EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT
opinion
on THE
DRAFT LAW
AMENDING
AND SUPPLEMENTING
THE LAW ON JUDICIAL
POWER
OF BULGARIA
On the basis of comments by:
Mr Harry GSTÖHL (Member, Liechtenstein)
Mr James HAMILTON (Substitute Member, Ireland)
Introduction
1. By
letter dated 8 January 2009, the Permanent Representative of Bulgaria to the
Council of Europe, Mr Ivan Petkov, requested an opinion on the draft Law
amending and supplementing the Law on Judicial Power of Bulgaria.
2. The
present opinion was drawn up on the basis of comments by Messrs Gstöhl and
Hamilton (CDL(2008)038 and 039, respectively), who were invited by the Venice Commission to act as rapporteurs.
3. This opinion was adopted at the … Plenary
Session of the Venice Commission (Venice, …).
GENERAL REMARKS
4. The Law on Judicial Power (also referred
to as the Judiciary System Act, hereinafter “the Act”) was adopted in 2007 and
is a lengthy, comprehensive and detailed text of 409 Articles. It covers a
variety of matters, including general principles, the Supreme Judicial Council,
its Inspectorate, courts and court hearings, the prosecution office, the
National Investigative Service and the status, appointment, disciplining and
dismissal of judges, prosecutors and investigating magistrates.
5. The draft Law amending and
supplementing the Law on Judicial Power (the Act) is accompanied by a report of
motives. This report sets out that changes to the Act were introduced as a
result of the amendments to the Constitution of the Republic of Bulgaria made in 2006 and 2007, the accession of the Republic of Bulgaria to the European Union,
the recommendations made by European bodies (monitoring reports of the European
Commission and European expert reports) and magistrates’ recommendations.
6. The draft Law itself is an
extensive document amending many provisions of the Act. The amendments are
mostly technical in nature, many dealing with matters such as changes in time
limits and the like.
DRAFT LAW AMENDING AND SUPPLEMENTING
THE LAW ON JUDICIAL POWER (THE ACT)
7.
The main changes brought about by the draft Law seem to be the following:
- changes
intended to reorganise the investigative service and to strengthen the
Prosecutor General’s control over it;
- changes
relating to the Supreme Judicial Council – strengthening that body;
- a
provision requiring the Supreme Judicial Council to adopt a Code of Ethics
for all judges and prosecutors;
- changes
to the provisions relating to discipline.
8. The Venice Commission was not
requested to give an opinion on the Act, however as the amendments refer to
this Act, several references to its provisions will be made, where relevant.
Investigation service
9. Article 148 of the Act, as
amended, provides for a unified and centralised National Investigation Service
(NIS). The district investigative services are abolished and replaced by
territorial units within the NIS.
10. Under Article 141, the
Prosecutor General determines the priorities of the NIS and receives reports
from its Director. S/he also receives reports from the Ministers of Defence and
the Interior on their police investigators. Under Article 138, specialised
inter-agency investigative units can be established under the direction of a
prosecutor nominated by the Prosecutor General.
11. It may be worth noting that the
Act provides a highly hierarchical structure in the prosecutor’s office,
with superior prosecutors all the way up to the level of Prosecutor General
entitled to give directions to and receive reports from junior prosecutors in
relation to specific cases. Given that there has long been reported to be a
problem with corruption among some prosecutors in Bulgaria, this seems to be an
appropriate structure to counter the problem.
12. However, it should be noted
that the prosecutors retain elements of powers typically found in the
traditional Soviet-style prokuratura model. For instance, Article
145 gives prosecutors wide powers to obtain documents and information, carry
out inspections, summon citizens and representatives of legal persons and to
issue binding legal orders to all state bodies, legal persons and citizens. These
powers appear to be exercisable without recourse to courts of law to obtain
warrants or other authorisation. In addition, Article 145.5 refers to
prosecutor’s rights to protest illegal acts (although it is not clear whether
the Prosecutor has the final say and it may be that a court can uphold the
legality of the act protested against). Article 146 allows prosecutors to
order immediate release from detention without court intervention.
Supreme Judicial Council
13. One of the main topics covered
by the Act is the institution of the Supreme Judicial Council, which is defined
as being a moral person and is set up as a permanent body that represents the
judiciary and ensures its independence (Article 16).
14. The Supreme Judicial Council is
of crucial importance within the Bulgarian judicial system. It should be
recalled that – as far as the Constitution is concerned – the Venice Commission
made a number of critical comments in its Opinion no. 444/2007 on the
Constitution of Bulgaria (CDL-AD(2008)009). These comments concerned, in
particular the following:
-
Election
of the parliamentary component by simple majority: 11 members of the
Supreme Judicial Council are still elected by Parliament by simple majority
(paragraphs 24-26 of the Opinion) which, according to the Venice Commission,
increases the risk of politicizing the Supreme Judicial Council and thereby its
independence.
