Foundation Vision for Science and Technology Growth
in cooperation with Chambers of Commerce
conference
JUDICIAL REFORM, FDI AND THE IMPACT ON ECONOMIC
DEVELOPMENT
17.02.2017
The Judicial reform – progress and problems
Omourtag Petkov, BBBA
Judicial reform in Bulgaria has been a little bit like chasing Moby Dick – it is like a never ending
hunt with mythical proportions. Let’s hope it does not end like the book.
Previous steps in our continuous quest for a judicial reform include in particular: the Constitutional
Reform of 2003 - focused on the statute of the magistrates; the amendments made in 2006 with a view
to specifying the functions of the Prosecutor’s office as an investigating authority and the functions of
the Ministry of Justice with regard to the judiciary; and the Constitutional Reform of 2007, aiming at
specifying the functions of the Supreme Judicial Council with regard to qualification, promotion and
disciplinary proceedings of the magistrates.
The latest reform started a few years ago and succeeded in making great strides towards greater
independence and efficiency of the judiciary. It consisted in constitutional amendments adopted
towards the end of 2015, followed by two sets of legislative amendments in 2016.
The latest reform has many aspects, all of them important parts of the reform, but like in a house
construction, there are certain principles and matters that are the very foundation of the system and I
propose to discuss those two that are among the most important and, indeed, constitute the foundation
of the judicial system in a real democracy:
-
The independence of the judiciary (in the classic sense of the term – the courts, the judges);
and
The place and the organization of the prosecution and its own independence (or autonomy?).
Now, I would like to outline, with a few technical details, the progress that was made and the
problems that were left unresolved with the reform in these two fundamental areas.
With respect to the first one - independence of the judiciary - real, and really great progress was made:
I refer here to the separation of the governing body of the judiciary branch of power (the Supreme
Judicial Council) into two separate chambers – one for judges and one for prosecutors and
investigators. Central to this separation is the distribution of powers between the two chambers. I
should also mention in that regard that progress was made with other very important elements of the
judiciary independence: the direct election of members of the Council from the magistrates’ quota and
the open voting (appointment and dismissal decision of the Council are to be made with open voting),
while the system of control was significantly improved with new powers of the Inspectorate of the
Council.
However, and that’s where the title of our panel (Progress and Problems of Judicial Reform)
becomes clear, on the all-important issue of the judges’ independence, the reform has stopped short of
taking that one further small step, which prevented the judicial branch from making the proverbial
giant leap forward that would benefit tremendously the whole system of power (with its far-reaching
significance for the economy and the society.)
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Specifically, the reform introduced the following major positive developments on the issue of judicial
independence:
- Separation of the Council into two chambers:
The chamber of Judges will consist of 14 members, including the chairpersons of the SCC and SAC, 6
members directly elected by judges and 6 members elected by the National Assembly. The chamber of
Prosecutors and Investigators will consist of 11 members, including the Prosecutor General, 4
members elected directly by the prosecutors, 1 member elected directly by the investigators and 5
members elected by the National Assembly.
- As mentioned above, the members from the magistrates quota will now be elected directly by the
respective general meetings;
- The National Assembly elects each member of the Council by a majority of two thirds of MPs – an
improvement over the previous system and the initial proposal (disapproved by the Venice
commission) of election with simple majority – a widely open door for easy political control.
- The chambers will independently appoint, promote, transfer and remove from office judges,
respectively prosecutors and investigators, carry out their periodic attestations and impose disciplinary
sanctions, determine the number, appoint and dismiss administrative heads and their deputies in the
judicial bodies, with the exception of the Chairman of the Supreme Court, the Chairman of the
Supreme Administrative Court and Prosecutor General. These decisions will be taken by a majority of
not less than 8 votes for the chamber of judges and not less than 6 votes for the chamber of
prosecutors.
For all other decisions a simple majority is required - more than half of the members present. The
chambers will also make proposals to the plenum of the Supreme Judicial Council to determine the
number of judicial regions and the seats of the regional, district, administrative and appellate courts
and respective prosecution offices; make proposals to the plenum of the Supreme Judicial Council to
determine the number of judges, prosecutors and investigators in all courts, prosecution and
investigation units; etc.
- The plenum, on the other hand, consists of all members of the Supreme Judicial Council, that
includes both chambers and resolves matters within the competence of the plenum, i.e. adopting the
draft budget of the judiciary, termination of office of members, hearing and adoption of the annual
reports of the judiciary, organization of training of judges, prosecutors and investigators, resolves on
common judiciary organizational issues, hear and adopt the annual reports, manages the property of
the judiciary, etc.
