Systemic Pathologies

Bulgaria has been marked by worrisome developments pointing to its democratic decline. After the Sofia Court of Appeal upheld the pre-trial detention of the city of Varna’s mayor Blagomir Kotsev, the Supreme Judicial Council refused to apply the six-month limit on Borislav Sarafov’s tenure as acting Prosecutor General. In the first case, the court transformed a preventive measure of pre-trial detention into a de facto sanction, effectively disregarding the presumption of innocence. In the second, an amendment designed to prevent indefinite interim appointments – where officials hold office without a regular mandate – was effectively nullified through restrictive and legally untenable interpretation. Taken together, these episodes point to a systemic pathology: institutions formally invoke the law, yet interpret it in ways that deprive it of its normative sense. Legality is reduced to form without substance, and no longer protects rights but instead serves as an instrument of institutional self-preservation and control.

Subverting the presumption of innocence

The case of Varna’s opposition mayor Blagomir Kotsev illustrates how legality can be hollowed out during Court proceedings. Kotsev, elected in 2023, was detained in July 2025 on corruption charges. The detention arises from criminal proceedings brought by the Sofia City Prosecution Office, following a referral by the Counter-Corruption Commission, and is based primarily on witness testimony, including that of Deputy Mayor Dian Ivanov. Ivanov later recanted his testimony announcing that he had given it under pressure from the Anti-Corruption Commission. The prosecution nonetheless refused to hear him again. Both the Sofia City Court and the Sofia Court of Appeal consistently refused to release Kotsev. Relying on Article 63 of the Bulgarian Criminal Procedure Code, the courts noted in abstract terms that, if released, he could obstruct the investigation into the alleged bribery and organised crime charges. Yet their reasoning remained at a highly general level: the courts did not substantiate what specific offences might realistically occur, nor did they explain why less intrusive measures could not mitigate such risks. This approach falls short of the standards developed in the case law of the European Court of Human Rights, which has consistently required national courts to identify concrete and individualised circumstances justifying continued detention, rather than relying on generic or speculative assertions. (see Ilijkov v. Bulgaria, §§ 81–84; Buzadji v. Moldova [GC], § 102). Thus, what should have remained a narrowly circumscribed preventive measure instead took on the character of a political sanction. This raises serious concerns both about judicial independence, as the court appeared to align itself with the prosecution’s narrative rather than exercising independent judicial scrutiny, and about Bulgaria’s compliance with its obligations under the ECHR.

The Kotsev proceedings also demonstrate how judicial practice can erode the presumption of innocence. At a hearing before the Sofia Court of Appeal in September 2025, the prosecution argued that “there is no conclusive evidence that would exonerate the accused” and therefore he should remain in detention. Such an approach is incompatible with both Article 31(3) of the Bulgarian Constitution and Article 6(2) ECHR, which place the entire burden of proof on the prosecution. Instead of independently verifying whether the statutory grounds for detention were met, the court merely endorsed the prosecution’s assertion. By treating the absence of exculpatory evidence as sufficient to justify detention, it effectively inverted the presumption of innocence.

This shift redirected judicial review of pre-trial detention away from its constitutionally mandated and Convention-based function – namely, to verify whether the prosecution had demonstrated concrete and individualised grounds for restricting liberty under Article 63(1) of the Criminal Procedure Code. Instead, the review was reduced to assessing whether the accused had succeeded in disproving the allegation. Preventive detention, designed as an exceptional and temporary procedural measure, thus acquired the substance of a punitive sanction. In this way, the language of the law was preserved in form – through citation of the Criminal Procedure Code norms and generic references to safeguarding proceedings – while its substantive guarantees were hollowed out. This represents not a mere procedural misstep but a broader pattern of institutional decline, whereby courts deploy the language of law to legitimise outcomes that erode the rule of law and the protection of fundamental rights.

This is even more worrying in a legal system like the Bulgarian which operates under a highly centralised prosecutorial model. The public prosecutor’s office enjoys a quasi‑monopoly over criminal proceedings and is led by a Prosecutor General who is appointed for a seven‑year term and exercises broad hierarchical control over all prosecutors. For years, the European Commission’s Rule of Law reports have noted that this structure creates significant challenges in terms of accountability and checks and balances and have called for reforms to increase transparency and oversight. The European Court of Human Rights has likewise faulted Bulgaria for the absence of effective judicial control over the prosecution’s decisions in several cases, including Ilijkov v. Bulgaria and Kolevi v. Bulgaria.

The broader context makes this even more troubling. In September 2025, the European Public Prosecutor’s Office announced that it had suspended the Bulgarian European Prosecutor pending disciplinary proceedings, stressing that “independence beyond doubt” is an essential requirement for the office. While the facts of the disciplinary case remain to be established, the very need for such action at the EU level underscores that the problems of prosecutorial independence and credibility in Bulgaria are systemic, not episodic.

