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Strasbourg, 11 July 2002
Opinion No. 202/2002
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CDL-AD (2002) 15
Or. Eng.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
Opinion
on the Draft Law on amendments
to the judicial system act of Bulgaria
adopted by the
Commission
at its 51st
Plenary Session
(Venice, 5-6
July 2002)
on the basis
of comments by
Mr J. Hamilton (Member, Ireland)
Mr J. Said Pullicino (Member, Malta)
Ms H. Suchocka
(Member, Poland)
1. By
letter dated 15 April, Mr. Stankov, Minister of Justice of Bulgaria, requested
the Venice Commission to give an opinion on the Bulgarian Draft Law on
Amendments and Addendum on the Judicial System Act (CDL (2002) 105). The Draft
Law was adopted by the Bulgarian Council of Ministers on 4 April 2002. On 10
April some concerns were raised in a meeting of the Supreme Judicial Council.
DocumentCDL(2002)106 contains the motives advanced in favour of the
amendments as well as those concerns raised.
2. The
Venice Commission invited Ms. Suchocka and Messrs. Hamilton and Said Pullicino
who in 1999 had already acted as rapporteurs on a previous draft on the Reform
of the Judicial system (CDL-INF (99) 5) to assume the same task in respect of
the on the new Draft Law. The present opinion, to which the individual comments
(CDL (2002) 69, 62 and 63 respectively) are annexed, was adopted Commission at
its 51st Plenary Session on 5-6 July 2002 in Venice.
3. The principal changes proposed in the Draft Law are as follows:
a)
Changes to the rules relating to
the Supreme Judicial Council, in particular providing for the situation where a
member is elected who does not meet the legal requirements for membership.
b)
A new system for evaluation of
judges, prosecutors and investigators during the three-year period before they
become irremovable.
c)
A procedure to allow for the
demotion of certain judges.
d)
The introduction of a competitive
procedure for the appointment of certain judges and prosecutors
e)
Provisions relating to the
training of judges and the establishment of a National Institute of Justice.
f)
Provisions relating to the
qualification of judges.
g)
The administration of the Supreme
Judicial Council and judicial bodies.
4. Following an examination
of the Draft Law, the Commission comes to the conclusion that it represents a
thorough, coherent and comprehensive code for the judiciary, prosecutors and
investigators. Many of the proposed
changes are very positive. The
Commission notes with satisfaction that the Supreme Council of Justice will
have wide powers and that the role of the executive, i.e. the Minister of
Justice, in the administration of justice remains limited.
5. Nevertheless, there are a number of concerns
which relate essentially to the independence of the judiciary. The Commission is of the opinion that the
draft should be amended in relation to the following points:
a)
The
Minister of Justice as the chairman of the Supreme Council of Justice should
not be able to be able to block the discussion of a particular issue within
this body. When the Council is
discussing proposals made by the Minister it would be preferable that some
person other than the Minister ought to chair it.
b)
The
role of inspectorate situated inside of the Ministry of Justice in the light of
expanding competencies of the Supreme Judicial Council is not very clear. The
Ministry of Justice should not be in a position to determine which information
stemming from the Inspectorate is passed on to the Council.
c)
Changes to the rules relating to
the Supreme Judicial Council, in particular providing for the situation where a
member is elected who does not meet the legal requirements for membership. The
Supreme Judicial Council, especially its parliamentary component, should not be
in a position to decide on the validity of the election of a member of the
judicial component of the Council.
d)
The composition of the Supreme
Council of Justice should be depoliticised by providing for a qualified
majority for the election of its members.
e)
The evaluation of judges,
prosecutors and investigators during the three-year period before they become
irremovable in their office should be restricted to courts of first instance.
The annual evaluation of judges may create problems related to independence of
the judges. The criteria for this evaluation seem to be too vague.
f)
The incentives for magistrates
provided for in Article 167a should only be applicable after the retirement
from office.
g)
The envisaged Code of Ethics should be approved by the Supreme
Judicial Council but regulated at the level of law. It should precisely spell
out the consequences of a breach of its rules.
h)
Procedural rules for disciplinary
proceedings should guarantee a due process. In particular, a member of the
Supreme Judicial Council, who calls for disciplinary action against of a
magistrate (or the lifting of immunity) should not be entitled to vote on his
or her own proposal. Once the disciplinary panel of the Supreme Judicial
Council has found in favour of the judge, this decision should be final. The
relocation of a magistrate to another district or demotion to a lower court is
doubtful as a disciplinary measure.
i)
The procedure for lifting the
immunity of magistrates should be improved.
j)
The reasons for the dismissal of
a judge (Article 131 of the draft law) cannot go further than the respective
constitutional provisions (Article 129).
k)
The appointment of retired judges
where there are no other applicants seems to be inconsistent with judicial
independence since such persons are not irremovable and may therefore be
subjected to improper pressure.
l)
Provisions relating to the
training of judges and the establishment of a National Institute of Justice.
These provisions should be more detailed and should determined the main action
of the Institute. The Institute should be controlled by the Supreme Judicial
Council rather than the Ministry of Justice.
m)
The Judiciary should continue to
be entitled to an autonomous budget.
6. For a
detailed discussion of these and other issues raised by the rapporteurs, the
Commission refers to the individual comments by the rapporteurs which are
annexed to this opinion.
Appendix
I
Comments by Mr J. Hamilton
Introduction
7. The
Minister of Justice and European Legal Integration of Bulgaria has requested
the Venice Commission to provide him with an analysis of the Bulgarian Draft
Law on Amendments and Addendum on the Judicial System Act. The Draft Law was adopted by the Bulgarian
Council of Ministers on 4 April 2002 and will be presented to the Bulgarian
Parliament in June.
8. My
comments are based only on an examination of texts, and I have not had
discussions with the proposers of the Draft Law or other interested parties.
Constitution and Legal Situation
9. The
Constitution of the Republic of Bulgaria was adopted by the Grand National
Assembly on 12 July 1991. It provides that the judicial branch of Government
shall be independent (Article 117.2 of the Constitution) and that the judicial
branch of Government shall have an independent budget (Article 117.3 of the
Constitution). The judicial branch of
Government has three parts (a) the courts (b) the prosecutor’s office and (c)
investigating bodies which are responsible for performing the preliminary
investigation in criminal cases.
10.
Justice is administered by the Supreme Court of Cassation, the Supreme
Administrative Court, courts of appeal, courts of assizes, court martial and
district courts. Specialised courts may
be set up by virtue of a law, but extraordinary courts are prohibited (Article
119 of the Constitution).
11.
