Банкеръ Weekly

Briefs

THE SPELL ON THE LOOPHOLES IN THE MAIN LAW

CONSTITUTIONAL COURT TO DECIDE ADDITIONALLY THE FATE OF INVESTIGATION SERVICEThe pending case on the five issues about which the plenum of the Supreme Cassation Court (SCC) approached the Constitutional Court in mid-July may turn out decisive for the second reading in Parliament of the new Criminal Procedure Code draft bill. The Constitutional Court is expected to extend its ruling in the beginning of September. All the five inquiries of Ivan Grigorov's men regard the structure of judicial power. They aim at revising the Constitutional Court's interpretation, given two years ago, which was to a large extent blocking any attempt of the 39th National Assembly at more radical reforms in the judiciary. Supreme magistrates demanded from constitutional judges to confirm that courts are the main bearers of judicial power and are the only bodies, entitled to administer justice. The constitutional judges will also have to reply if it is possible that the prosecutors' office rights would be only connected with sustaining the charges in front of the court. The SCC asked as well if the prosecutors' office, the investigation service, and the interior ministry could follow an unanimous policy in combating crime and their operation to be monitored by Parliament, and also if it is admissible to change the constitutionally approved procedure for the choice of the Supreme Judicial Council. Under the effective legislative provisions, the National Assembly appoints 11 of the Supreme Judicial Council members and another 11 are nominated from the representatives of the judiciary. The 25-member administrative body of Themis includes by rights the chairpersons of the Supreme Administrative Court and of the Supreme Cassation Court, as well as the Prosecutor General. Doubtlessly, the reply that is expected with the greatest interest is the constitutional magistrates' stance on the question if the form of state government would be changed if the investigation service is restructured so that the investigators participate in the investigation, fulfilling the functions of investigation judges. In 2003 the Constitutional Court imposed a ban on making amendments to the Constitution, regarding the form of state government and the reforms in the judicial system, by an ordinary National Assembly.If SCC's question about the investigation service is answered positively, that will practically eliminate the restrictions for MPs from an ordinary Parliament to vote amendments to the Constitution, allowing the winding up of the investigation service or its transfer to the executive power. A possible positive opinion of the Constitutional Court on the investigation service case will clear to a great extent the ground for smooth adoption of the draft of a new Criminal Procedure Code. As it is known, the government's draft stipulates that single pre-trial investigation on criminal trials be introduced under the supervision of the prosecutors' office. It is written in the document that the investigation will be carried out by criminal police inspectors and investigators, while only 5% of the criminal deeds in the Criminal Code are left for the investigators.The Deputy Director of the National Investigation Service Roumen Georgiev says that the question of the Supreme Cassation Court refers to an already existing legal problem. The amendments to the Criminal Procedure Code made in 2004 deprived the investigators of the right to give legal evaluation as magistrates, to initiate a trial or enact refusal for initiation. In turn, the Criminal Procedure Code that became effective this year shrank considerably the investigation on account of the criminal police inspection and the fast police procedure entrusted to officers of the Ministry of Internal Affairs and the Ministry of Finance, Mr. Georgiev told a BANKER weekly reporter. He added that the new Criminal Procedure Code draft was continuing the trend toward practical liquidation of the investigation in contradiction to art. 128 of the Constitution (it stipulates that investigating bodies be part of the judicial system and implement preliminary proceedings on criminal trials).The written view-point of the National Investigation Service submitted to the Constitutional Court contains a few rhetoric questions - for example, does the introduction of investigating judges in Bulgaria necessarily mean constitutional erasure of the investigators?Being sides in the case, the National Assembly and the Council of Ministers were also required to announce their stands within the term established by the law. However, the interim parliamentary committee on legal affairs to which the task was entrusted surprisingly decided in early August that no opinion in essence was needed.In turn, the stand-point of the Council of Ministers on the five questions of the Supreme Cassation Court approved on August 11 is that the adoption of new texts in the Constitution regarding the investigation structure should not be considered a change in the form of state ruling (which means that the amendments could be adopted by an ordinary National Assembly, too).

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