—Blaga Thavard, LL.M., Attorney-at-Law and member of the Sofia Bar Association, whose professional work focuses on the rule of law, human rights, and European legal affairs
Since June 2023, Bulgaria has had no lawfully appointed Prosecutor General. Since 21 July 2025, it has had no lawful acting Prosecutor General either. Yet Borislav Sarafov continues to perform the functions of Prosecutor General, backed by the Prosecutorial College of the Supreme Judicial Council (SJC). Indeed, despite Article 173(15) of the Law on the Judiciary which entered into force on 21 January 2025 and prohibits the same person from serving as acting Prosecutor General for more than six months in total, the Prosecutorial College has refused to designate a replacement.
The result is a constitutional paradox: the office of the Prosecutor General is simultaneously vacant and occupied, depending on which state institution one asks. Ask the Supreme Court of Cassation, and the answer is unambiguous: Sarafov’s mandate expired ex lege on 21 July 2025 — six months after Article 173(15) entered into force. Ask the Prosecutorial College of the SJC, and the answer is equally unambiguous: because Sarafov was designated as acting Prosecutor General on 16 June 2023 — before Article 173(15) entered into force — the six-month limit does not apply to him, and he will remain in office until a permanent Prosecutor General is nominated, on a timeline that is entirely open.
The analogy to Schrödinger’s cat is difficult to resist. But the constitutional problem is more concrete than the metaphor suggests. It is whether public power may continue to be exercised after the legal basis for doing so has expired, while the institution competent to address the defect declines to act. In the European Union, it goes to the basic rule-of-law premise that public authority must remain legally constituted if it is to act lawfully.
How the paradox took shape
In June 2023, the SJC removed Ivan Geshev as Prosecutor General, formally on the ground that his conduct had damaged the prestige of the judiciary. Although the circumstances of his removal were widely seen as politically charged, Geshev was himself deeply implicated in the broader pathologies of Bulgaria’s prosecutorial model: concentrated power at the top of a rigid prosecutorial hierarchy, persistently inadequate accountability of the Prosecutor General, and vaguely framed supervisory powers extending beyond ordinary criminal prosecution.
On 16 June 2023, the Prosecutorial College designated Borislav Sarafov as acting Prosecutor General, pending the nomination of a permanent successor. Formally, this appointment was meant to bridge a temporary vacancy. In practice, the vacancy has proved to be anything but temporary — and what began as an interim arrangement has since become what caretaker Justice Minister Andrey Yankulov has described, with good reason, as a serious rule-of-law crisis.
By the time Sarafov was designated, the SJC was already serving beyond its mandate, yet still controlled the nomination process. Under Article 130 of the Bulgarian Constitution, eleven elected members are chosen by the National Assembly and eleven by the judicial authorities, and the elected members serve five-year terms. The sitting Council had taken office on 3 October 2017, so the term of its elected members expired on 3 October 2022. A successor council was not constituted in time, because Parliament failed to elect its quota by the required two-thirds majority. In late 2024, Safarov emerged as the sole candidate in the procedure for his permanent appointment as Prosecutor General. But amendments to the Law on the Judiciary, which entered into force on 21 January 2025, barred the SJC, whose mandate had expired, from nominating a Prosecutor General. As a result, the procedure for Sarafov’s permanent appointment as Prosecutor General was terminated on 23 January 2025.
The same amendments also introduced the provision that lies at the heart of the present dispute: a six-month limit on acting service. Article 173(15) of the Law on the Judiciary currently provides that where the mandate of the Prosecutor General expires or is terminated early, an acting office-holder may be designated — but that person may not serve in that capacity for more than six months in total. In the case of Sarafov, that period, calculated from the date the provision entered into force, expired on 21 July 2025.
The Prosecutorial College took no action. The same institution that proved capable of removing Ivan Geshev on the deliberately elastic ground of “damaging the prestige of the judiciary” has proved unwilling to end Sarafov’s interim tenure even after the statutory six-month limit was introduced. That contrast is difficult to explain by reference to legal principle alone. It suggests an institution acting less as a principled body of judicial self-government and more as one responsive to shifting configurations of institutional interest.
The legal question
The Prosecutorial College’s argument, set out in its decision of 9 July 2025, invokes the prohibition on retroactivity to resist the application of Article 173(15) to Sarafov. But the invocation is misconceived as a matter of basic classification. Retroactivity would be in issue if the new provision sought to invalidate Sarafov’s original designation — a completed legal act — or to impose adverse consequences for conduct that was lawful when it occurred. Article 173(15) does neither. It does not touch the validity of the designation made on 16 June 2023; it does not treat as unlawful anything Sarafov did before 21 July 2025. It imposes a prospective ceiling on the continued exercise of the function, operating from the date of entry into force. The distinction is a fundamental one in continental legal systems: a rule that regulates the future exercise of an ongoing office is not retroactive merely because the office itself predates the rule. The College’s reliance on non-retroactivity is a category error.
Whether this misclassification reflects genuine interpretive disagreement or a deliberate conflation of distinct legal categories is, in one sense, beside the point. What matters constitutionally is not the motive but the effect: an institution that controls the appointment process has adopted a legal position that conveniently immunizes its own incumbent from the only rule designed to limit his tenure. When institutional interest and legal interpretation align so precisely, the burden of justification is high. The College has not met it.