Judges, prosecutors and investigating magistrates are elected, promoted,
demoted, reassigned and dismissed by the Supreme Judicial Council which
consists of 25 members. There are 3 ex
officio members, the Chairman of the Supreme Court of Cassation, the
Chairman of the Supreme Administrative Court, and the Chief Prosecutor. Eleven of the members of the Supreme
Judicial Council are elected by the National Assembly, and 11 are elected by
the bodies of the judicial branch. All
22 elected members must be practising lawyers of high professional and moral
integrity with at least 15 years of professional experience. The elected members of the Supreme Judicial
Council serve terms of 5 years. They
are not eligible for immediate re-election.
The meetings of the Supreme Judicial Council are chaired by the Minister
of Justice and European Legal Integration, who shall not be entitled to a vote
(Article 130 of the Constitution).
12.
Justices, prosecutors and investigating magistrates become
unsubstitutable upon completing a third year in the respective office. They may be dismissed only upon retirement,
resignation, upon the enforcement of a prison sentence for a deliberate crime,
or upon lasting actual disability to perform their functions over more than one
year (Article 129.3 of the Constitution).
They enjoy the same immunity as the members of the National Assembly
(Articles 132.1 and 70 of the Constitution).
Therefore, they are immune from detention or criminal prosecution but
can be detained in the course of committing a grave crime. The immunity of a justice, prosecutor or
investigating magistrate may be lifted by the Supreme Judicial Council only in
circumstances established by the law (Article 132.2 of the Constitution).
13. The
organisation and the activity of the Supreme Judicial Council, of the courts,
the prosecution and the investigation, the status of the justices, prosecutors
and investigating magistrates, the conditions and the procedure for the
appointment and dismissal of justices, court assessors, prosecutors and
investigating magistrates and the materialisation of their liability are to be
established by law (Article 133 of the Constitution). This law is the Judicial System Act of the Republic of Bulgaria
which has been enacted in 1994 and has been amended in 1994, 1996, 1997 and
1998.
The Draft Law
14. The
Draft Law proposes a number of further amendments and modifications to the
Judicial System Act. The stated purpose
of the changes, as set out in the motives to the law, are as follows:
“Over the period since the last essential amendments, the need has become
clear to adopt a new Law to Amend and Supplement the Judicial System Act. The Reform Strategy for the Bulgarian
Judicial System, the commitments undertaken by Bulgaria in its National
Programme for the Adoption of the Acquis and the priorities listed in
the Accession Partnership all require to reinforce the judicial system; enhance
the professional training of magistrates; improve the administrative work of
the judicial system; and better the operation of the Supreme Judicial
Council. Thus, some of the political
criteria for membership of the European Union will be met.”
15. The
principal changes proposed are as follows:
h)
Changes to the rules relating to
the Supreme Judicial Council, in particular providing for the situation where a
member is elected who does not meet the legal requirements for membership.
i)
A new system for evaluation of
judges, prosecutors and investigators during the three-year period before they
become irremovable.
j)
A procedure to allow for the
demotion of certain judges.
k)
The introduction of a competitive
procedure for the appointment of certain judges and prosecutors
l)
Provisions relating to the
training of judges and the establishment of a National Institute of Justice.
m)
Provisions relating to the
qualification of judges.
n)
The administration of the Supreme
Judicial Council and judicial bodies.
16. It
is important, in evaluating the draft law, to have regard at all times to the
provisions of Article 6(1) of the European Convention on Human Rights insofar
as it provides that the determination of civil rights and obligations or of
criminal charges must be made by an independent tribunal. In evaluating whether a tribunal or court is
independent the European Court of Human Rights has consistently held that
regard has to be had to four factors, firstly, the manner of appointment of its
members, secondly, their term of office, thirdly, the existence of guarantees
against outside pressure, and fourthly, the question whether the tribunal
presents an appearance of independence (Findlay v United Kingdom [1997]
24 E.H.R.R 221)
The Supreme Judicial Council
17. The
composition of the Supreme Judicial Council has already been noted. In its opinion on the Reform of the
Judiciary in Bulgaria (22-23 March 1999,CDL-INF(99)5) the Venice Commission
concluded that the composition of the Council, chaired by the Minister of
Justice and European Legal Integration (who does not have a vote) and
consisting of the Chairmen of the Supreme Court of Cassation and the Supreme
Administrative Court and the Chief Prosecutor, together with eleven members
elected by the parliament and eleven elected by the judges and the prosecutors,
was not in itself objectionable.
However, the Commission underlined the importance of the election of the
parliamentary component being depoliticised.
This had not been the case prior to 1999. I have no information as to what the more recent practice has
been, or whether any steps have been taken to address the concerns expressed by
the Commission in 1999. The present law
does not address this question. It is
appreciated, however, that the composition of the Council and the role of the
Minister of Justice and European Legal Integration is fixed by the
Constitution. The Commission’s concerns
in 1999 related more to questions concerning the political culture than to the
text of the Constitution or the law.
18. The
Supreme Judicial Council itself will under the draft proposals be given the right
to contest the legality of an election by the meetings of delegates who elect
the judicial component of the Council.
Where they do so, the Council will appoint a five-member mandate
commission, which will prepare an opinion on the legality of the contested
election. The Supreme Judicial Council
then rules on the matter. Until it does
so, the person whose election is contested does not participate in the meeting.
19. This
provision appears to me somewhat problematical. It is asymmetrical in that it applies only to the judicial
members, but not the parliamentary component.
It therefore opens up the possibility of the parliamentary component
having a say on the validity of the election of the judicial component, but not
the other way around. Given the whole
manner in which elections by the National Assembly to the Council was the
subject of heated political controversy on earlier occasions this strikes me as
unwise. Secondly, I wonder if the
Council itself should rule on the validity of the election of its proposed
members. This might be a task more
appropriately given to another body – perhaps the Supreme Administrative Court,
or the three ex-officio members of the Council, or even the Constitutional
Court. Thirdly, it does not appear that
there is any prohibition on the Council transacting other business – for
example, making judicial appointments - while some of its members cannot take
part in deliberations because the legality of their election is subject to a
challenge. In these circumstances the
members of the Council charged with making decisions may not be disinterested.
20. The
provisions of Article 26 concerning the role of the chair have been repealed
and replaced by Articles 34a, 34b and 34c.
There appear to be no changes of substance except the introduction of a
rule that the agenda should be circulated in advance, which is appropriate, and
a provision (Article 34b (2)) that the agenda is to be approved by the chair
who is the Minister of Justice and European Legal Integration. The chair should not, in my view, have the
power to prevent the Council from discussing and deciding a matter properly
within its competence by means of refusing to approve an item for the agenda if
this is the effect of the provision.
21. In
Article 27 it is proposed to make a number of changes to the powers of the
Council. Article 27 (1) 6 relates to
the power to divest a judge, prosecutor or investigator of immunity or
temporarily remove him or her from office.
At present a decision on such a question can be requested by the Chief
Prosecutor, the Presidents of the two Supreme Courts or the Minister of Justice
and European Legal Integration. It is
now proposed to add “and at the request of at least one fifth of the members of
the Supreme Judicial Council”. The
Presidents, Chief Prosecutor and Minister should continue to have the power to
seek a decision on such a question without any requirement in addition to
convince one-fifth of the members before initiating a proposal. In other words, the provision should say “or
at the request” instead of “and at the request”. Perhaps this is a translation difficulty.
