On 11 March, ex-gambling tycoon Vasil "the Skull" Bozhkov, exiled in Dubai, posted a picture with a skull and the word "Idvam," or "I am coming" in Bulgarian, on his Facebook feed. In his post he cited the decision by the Court of Justice of the EU to render redundant all European Arrest Warrants (EAW) issued by Bulgaria. "This decision applies to the EAW supposedly issued for me. Even if it existed, it is irrelevant. Just like [Prosecutor General] Ivan Geshev," Mr Bozhkov wrote.
Actually it was unlikely that Mr Bozhkov had any plans to return to Bulgaria any time soon (he still hasn't). His message was probably intended to drum up support for his newly established party called "Bulgarian summer" that will run in the upcoming elections, and bash the Bulgarian authorities, who had been waging war against him for over a year now. But it shed light on an important subject that nobody would usually pay much attention to.
The problem of judicial review
Mr Bozhkov's post referred to a decision adopted by the European Court of Justice following an inquiry by the British Westminster Magistrates' Court which was deliberating whether to allow the extradition of a wanted Bulgarian (initials P.I.) sought for theft of money and jewellery by the Bulgarian authorities, back to his or her home country. The UK court ruled against the extradition after consulting the EU court in Luxembourg. The pivotal aspect was whether the fact that
Bulgarian State Prosecution's indictments could not be reviewed by a court might jeopardize a defendant's basic rights.
"According to the referring court, under Bulgarian law, neither the prosecutor's decision ordering the detention of the requested person, nor the European arrest warrant issued by the same authority as a result of that decision, is subject to judicial review before the requested person is surrendered. That situation would therefore appear to be different from the procedural systems known in other Member States," the Westminster jury argued in its 10 March decision.
To put it simply, the fact that Bulgarian law does not allow for a domestic or foreign court to review an indictment issued by the State Prosecution before an indicted person is arrested means that there is no effective judicial protection for the charged person. Or, to be more precise, allows review only after a requested person has been surrendered to the authorities. In any case, the effect of this decision is that the EAWs issued (before and after the court ruling) by the Bulgarian authorities could now be ignored by the EU member states' authorities.
A well-known issue
"EU member states' jurisdictions will stop executing Bulgarian EAWs issued by a prosecutor. This course of events was clear well in advance," Bulgarian ex-prosecutor Andrey Yankulov told Capital weekly, who had warned about the problem of lack of judicial control over State Prosecution EAWs as early as January 2020 in a review of several European Court decisions on the matter from 2019.
"If there was meaningful state action, the Bulgarian authorities ought to have taken the needed legislative measures immediately after the EU Court of Justice decisions of 2019," he adds. As it turned out, the Ministry of Justice was put in the position of urgently convening a working group over the decision a day after the court ruling - and just a few days before the dissolution of Parliament, which led to the amendments not reaching a National Assembly vote on time. This, in turn, means that for the next few weeks or even months until the formation of the next Parliament and government, Bulgarian EAWs would not be observed.
The long arm of the Prosecution
"In the case law of the European Court of Human Rights it has long been made clear as to whether 72-hour detention orders and other prosecutorial acts affecting fundamental rights, such as the right to privacy, ought to be subject of judicial review. It is ridiculous that Bulgarian jurisdiction does not apply these decisions directly, nor does it refer to them in its preliminary inquiries to Luxembourg," the former judge in the Strasbourg court Zdravka Kalaydzhieva told Capital weekly.
The problem of judicial oversight of prosecutorial acts is not something that only Bulgarian jurists complain about. In a Council of Europe decision from 9-11 March, the Ministers' deputies once again urged the Bulgarian legislators to allow for better court review over actions of the State Prosecution. The first point the decision makes is to "urge the authorities again, as concerns investigations in general, to introduce judicial review of prosecutorial refusals to open an investigation... and to provide their assessment of the scope and modalities that such judicial review should have."
As usual, the problem is buried in the dependence of the Bulgarian legislator (literally and figuratively) on the State Prosecution and the fact that it extrajudicially sets its own standards. Nobody should wonder why no institution in the past two years has raised the issue of this necessary amendment to the law - neither the executive branch of the Ministry of Justice and the Council of Ministers, nor the Supreme Judicial Council, or anyone in parliament for that matter. According to Andrey Yankulov, there has been no such move "because it would be another step towards strengthening judicial control over the procedural activity monopolized by the State Prosecution. This is extremely necessary and the only meaningful guarantee for creating counterweights and control over its unlimited powers, but it does not happen precisely because of them."