-
Role
of the Minister of Justice as chair of the Supreme Judicial Council: the function of the
Minister of Justice within the Supreme Judicial Council was also criticised
(paragraphs 29 to 32). This was mainly directed at the fact that the Minister
of Justice chairs the Supreme Judicial Council (albeit without voting right) and
also has the constitutional right to submit proposals to the Supreme Judicial
Council, especially in relation to suggestions for appointing and dismissing
judges; proposals for draft budgets for the judiciary; making proposals for the
appointment, promotion, demotion, transfer and removal from office; to manage
the property of the judiciary and to participate in the organisation of the
training of judges, prosecutors and investigators – which indicates that the
Minister will act as the driving force of the Council’s activities. The Venice
Commission suggested that this was not in line with the principle of judicial
independence.
-
Representation
of judges, prosecutors and investigators in the Supreme Judicial Council: the Venice Commission saw
a risk of compromising the independence of the judiciary by the various bodies
of judicial power (judges, prosecutors and investigating magistrates) not
because they were brought together within the Supreme Judicial Council, but as
a consequence of this common organisation, the distinction between these three
bodies could fade so that one branch might be too involved in the
administration of the other groups (paragraphs 34 to 40 of the Opinion).
15. The draft Law introduced a number
of changes to the powers of the Supreme Judicial Council. While the Minister
remains as chair, another member can now chair the meetings in the Minister’s
absence. Although it would be preferable if the Minister did not act as
chair, a reduced role for the Minister would represent a step in the right
direction.
16. The draft Law foresees that the
Supreme Judicial Council is to adopt a Code of Ethics for judges, prosecutors,
investigators and judicial officials, which is a welcome step. To the extent
that it is formulated in a concrete enough manner, its use as a basis for
disciplinary proceedings may aid legal certainty concerning what rules are
applicable.
17. The Supreme Judicial Council is
also to determine the number of judicial officials other than magistrates. This
was a request made by the managers, who argued that the budget was attached to
the Supreme Judicial Council and for this reason, the number of judicial
officials financed by this budget should be determined by the Supreme Judicial
Council itself. Although the argument concerning the budget can be easily
followed, the question remains whether a sufficient number of judicial
officials (within the budget) will be allocated to the different bodies, which
are not equally represented within the Supreme Judicial Council. This might,
however, be determined by the day-to-day practice rather than by theoretical
discussions.
18. The Inspectorate at the
Supreme Judicial Council is a moral person with its seat in Sofia. The
nomination of its members (the Inspector General and the inspectors) is
submitted to the National Assembly (Article 49 of the Act) for election. The Inspectorate
is basically in charge of controlling the organisation and functioning of the
courts, the prosecution offices and investigation bodies. It has to submit an
annual programme and a report on its business to the Supreme Judicial Council
(Article 55.1.8 of the Act). The proposed change will give the power to the
Supreme Judicial Council to recommend inspections of judges and prosecutors
outside the annual programme. It will also have a quicker and better access to
information.
19. An obligatory insurance
system is created for the members of the Supreme Judicial Council, covered
by the judiciary’s budget and other rules were introduced with reference to the
status of the persons belonging to the Judicial power. This type of
amendment or completion is welcomed, as it underlines the independence of the
judiciary itself.
20. The management of property
(real estate and movables) is governed by Articles 387 to 390 of the Act. The draft
Law proposes that the Minister of Justice’s power under the present Act to
shift assets from one body to another (with the consent of the judicial bodies’
administrative managers) be transferred to the Supreme Judicial Council. This
proposal clearly underlines the judiciary’s independence and is seen as a real
improvement.
21. Nevertheless, a number
of problems identified by the Venice Commission in previous opinions, as
reiterated above, have not been addressed. The system for election of the
parliamentary component of the Supreme Judicial Council still gives rise to a
risk of politicization. The combination of powers in relation to judges
prosecutors and investigators in a single judicial council (such as powers of
appointment and discipline) remains problematical.
Disciplinary powers
22. Changes have been introduced in
relation to disciplinary powers, which generally seem positive. The definitions
of what constitute disciplinary offences in Article 307 seem more
precise than heretofore and the reference to violation of the Code of Ethics is
welcome, as its adoption should provide greater clarity.
23. Where a person is suspended
pending criminal proceedings, it is made clear there is to be no dismissal
until the proceedings terminate. There is no mention of immunity for judges,
formerly the subject of criticism by the Venice Commission.
