CDL(1999)010e-restr
Strasbourg, 10 March 1999
REFORM OF THE JUDICIAL SYSTEM ACT IN BULGARIA
Comments by
Mr Luis LOPEZ GUERRA
(Spain)
1.
Introductory remarks
The present report refers to the Amendments to the
Judicial System Act of the Republic of Bulgaria introduced by the Act passed
by the National Assembly on September 30th, 1998. The criteria for
the evaluation of these Amendments are taken from the requirements
concerning the independence of the judiciary included in the European
Convention for the Protection of Human Rights and Fundamental Freedoms, and
other related international documents.
The following comments are therefore concerned with
the adequation the Bulgarian Law in question to the mandates contained in the international
texts which are quoted below. Three additional observations should be made:
a)
These comments do
not include a judgement on the constitutionality of the Amendments,
i.e., as to whether they are compatible with the Bulgarian Constitution of 1991.
That task has already been undertaken by the Bulgarian Constitutional Court as
witnessed in its decision of January 14th, 1999.
b)
The comments will
refer not only to the Amendments’ strict conformity (or lack thereof)
with the requirements concerning the independence of the judiciary derived from
the European Convention, but also to considerations on the suitability of these
Amendments from the standpoint of improving the conditions for
guaranteeing that independence.
c)
It is generally
assumed that the main purpose of the very existence of a Council of the
Judiciary is the protection of the independence of judges by insulating them
from undue pressures from other powers of the State and, especially, from
pressure on the part of the Executive Power in matters such as the selection
and appointment of judges and the exercise of disciplinary functions.
Therefore, some attention must be given to examining whether the Amendments
will permit the Supreme Judicial Council to act as an autonomous entity or, on
the contrary, whether they permit the other powers of the State to unduly
influence the Supreme Judicial Council’s decisions.
d)
2.
Composition of the Council (Articles 17(2) and 18(1)
of the Judicial System Act.
The Amendments introduced by the Act of
September 30th, 1998 reforming the composition of the Council do not
seem to represent any threat to the independence of the Judiciary, nor do they
imply any increase of Governmental or Parliamentary influence or presence in
the Supreme Judiciary Council. The reforms affecting Articles 17(2) and 18(1)
of the Judicial System Act increase from five to six the number of
members elected by judicial bodies, a change which does not affect the
independence of this organ since the judges’ representatives are elected among
the judges themselves.
However, a comment must be made in relation to the
members of the Council elected by Parliament (eleven members, according to
Articles. 130(3) of the Constitution and 16(3) of the Judicial System Act).
Since there is no provision in the Constitution or in the Act concerning the
majority required for this election, it seems that the ordinary or common
majority established by Article 81(2)
of the Constitution, (i.e., “a majority of more than one half of the present
Members”) would suffice. Some concern must be expressed on this point, since it
allows the party or parties with a parliamentary majority at the moment of the
election to greatly influence the composition of the Council. Requiring a
qualified majority (as in other systems) would be a more appropriate means for
obtaining a more balanced composition of the Council, thus avoiding any one
party from having a decisive influence on the selection of the Council’s
members.
3.
Election of a new Council (Article 81 of the
Transitional and Final Provisions)
Under the Amendments Act, transitional
provision number 81 of the Judicial System Act provides for the election
of a new Judicial Council, and as a consequence, the dismissal of the one
previously in existence, well in advance of the end of the latter’s mandate.
Given the system of election of the members of the Council appointed by the
National Assembly, this implies that the new Council will more intensely
reflect the tendencies of the present parliamentary majority.
The Constitutional Court has already ruled that the
reform of transitional provision number 81 does not contradict the
Constitution, since, as stated in the Court’s decision, pursuant to Article 4
of the Transitional and Final Provisions of the Constitution “the genuine existence
and functioning of these institutions whose existence as organs of the
judiciary is stipulated by the Constitution created the opportunities for the
judges and the prosecutors appointed there to participate in the election of
the members of the judiciary quota as well as to be eligible within this quota
as members of the Supreme Judiciary Council.”
Since the Constitutional Court is the supreme
interpreter of the Constitution, empowered to issue binding interpretations of
the constitutional text (Article 12.(1).1, Constitutional Court Act), no
further considerations on the constitutionality of the Amendments are
warranted. However, some comments are required if Article 6.1 of the European
Convention is taken as the criterion for evaluation.
The required independence of judges and courts
stipulated in Article 6.1 of the ECHR implies the absence of undue pressures on
them in their task of issuing judgements. If the Council of the Judiciary has
the power to appoint judges, adopt disciplinary measures, and decide other
matters concerning the status of judges, it seems reasonable that this Council
should likewise be independent vis-à-vis the other powers of the State. This
would at least imply a fixed term of mandate during which the members of the
Council would be irremovable, except in cases bod behaviour or the inability to
exercise their functions. The possibility of early dismissal of all or some of
the members of the Council by decision of a new parliamentary majority
decreases the Council members’ independence and, therefore, the independence of
the judiciary.
