Betraying Kolevi: Bulgaria’s pseudo-mechanism for investigating a sitting General Prosecutor

In May 2023, via amendments to its Code of Criminal Procedure and its Law on the Judiciary, Bulgaria adopted a mechanics for investigating a sitting General Prosecutor, pretending to yet implement the Kolevi v Bulgaria ECtHR judgement of 2009. The first “ad hoc peculiar prosecutor” with explicit powers to analyse a sitting General Prosecutor, Daniela Taleva, assumed office on December 7th, 2023. Her two-year mandate, which expired on December 7th this year, will be remembered for many accusations of shielding the General Prosecutor from liability for corruption and crimes against justice. This is due to the fact that she did not rise preliminary charges against him, which triggers a formal investigation procedure under Bulgarian law, despite many complaints alleging criminal activity. While many critics point at Taleva’s dependencies behind-the-scenes to explain the failure of this mechanism, the core of the problem seems to predominantly lie with its deliberately faulty design.

Bulgaria has traditionally been the poster kid for implementing pseudo-reforms to imitate compliance with regulation of law recommendations by the EU Commission and the judgments of European courts. Sadly, however, 1 cannot aid but announcement the complicity of the EU Commission via Bulgaria’s regulation of law reports in promoting a mechanics which is not fit for intent and which helps undermine the regulation of law.

The impunity of a sitting General Prosecutor

The Kolevi judgment of 2009 clearly identified a fundamental structural challenge to Bulgaria’s regulation of law – the impunity of a sitting General Prosecutor. The facts of the case concern the alleged implication of a General Prosecutor in a series of crimes against justice and crimes out of office, including murders. Prosecutor Kolev, who started a private investigation against the then General Prosecutor Nikola Filchev over the execution of a lawyer, was initially framed for drug possession and subsequently ruthlessly shot dead in front of his own home. Kolev’s ECHR application was submitted at the time of his framing; it was sustained by his wife and daughter after his brutal murder.

In the judgement itself, the ECtHR shone a light on the centralized structure of Bulgaria’s Prosecutor’s Office, which makes it impossible to carry out an investigation into facts implicating a sitting General Prosecutor (see paras 205 and 209). Relatedly, in its Opinion No 968/2019, the Venice Commission compared Bulgaria’s General Prosecutor to a “monarch” who neither bears political nor legal liability for his actions (para 58). Moreover, the Committee of Ministers at the Council of Europe identified sister cases to Kolevi, evidencing a systemic problem concerning a deficiency of effective investigations in the country.

One should remember that Kolevi is not an isolated case, as a string of General Prosecutors have been suspected of diverse crimes in and out of office – Borislav Sarafov (the current interim prosecutor) and his predecessor Ivan Geshev are no exception. Moreover, considering that in view of his influence within the ultimate Judicial Council, the General Prosecutor plays a pivotal function in selecting his heir, impunity continues after the end of the General Prosecutor’s mandate as well.

Divergent standards by the Council of Europe and the European Commission

For nearly 15 years, the Council of Europe and the European Commission approached Kolevi in profoundly different ways. Aware of its significance, the Council of Europe actively sought to implement the judgment, reminding Bulgaria that it had to both organize a fresh investigation into the execution of Prosecutor Kolev and introduce an explicit mechanics for the investigation of a sitting General Prosecutor.

In stark contrast, the EU Commission gave exotic, anti-constitutional recommendations in Bulgaria’s reports under the Cooperation and Verification mechanics (CVM), which was expected to aid Bulgaria accomplish the regulation of law as it did not fulfill the accession criteria at the time of its EU entry. In the 2012 CVM report, for instance, the Commission suggested that the General Prosecutor improvement the Prosecutor’s Office himself (see page 20 of COM(2012) 411 final). Meanwhile, in the last study under this mechanics from 2019, the EU Commission assumed the function of a “Pontius Pilate”, stating that the mechanics for the investigation of a General Prosecutor was a “sensitive” issue and recommending that the Council of Europe and the Venice Commission be consulted in view of reforms (see pages 7 to 9 of COM(2019) 498 final). Essentially, for 10 years – between the handing down of the Kolevi judgment and the last CVM study on Bulgaria – the EU Commission was not only of small aid in resolving a major regulation of law challenge in the country, but besides exacerbated it with its inertia.

The pseudo-mechanism of 2023: the devil is in the details

Тhe mechanics for the investigation of a sitting General Prosecutor, which was adopted in 2023, is designed to neglect due to the fact that it neither ensures checks and balances nor a bias-free appointment process for a peculiar prosecutor investigating a General Prosecutor.

Articles 411a and subsequent of the Code of Criminal Procedure, which supply the framework for this mechanism, are deliberately vague and simply prescribe steps to be taken erstwhile there are reasonable doubts that the General Prosecutor has committed a crime.

