepared for constitutional amendments, the members of the commission led by Kamelia Kassabova wasted their energy on the pre-trial phase reform in the criminal procedure. An additional incentive that brought the talks in that direction was the hearing of the Minister of Justice Anton Stankov and his colleague in the Ministry of Interior, Georgi Petkanov, scheduled for the same day. The two of them accompanied Minister Kouneva during the consultations in the headquarters of the European Commission. Although they had to tell the MPs about the recommendations of the experts of Romano Prodi, Mr. Stankov and Mr. Petkanov preferred to plead for the governmental bill for amendment of the PPC. As the BANKER weekly has informed, the bill proposes that the investigation of 95% of the crimes be transferred from the investigators to the criminal police within the Ministry of Interior. According to the ministers, the pending transfer does not contradict art. 128 of the Constitution. The article stipulates that investigation in criminal cases must be performed by the investigating bodies which are within the system of the judicial branch. Despite their confidence, the rulers did not hide they had reinsured themselves. In case that the Constitutional Court is informed and finds the new texts of the PPC proposed by the Council of Ministers contradicting the Constitution, they are going to propose changes in the above mentioned regulation.According to Eliana Masseva, MP from the United Democratic Forces (UDF), if the criminal police take up most of the criminal cases, as proposed by the Government, their rights should be legitimized by the Constitution. The current version of the main law does not tell anything about the criminal police. Their status is regulated by the Law on the Ministry of Interior and the PPC. Ms. Masseva's opinion is also shared by the Parliament's Deputy Chairman and member of the Bulgarian Socialist Party (BSP) Lyuben Kornezov.Mr. Stankov and Mr. Petkanov told the Parliament members that their proposal for elimination of the possibilities prosecutors to transform police procedures into preliminary procedures will abolish the duplication of legal capacity in the pre-trial phase.In turn, the Minister of Interior demanded that investigating bodies be established at the National Service for Combating Organized Crime in order to collect evidence acknowledged in court. That will fill the gap separating the operating officers and the prosecutors, the Minister said. The currently operating Penal Procedure Code stipulates that data gathered by the bodies of the Ministry of Interior in the course of preliminary inspections be checked once again by investigators once preliminary proceedings are initiated.Not so violent seem the other proposed amendments to the Constitution which will make Bulgaria's integration into the EU possible. Maybe the most curious among them is the one that will allow citizens of the member countries to buy land in Bulgaria. The country has made such commitment under the Free Capital Flow chapter, but it also settled a seven-year transition period. In practice it means that liberalization will only become effective in 2014. The commission will have to discuss two proposals referring to that question. One of them came from Yanaki Stoilov, member of BSP, who wants the restrictions for foreigners to be ineffective for individuals and companies from countries that take part in the same international organisations in which Bulgaria does, too. They will only be able to buy agricultural land in Bulgaria if the country has made such commitment at the time it joined the respective organisation, Mr. Stoilov added.The Chairwoman of the UDF parliamentary group, Ekaterina Mihailova, proposed that foreigners and foreign companies be able to get property and other real rights by order of a law or an international agreement.Ekaterina Mihailova is also the author of a proposal to amend art. 105, paragraph 3, which regulates the rights of the Council of Ministers in the field of foreign policy. According to the member of the Deputies for Strong Bulgaria group, the Constitution should definitely provide that the Cabinet represents the country only in structures of the EU which require governmental representativeness. According to legal experts, a text of this kind is quite logical. One of the requirements that the European Union set in the chapter General Policy in Foreign Relations is the clear distinction between the functions of the President and those of the executive power in the field of international relations.A separate law will probably settle the order by which citizens of EU member countries will be able to vote for the European Parliament in Bulgaria. It is to be noted that the bill for amendment of the Constitution does not contain regulation of the introduction of double citizenship for Bulgarians (the one given by birth and the other in the EU) after 2007.On the other hand, if the commission's proposal for amendment of art. 25, paragraph 4 of the Constitution is accepted, Bulgarian citizens will be delivered to another country or international court. The procedure will only need a commitment by an international agreement, ratified by the Parliament. According to the currently effective regulation, this is not possible under any circumstances.Further discussions will be provoked by the idea to amend art. 5, paragraph 2. According to the bill, the state structures will transfer part of their competence to the general institutions of the union, if that is necessary.

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