It must be pointed out that if Transitional Clause
number 4 of the Constitution is interpreted as allowing the dismissal of the
Council and the election of a new Council when new structural and procedural
laws which implement constitutional mandates are enacted (once the
three-year term prescribed in transitional Clause 3(3) of the Constitution has
elapsed) the irremovability and, therefore, the independence of the Council
members might be seriously threatened. Under the pretext of developing
constitutional mandates, any new parliamentary majority could introduce new
procedural laws to “implement” the Constitution and thus alter the composition
of the Council to “adapt” it to the new organisation of the judiciary.
4.
The Role of the Minister of Justice: appointments
(Articles 27(2) and 30(2) of the Judicial Systems Act)
The presence of the Minister of Justice in the
Council, in the capacity of Council President as provided for in Article 130(5)
of the Constitution, does not seem, in itself, to impair the independence of
the Council. Moreover, in those countries that have adopted similar
institutions, the presence of members of the Executive Power in the Councils of
the Judiciary is not infrequent. Thus, the Italian Constitution establishes
that the President of the Republic shall preside the Council of the Judiciary
(Article 104) and the French Constitution makes the President of the Republic
President of the Council. Furthermore, in France the Minister of Justice is bi
the ex officio Vice President of the Council as well as its President,
in the absence of the President of the Republic.
Similarly, the possibility open to the Minister of
Justice, in the new paragraph (2) of Article 27 of the Judicial Systems Act,
to “present his opinions on the nominations of judges, prosecutors and
investigators,” does not seem to jeopardise the independence of the Council,
since the Ministry of Justice may have useful data and information on the
candidates which might aid the Council members in their task of deciding among
the candidates proposed for the offices or vacancies to fill.
Concerning new paragraph (2) of Article 30 of the Judicial
System Act, several comments should be made:
Paragraph (2) of Article
30 reads as follows:
“The Minister of Justice and Legal European
Integration may address proposals to the Supreme Judicial Council for the
purposes of Article 27(1)1, 3 and 4, concerning all positions of judge,
prosecutor or investigator.”
In European countries the Executive Power frequently
has the competence to propose candidates to fill posts on the judiciary. Such
is the case of France where the Minister of Justice (pursuant to Article 65 of
the Constitution and Organic Law 94/100 of February 5th 1994) has
the right to propose to the Council candidates for filling all judicial
vacancies, (with the exception of the judges of the Court of Cassation, the
First Presidents of the Appellate Courts and the Presidents of the Courts of
Grand Instance). Therefore, it would seem that the Bulgarian Minister of
Justice’s powers to propose candidates for the judiciary are not significantly
different from practice generally accepted in the European context.
Furthermore, the final decision on the appointments in question is left to the
Council.
It should be pointed out, however, that the Bulgarian
Minister of Justice’s power to propose candidates for the judiciary, if not
contrary to the principle of independence of the Council of the Judiciary,
--and, in general, to the principle of judicial independence—seems to
contradict one of the more relevant justifications for the existence of a
Judiciary Council, i.e., to reduce or eliminate the influence of the Executive
power in the appointment of judges. The method of election of the members of
the Council appointed by Parliament by common or ordinary majority, and the
possibility of the existence of “governmental candidates” for judicial
vacancies could very possibly originate a strong tendency to appoint those
judges supported by the party or parties in power, in clear contradiction with
the purposes generally pursued by the creation of Councils of the Judiciary.
5.
The role of the Minister of Justice: disciplinary
proceedings (Article 171(2) of the Judicial System Act)
Article 171(2) of the Judicial
System Act in its reformed version, reads
“The Minister of Justice and European Legal
Integration may advise the initiation of disciplinary proceedings against any
judge, prosecutor or investigator.”
Once again, in European constitutional systems it is
not unusual for the Minister of Justice to have some powers to initiate
disciplinary proceedings against members of the judiciary. And, since it is as
an independent entity (whether a court or the Council) the one that has the final
word on the matter, the independence of the judiciary may be considered to be
guaranteed. The French and Italian examples may also serve to illustrate this
case: the Ministers of Justice in those countries may refer to the Council
those acts they consider constitute disciplinary offences.
However –as stated previously-- the peculiarities of
the Bulgarian Supreme Council of the Judiciary derived from the fact that
Parliament appoints eleven of its members by a simple majority vote, may lead
us to consider that the prerogative provided under Article 171(2) (new version)
of the Judicial System Act could eventually place undue pressure on the
members of the judiciary, since it leaves judges open to the possibility of
disciplinary sanctions in cases in which they disagree with the wishes of the
Executive Power. It should be underscored that the eleven members of the
Council appointed by the Parliament by and “ordinary” simple majority, will
very likely reflect (in a parliamentary system), not only the preferences of
the Parliamentary majority, but also the one of the majority- sustained
Government. In other words, any initiative by the Minister of Justice on
disciplinary matters against a member of the judiciary will very likely find
considerable support from a sizeable part of the members of the Council. The
leverage this situation gives the Executive in matters concerning the judiciary
should not be overlooked.
