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

Bronze lion guarding the entrance to the Palace of Justice in Sofia. Photo: Shutterstock

In May 2023, via amendments to its Code of Criminal Procedure and its Law on the Judiciary, Bulgaria adopted a mechanism for investigating a sitting General Prosecutor, pretending to finally implement the Kolevi v Bulgaria ECtHR judgment of 2009. The first “ad hoc special prosecutor” with explicit powers to investigate 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 numerous accusations of shielding the General Prosecutor from liability for corruption and crimes against justice. This is because she did not raise preliminary charges against him, which triggers a formal investigation procedure under Bulgarian law, despite numerous 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 child for implementing pseudo-reforms to imitate compliance with rule of law recommendations by the EU Commission and the judgments of European courts. Sadly, however, one cannot help but notice the complicity of the EU Commission via Bulgaria’s rule of law reports in promoting a mechanism which is not fit for purpose and which helps undermine the rule of law.

The impunity of a sitting General Prosecutor

The Kolevi judgment of 2009 clearly identified a fundamental structural challenge to Bulgaria’s rule 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 murder 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 judgment 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 lack 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 Supreme Judicial Council, the General Prosecutor plays a pivotal role 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 murder of Prosecutor Kolev and introduce an explicit mechanism 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 Mechanism (CVM), which was supposed to help Bulgaria achieve the rule 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 reform the Prosecutor’s Office himself (see page 20 of COM(2012) 411 final). Meanwhile, in the last report under this mechanism from 2019, the EU Commission assumed the role of a “Pontius Pilate”, stating that the mechanism 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 seven to nine of COM(2019) 498 final). Essentially, for ten years – between the handing down of the Kolevi judgment and the last CVM report on Bulgaria – the EU Commission was not only of little help in resolving a major rule of law challenge in the country, but also exacerbated it with its inertia.

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

Тhe mechanism for the investigation of a sitting General Prosecutor, which was adopted in 2023, is designed to fail because it neither ensures checks and balances nor a bias-free appointment process for a special prosecutor investigating a General Prosecutor.

Articles 411a and subsequent of the Code of Criminal Procedure, which provide the framework for this mechanism, are deliberately vague and merely prescribe steps to be taken when 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 special prosecutor be selected from a list of willing judges pre-approved by the Criminal College of the Supreme Court of Cassation. In a country permanently shaken by corruption scandals implicating the General Prosecutor, it is clear that few would be willing to abandon their comfortable seats as judges to deal with a game of rule of law hot potato, such as the investigation of the three highest-ranking magistrates in the country. Unsurprisingly, the list compiled by the Supreme 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 11 judges. Even worse, some of these magistrates have been involved in public scandals and accused of corruption themselves.

In turn, a special prosecutor is selected via the system for random allocation of cases from this list and is appointed by the SJC. While the idea for using such system 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 special 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 special prosecutor.

Finally, if one digs deeper, one sees that the mechanism does not purport to solve a problem (the impunity of a General Prosecutor), but actually replicates one (the creation of another post benefiting from impunity, but dependent on the General Prosecutor). Once appointed, the special 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 supposed 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 raise concerns and suspicions.

In the 2023 Rule of Law report on Bulgaria, the EU Commission merely satisfied itself with describing the legislative history of the mechanism (pages three to five) while creating the false impression that the Venice Commission gave a favourable reading to the draft law implementing this mechanism (page four). The actual Opinion No 1095/2022 by the Venice Commission is rather nuanced and critical – not only does it call for a “holistic” approach to the matter but it also raises specific concerns about the suggested method for compiling the list of potential special prosecutors and the arbitrariness which this entails (paras 14, 30 and 58).

In the 2024 Rule of Law report, the EU Commission even referred to a “positive assessment” of this mechanism, while briefly mentioning that some “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 Rule of Law report did the EU Commission more openly state that “procedural issues remain to be addressed to ensure the full effectiveness of the mechanism”, vaguely naming them as such “linked to hierarchical and practical independence” (see pages five and six). However, it did not make any recommendations about further necessary steps. It is incomprehensible how challenges to hierarchical and practical independence, which are issues at the heart of such a mechanism, can be seen only two years after the mechanism’s adoption and regarded as a small matter.

A story of missed opportunities

Bulgaria still has not complied with the Kolevi judgment, 16 years after it was handed down. While it is up to Bulgaria to ensure the implementation of the judgment, including the adoption of a true rather than a pseudo-mechanism for the investigation of a sitting General Prosecutor, it is deeply saddening that the EU Commission has not effectively used 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 progress and the cherry-picking of facts and legal opinions to justify a positive 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 a Bulgarian legal scholar whose research interests encompass EU law and comparative public and private law. She maintains a personal blog dedicated to the rule of law in Bulgaria. She is currently Adjunct Senior Research Fellow at UCD Sutherland School of Law.

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Bulgaria, corruption, European Commission, legal system, rule of law