22.
There seems to me, however, to be a more fundamental difficulty with the
mechanics of exercising a power to dismiss or suspend a judge or remove the
judge’s immunity. If the judge, in such
circumstances, is entitled to the protections of Article 6(1) of the European
Convention on Human Rights, as it seems to me that he may, then if the Supreme
Judicial Council is to preserve its status as an independent and impartial
tribunal the moving party in such a hearing ought not to participate in the
decision. It may be suggested that the
one-fifth of the members are merely requesting the Council to make a decision
and in so doing so do not pre-empt that decision, but in my view such a
proposition would lack reality. It
seems to me, therefore, that it would be desirable to add a provision to
Article 27 to the effect that a member of the Council who requests a decision
to discipline a judge, prosecutor or investigator, should not be entitled to
vote on his or her own proposal.
23. The
other changes to Article 27 seem to me beneficial, including the power to
require and hear information from the courts, prosecutors and investigators,
examine annual reports, and adopt codes of ethics.
24.
Under the proposed revisions to Article 30 proposals concerning the
number of judges, prosecutors and other office-holders and their appointment,
promotion, demotion, transfer or removal from office must be presented via the
Minister of Justice and European Legal Integration who shall submit them
together with an opinion. The proposals
must still, however, originate with the appropriate heads of courts or offices,
and it does not appear the Minister is given any power of veto or right not to
present the proposal unless the requirement that he approve the agenda can be
so construed.
Inspectorate
25. The
draft law amends the law relating to the Inspectorate within the Ministry of
Justice and European Legal Integration whose principal function is to inspect
the organisation of the administrative work of courts, prosecution offices and
investigation services, and inspect and summarise the organisation,
institution, progress and closure of court, prosecution and investigation
cases. It cannot inspect the work of
the Supreme Courts or the Chief Prosecutor or the Supreme Prosecution
Offices. The inspectorate functions
under the Chief Inspector who is appointed by the Minister of Justice and
European Legal Integration. The
independence of inspectors is strengthened by the removal of the limit of their
term of office (although it is not clear what the new term of office is to be
or whether it is intended to be for an indefinite period) and by providing for
the same procedures for removal as for a judge. An inspector who was formerly a judge may return to that position. On the whole the changes to these provisions
seem positive.
Regional Court, District Court, and
Court of Appeal
26. The
chairmen of these courts are required to prepare annual reports and produce
statistical data. The regional court as
well as the district court and court of appeal are to hold general meetings and
each court can propose a person as president of the court following a secret
ballot. These developments are
positive.
The Chief Prosecutor
27. The
Chief Prosecutor is required to prepare an annual report. Again, this is a positive development.
28.
Article 116 is being amended to delete the prohibition on the prosecutor
terminating criminal proceedings without the permission of the court. This provision was introduced in 1998. The Commission in its Report of 22-23 March
1999 described this as a proportionate response to a perception of fraud among
elements of the prosecution service.
However, the organisation of the prosecutor’s office in Bulgaria is
hierarchical and the Chief Prosecutor should have sufficient authority to
control his subordinates’ activities without having to seek leave of a court of
law in order to discontinue criminal proceedings. In my view the change now proposed is to be welcomed if the
problems envisaged in 1998 have been sorted out.
Status of the judges, prosecutors
and investigators
29. The draft
law refers to newly defined positions as “administrative leaders” of the bodies
of the judiciary. These include
presidents and vice-presidents of courts, chief prosecutors and their deputies,
and the directors and senior staff of the investigative bodies. Except in the case of the Presidents of the
Supreme Court of Cassation and the Supreme Administrative Court and the Chief
Prosecutor, these positions are to be for a fixed term of five years (renewable
once) or seven years (not renewable).
At the end of the term the judge retains his position and status as a
judge and retains his rank and salary (Article 125a). It seems to me that this is a reasonable way of dealing with the
administrative burden falling on the presidents of courts, prosecution offices
and investigation agencies.
30.
Article 127 (4) makes some changes in the qualification for appointment
to the Supreme Courts or the Supreme Court Prosecution Offices. The qualification period is reduced from fourteen
years practice to twelve including eight years as a judge, prosecutor,
investigator, attorney or inspector. It
is not clear to me whether that means that at least eight years must have been
served in that capacity or whether it merely allows this period to be
reckoned. If it is mandatory academic
lawyers lacking this length of experience could be excluded. Under the former rule only five years
experience as a judge, prosecutor or investigator was required as part of the
fourteen years total.
31.
Article 127a, 127b and 127c provide for the holding of competitions for
judicial office up to and including the court of appeal if there is no
applicant who has successfully graduated from the National Institute of
Justice. The legality of the contest
can be challenged before the Supreme Judicial Council and appealed to the
Supreme Administrative Court. The rules
for the contest are laid down by the Council.
This seems to me a positive development.
Evaluation
32.
Judges, prosecutors and investigators become permanent and irremovable
after three years service. This is a
constitutional provision. Article 129
proposes to introduce an evaluation process for all judges before the end of
that period.
33.
There are certain safeguards built into this process. The evaluation is carried out by a committee
appointed by the head of the court, prosecution office or investigation service. Certain elements must be taken into account,
including the opinion of the direct superior who must make an annual
evaluation. The procedure for
evaluation is set by the Supreme Judicial Council. A negative evaluation is treated as a proposal for removal on
grounds of absence of qualities to discharge professional duties (Article 131
(3)). The matter then goes to the
Supreme Judicial Council with a right of appeal to the Supreme Administrative
Court.
34. The
appointment of temporary or probationary judges who may not be removed is a
very difficult area. A recent decision
of the Appeal Court of the High Court of Justiciary of Scotland (Starr v
Ruxton, [2000] H.R.L.R 191; see also Millar v Dickson [2001] H.R.L.R
1401) illustrates the sort of difficulties that can arise. In that case the Scottish court held that
the guarantee of trial before an independent tribunal in Article 6(1) of the
European Convention on Human Rights was not satisfied by a criminal trial
before a temporary sheriff who was appointed for a period of one year and was
subject to a discretion in the executive not to reappoint him. The case does not perhaps go so far as to
suggest that a temporary or removable judge could in no circumstances be an
independent tribunal within the meaning of the Convention but it certainly
points to the desirability, to say the least, of ensuring that a temporary
judge is guaranteed permanent appointment except in circumstances which would
have justified removal from office in the case of a permanent judge. Otherwise he or she cannot be regarded as
truly independent. While the situation
of the Bulgarian temporary judge subject to evaluation by fellow judges is a
far cry from the Scottish sheriff dependent on reappointment by the executive
the following extracts from the judgment of Lord Reed in Starrs v Ruxton
are apposite:
“Given that temporary sheriffs are very often persons who are hoping for
graduation to a permanent appointment, and at the least for the renewal of
their temporary appointment, the system of short renewable appointments creates
a situation in which the temporary sheriff is liable to have hopes and fears in
respect of his treatment by the executive when his appointment comes up for
renewal: in short a relationship of dependency.” (at
p.243)
“There can be no doubt as to the importance of security of tenure to
judicial independence: it can reasonably be said to be one of the cornerstones
of judicial independence.” (at p.245).