In parallel, Article 112(6) of the Law on the Judiciary envisages that the peculiar prosecutor be selected from a list of willing judges pre-approved by the Criminal College of the ultimate Court of Cassation. In a country permanently shaken by corruption scandals implicating the General Prosecutor, it is clear that fewer would be willing to abandon their comfortable seats as judges to deal with a game of regulation of law hot potato, specified as the investigation of the 3 highest-ranking magistrates in the country. Unsurprisingly, the list compiled by the ultimate Court of Cassation in June 2023 is short – it just had 22 names on it. The updated version of November this year is more concise, consisting of only . Even worse, any of these magistrates have been active in public scandals and accused of corruption themselves.

In turn, a peculiar prosecutor is selected via the strategy for random allocation of cases from this list and is appointed by the SJC. While the thought for utilizing specified strategy looks good on paper, Bulgaria is notorious for manipulating its system for case allocation. To this end, investigative journalists rang the alarm that Taleva, who ended up being appointed as a peculiar prosecutor by the SJC, had skeletons in her closet as her ex-husband was facing a criminal trial at the time of her appointment, raising doubts about her impartiality. It may or may not be coincidental that he was acquitted while she was in office as peculiar prosecutor.

Finally, if 1 digs deeper, 1 sees that the mechanics does not purport to solve a problem (the impunity of a General Prosecutor), but actually replicates 1 (the creation of another post benefiting from impunity, but dependent on the General Prosecutor). erstwhile appointed, the peculiar ad hoc prosecutor has a monopoly on the investigations into the General Prosecutor during their mandate. Taleva found herself as the monopolist of the investigations of tens of complaints, without being subjected to effective checks and balances. However, she was practically being dependent on the resources of the Prosecutor’s Office, which are themselves under the control of the General Prosecutor who she is expected to be investigating.

Beating around the bush: the complicity of the EU Commission

In view of the flaws of the mechanism, which were clearly visible at the time of its adoption in May 2023, as well as the well-known problem of the centralization of the Prosecutor’s Office, the EU Commission’s apathy can only rise concerns and suspicions.

In the 2023 regulation of Law report on Bulgaria, the EU Commission simply satisfied itself with describing the legislative past of the mechanics (pages 3 to five) while creating the false impression that the Venice Commission gave a favourable reading to the draft law implementing this mechanics (page four). The actual Opinion No 1095/2022 by the Venice Commission is alternatively nuanced and critical – not only does it call for a “holistic” approach to the substance but it besides raises circumstantial concerns about the suggested method for compiling the list of possible peculiar prosecutors and the arbitrariness which this entails (paras 14, 30 and 58).

In the 2024 regulation of Law report, the EU Commission even referred to a “positive assessment” of this mechanism, while briefly mentioning that any “stakeholders” have identified “practical” and “procedural issues” (see page six). The Commission seems to have engaged in cherry-picking yet again for the Decision by the Council of Ministers, which it refers to in order to substantiate its “positive assessment”, clearly indicates that there is work to be done (see CM/Notes/1501/H46-10). Moreover, this decision should be read along with the above-mentioned opinion by the Venice Commission.

Only in the 2025 regulation of Law report did the EU Commission more openly state that “procedural issues stay to be addressed to guarantee the full effectiveness of the mechanism”, vaguely naming them as specified “linked to hierarchical and applicable independence” (see pages 5 and six). However, it did not make any recommendations about further essential steps. It is incomprehensible how challenges to hierarchical and applicable independence, which are issues at the heart of specified a mechanism, can be seen only 2 years after the mechanism’s adoption and regarded as a tiny matter.

A communicative of missed opportunities

Bulgaria inactive has not complied with the Kolevi judgment, 16 years after it was handed down. While it is up to Bulgaria to guarantee the implementation of the judgment, including the adoption of a actual alternatively than a pseudo-mechanism for the investigation of a sitting General Prosecutor, it is profoundly saddening that the EU Commission has not effectively utilized its available tools to steer the country in that direction. The Commission does not seem to have taken any lessons from Bulgaria’s failed CVM, which it swept under the carpet for political reasons, either. It continues to be committed to a policy of complicity, whereby a step in any direction is considered advancement and the cherry-picking of facts and legal opinions to justify a affirmative assessment depending on the political climate remains as the norm. Bulgaria may have betrayed Kolevi as a family, as well as the spirit of the Kolevi judgment, but so has the EU Commission.

Dr. Radosveta Vassileva is simply a Bulgarian legal student whose investigation interests encompass EU law and comparative public and private law. She maintains a individual blog dedicated to the regulation of law in Bulgaria. She is presently Adjunct elder investigation Fellow at UCD Sutherland School of Law.

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