In most countries in transition from totalitarian rule to a stable democracy, national law used to provide immunity from criminal prosecution for people in socially important offices, such as members of Parliament or members of the judiciary.

This decision was taken in the common belief that immunity would guarantee independence for the individuals who write or apply the laws.

Immunity was acceptable at the start of democratisation as the memory of the almighty rulers and their oppressive machine was still very strong. Immunity was not considered a privilege for those who were entitled to it, but as a guarantee of society’s interest.

In Bulgaria’s 1991 constitution, it was written that members of Parliament could not be arrested and have criminal charges brought against them except in the case of a serious crime and in such an event, only with the consent of Parliament. Members of the judiciary were granted the same rights. According to the constitution, this category includes judges, prosecutors and investigators.

Such a high degree of lack of liability to criminal prosecution is hardly understandable to representatives of countries with traditions in democracy, where it is unthinkable to bring charges without sufficient evidence of a crime and with one aim only - to use it as a tool to influence members of the judiciary or the legislature. 

In addition, the constitutional right to immunity has led to absurdities from the point of view of both the law and the common sense of justice. It was written in the constitution that if a person who has immunity commits a serious crime (according to the Penal Code, a serious crime is one which carries a penalty of at least five years in prison) he or she could lose his or her immunity and face prosecution. However, if the crime were less serious, such as driving under the influence of alcohol, or a petty theft or injury, the individual with immunity would not face prosecution in the way that an ordinary citizen would.

Bulgarian society gradually has become more critical towards immunity. People have started to see it as an impediment in the fight against corruption. The monitoring reports of the European Commission have named it as one of the reasons for the lack of effectiveness of the judicial system.

With the first amendment to the constitution in 2003, judges, prosecutors and investigators lost their immunity and now they may be prosecuted and charged for crimes they have committed in the same way as any ordinary citizen. In order to guarantee the independence of the judiciary, they retained only what became known as “functional” immunity.

According to article 132 of the current constitution, when exercising their judicial functions, judges, prosecutors and investigating magistrates shall bear no civil or criminal liability for their official actions or for the acts rendered by them, except where the act performed constitutes an indictable intentional criminal offence.

An accusation cannot be brought against a judge, prosecutor or investigating magistrate without the permission of the Supreme Judicial Council.

Judges, prosecutors and investigating magistrates cannot be detained, save for serious criminal offence, and only with the permission of the Supreme Judicial Council. Such permission shall not be necessary in case of flagrante delicto.

Permission (to prosecute) shall be asked for through a reasoned request from the Prosecutor General or by at least one fifth of the members of the Supreme Judicial Council.

At the moment, Parliament has started a process of constitutional amendments, including regarding the immunity of MPs. A third reading of the amendments is imminent.

The first and second reading approved amendments in terms of which MPs could be prosecuted and punished for less serious crimes. However, proposals by some parties to abolish immunity altogether were not accepted.   

In conclusion, it must be understood that people who have immunity are not untouchable and inviolable. If there is enough evidence that an MP committed a crime, Parliament  can take away his immunity. This has happened several times in practice so far.