The judiciary’s paradox

The Kotsev proceedings expose a deeper structural problem: judges entrusted with safeguarding rights stepped aside from reviewing Kotsev’s detention, citing public debate as grounds for recusal – a basis nowhere foreseen in law. In September 2025, a panel of the Sofia Court of Appeal recused itself from the case, invoking public criticism voiced by defence lawyers and commentators. By doing so, the panel equated the expression of opinion and public contestation with undue influence on the court. Yet Article 29 of the Bulgarian Code of Criminal Procedure enumerates grounds for recusal exhaustively: kinship, prior involvement, or direct interest in the outcome. Public criticism or disagreement with prosecutorial narratives is not among them.

As both common law doctrine first developed and European jurisprudence later fllowed, justice must not only be done but must also be visibly done. The European Court of Human Rights has repeatedly stressed that courts must inspire public confidence by ensuring not only actual but also apparent impartiality, while the Court of Justice of the European Union has underscored that legitimacy in a democracy grounded in the consent of the governed requires judicial openness to public scrutiny. If Bulgarian judges treat criticism as undue pressure, they do not safeguard judicial independence but instead turn it into insulation from accountability – hollowing out the very democratic justification for judicial authority in Europe.

The conclusion is unavoidable: when judges recuse themselves not because statutory laws compel them, but because they feel unsettled by criticism, the judiciary abdicates its role as guarantor of legality and instead participates in its erosion. What is lost here is more than one case: it is the principle that adjudication must withstand scrutiny as the condition of its legitimacy.

The Sarafov case

The misinterpretation and misapplication of the law is not confined to individual cases of detention; it also appears within the institutions that oversee and manage the judiciary. Bodies such as the Supreme Judicial Council which should set the standard for legal interpretation, interpret legislative amendments in ways that strip reforms of their substance. The controversy surrounding Borislav Sarafov’s prolonged status as acting Prosecutor General since June 2023, illustrates this dynamic well.

On 16 June 2023 the Prosecutorial College of the Supreme Judicial Council designated him acting Prosecutor General following the dismissal of Ivan Geshev. In January 2025, the legislature amended the Judiciary Act to introduce Article 173(15), which limits the duration of interim office holders to six months. The amendment, in force since 21st January 2025, was designed to end the practice of indefinite interim appointments and to restore regularity in the occupancy of key judicial offices.

Nevertheless, the Prosecutorial College of the Supreme Judicial Council concluded that the six-month limitation does not apply to Sarafov. On 24th September 2025, the College formally reaffirmed its original decision of 16th June 2023 and declared Article 173(15) “inapplicable” to his situation. The reasoning was that his appointment had created a “definitive legal situation” and that subjecting him to the new rule would amount to retroactivity. On that basis, the College refused to open a new procedure to nominate another interim Prosecutor General.

This interpretation is legally untenable. The prohibition of retroactivity under Article 14(1) of the Bulgarian Law on Normative Acts is narrowly defined: it protects vested rights and completed mandates from being altered by new legislation. An interim appointment, however, falls into neither category. It is by nature provisional, does not confer a fixed mandate, and creates no subjective right to remain in office. There is thus nothing to “protect” against subsequent statutory change.

The six-month limitation introduced by Article 173(15) of the Judiciary Act does not operate ex tunc (with retroactive effect), but ex nunc (with immediate prospective effect). From the moment the provision entered into force on 21st January 2025, all ongoing acting appointments – including Sarafov’s – became subject to it. The correct interpretation is therefore that his interim mandate expired on 21 July 2025.

By construing his appointment as a “definitive legal situation,” the Supreme Judicial Council effectively transformed what is, by definition, a temporary assignment into a permanent status. In doing so, it neutralised a reform expressly designed to restore regularity and accountability in the leadership of the prosecution service.

Legality, a façade

The detention of Varna’s mayor and the refusal to apply a statutory limit to the acting Prosecutor General resonate so strongly because they embody the two poles of Bulgaria’s crisis of legality – the use of criminal proceedings as a tool of repression, and the institutional entrenchment of power through evasive interpretation. When a local mayor is kept in custody on the basis of a retracted witness statement and a court merely restates the prosecution’s logic, it feeds the perception that prosecutorial power is being used without adequate judicial scrutiny. Similarly, when the Supreme Judicial Council declines to apply a six‑month limit to an acting Prosecutor General, it is seen as protecting the interests of a powerful office rather than enforcing legislative reforms.

While these practices challenge Bulgaria’s progress on democratic path, and further European integration, this matters beyond Bulgaria. The European Union’s legal order rests on mutual trust that national authorities apply law faithfully, both in substance and in form. When legality becomes a façade – when the word of the law survives but its spirit is systematically denied – that trust erodes. In such cases, legality no longer functions as a guarantee of rights, but as a screen for achieving the objectives of those in power. The risk is not only domestic injustice but the corrosion of Europe’s common legal architecture, which depends on mutual trust that national courts act as faithful guardians of legality.