35. The
European Commission on Human Rights, in Application No. 28899/95, Stieringer
v Germany, 25 November 1996, found that there was no violation of Article
6(1) of the Convention where a criminal trial in Germany was held before three
judges, two of whom were probationary, and two lay assessors. Prior to completion of their probationary
period the probationary judges were liable to removal by the judicial
authorities, subject to a right to challenge their removal before a
disciplinary court. Under German law
their participation in the trial had to be justified by some imperative
necessity; the German courts had found such necessity to exist. The Commission held that there was no breach
of Article 6(1). In that case, the
executive had no role in the removal process which was subject to judicial
control. The system under the proposed
Bulgarian law is therefore more akin to that accepted by the European
Commission in Stieringer to that condemned by the Scottish courts in Starr
v Ruxton.
36.
Nonetheless, the difficulties in principle with systems of evaluation of
temporary judges, whether in civil or common law systems, are clear. The European Charter on the Status of
Judges, adopted by the Council of Europe in July 1998, provides in paragraph
3.3 that where judges are appointed for a trial period, which should
necessarily be short, any decision not to reappoint them should be taken by or
on the advice or recommendation of or with the agreement of a body independent
of the executive or the legislature with a membership of at least half consisting
of the judge’s peers. Given the
composition of the Supreme Judicial Council which has a substantial component
elected by the legislature, it seems doubtful that the proposed arrangements
conform to the Charter.
The explanatory memorandum to the Charter, comments as follows:-
“Clearly the existence of probationary periods or renewal requirements
presents difficulties if not dangers from the point of view of the independence
and impartiality of the judge in question, who is hoping to be established in
post or to have his or her contract renewed”.
The Charter is, however, not legally binding.
37. The
Universal Declaration on the Independence of Justice, adopted in Montreal in
June 1983 by the World Conference on the Independence of Justice (UN
DOC.E/CN.4/Subs.2/1985/18/Add.6 Annex 6) states:
“The appointment of temporary judges and the appointment of judges for
probationary periods is inconsistent with judicial independence. Where such appointments exist, they should
be phased out gradually”.
38.
Despite the safeguards which are built in to the draft law I continue to
have misgivings about the proposal. It
seems to me to undermine the independence of the individual judge during the
three-year period of removability.
Despite the laudable aim of ensuring high standards through a system of
evaluation, it is notoriously difficult to reconcile the independence of the
judge with a system of performance appraisal.
If one must choose between the two, judicial independence is the crucial
value.
39. I
accept, however, that to an extent misgivings about evaluation may be more
justified in a common law system where judges are appointed late in life having
had lengthy prior experience as legal practitioners. Systems of evaluation of judges are harder to justify in such a
case. Where the judiciary is a lifetime
career into which young lawyers are recruited the case for some form of
evaluation, particularly early in the judge’s career, may be stronger. In such a case, however, the case for
exercising control over the type of case the judge may hear is strong. In Stieringer the probationary judges
were not entitled to exercise criminal jurisdiction except in cases of
imperative necessity.
40. If
there is to be a system of evaluation, it is essential; firstly, that control
of the evaluation is in the hands of the judiciary and not the executive. This criterion appears to be met by the
Bulgarian law. Secondly, the criteria
for evaluation must be clearly defined.
In my view the criteria set out are in some respects too vague. One of the criteria for evaluating the judge
is “quality of carrying out the respective proceedings and of the orders
drafted” (Article 129 (4)). It seems to
me that once a judge is appointed if anything short of misconduct or
incompetence can justify dismissal then immediately a mechanism to control a
judge and undermine judicial independence is created. Some of the criteria in Article 129 (4) are susceptible to very
subjective evaluation. How does one
measure motivation to work or team integration? How can one apply “incentives and sanctions” while respecting the
independence of the judge?
41. I
should add that my comments relate primarily to the judges and investigating
magistrates whose individual independence requires to be safeguarded. Different considerations may apply to the
prosecutors who work in a hierarchical system and where therefore it is
independence of the prosecutor’s office as a whole which requires protection
rather than the independence of the individual prosecutor from his fellow
prosecutors who are superior in the hierarchy.
42.
Article 129 (6) also provides for the appointment of retired judges as
judges where there are no other applicants.
These seem to me inconsistent with judicial independence since such
persons are not irremovable and may therefore be subjected to improper
pressure.
43.
Article 131a provides for a new system of demotion of judges,
prosecutors and investigators, but not by more than two levels in the judicial
hierarchy. The grounds for demotion are
that the judge, prosecutor or investigator no longer possesses the required
abilities to fulfil his professional duties.
The matter is heard by the Supreme Judicial Council, which is subject to
appeal to the Supreme Administrative Court.
The difficulty I see with this is that a judge who has not got the
abilities to fulfil his duties on one level may not have them at any
level. If he is demoted, how is the
litigant in the lower court to have confidence in that judge’s decision?
44.
Illegally dismissed judges are entitled on reinstatement to an indemnity
not to exceed nine months salary (Article 139e). It is not clear to me on what principled basis this limit can be
justified.
45. Promotion
of judges in rank and salary can take place only after an evaluation (Article
142 (3)) under the procedures laid down in Article 129, which includes an
annual evaluation by the direct superior.
It follows that any judge wanting to be promoted or paid a salary
increase must be evaluated annually.
This again created similar difficulties of compatibility with the
necessary independence of the individual judge for the reasons already set out
above.
Training
46. Article
146a of the draft law proposes to establish a National Institute of Justice
with the Ministry of Justice and European Legal Integration. It will be managed by a Managing Board
composed of four representatives of the Supreme Judicial Council and three
representatives of the Ministry of Justice and European Legal Integration. The Board will elect a Director of the
Institute. The Minister of Justice and
European Legal Integration will issue rules and “determine the constitution of
the Managing Board” (which seems inconsistent with the earlier provision laying
down the composition of the Board).
47. The
principal function of the National Institute is the improvement of the
knowledge and skills of judges, prosecutors and investigators, and training
persons to obtain the qualification to be a judge, prosecutor or
investigator. Persons who successfully
complete courses have priority in appointment, setting remuneration and
promotion. Indeed, Article 163 makes
training at the Institute a requirement for judicial appointment.