24. The Act provides for hearings
before a disciplinary panel, but there seem to be no provisions concerning
how this body is selected (see Articles 317-320). The actual decision,
except in minor cases, has to be adopted by the Supreme Judicial Council
(Article 320).
25. The provision setting out that
1/5 of the members of the Supreme Judicial Council can propose a disciplinary
sanction is problematic since in such a case the accusers are also the judges
(Article 312.1.4). If members of the Supreme Judicial Council bring the
accusation, they should not decide on it also.
26. The provisions concerning the
right of the judge or prosecutor accused to be heard and represented before the
panel seems appropriate but there is no mention of a right to be heard and
represented before the Supreme Judicial Council, which takes the actual
decision (Articles 313 and 318.2). There is provision for appeal to a
court (Article 323).
Other provisions
27. In order to safeguard the
judiciary, the introduction of a Security Service as a judicial entity is
proposed under Article 107 of the draft Law. The main purpose of this
amendment seems to be for budgetary clearness, although the Bulgarian
authorities see it as a further step in the independence of the judiciary.
28. Under Article 195, judges and
prosecutors may not be members of political parties or organisations with a
political goal or who carry out political activity. While this may still be
justifiable at present in the actual situation of Bulgaria, it is recommended
that its necessity be kept under review from time to time.
29. Finally, Article 67.2 of the
Act provides for court assessors in military courts who may be generals,
admirals, officers or non-commissioned officers in permanent military service.
They take part in court hearings. There seem to be no safeguards in the
legislation to ensure that serving military personnel acting as court assessors
are independent and impartial unless the requirement in Article 68.3 that
they be designated by the General Assembly of the judges of the Appellate
Military Court on the proposal of their commanding officers can be so regarded
(see the case of Findlay v. the United Kingdom (1997) 24 221 97/8).
Conclusion
30. The proposed amendments do not
appear to raise any particular objections and on the whole appear positive. A small
number of possible improvements are possible and are listed below.
31. With regard to the Act, a
number of issues that had previously been pointed out by the Venice Commission
regarding the judicial system (Opinion no. 444/2007), have yet to be addressed.
32. The Venice Commission makes the
following recommendations:
With respect to the investigation
service:
33. The Act
-
Prosecutors
retain elements of powers typically found in the traditional Soviet-style prokuratura
model (e.g. Articles 145-146). The Venice Commission recommends that these
provisions be revised to allow either court intervention or supervision of the
powers of the prosecutors.
With respect to the Supreme Judicial
Council:
34. Previous recommendations
(Opinion no.444/2007)
-
The
system for election of the parliamentary component of the Supreme Judicial
Council still gives rise to a risk of politicization and should therefore be
revised.
-
The
combination of powers in relation to judges prosecutors and investigators in a
single judicial council (such as powers of appointment and discipline) is problematical
and should also be revised.
35. The draft Law
-
The
Minister remains as chair, however another member can now chair the meetings in
the Minister’s absence – this reduced role of the Minister is a welcome step,
although it would be preferable if the Minister did not act as chair.
With respect to disciplinary powers:
36. The Act
-
Articles
317-320 regarding the disciplinary panel, the Venice Commission recommends that
provisions be introduced to cover the selection of this panel.
-
Article
312.4 setting out that 1/5 of the members of the Supreme Judicial Council can
propose a disciplinary sanction is problematic as the accusers in this case are
also the judges. The Venice Commission recommends that if the members of the
Supreme Judicial Council bring the accusation, they should not decide on it
also.
-
Articles
313 and 318 concerning the right of the judge or prosecutor accused to be heard
and represented before a panel the Venice Commission recommends that a
provision should also mention a right to be heard and represented before the
Supreme Judicial Council, which takes the actual decision.
With respect to other provisions:
37. The draft Law
-
Judges
and prosecutors may not be members of political parties or organisations with a
political goal or who carry out political activity. Although this may be
justifiable for the moment, taking into account Bulgaria’s current situation,
the Venice Commission recommends that its necessity be kept under review from
time to time.
38. The Act
-
Court
assessors in military courts who may be generals, admirals, officers or
non-commissioned officers in permanent military service, take part in court
hearings. There seem to be no safeguards in the legislation to ensure that
serving military personnel acting as court assessors are independent and
impartial - unless the requirement in Article 68.3 that they be designated by
the general assembly of the judges of the Appellate Military Court on the
proposal of their commanding officers can be so regarded. If not, the Venice
Commission recommends that such safeguards be introduced.
39. The Venice Commission remains
at the disposal of the Bulgarian authorities for any further assistance.
