Primus inter pares no more in the Bulgarian judicial system

Accountability for everyone will come true after positive changes in the Bulgarian legislation

Съдебна палата, съд, Темида
Източник: Канал 3

Latin phrase meaning: First among equals.

Under art. 117, para. 2 of the Bulgarian Constitution adopted in 1991 the Bulgarian Judiciary is independent of the other branches of government and composed of three separate systems of law-enforcing or law-protecting authorities: the system of the courts, the system of the public prosecution, and the system of the investigation offices. A specific role is played by the Supreme Judicial Council (SJC), which is the administrative body regulting the Judiciary. It’s competence is set forth in art. 129, para. 1 of the Bulgarian Constitution: “Judges, public prosecutors and investigating magistrates are appointed, promoted, reduced in rank, moved and discharged from office by the Supreme Judicial Council.” SJC is composed of 25 members, jurists of high reputation, of whom 11 are elected within the Judiciary, 11 by the National Assembly, and three are members by law: these are the presidents of Supreme court of cassation, of Supreme Administrative Court and the Chief Prosecutor. The main legal acts governing the Judiciary in Bulgaria are the Constitution and the Judiciary System Act. The latter was adopted in 2007 and since than has been amended no less than fifty times. Those numerous changes reflect the struggle of the Bulgarian society to adapt its relatively new democracy government in order to achieve true predominance of Rule of law. Another more political but equally important reason for those numerous changes is the desire of Bulgaria to terminate the Cooperation and Verification Mechanism of the European Union applied to both Bulgaria and Romania after joining the European Union in 2007. Romania and Bulgaria, upon joining European Union (EU), were considered by the European Commission as countries which still had progress to make in the fields of judicial reform, corruption and (for Bulgaria) organized crime. The Commission set up the Cooperation and Verification Mechanism (CVM) as a transitional measure to assist the two countries into their efforts to remedy these shortcomings.

Is the Cooperation and Verification Mechanism really needed today?

As mentioned above the CVM was presumed to be applied to those two countries as a transitional measure but it is still in place twelve years after them joining the EU. Although there is no doubt each political transition is a process and takes time to be fully elaborated and properly applied it should not be forgotten that both countries had to comply with numerous requirements regarding their judicial systems in order to be accepted in the EU. The sole process of the preparation for joining took twelve years. Romania signed its Europe Agreement in 1993 and submitted its official application for membership in the EU on June 22nd 1995 and Bulgaria submitted its official application for membership in the EU on December 14th 1995. Both joined the EU on January 1st, 2007.

As Bobek and Kosař noticed, the model pressed on the new members states- entrants to the European Union most resembles the Italian model — Consiglio Superiore della Magistratura. On one hand, it is one of the oldest Councils for Judiciary in Europe, but it is also often criticized for lack of accountability and low efficiency. It is a model that is focused on strict detachment from other branches of government, but inside the judiciary it is uncertain whether it could save the judiciary from dictatorship or oligarchization.

Euro-model does not deal with specifics of every system. Every country has specific system of checks and balances, depending on how much power is situated in whose hands. As it can be seen by the numerous changes in the Bulgarian main Judiciary act this process has been developing for decades and still is not over. According to the CVM the benchmarks for Bulgariaare to deal with issues such as the independence, professionalism and efficiency of the judicial system, the fight against corruption and action being taken against organized crime and for Romania — to deal with the effectiveness and transparency of the judicial system, key institutions in areas like integrity and the fight against corruption at all levels, and corruption prevention. However some scholars among which is professor James E. Moliterno suggests that a

“model policy could be harmful for emerging democracies that do not have a tradition of self-administration of judiciary, that would be accountable to a well-developed civil society. In some ways over-reacting to concerns about the obvious lack of judicial independence in communist times, the European Union pressed systems on the new members that over-emphasized judicial independence. The unfortunate consequences are systems that operate with too little judicial accountability, shielding judicial leadership and local judges alike from scrutiny, a condition that is conducive to corruption. In addition, the EU-pressed systems, while creating excessive insulation for judges from state actors, did nothing to discourage control of local judges by judge-superiors such as court presidents.”

The Council of Europe and the European Union have finally acknowledged this problem and started to recognize the importance of accountability as a counterpart of independence in their documents.These documents summarize the principles of ethics of a judge that warranty for accountability of the judge.ENCJ recently states:

“Independence and accountability go together: accountability is a prerequisite for independence. Independence is granted by society. A Judiciary that does not want to be accountable to society and has no eye for societal needs will not gain the trust of society and will endanger its independence in the short or long run. Accountability without independence reduces the Judiciary to a government agency.”

The matter of discipline, suspension and removal of judges is also dealt with in Principles 17–20 of the United Nations Basic Principles, which read as follows: “17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to decisions of the highest court and those of the legislature in impeachment or similar proceedings.”