The Constitutional court referral: Case No. 2/2026
In late 2025, a three-judge panel of the Varna Court of Appeal, seized of a request by Sarafov to reopen closed criminal proceedings, concluded that it could not resolve the case without first determining whether Sarafov had standing to bring the request at all. That question turned on whether Article 173(15) applied to him. Unable to resolve that issue within the bounds of its ordinary competence, the panel referred two questions to the Constitutional Court under Article 150(2) of the Constitution: first, whether Article 173(15) is consistent with the Constitution; and second, if it is, whether it applies only to persons designated after its entry into force, or also to those already serving in an acting capacity when it took effect.
The referral is significant because it presents both sides of the argument with unusual clarity. One line of Constitutional Court case law supports the Prosecutorial College: rules on the organization of state bodies normally apply only prospectively, so without a transitional clause Article 173(15) would affect only future acting appointments. But the referral also points to the stronger counter-argument. The Constitution protects the tenure of titular office-holders, not of interim ones. Since an acting Prosecutor General has no constitutionally guaranteed mandate, a six-month limit applied from 21 January 2025 does not take away a protected right. It simply limits the future duration of an already existing temporary arrangement.
The panel was unable to choose between these two readings on its own authority. But in framing the referral as it did, it pointed toward the stronger view. A provision that limits the duration of a non-constitutionalized interim arrangement, in the absence of any constitutionally protected expectation of continuity, does not meet the threshold for impermissible retroactivity. The Constitutional Court’s task is to confirm that conclusion — or explain why it is wrong.
One further aspect of the referral deserves attention. The panel explicitly excludes EU law from the analysis, observing that Article 173(15) governs the internal organization of a national judicial organ and does not implement, specify, or apply any rule of EU law. The EU Charter of Fundamental Rights, it notes, applies to Member States only when they are implementing Union law; absent such implementation, it cannot serve as a criterion of review. That exclusion is technically correct. What it does not address is whether the broader structural situation — an acting Prosecutor General of contested legitimacy exercising exclusive powers over major investigations, including some touching EU financial interests — raises concerns under Article 325 TFEU independent of the internal constitutional dispute.
Article 325 TFEU and the problem of contested prosecutorial authority
The Varna Court of Appeal was technically correct to observe that Article 173(15) of the Law on the Judiciary, taken in isolation, does not itself implement Union law. In that narrow sense, the dispute is not a free-standing Charter case. But it does not follow that the controversy is irrelevant from the perspective of EU law. The better view is more structural: an internal constitutional dispute may fall outside the Charter while the institutional situation it produces still matters to the Union’s legal order. That is because Article 325 TFEU requires the Member States to counter fraud and other illegal activities affecting the Union’s financial interests through effective and deterrent measures.
That obligation is not merely programmatic. The Court of Justice has treated Article 325(1) TFEU as imposing a concrete duty of effectiveness on Member States in fields touching the Union’s financial interests. The precise institutional design remains, in principle, a matter for national law. But the Union interest is engaged where national arrangements undermine the effectiveness, continuity, or credibility of prosecutorial action in areas protected by Article 325. The point here is therefore not that EU law directly determines who is, under Bulgarian law, the lawful acting Prosecutor General. It does not. The point is that a prosecution system whose apex office is occupied under a contested legal title presents a structural difficulty where that office is linked to the effective investigation, supervision, or reopening of cases affecting the Union’s financial interests.
That concern is sharpened by Bulgaria’s participation in the European Public Prosecutor Office (EPPO) system. Bulgaria is one of the participating Member States, and the EPPO is designed as a single office operating across those states in the investigation and prosecution of criminal offences affecting the Union’s financial interests. Even if the EPPO is institutionally independent from national governments and prosecution services, its functioning still presupposes a national prosecutorial and judicial environment capable of acting with legal clarity, institutional reliability, and procedural coherence. A domestic prosecution service whose own leadership is under a cloud of contested legality does not automatically breach EU law. But it does raise the question whether the surrounding national framework remains sufficiently stable and trustworthy for the purposes of Article 325 TFEU.
The point is no longer abstract. On 25 February 2026, the EPPO announced that the Bulgarian European Prosecutor, Teodora Georgieva, had been found guilty of serious misconduct following a disciplinary procedure, and recalled that only the Court of Justice may formally dismiss a European Prosecutor, upon the request of the European Parliament, the Council, or the Commission. Bulgarian reporting the same day linked the episode to yet another severe blow to the image of Bulgarian justice, with caretaker Justice Minister Andrey Yankulov connecting it to the wider problem of parallel influence and institutional deformation within the prosecution system. The national controversy over Sarafov and the European controversy over Georgieva are legally distinct. But they are not institutionally unrelated. Taken together, they suggest a prosecution system in which contested authority is no longer episodic, but systemic.
Opening the box
Bulgaria’s “Schrödinger’s Prosecutor General” is not simply an unusual dispute about the temporal reach of a statutory amendment. It is a test of a more basic constitutional principle: no public office can be both temporary and indefinite at once.
The Bulgarian Constitutional Court now has an opportunity to state a proposition that should not be controversial in any system committed to legality: interim offices cannot become a substitute for the regular constitutional order, and institutional inaction cannot be allowed to neutralize an express statutory limit. If the Constitutional Court fails to do so, the lesson of the Bulgarian case will extend well beyond the office of the Prosecutor General. It will be that, in a sufficiently degraded institutional environment, even clear legal limits can be emptied of force by the simple expedient of refusing to enforce them.
Suggested citation: Blaga Thavard, Bulgaria’s Schrödinger’s Prosecutor General: Between Vacancy and Office, Int’l J. Const. L. Blog, Apr. 7, 2026, at: http://www.iconnectblog.com/bulgarias-schrodingers-prosecutor-general-between-vacancy-and-office/