The ubiquitous prosecutor from the Sofia City Prosecutor’s Office, Yordan Petrov , became famous for simultaneously investigating the case of the murder of Martin Bozhanov – the Notary and dismissing the case of the Regional Prosecutor’s Office against Petyo Petrov – the Euro. But there is another moment in his career that was not known. He has been checking a signal against the former caretaker minister and Prime Minister Kiril Petkov about the memorandum with “Next.e.GO” for the electric car plant in Lovech, in particular about the decision to provide him with state aid of 34 million euros without the money being provided in the budget. The signal against Kiril Petkov was filed by former Interior Minister Rumen Petkov. Prosecutor Yordan Petrov has refused to initiate pre-trial proceedings with two arguments: according to a decision of the Constitutional Court, Kiril Petkov has never been a minister and an official, respectively, he cannot be held liable for malfeasance in office. The second argument is that even if Petkov was a minister, there is no element of crime, because “there is no free lunch” and investors should be helped. In the end, Petrov decided to send a copy of his decree to Kiril Petkov himself, because, according to him,
“he is already Prime Minister of the Republic of Bulgaria and should be aware of the signals against him (respectively. for the ongoing prosecutor’s inspections)”.
In fact, there is no legal text that puts the Prime Minister in a privileged position vis-à-vis other officials and ordinary citizens who are checked by the Prosecutor’s Office. This conclusion of Yordan Petrov is a blatant smear of the strong man of the day and in itself is a symptom of a deep flaw in the Bulgarian prosecution, which has so far failed to convict a single senior politician or official. There are other examples of interaction between the Prosecutor’s Office and an investigated Prime Minister. For example, Boyko Borissov announced conclusions from Western banks regarding the 500 euro banknotes in the photos from his bedroom. This information is an investigative secret in the course of the pre-trial proceedings and should not have been known to him, but somehow it reached him. Below we publish excerpts from the decree of Prok. Yordan Petrov, so that readers can form an opinion about the legal thought of the prosecutor investigating the hottest cases in the country. From the decree for refusal to initiate pre-trial proceedings in prosecutor’s file No. 24229/2021 of the Sofia City Prosecutor’s Office of 14.12.2021 “By Decision No. 16 of 27.10.2021. The Presidential Decree (adopted as a non-normative act) was partially declared unconstitutional with regard to the appointment of Kiril Petkov as caretaker Minister of Economy – due to the presence of dual citizenship. The Constitutional Court referred to another of its decisions – No. 3 of 28.04.2020, which provides for the retroactive effect of the decisions of the Constitutional Court, declaring unconstitutional non-normative acts. Thus, the Presidential Decree regarding Kiril Petkov was considered invalid since its issuance. Rumen Petkov, chairman of the ABC political party, was dissatisfied with the memorandum, who sent a signal to the Prosecutor General about possible crimes against the economy (implied mismanagement or concluding an unprofitable deal). On the evidence: The above factual situation is deduced in a categorical way from the attached documents (correspondence between the institutions, acts of the Council of Ministers and K. Petkov as caretaker Minister of Economy, etc.). They are enough for the prosecutor’s office to make a reasoned decision. Legal analysis: First of all, the Sofia City Prosecutor’s Office should assess who is competent to rule on the merits. In this regard, it is imperative to investigate whether Kiril Petkov had a special quality at the time of committing the act. Analyzing the two above-mentioned decisions of the Constitutional Court, it should be assumed that K. Petkov has never been a minister. According to Decision No. 3 of 28.04.2020 of the Constitutional Court, the Presidential Decree in the present case is invalid from the moment of its issuance. This means that it did not exist, which is why the person to whom it refers cannot draw rights from it. The decisions of the Constitutional Court are binding on everyone.