48. In
my opinion since the successful completion of a course is in most cases a
prerequisite to judicial appointment control of the Board should rest with the
judicial bodies themselves. Otherwise
there is a risk that the independence of the judicial bodies is
compromised. In my view the Board
should consist only of representatives of the judges, prosecutors and
investigators.
Incentives
49.
Article 167a proposes the presentation of prizes, badges of honour,
proclamation of “Judge of the Year”, “Prosecutor of the Year”, “Investigator of
the Year” and even promotional incentives by the Supreme Judicial Council.
50. It
is of the essence of judicial or prosecutorial independence that difficult and
unpopular decisions have to be taken from time to time. Such decisions may not be likely to win
approval even from a distinguished body such as the Supreme Judicial Council
(11 of whose 25 members, be it remembered, are elected by Parliament). The singling out of certain judges and
prosecutors for such accolades in my view is likely to inhibit rather than
encourage the exercise of judicial independence. Judges should not have one eye to their popularity ratings, even
among their fellow judges. Furthermore,
there may be a risk of encouraging a Stakhanovite approach to judicial and
prosecutorial work.
Disciplinary Responsibility
51. As
already noted, the Supreme Judicial Council is empowered to adopt codes of
ethics for judges, prosecutors and investigators.
52.
Articles 168-185 of the Judicial System Act deals with disciplinary
responsibility. A range of sanctions
for offences and omissions, unjustified delay, or breach of oath, by judges,
prosecutors and investigators are provided.
The sanctions range from reprimand through reduction of pay, demotion
and relocation to dismissal and can be imposed only following a hearing by a
disciplinary panel of the Supreme Judicial Council, with an appeal to the
Supreme Administrative Court. Dismissal
is, however, in the case of an irremovable judge, applicable only for breach of
oath.
53. The
draft law proposes to add to the grounds on which disciplinary responsibility
can be imposed “acts falling within or without the scope of their official
duties and violating the Code of Ethics” (Article 168 (1)).
54.
Given the serious consequences for judges, prosecutors and investigators
which can ensue for breach of the Code of Ethics it seems to me it would be
desirable that such codes be given statutory effect as well as being adopted by
the Supreme Judicial Council and that the precise disciplinary consequences of
different breaches of the code be spelt out.
Administration
55. The
draft law proposes to strengthen the administration of the Supreme Judicial
Council and the other courts by establishing new offices of Secretary General of
the Council and Court Administrators.
The administration of the Supreme Courts, the Chief Prosecutor’s Office
and the National Investigation Service remain subject to rules to be
established by the respective heads of those bodies. These provisions seem to me to be appropriate.
Budget
56. The
draft law proposes to repeal the provision under which the judicial system has
an autonomous budget (Article 196). The
autonomous budget of the judiciary is, however, provided for by Article 117(3)
of the Constitution of Bulgaria. It is
not clear to me whether Article 196 is being repealed because it is considered
unnecessary in the light of the Constitution, or whether it is intended to
effect a real change in the budgetary system.
I can find no new provisions which correspond to the repealed provisions
in Article 196. If it is in fact intended
to take away the judiciary’s right to an autonomous budget this would represent
a serious diminution in the independence of the judicial system.
Other Matters
57. A
new provision in the draft (Article 12 (4)) requires judges, prosecutors and
investigators to disclose their income and property annually to the Court of
Auditors. This is a valuable safeguard
against possible corruption.
58. Two
other matters raised by the Commission in its opinion of 22-23 March 1999 have
not been attended to in the draft law.
In particular, in addition to the matters already referred to relating
to the composition of the Supreme Judicial Council, these include:
a)
clarifying that Article 172
should refer only to administrative irregularities so as to avoid undue
influence by the executive on the courts, and
b)
the continuance of the system of
relocation of a judge, prosecutor or investigator to another district, as a
disciplinary sanction, which the Commission considered open to objection.
Conclusion
59. The
draft law represents a thorough, coherent and comprehensive code for the
judiciary, prosecutors and investigators.
Many of the proposed changes are very positive. I do, however, have a number of concerns
which relate essentially to the independence of the judiciary, and more
particularly to the necessary independence of every individual judge. I believe that there is both the scope and
the need to further amend the draft law in ways which would strengthen that
independence. My principal concerns
relate to (a) the method of challenging the legality of elections for the
judicial component in the Supreme Judicial Council, (b) the evaluation process
for the individual judge during the three-year probationary period and annually
thereafter, (c) the possibility of appointing retired judges, (d) provisions
allowing for the demotion of judges, (e) the control of judicial training which
in my view should rest with the judicial bodies and (f) control of the budget
of the judicial system.
Appendix II
Comments by
Mr J. Said Pullicino
The
Supreme Judicial Council and the Independence of the Judiciary
60. The Supreme Judicial Council plays an
important role as the administrator of the judiciary. Its introduction sought to provide the judiciary with an
independent organ which could largely assume on an independent basis the powers
traditionally held by the Government.
However, the Ministry of Justice appears to exercise extensive
administrative and supervisory powers, and continues to hold substantial powers
in relation to personnel and material resources for the administration of
justice. While the Council’s powers are
clearly defined (Article 27), the Ministry’s are not. In the Regular Report on Bulgaria’s Progress Towards Accession
(2001), the Commission for the European Communities expressed concern that the
unclear split of roles and responsibilities between the Supreme Judicial
Council and the Ministry of Justice, contributes to the poor functioning of the
judicial system.
61. In a consolidated opinion of the Venice
Commission on the Constitutional Aspects of the Judicial Reform in Bulgaria,
the view was expressed that: “The Venice Commission does not consider that
there can be, in itself, any objection to the election of a substantial
component of the Supreme Judicial Council by the Parliament”. Although the Supreme Judicial Council is
supposed to represent and administer the judicial power, it is composed not only of judges. The majority of its members are appointed by
Parliament (eleven of its members) or represent non-judicial functions. This
reflects to an extent the influence of the political branches on the judiciary.
To date no provision has been introduced in the Constitution or in the Judicial
System Act concerning the majority required for the election in relation to the
members of the Council elected by Parliament. It therefore seems that an
ordinary majority would suffice. This allows a party enjoying parliamentary majority
at the time of the election, to impose itself in the composition of the
Council. No one party should be allowed to having a decisive influence on the
selection of the members.
62. The fact that the Minister of Justice serves
as the chair (though without voting rights), confirms the extensive direct and
indirect administrative powers which the Ministry of Justice continues to
exercise. The Minister appears to have a dual role in the Supreme Judicial
Council, as member of the Government and the chair of the meetings. This may be considered to compromise the
separation of powers and the independence of the judiciary. In an established democracy where the
administration of justice is by and large above party politics and the independence
of the judiciary is pronounced, such features would not be of great concern. In
Italy for example the organ with constitutional significance which guarantees
the independence of the judiciary is the Consiglio Superiore della
Magistratura. It is presided by the
President of the Republic. The law regulating the functioning of the Consiglio
gives the Minister of Justice the faculty to formulate requests and remarks on
matters for which the Consiglio is specifically competent. The Minister
can also participate in the sittings if requested by the President or when the
Minister considers it necessary in order to make communications or give
clarifications. However, in recently established democracies, such influence
could well reflect widespread mistrust or lack of confidence in the judiciary.