Therefore, to suppress any direct interference of the Government
in disciplinary proceedings it might be preferable to grant the power to advise
the initiation of disciplinary proceedings to the Inspectorate. Although
appointed by the Minister of Justice and European Legal Integration, inspectors
must have the approval of the Council to be appointed (Article 36.a of the Judicial
Systems Act), and therefore, they offer a greater guarantee of
impartiality.
6.
The role of the Minister of Justice: warnings to the
Courts (Article 172 of the Judicial System Act)
Art. 172 of the Judicial System Act (amended)
grants the Minister of Justice and European Legal Integration the power to
“bring to the attention of regional, district and appellate judges (...) what appear
to the Minister to be irregularities in their work of initiating and processing
certain cases...”.
As it is well known, the main goal of the independence
of the judiciary is to guarantee that judges and courts will be subject only to
the Law in taking their decisions on the cases subject to their jurisdiction,
without the interference of any external influences other than the Law. The
parties to a proceeding may point out the irregularities they perceive, either
to the Court ruling on this case, or to a superior court, using the legal
remedies at their disposal. What the principle of independence of the Judiciary
excludes is interference in the judicial process from any outside source that
is not a party to the proceedings.
The provisions of Article 172 of the Judicial
System Act provide for precisely that type of intervention by the Minister
of Justice, which is not a party to the proceedings. The Minister may warn the
Court that the manner in which the proceedings are being conducted is (in his
opinion) wrong or incorrect. Given the powers and privileged position of the
Executive, such warning may represent, not only a pressure on the Court to
“mend its ways” in the direction suggested by the Minister, but also a
disadvantage for one or both of the parties to the proceedings, thus affecting
the impartiality of the judicial process. Furthermore, it is difficult to
understand the meaning of the concluding provision “and the Minister shall
notify the Supreme Judicial Council accordingly,” since the powers of the
Council are of an administrative and governmental nature, rather than
jurisdictional.
Thus, if there are, or seem to be, “irregularities” in
the Court’s handling of a case, it is the task of the parties to the
proceedings, including the prosecutor, to denounce these irregularities to the
competent court, making use of the appropriate legal remedies. The intervention
of the Executive Power would therefore represent an undue interference in the
judicial process.
7.
Authorisation of leaves (Article 190(2) of the
Judicial System Act)
Article 190(2), introduced by the Amendments
Law, regulates the authorisation of judges’ leaves. Its subparagraph 4
establishes that the Minister of Justice shall have the power to authorise
leaves of absence of the presidents of district and appellate courts. This
provision may be considered to confer on the Executive Power an administrative
competence over certain judges that contravene the principle of independence of
the judiciary. It seems that it would be more coherent with this principle to
confer that competence to the Council of the Judiciary.
8.
Some general conclusions.
If the reforms introduced by the Amendments Act
were analysed separately, one by one, it would be difficult to consider that
any one of them represents a threat to the independence of the judiciary.
Equivalent measures may be found in European countries where the independence
of the judiciary is taken for granted.
Considered as a whole, however, the reforms may be
cause for some concern. The Judicial System Act, prior to its reform,
already contained regulations that could be considered detrimental to judicial
independence, since following constitutional mandates, it established too close
relationship between the Supreme Judicial Council and the ruling majority in
Parliament, as eleven members of the Council were (and still are) to be elected
by the National Assembly without requiring a qualified majority vote. Two main
additional reasons for concern may be found in the amended Act: a) increased
powers of the Minister of Justice in relation to proposing candidates and
advising on disciplinary measures, and b) the dismissal of the Council and the
election of a new one, whose eleven members elected by parliament would
undoubtedly reflect the ideology and political tendency of the parliamentary
majority supporting the government.
All
in all, it is difficult to avoid the impression that the main goal of the
reform was to increase the influence of the Executive power on the Supreme Judiciary
Council and, in an indirect way, on the Judiciary Power itself. This
appearance, in itself, could damage the public confidence in the Courts and,
therefore, reduce rather than increase, their ability to cope effectively with
the problems of criminality facing the Bulgarian Society.
In the long term, probably the best may to transform
the Supreme Judicial Council into a body protected from external influences (or
the appearance thereof), would be to alter, with or without constitutional
reform, the manner of electing Councils members, making it more difficult for
the parliamentary majority of the moment to almost decisively (by choosing
eleven members of the Council, of the thirteen who constitute a ruling
majority) determine the composition of the Council. In the meantime, and
although the new powers assumed by the Executive by virtue of the reform of the
Judicial System Act are not directly incompatible with a regime of
judicial independence, a judicious and restrained use of these new powers would be highly recommended.