The place of the European court of human rights in the balance between accountability and independence of the Judiciary

The European Court of Human Rights at Strasbourg has passed many decisions regarding the balance between the accountability and the independence of the judicial system. The one mentioned numerous times regarding the reform which is about to happen in Bulgaria is the Case of Kolevi v. Bulgaria. Although some of the comments regarding the decision are interpreting it in a way that the Court urges Bulgaria to elaborate a different mechanism of accountability which concerns only the status of the Chief Prosecutor in Bulgaria, the approach adopted in the proposed amendments of the Penalty Procedure Code and the Judiciary System Act, which address the accountability of three highest ranked magistrates in Bulgaria — the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Prosecutor is to be considered more appropriate and in respect of the spirit of the Court decision. It is quite wrong to interpret that the Court addresses only the figure of the Chief Prosecutor reading para. 208 of the decision itself:

“208. The system chosen by the member State [securing independence and impartiality in cases involving high-ranking prosecutors or other officials] concerned must however guarantee, in law and in practice, the investigation’s independence and objectivity in all circumstances and regardless of whether those involved are public figures.”

There is no doubt that the Court finds deficiency in the system of the criminal investigation, and not in the status of the Chief Prosecutor nor in the system of the prosecution itself which are separated structures under the Bulgarian laws. In paragraph 205 of its decision the Court states inter alia that “the above deficiency was eventually remedied” following the changes in the Bulgarian Constitution which took place in February 2007. (see paragraphs 125–127 of the decision).

Another legal norm in the present Bulgarian legislation which guarantees the possibility to investigate judges and prosecutors is art. 230 (6) of the Judiciary System Act saying that :

“In cases where detention in custody has been ordered for a judge, prosecutor or investigating magistrate as a precautionary measure to secure the appearance thereof, the said magistrate shall be considered suspended from office as from the date when the judicial instrument decreeing any such measure became enforceable.”

It applies to all judges and prosecutors law and high ranking ones, without making a difference.

The new reform in Bulgaria which will settle everything right

Despite the existence of those mechanisms in the present Bulgarian legislation, the Minister of Justice in Bulgaria has proposed amendments in the Penalty Procedure Code and the Judiciary System Act, which aim to implement even stronger guarantees for accountability and actual possibilities of starting a criminal investigation against high ranging magistrates. The proposed legislative amendments creates a mechanism to investigate the Presidents of the Supreme Court of Cassation, the Supreme Administrative Court and the Chief Prosecutor. The proposed amendments envisage that in cases of alleged crime, the investigation will be launched following a permission of the SJC’s Plenum, as such a proposal may be made by the Minister of Justice or not less than three members of the respective SJC’s College. The SJC’s Plenum will allow the start of criminal proceedings by a majority of 17 votes of the total 25 votes. The permission will be subject to appeal within three days of its issuance before a panel of the Supreme Administrative Court. Along with the opening of criminal proceedings for intentional crimes of general nature, there are also provisions for their temporary removal from office, as the proposal may be made by not less than three members of the respective SJC College as well as by the Minister of Justice.

Instance and judicial control, in the event of suspension and termination of the criminal proceedings by a prosecutor, is envisioned. In the event of instance control, the order may be affirmed or repealed and the case remanded to the respective prosecutor’s office with specific instructions.

In the event of judicial control, in an open court hearing, in a panel of three judges designated as per the random assignment principle, the court will rule on the grounds and lawfulness of the prosecutor’s acts, within one month of receipt of the case, by means of a ruling, which will be final.

It is envisioned that in the event of a filed indictment against the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Prosecutor, the criminal cases will be heard by a panel of three judges as a first instance, and a panel of five judges in cases provided for by law. As a cassation instance, the cases will be heard by the Criminal College of the Supreme Court of Cassation.

In all other cases, when there is no crime but are in place the constitutional grounds for pre-term termination of the powers of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Prosecutor , the SJC’s Plenum will take a decision by a majority of 17 votes of the total 25 votes.

Such changes are definitely to be considered as positive as they are about to give even more guarantees than the existing ones for effective and unbiased conducting of investigations against high ranking magistrates like the Presidents of the Supreme Court of Cassation, the Supreme Administrative Court and the Chief Prosecutor. In the same time they tend to keep the balance of powers and not to create a possibility for harming the independence of the Judiciary.

Under the proposed amendments starting an actual investigation has two phases. First a proposal for an investigation should be made. This can be done either by the Minister of Justice or not less than three members of the respective SJC’s College. The second phase is this proposal to be approved by voting and it can start only after the permission of the SJC’s Plenum. This is a balanced mechanism. First of all giving the possibility for making the initial proposal to the executive power, represented by the Minister of justice breaks the circle of such questions being handled only “internally”, inside the judiciary. Such a proposal made by the Minister of Justice even if not finally allowed by the SJC’s Plenum would rise questions and attract the public attention. As an addition this type of “two-levels verification” for initiation of an investigation should be considered positive as well — first making the proposal either by the Minister of Justice or not less than three members of the respective SJC’s College and after that having the final approval by the SJC’s Plenum for starting it.