The personal opinion of the current prosecutor, which differs from what is stated in Decision No. 3 of 28.04.2020 of the Constitutional Court and almost completely overlaps with the dissenting opinions of Judges Grozdan Iliev and Tanya Raykovska, is of little importance. I point out that this decision creates a lot of problems. For example, in the present case, the quality of a minister and any quality of Kiril Petkov in general is eliminated. It is ignored that he was appointed to the relevant position, performed it and everyone perceived him as a minister. Legal norms should be based on the logic of life and be clear to all citizens. It is interesting how it can be explained simply and understandably to people that Kiril Petkov was not a caretaker minister. The right should not stagger into subjective intellectual reasoning accessible to a select few. This interpretation of the Constitutional Court creates a fiction, and this should be avoided in law, at least for the sake of legal certainty. I would ask the question, since it turns out that legally Kiril Petkov has never been a minister, what responsibility can he bear for her actions (even if he has done something – in no case is it alleged that a criminal act has been committed)? According to the Constitutional Court, he does not have any quality, even officially, because the assignment of the functions of a minister is invalid and the requirements of even Article 93, item 9d have not been met; Tax Code. Since he was not an authority (minister), this means that K. Petkov cannot be a subject of any crime in office, including a recipient of a bribe. The lack of official capacity will make him an impossible subject of economic crime. It is evident how, by solving a problem – for the real effect of the decisions of the Constitutional Court, much more serious problems are created. That is why all the possible consequences of the issuance of an act should be taken into account. Would it be permissible to reason in the direction that Kiril Petkov was aware that he was an acting minister, everyone perceived him as such, which is why for the purposes of criminal prosecution he can be recognized as a special quality? We can introduce another subjective construction, which is in the direction that the actual performance of a function of a state body with the consent of the principal (in this case, the president as a designating body) legitimizes a special quality. It is clear, however, that the court will not accept such a ruling. Something else can also be commented on – according to Article 22, paragraph 4 of the SCA, when declaring unconstitutionality, the body that issued the act decides on the legal consequences of it. In Decision No. 3 of 28.04.2020. of the Constitutional Court, the court says that for the laws this is the National Assembly. In this case, however, it is a presidential decree and it turns out that he has the authority to assess what happens to the ones issued by Kiril Petkov. What happens if the president confirms that all acts of Kiril Petkov are valid and have effect? Will this be admissible after the SCC regulates it? Such an act of the president would practically remedy all the actions of an illegitimate caretaker minister. In this case, is it a really illegitimate minister? From here I can immediately ask a question about the real effect of the decision of the Constitutional Court, which will be limited to the deprivation of the status of a minister, which becomes an obstacle to criminal liability. An answer to these questions is not given by the Constitutional Court, thus creating legal uncertainty of monstrous proportions.
It should be noted that it is crystal clear that Kiril Petkov cannot be held criminally liable under Article 274, paragraph 1 of the Penal Code (unauthorized commission of actions within the circle of service of an official), at least because there would be no subjective element. K. Petkov was fully aware that he was a caretaker minister and as such he had the right to perform all actions within the scope of his powers. In summary, the Sofia City Prosecutor’s Office accepts that in view of the acts of the Constitutional Court, it is mandatory to assume that K. Petkov has never had the quality of caretaker minister. Therefore, it is not the SPO, but the Sofia City Prosecutor’s Office that should rule on the merits. It is noted that even if a different interpretation from the current one is possible, it should be clearer in its statement. Since magistrates from the SPO and the Sofia City Prosecutor’s Office understand the acts of the Constitutional Court in this way, it is reasonable to assume that this was exactly the will of the Constitutional Court. In essence: in connection with the above, it can be immediately recalled that because of the acts of the Constitutional Court, Kiril Petkov did not have the quality of an official. This makes it impossible for him to commit an economic crime, specifically under Article 219 or Article 220 of the Penal Code. That would be sufficient to justify the absence of a criminal offence. However, the Sofia City Prosecutor’s Office believes that it should rule much more fully so that there is no doubt whether there is criminal behavior in this case. Even if K. Petkov had the quality of a minister, there is no way that a crime has been committed. In fact, mismanagement under Article 219 of the Penal Code cannot be discussed at all, because there is inaction in it, and in this case we obviously have an action on the part of K. Petkov. The exact text would be under Article 220 of the Penal Code, namely the conclusion of an unprofitable deal. There is no such crime under every possible paragraph. First: the memorandum itself is not a typical transaction. In essence, the memorandum is a contract of intent to conclude a real contract. It coordinates the will of the various subjects on certain issues and expresses a desire for assistance. In this regard, it should be obvious that the memorandum itself cannot cause any damage to the state. Spending of funds would occur when concluding a future contract for financial support. The crime under Article 220 of the Penal Code is effective, but in this case there is no result. Second: even if a contract for financial support was concluded, there are no grounds for it to be considered an unprofitable deal. This is a completely legal activity within the powers of the Minister. It is interesting how investments would be attracted if the state does not assume at least some obligations to stimulate them. There is a strange view in Bulgaria that almost the investor comes and begins to give unconditionally to the people or the state. There is no free lunch. Thirdly, it is extremely important to note that in this case the Council of Ministers has approved the memorandum. This excludes any subjective party from committing a crime. Therefore, none of the elements of the corpus delicti under Article 220 of the Penal Code is present. On the same grounds, there can be no crime under Article 282 of the Penal Code (and the above about the lack of a fit subject is also valid). It is pointless to discuss the existence of any other corpus delicti in this case. The Prosecutor’s Office finds that it is appropriate to send this act to Mr. Kiril Petkov for information.
At present, he is already the Prime Minister of the Republic of Bulgaria and should be aware of the signals against him (respectively about the ongoing prosecutorial inspections), especially since the media have also been informed about the present case and there have been relevant coverage. I REFUSE to initiate pre-trial proceedings under Case No. 24229/2021. of the Sofia City Prosecutor’s Office due to the fact that the act does not constitute a crime.
Материалът Prosecutor Yordan Petrov: The Prime Minister Must Know What Checks Are Being Conducted Against Him е публикуван за пръв път на BIRD.
