The Status Quo Shields Itself with the Constitution

Author: Lubomir Avdjiiski / 02.03.2016
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The efforts to amend the Constitution did not become a subject of a real political debate. The MPs have spent the last two months articulating their positions and suggestions on how to solve problems and implement measures concerning prosecution reform, structural and personal changes to the Supreme Judicial Council and the election of members of the SJC, the Prosecutor General and Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court and their possible relinquishment. For example things which are considered ludicrous in Bulgaria, are now the law of the land in Romania – like the recall procedure for members of the SJC which can be initiated by assemblies of judges and prosecutors who have elected them as their representatives.Furthermore there isn’t a clear procedure in Bulgaria which could lead to the replacement of a sitting Prosecutor General, although there is such possibility in Article 129 of the Constitution.

The Excuse for the Absence of a Political Debate

The majority of politicians have failed to produce a significant debate on all the issues which separate the Bulgarian judicial system from the good examples of the European judiciary due to the explanation that such changes would require to be a subject of a Constituent National Assembly. Which means – we recognize the need for a substantial reform, but it is impossible. This of course is a lie which the status quo needs to preserve itself.

It is also necessary to give answers to questions such as:

Why does Bulgaria have the most politicized Supreme Judicial Counsel in the European Union?

The Bulgarian Supreme Judicial Council consists of 11 representatives the parliamentary quota and another 11 from the judges and prosecutors quote. In comparison this ratio is 2 to 14 in Romania and 8 to 16 in Italy. The separation of the SJC into two chambers is a necessary and justified solution but also insufficient and uncertain measure in a more advanced prospect. Two of the major political powers have already given a clear indication that they would seek to limit the number of representatives chosen by Parliament in the Prosecutors Chamber at the expense of those in the Judges Chamber which would effectively cripple the idea of separation into chambers.

Why is Bulgaria using the Soviet prosecution model/Vyshinsky/ which is a copy of the prosecution system in the Russian Federation?

Why did Romania back in 2004 started its judicial reform by limiting the power of the prosecution with the following measures – eliminating the hierarchal structure controlledby the Prosecutor General and the high-ranking prosecutors by removing the supremacy over lower-ranking prosecutors, doing away with the written instructions of upper-ranking prosecutors and the ability to intervene in a certain case of a lower-ranking prosecutor from an administrator, upper-ranking prosecutors and the Prosecutor General? The Romanians limited the ability of taking away a case from one prosecutor and giving it to another whereas the revoking of acts of a lower-ranking prosecutor has become possible only in the cases of law violations with the requirement this to be done both motivated and in writing. Another important thing is the creation of the anti-corruption prosecution office which is independent from the Prosecutor General and is yet one more proof for the end of the Soviet-type hierarchy in the prosecution system.

The Bulgarian people and the European Union want change. But let’s leave the neighbors.

When someone talks about the reforms in Romania, the Bulgarian politicians usually say: “Don’t talk to me about Romania!”. “Why?”, asks the citizen and rarely the expert. “Their system is not like ours” – very conveniently answers the politician. The regular citizen doesn’t know how to respond due to his lack of specific legal knowledge whereas the experts are usually afraid to answer because their respond might label them as saboteurs, defilers of the institutions. In a future article we will analyze and compare all the aspects of the two prosecution models both from Bulgaria and Romania in order to prove that the major part of the Romanian reform could be applied to Bulgaria and that this reform, decentralizing the Romanian prosecution system, is not a “Romanian model”, but a European one.

But let’s get back to reality. On 23 September 2013 we witnessed the first half of a game which was previously settled. The members of Parliament scored a deal not to undermine the cornerstones of the status quo – political and institutional corruption and abuse of power. They showed to Europa and to the voters a well-orchestrated piece of theater which was rehearsed in Parliament or somewhere else. The Chairman of one of the groups in the National Assembly made a case that the impossibility for serious changes in the judiciary is rooted in limitations placed in the current Constitution and the he “wouldn’t like to abuse her principles”. There was also a challenge by Mr. Mestan to the other political powers: “If you want more serious changes, initiate a Constituent National Assembly”. There is no paragraph on which we can reach an agreement with him. Firstly, because the Constitutional Court is not bind to its previous decisions and can revoke a practice which is strongly criticized by Constitutional scholars and experts. This could happen by issuing a decision to overturn the often quoted Decision № 3 of 2003 by which the Constitutional Court placed maximum limitations on the possibility to amend the Judicial chapter to the Constitution. Secondly, why did this debate begin and ended with the ascertainment that these issues require a Constituent National Assembly and what stands in the way of identifying the problems of the prosecution system, debating them and finding a way to solve them? You don’t have to an expert in order to understand that the prosecution system is ineffective in the fight against corruption and organized crime. And this is why the overall silence on the problems facing the prosecution system is becoming more and more thunderous.

There wasn’t a public debate between the political powers on the real issues in the judicial systems. Those issues weren’t put on the table.

Now it is expected of us, all those experts who are monitoring the process, to analyze what is happening fairly, professionally and if we are able – with refined legal language. It is expected that put on the masks of seriousness and comment this secretly settled games as if it was fair.

We are expecting the real debate on the issues and the necessary changes in the judicial system.