63. The fact that agenda to be discussed in the
meetings of the Supreme Judicial Council, is to be “approved by the chair”
(Article 34b[3]) is another matter which solicits concern. Similarly, in terms
of Article 34a the chair “shall organize and moderate the meetings of the
Council”. Another instance which
highlights the involvement of the executive.
Similar considerations apply with respect to the Minister’s power to
convene meetings of the Supreme Judicial Council (Article 34b[1]).
64. It is pertinent to note that the proposed
amendments do not take into account the opinion expressed by the Venice
Commission in 1999 on judicial reform in Bulgaria, where it was proposed that: “there
is, however, a case to be made that when the Council is discussing proposals
made by the Minister it would be preferable that some person other than the
Minister ought to chair it”. Similarly, Article 172 still provides the
Minister with the possibility to intervene in judicial proceedings,
notwithstanding that he is not a party to the same. I concur with the opinion
expressed by Luis Lopez Guerra in his comments on the Reform of the Judicial
System Act (1999) that, “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 influence in the judicial process”.
65. The rapporteur has no information of the
staff employed with the Supreme Judicial Council and the frequency it
meets. If there are faults in this
regard, there is a high probability that the Supreme Judicial Council will not
be an effective administration, and would leave the door open for continued
executive involvement in administration and supervision.
Election of a member to the Supreme Judicial Council
and contestation
66. Article 19 of the draft law has introduced
the possibility to contest the legality of an election of a Supreme Judicial
Council member by the Supreme Judicial Council itself. However, the draft law should specifically
state who is entitled to contest the legality of an election. Can any member
sitting on the Supreme Judicial Council contest the legality of an election, or
does contestation depend on a decision taken by the Supreme Judicial Council in
terms of Article 34c of the law (i.e. if at least two thirds of the members of
the Supreme Judicial Council having the right to vote have attended, and a
simple majority of the votes of those present has been attained) ? Furthermore,
ideally where the validity of the election is contested on the initiative of
the Supreme Judicial Council, the matter should not be reviewed by the Council.
67. I also propose that in the light of the
advisory opinion delivered by the Constitutional Court in October 1999, whereby
it was declared that the re-election of council members after serving a term of
five years was unconstitutional (regardless of the duration of their term or
the reason for its termination), the Constitution should be amended to reflect
this opinion.
Appointment and promotion of judges, prosecutors and
investigators
68. In terms of Article 30 of the draft law, it
appears that candidates for appointment are selected and proposed by senior
officials of the courts, prosecutors’ offices and investigation services. There
appears to be a lack of national criteria and co-ordinated procedures for
purposes of recruitment and this could give rise to unwarranted subjectivity.
This might be considered to be a deficiency which calls for rectification. Such
a list would facilitate both self-assessment by candidates and the provision of
structured references in their support. For obvious reasons, the guiding
principle in selection must be that the appointment should be made on merit
without regard to ethnic origin, gender, marital status, sexual orientation,
political affiliation, religion or disability, except where the disability prevents
the fulfillment of the physical requirements of the office. From a reading of
the law, it is not clear what mechanisms the Judicial Council is adopting to
judge the qualities of selected candidates and it appears that its decision is
dependant on the assessment of the person proposing the candidate. One could consider introducing specific
tools for purposes of assessment.
Code of Ethics for judges, prosecutors and
investigators
69. Article 27 of the draft law provides the Supreme
Judicial Council shall “adopt a code of ethics for judges, prosecutors and
investigators”. The establishment of ethical standards is the primary tool
for combating corruption. If corruption encroaches into the judiciary and its
bodies, that would mean the collapse of the plans and programs that are devised
to protect society from the negative impact of the various forms of
corruption. The introduction of such
rules are to ensure that judges are prohibited from using their office to gain
personal advantage; that judges are impartial; regulate the manner in which
judges perform their duties. An effective means of enforcing ethical rules is
essential, and the judiciary is the appropriate body to fulfill this role.
Granting another branch of government a role in investigating and prosecuting
violation of judicial ethics could infringe judicial independence.
70. The introduction of Article 12 whereby
judges, prosecutors and investigators are obliged to declare their income and
assets upon appointment and annually, is also positive in that it is another
device in preventing corruption. Among its many other advantages, disclosure of
the source of assets is helpful in countering any public mistrust if the wealth
of a judge appears to have an unclear origin.
However, it must be emphasized that this information should under no
circumstance be used as a means to curtail a judges’ independence.
The Inspectorate
71. Article 35 of the Judicial System Act
provides for the establishment of an Inspectorate, which falls under the
authority of the Ministry of Justice. Another supervisory power available to
the Ministry, which permits the Inspectorate to make intrusive investigations
into the operations of the courts and the actions of the individual
judges. Although the Inspectorate
appears to have no direct decision-making authority over the judicial branch,
it examines the organization of administrative activities of district, regional
and appellate courts.
72. The Chief Inspector and the inspectors are
appointed by the Minister of Justice and European Legal Integration (Article 36
and 36a), subject to the opinion of the Supreme Judicial Council. This should to a certain extent guarantee a
certain extent of impartiality.
Furthermore, it appears that the Inspectorate can only provide
information to the Supreme Judicial Council through the Minister of Justice,
except in cases not falling under Article 35(1) – (5). Under current legislation, the Inspectorate
reports directly to the Supreme Judicial Council. I am of the opinion that the
involvement of the executive is extensive and might curtail and limit on the
independence and impartiality of judges.
A reading of the proposed amendments might deliver the wrong message in
that it appears that the Ministry of Justice has a discretion as to which
information is passed on to the Supreme Judicial Council. The amendments should ensure that any such
potential danger is removed.
Evaluation of judges, prosecutors and investigators
73. Article 129 provides for the evaluation of
judges, prosecutors and investigators before the lapse of the initial three
years of service in office. It is a fact that judges are expected to meet high
standards of performance. It is not
uncommon to find in different legal systems means to evaluate judges
performance in the execution of their duties.
Whilst ensuring that new judges have the necessary qualifications, this
could impinge on a judge’s independence.
74. The draft law does not appear to restrict
this evaluation, for purposes of confirmation, to courts of first
instance. The provision provides for
evaluation of judges sitting in the Supreme Court of Cassation and Supreme
Administrative Court (Article 129[3]).
I am of the opinion that evaluation at this level could be seen as a
means of restricting security of tenure and thereby could impinge on the impartiality
of judges. I propose that the issue
concerning evaluation for purposes of irremovability should be limited for
courts of first instance. A positive
note is that the procedure for evaluation is set by the Supreme Judicial
Council.