The Chief Prosecutor, the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court should all be addressed by the amendments

The most valuable attribution of such a change is the possibility to engage the responsibility not only of the Chief Prosecutor but also of the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court. It is not surprising that in the Kolevi v. Bulgaria case the Court being bound by the factual circumstances of the case in question has paid greater attention to the figure of the Chef Public Prosecutor but not to other high ranking magistrates. Even though in para.208 of the decision, the Court states:

“Independence and impartiality in cases involving high-ranking prosecutors or other officials may be secured by different means (…)”.

It is not the Court’s task to make a general overview of the legislation in a certain country but to pronounce itself regarding the facts in the case in question. It is both discretion and obligation of each country to determine which system best meets the requirements of the Convention as a whole. The main idea behind any legislative amendment should be not only to comply with a particular decision of the Court but following its spirit to work on the prevention by covering as many hypothesis as possible that could arise and lead to similar Court decisions. There is no question that for each country claiming to have a Rule of Law it is imperative to have a stable, lasting legislation covering as many varieties of cases as possible. Settling an accountability mechanism for all the three highest ranking magistrates would prevent potential future misconduct and malfunctioning of the system which is one of the most important tasks of the law.

Is the organization of the Judiciary system an issue only in Bulgaria? The French case.

The Bulgarian judicial system is similar in spirit to the French one. This is the main reason why this article is addressing the situation in both countries, while emphasizing on the Bulgarian one being the main topic of the exposé.

For long years the balance between the independence and accountability of magistrates has been an issue in Bulgaria and not only. The French legal system and organization of the judiciary has also been struggling to find the right formula since year 2007. The French model of criminal justice is particularly characterized by the importance of two magistrates, responsible for directing investigations and deciding on prosecutions: the public prosecutor (le Procureur de la République) and the investigating judge (le Juge d’Instruction). These two figures have been recently subject to significant questioning. On one hand, following the wish expressed by the President of the Republic in 2009, a bill was drafted in 2010 which proposed to abolish the investigating judge in favor of a new figure “judge of the investigation and freedoms” (juge de l’enquête et des libertés — JEL). Unlike the investigating judge, who has investigative and judicial functions, the JEL would only have jurisdictional responsibilities. The public prosecutor would have been the sole magistrate in charge of investigations, but he should have sought the intervention of the JEL to authorize most coercive acts). However this reform did not succeed. A fair summary of the arguments can be found in the interim report of the Criminal Justice Committee, chaired by Magistrate Philippe Léger (Léger Commission) published in 2009. The majority of the Commission supports and further elaborates on the President’s proposal to transform the juge d’instruction into a juge de l’enquête et des libertés who would exercise exclusively judicial functions, the investigative functions to be taken over by the prosecutor’s office. The majority of the commission does not support the proposal to increase the independence of prosecutors, for example by aligning their appointment procedure to the one applicable to judges, and it also does not favour the introduction of the “principle of legality”, which would eliminate or reduce the prosecution’s discretion as to whether or not to prosecute an offender. The majority of the commission considers the future juge de l’enquête et des libertés as sufficient to counter-balance the increased powers of the prosecutor’s office. In addition, the commission makes fairly far-reaching proposals to increase the rights of the defence, but only for those suspected of more serious and complex offences (“régime renforcé” with strong adversarial elements); for the remaining cases (“régime restreint”) the procedure remains essentially the same as in the present system in cases without the appointment of a juge d’instruction.

This reform project has been the subject of much criticism from justice professionals for three main reasons:

- the creation of the JEL would divert criminal investigations to the benefit of the police only. The investigative directorate of the prosecutor’s office, taking into account his workload and his organization, is indeed more distant than that of the examining magistrate, who carries out the most important investigations himself (interrogations, reconstitutions, etc.);

- the JEL would be less protective of the right of victims who today have the option of filing a civil suit before the investigating judge and thus to override the possible inertia of the prosecution;

- this reform would be tantamount to entrusting the entirety of investigations, including the most complex and sensitive ones, to the prosecutors who depend partially on the executive power.

Conclusion

Having an actual Rule of law in a state today is a permanent fight. There is no doubt that in order for this to be achieved the Judiciary should be independent and allowed to make unpopular decisions without fear as long as these decisions are just. But the balance is fragile. One wrong step may lead to” République des juges”. In the well-known “The Spirit of the Laws” (1748), Montesquieu described the various forms of distribution of political power among a legislature, an executive, and a judiciary. His idea was that no one could grab complete power. Achieving such an ideal coherence in real life is an endless fight not only for the governments but also for the societies themselves as they are the one to endure the positive and negative effects of it all.

Bulgaria become a democratically governed country after the fall of the communism in 1989.

Michal Bobek & David Kosa, Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe, 15 Ger L.J. №7, 1270 (2014).

“Independence Without Accountability: TheHarmful Consequences of EU Policy TowardCentral and Eastern European Entrants, Fordham International Law Journal Volume 42, Issue 2, Article 7

See Opinion №3,CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (Nov. 19, 2002), https://rm.coe.int/16807475bb [https://perma.cc/PKJ5-R9K7]; see also EUROPEAN NETWORK OF COUNCILS FOR THE JUDICIARY, COUNCILS FOR THE JUDICIARY REPORT 2016–2017, INTRODUCTION (2017) [hereinafter ENCJ]. 239

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