EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
on THE DRAFT LAW
AMENDING AND SUPPLEMENTING
THE LAW ON JUDICIAL POWER
OF BULGARIA
Adopted by the Venice Commission
at its 78th Plenary
Session
(Venice, 13-14 March 2009)
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 78th Plenary Session of the Venice Commission (Venice, 13-14 March 2009).
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 Supreme Judicial Council established
under Article 130 of the Constitution of Bulgaria, defined as being a moral
person and 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 (see paragraph 14, footnote 2,
above), 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.