75. Evaluation is also resorted to for the
purpose of promoting a judge, prosecutor and investigator in rank (Article
142). Therefore, promotion is not
automatic. The amendment aims at
rectifying the prevailing lacuna in that the law does not presently contain any
clear criteria for evaluating eligible judges.
Term of office
76. Article 129 of the Constitution stipulates
that the Chairman of the Supreme Court of Cassation, the Chairman of the
Supreme Administrative Court, and the Chief Prosecutor shall be appointed for a
period of seven years, and are not eligible for a second term of office. The
draft law provides for terms of office for other leaders of the bodies of the
judiciary (Article 125a). In certain
instances they may be appointed for two sequential terms of office (example –
president of division at the Supreme Court of Cassation, president and vice-president of a court of
appeal). One might argue that the
independence will in principle be greater if one had not to worry about
re-election after a few years.
77. With respect to the president of the Supreme
Court of Cassation, Vice-President of the Supreme Administrative Court, Chief
Prosecutor, Director of the National Investigation Service, the draft law does not
provide for terms of office. I fail to understand why members of the Supreme
Judicial Council have expressed their concern “regarding the introduction of
term of office for the presidents both of the Supreme Court of Cassation and
the Supreme Administrative Court”, once the matter is regulated by the
Constitution.
Disciplinary Responsibility and Incentives for Judges,
prosecutors, and investigators
78. There are two kinds of judicial
accountability. The first is the
accountability which arises as a result of the requirement for every judicial
officer to give reasons for his or her decisions. Such reasons enable the
parties and interested persons to know why a particular decision was reached.
Such reasons are also necessary in order to enable an appellate court to know
why a particular decision was reached and provide the appropriate remedies.
Another kind of judicial accountability relates to tenure, and in particular,
to the circumstances which give rise to disciplinary measures, including
dismissal from office.
79. As a general rule, disciplinary measures aim
at ensuring a judges’ impartiality, and they do not appear to threaten their
independence. I fully concur with
Article 179 of the draft law in that the a right of appeal adverse disciplinary
rulings is guaranteed. The removal of a
judge’s right to appeal decisions imposing disciplinary sanctions would surely
reduce judges’ security from improperly imposed disciplinary sanctions. However, this right of appeal should in my
opinion be limited only to the judge or other judicial officer against whom
disciplinary proceedings are instituted. If the disciplinary panel of the
Supreme Judicial Council finds in favour of the judge, the decision should be
final and conclusive.
80. Another amendment proposed in the draft law
provides for the initiation of disciplinary proceedings on advise by “The
Minister of Justice and European Legal Integration, and one fifth of the
members of the Supreme Judicial Council” (Article 171[2]). Therefore, I
understand that the initiation of disciplinary proceedings on the Minister’s
advice is no longer possible, unless one fifth of the members of the Supreme
Judicial Council concur. However, one should keep in mind that eleven members
sitting on the Council are members of Parliament. Under these circumstances, one would expect that any initiative
by the Minister of Justice on disciplinary matters against a member of the
judiciary would very likely achieve the requested support from a large part of
the members of the Council. Of added
concern is the fact that there have been instances where in elections for the
parliamentary component of the Supreme Judicial Council, the respective
opposition parties did not participate with the result that on each occasion
the parliamentary component was exclusively elected from the governing parties.
81. Although the draft law would appear to grant
the disciplinary defendant a means of defence, it fails to stipulate which
procedural rules are to be followed when collecting and evaluating evidence.
This matter should be regulated by special rules which reflect a due process as
guaranteed by the Constitution.
82. In terms of Article 169, one of the
disciplinary measures which may be adopted is the “relocation to another
court region for up to three years”. A measure which could give rise to
debate since it could very well affect the impartiality of judges’.
83. I do not agree with Article 167a as
proposed. The incentives enlisted should only be applicable after a judge,
prosecutor or investigator retires from office.
Dismissal of Judges, prosecutors, and investigators
84. The Bulgarian Constitution provides that
dismissal of a judge, prosecutor, and investigating magistrate is only possible
on retirement, resignation, upon the enforcement of a prison sentence for a
deliberate crime, or upon lasting actual disability to perform their functions
over more than one year (Article 129). The issue concerning dismissal is also
regulated in the draft law (Article 131), which adds to the circumstances in
which a judge may be dismissed. This
provision should strictly reflect what is stipulated in Article 129 of the Constitution. As things stand the draft
law conflicts with the Constitution, in that the latter restricts the instances
when a judge, prosecutor or investigator may be dismissed from office. Although
the draft law has not added the reasons for which a judge may be dismissed, I
propose that retirement should not be included amongst the reasons of
dismissal. The draft law does not
provide for a mandatory retiring age, although one would presume that this
would be the generally established retiring age.
85. The inability to remove a judicial officer
from office, in the absence of decision by the Supreme Judicial Council, is
deemed to be a valuable protection for judicial officers. It means that no judicial officer can be
removed from office unless the Supreme Judicial Council is of the view, after a
hearing, that grounds exist for such removal.
Incompatibility between the office of
judge, prosecutor, investigator with other offices
86. Article 132 seems to permit judges to move
between the judiciary and the executive or legislature and back. This
unnecessarily weakens the important distinction between the three different
branches, and could negatively affect a judges’ independence. However, the
draft law provides for reinstatement within fourteen days from the filing of an
application with the Supreme Judicial Council. The proposed amendment is
positive in that it clarifies the procedure for purposes of reinstatement. However, I do not believe that this proposed
amendment is adequate to curtail the concern expressed above and it is clear
that the Council is not entitled to refuse an application for reinstatement.
Immunity
87. In terms of Article 134 of the Judicial
System Act judges, prosecutors, and investigators enjoy the immunity of members
of Parliament. It is apparent that the proposed amendments do not take into
account the concern expressed by the Commission of the European Communities in its
report (2001) that: “The fact that criminal investigators with the functions
they exercise in Bulgaria (some of which are exercised by police elsewhere),
are members of the judiciary, is unusual.
Requests to the Supreme Judicial Council to lift immunity are rare. Such provisions on immunity make it
difficult to know the potential scale of corruption or criminal activity in the
judiciary”. Legislative amendments are appropriate in order to improve the
procedure for lifting, where necessary, the immunity from criminal prosecution.
Judicial Compensation
88. The draft law has also improved the rules on
judicial compensation (Article 139b – 139g). While this cannot on itself
prevent judicial corruption, judges should receive adequate compensation, which
does not leave them unusually vulnerable to corruption.
National Institute of Justice
89. The draft law provides for the establishment
of the National Institute of Justice (Article 146a). It is natural, and proper, that modern governments are taking a
greater interest in judicial training and continuing education, thereby seeking
to improve the individual and institutional efficiency of judges and other
court officials. In a dynamic and changing society the judiciary has to be
constantly renewing its intellectual resources. Once judicial apprenticeship would have been regarded as an
admission of self-doubt or incapacity. Nowadays, judicial education is regarded as
the norm. It is an undisputed fact that
members of the judicature are very busy and it is unrealistic for them to seek
out their own professional development.