The foregoing briefly presented the very important progress made with respect to the independence of
the Judiciary. The problems, however, are right there – the political establishment did not take
the small but all important further step to secure the independence of the judges from political
influence and, at the same time, from the prosecutors. Indeed, the initial version of that part of the
reform provided for the members of the judges’ chamber elected by the judges themselves to be a
majority, but the actual amendments of the law made the quota elected by judges and that elected by
the parliament equal (6 by 6), which, together with the two chairperson of the supreme courts,
themselves appointed by the President as a compromise between all categories of members of the
Council, leaves the judges clearly open to political influence.
Furthermore, the powers of the plenum are too far reaching with respect to the judges and allow the
prosecutors to have a say over the judges and the organization of the courts (termination of office of
the elected members of the chamber of judges is a striking example), which is an aberration
repeatedly disapproved by the Venice commission, for instance, and probably virtually unique to
Bulgaria among EU countries. If the objective is a true and complete independence of the judiciary,
then only matters of common interest of the judiciary should be decided by the plenum. In other
words, the progress made by the reform stopped decisively short of the logical and necessary
step to achieve full independence of the judiciary.
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On the other hand, I should mention that progress was made with regard to the judges’ autonomy, by
reducing the powers of the administrative heads of individual courts. The judges now have a bigger
say in the process of appointing the heads of courts, which before the new amendment was entirely at
the discretion of the SJC. Thus, the general meetings of judges can make proposals for appointment of
the chairperson of the relevant court, hear all the candidates and express an opinion on the
nominations, to determine the number and composition of the divisions and their specialization in the
matter. Term limitation was provided for the administrative heads of the courts (same for the
prosecution offices.)
Also, as mentioned above, the powers of the Inspectorate were enlarged to include, for example,
review of integrity, conflicts of interest, and property ownership disclosure of magistrates – all very
important positive steps towards an effective, independent, and free of corruption judiciary.
With respect to the second foundational corner stone of our judicial system – the prosecution and how
it is organized, the reform seemingly made a lot less progress and left some big issues unresolved.
Now, the independence of the prosecution service is, in general, a very complex and delicate issue,
with no golden standards, uniform models, or miracle solutions. But the independence of our
prosecution service in Bulgaria was pushed to an extreme - we gave to our prosecution back in 1991
what could be called a misunderstood independence. What I mean is that we did not build in
sufficient (or any) checks and balances into the system, as if forgetting that independence
without control and accountability simply does not work – not to mention it is devastating to
democracy and the rule of law (actually, it does work – but only for a certain few).
Some progress was made, however. Indeed, the new amendments to the Law on the Judiciary dropped
the text that the prosecution was "unified and centralized, and all prosecutors and investigators are
subordinate to the Prosecutor General" but this does not really alter the uncontrolled “autocratic”
rule of the Prosecutor General inside the prosecution itself.
Another amendment passed is related to the accountability of the Prosecutor General who every year
has to submit to the SJC plenum an annual report on the work of the prosecution and the investigative
bodies, and it will be published on the website of the prosecution office. At the request of the National
Assembly or on its own initiative, the Prosecutor General also submits to the Parliament other
prosecution reports on implementation of the law, combating criminal activity and implementation of
the penal policy. Within 14 days of receiving the report, the SJC has to hear the Prosecutor General
and during the hearing, the SJC members can raise questions submitted by citizens, institutions and
NGOs in connection with the report. The SJC submits the report to the National Assembly, which
shall be discussed after the Parliament, hears the Prosecutor General. During the discussion the MPs
may also raise written questions submitted by citizens, institutions and NGOs.
However, the problem is that this progress is almost entirely cosmetic. It is not clear what
happens in cases of unsatisfactory response from the Prosecutor General, neither any
consequences, nor responsibility, are provided for.
In view of the importance of the prosecution of crime in the efficient functioning of the state, it is
reasonable for a Government to have some involvement in the appointment for the position of the
prosecutor general, not to mention that some accountability and control by a special commission of the
parliament was, for example, suggested by the so-called “audit report” on the prosecution (prepared
under the auspices of the Structural Reform Support Service of the European Commission).
In brief, further progress is necessary with respect to the judiciary independence and major
reform is required with respect to the prosecution. I should also emphasize that big efforts are
necessary to free the Bulgarian criminal law, and Bulgarian law in general, from the antiquated
legal formalism of our legal system – in both substance and procedure, so that neither
prosecutors, nor judges or attorneys, could hide behind “a signature and a seal on a piece of
paper.”
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