The need to maintain judicial independence is no argument against the
desirability of judges becoming better informed.
90. So long as judicial training and education
is left in the hands of the Judicial Supreme Council, the judges or an
autonomous and independent institution from the executive, there should not be
any apprehension that educational programs could compromise judicial
independence. The Supreme Judicial Council should be given a leadership role,
in encouraging the continuing education of judges. Alternatively a judicial
training center may be established and operated by a non-governmental organization,
where the Ministry of Justice could be possibly represented on a Board of
Governors. It is an undisputed fact that the administration of justice involves
substantial expense to government, and governments are entitled to see that the
resources provided to the court system are used efficiently and
effectively. I believe that the concern
expressed by the Supreme Judicial Council on the 10th April 2002
with respect to the establishment of a National Institute of Justice which
falls under the authority of the Ministry of Justice, is justified and warrants
attention.
91. I endorse the proposal that training should
also be available for prosecutors, investigators and clerical staff. In terms of the Bulgarian Constitution, the prosecutors
and the investigators are part of the judicial branch, and planning decisions
for the improvement of the judiciary should deal with these branches too.
Appendix III
Comments by Ms H. Suchocka
92. The fundamental
principles of the Judiciary are proclaimed by the Constitution from 1991. The
Constitution establishes the general rules concerning the judicial power, i.e.
independence of courts and judges, the system of courts and prosecutor’s office
and the role of Supreme Judicial Council. The constitutional provisions
concerning the Supreme Judicial Council are of great importance because they
completely change the system of judiciary existing before. Article 129
providing for the establishment of a special body entrusted with a great
competencies with respect to courts and judges changed radically the position
of the minister of Justice. Judicial Councils with nationwide competence have
taken over competencies exercised previously by the executive. The constitution
has created a framework and basis for the ordinary legislation in this matter.
The Law on Judiciary has been adopted in 1994. In 1998 important amendments
were made to this Law. The draft being now under discussion proposes the new
amendments to the Law, mainly in three areas: the competencies of the Supreme
Judicial Council; some questions concerning irremovability of judges and
training of magistrates and especially the establishment of National Institute of Justice.
93. As it has been stated in the Motives to the
Law to amend the Judicial System act, the commitments undertaken by Bulgaria in
its National program for Adoption of the acquis and the priorities listed in
the Accession Partnership, require to reinforce the judicial system and
especially the professional training of magistrates, and better operation of
Supreme Judicial Council. I would like to concentrate myself only on this two
points.
1.
Provisions
concerning the role of Supreme Judicial Council
94. The new amendments do not change
substantially the role of the Council. As I mentioned above, the position of
the Council has been clearly described in the Constitution with a widely
defined competencies and the ordinary law cannot change this position.
The now proposed amendments are rather of technical nature. (Art. 20 p. 2 ,5
concerning the situation when a member is elected who does not meet the legal
requirements.) In art. 27 there are the new competencies of the Council p.
10-15, they don‘t involve any objection. It is a logical consequence of the
very strong position of the SJC. In the light of art. 27 (1) p.3 the SJC shall
determine the number not only of judges but also prosecutors, investigators,
bailiffs, recordation judges, and court officials at all courts, prosecution
offices and investigation services while the Minister (art. 30 p. 6) may only
make proposals and provide opinions on the legality of the proposals to the
Supreme Judicial Council. It can involve questions: what exactly is the role of
the Minister of Justice. With a view to strengthen
institutional capacity of the Council and its ability to carry out management
activities, the Supreme Judicial Council is gradually creating and expanding
its own administration. Taking
into account that the Supreme Judicial Council comprises not only judges but
also the prosecutors and investigators it is obvious that the Council would
replace the ministry of Justice and became an organ with all administrative
competencies and organizational structures typical for the Ministry of Justice.
It is very clearly seen in the chapter sixteen on the Administration of the
bodies of the Judiciary. Art. 187 p.2 states that the administration of the
bodies of the Judiciary shall be the administration of the Supreme Judicial
Council, of the Supreme Court of Cassation, of the Supreme Administrative
Court, of the Chief Prosecutor, of the Supreme Prosecution Office of Cassation,
of the Supreme Administrative Prosecution Office, of the National Investigation
Service, of the courts, prosecution offices and investigation services. In the
field concerning the administration of the bodies of Judiciary minister of
Justice shall act in strict coordination with the Supreme Council of Judiciary
(art. 188.2). The administration of the Supreme Judicial Council shall be
headed by the new administrative office Secretary General. It is a model going
very far to create a very strong Council with a very strong administration and
decision making competencies while the Minister is rather an opinion making
organ. This kind of model is not very often met in the EU countries.
95. The model proposed for Bulgaria is now much
closer to the model existing now in Hungary. This Hungarian solution is not free
of critics. According to some critics the operation of the Council is
rather bureaucratic resulting in the increase of the administrative burden of
judges.
Some argue that it is actually the Office of the Council composed of civil
servants, which has the real power and not the Council itself. Many of the employees of the Office used to
work at the competent department of the Ministry of justice prior to the reform
and their mentality still reflects the old times when courts were clearly
subordinated to the bureaucracy of the Ministry.
96. However in Bulgarian model there still is a
structure within the Ministry of Justice, the Inspectorate, (chapter 4) which inspects and summarises the
administrative activities of courts, as specified in this chapter. Though the
Inspectorate has no direct supervisory or administrative authority over the
judicial branch, it carries out regular inspections of the courts in order to
track civil and criminal cases through the lower courts and to ensure that
standards regulating the progression of a case through the courts have been
met. The Inspectorate analyses and
summarizes cases and acts of judges and reports back to the SJC in matters that
might affect promotion or result in disciplinary action.
97. The role of inspectorate situated inside of
the Ministry of Justice in the light of expanding competencies of the SJC is
not very clear.
2. Training of
Judges
98. Art. 146a introduces to Bulgarian legal
system the new institution in charge of training all magistrates i.e. National
Institute of Justice. It is a very positive solution. In my opinion it is a
very good idea that the Institute being a second/level budget spending unit
with the Minister of Justice shall be founded through the budget of the
Ministry of Finance and through international programmes and projects. There arise however some doubts concerning
the role of the Institute. The
judicial authority in most of the countries comprises exclusively judges in the strict sense and the special school,
institute are created only for training judges. In Bulgaria judges, public prosecutors and investigators
form part of the judicial branch and all together are called magistrates. In
such a situation it could be difficult in practice to organise the
training for all the groups by one common Institute of Justice. I have such an
impression that this provision is of very general nature and it should be much
more detailed described not to be only theoretical solution but exactly working
institution.
