A Long Note on the Three Judicial System Act Draft Bills

There is no political will and majority to solve the problems in the justice system. There is also no government.* However, there is no lack of legislative activity in the current Parliament on judicial issues. Three bills to amend and supplement the Judicial System Act have been submitted to the National Assembly and were even passed during the first reading a few days ago. All this in the context of the upcoming election of Borislav Sarafov as Prosecutor General (PG). Excruciating days both for the candidate and for the obedient majority in the Supreme Judicial Council. Lack of personal will requires lack of character. But let’s put that aside.

Out of the three draft bills, two regard the procedure for the election of the PG – that of Revival party (Vuzrazhdane) and that of the PP-DB. The third draft by the ITN party is not related to the subject, it deals with other issues. In all three bills, there is a skillful authorship of the norms, uncharacteristic, for example, of their other attempts on the subject.

The Revival (Vuzrazhdane) Draft Bill was First in Time /see here/.

They are trying to thwart Sarafov’s election by relying on one straightforward approach – limiting the Judicial Council’s power to put forward a proposal to the President of Republic of Bulgaria for the appointment of the chairpersons of the supreme courts and PG, if the Council’s term of office has expired. This approach attempts to hinder both the election of Sarafov and the potential election of the Chairperson of the Supreme Administrative Court /SAC/. It is politically justified, but legally unsustainable – the Constitutional Court case law clearly states that a constitutionally established body such as the Judicial Council cannot be deprived of its powers by law. So much for Sarafov.

The Revival party made another proposal regarding the legal powers of the prosecutor’s office as a whole, namely §2 of their draft bill states “The same judge and prosecutor may not participate in the consideration of the case in different instances.”

The position of the judge and prosecutor in the criminal procedure is quite different at this stage. This proposal puts the same restrictions that exist now for judges – if you get a file at a higher level but you’ve worked on it at the regional level, you become a district prosecutor, then you get the same case at the district level, that would not be possible. In practice, the amendment doesn’t make much sense, but it’s a step in the right direction because it would open up the issue of prosecutors’ personal involvement with a particular case and the inability to remove the more active among them from certain cases and files and send them higher up to do favors and mischief.

PP-DB Draft Bill is the Second /see their draft here/.

If there is one thing this coalition is passionate about, it is the issue of the Prosecutor General. They are more consistent in writing legislation in that regard than, say, the constitutional draft. Perhaps the next attempt to revise the Bulgarian Constitution should be accompanied by this procedure as well, so that it can be relied upon to be consistent and comprehensive. The PP-DB draft, besides putting an end to Sarafov’s effort to head the prosecutor’s office, also resolves many deficits of this very procedure both established since the 1990s, when Filchev was elected, and relatively new ones.

First and foremost, the international standard according to which the majority of judges is to elect at least the chairpersons of the supreme courts should finally be met. At the moment, politics and the prosecutor’s office actually prejudge these elections. A court elected by political expediency adjudicates more politically and economically (when necessary, of course) than fairly.

Nominations for PG are to be made by three members of the Judicial Council, not just three members of the Prosecutorial College of the Council. This idea is also partly similar to the IME’s proposal on the subject – judges should have a decisive vote on prosecutors’ career issues, the opposite is not the case.

The Judicial Council is mandated by law to establish the minimum content of the concepts of candidates for prosecutor general. Over the years, we have read all sorts of ideas from candidates for the highest positions in the judiciary about strengthening the tourist element and increased sanatorium recreation and autonomy among judges and prosecutors. It is time to at least put some meaningful decency into this endeavor as well.

The hands of the presidential institution are untied, if it refuses to appoint the proposed candidate for PG, Supreme Court of Cassation (SCC) and SAC to do so without being blamed for not exercising its constitutionally established powers and all the possible consequences thereof. Furthermore, if the President refuses to appoint a particular candidate, then the Judicial Council should not be able to simply repeat the election in a week’s time, but to re-examine (to the extent it is able to do so) on objectively ascertainable criteria again.

It puts an end to the present absurdity the Chairperson of the SAC with an expired term of office to strike out the mandate as constitutionally established principle and to continue his work in office. We note only that this was done with the apparent complicity of almost all judges of the SAC and is a clear example of the Bulgarian interpretation of judicial self-government to date.

It also corrects another trouble created by the majority of this SJC, courtesy of the SAC – the prosecutors’ college electing an interim PG. Candidates for the chairpersons of the SCC, SAC and PG cannot be interim of the position they are applying for, according to the draft bill. The argument that this is a form of discrimination is easily overcome – whoever becomes a candidate will refuse to become interim. As noted, human will is an activity of human character and implies a durability longer than that of a perishable sausage.

The pending Presidential Decree procedures should be terminated so that the newly enacted provisions, if adopted, can be implemented.

The Third Draft Bill by ITN Party /see here/.

It has no bearing on the procedure for the election of the PG, but it puts other substantive judicial issues on the Parliament’s agenda.

The ITN party mandates that the dead from within professional environment in the prosecution service be revived with more powers to the general assemblies (GA) of the prosecutors of each prosecutor’s office. This model of self-governance characteristic of judges should at least allow the GAs to nominate and hear the candidates for the leadership positions. The effect would be controversial, but it is an opportunity to give those “awake” in the prosecution at least the right to have an opinion. These voices, however, have no medium for expression and are likely to be disempowered, and so we will go back to the pure formality of self-government by dictation.

The central issue in the draft ITN is the thorny issue of secondment of magistrates and deserves attention, at least as a textual matter, given the democratic and procedural parliamentary culture at the apex of this unfinished attempt at political organization.

It proposes to limit secondments at the statutory level in view of the inability of the SJC to properly and effectively exercise its powers. The ability of junior judges to be seconded from a district court to a regional court is removed, so that the chairperson of the relevant district court can only second regional judges from another court or from the district court.

At the district level – from another district or regional court with 8 years of experience and the rank of district court judge. At the appellate level, an 8-year seniority requirement is also introduced.

The fatal sentence, adopted in the time of the strongest GERB and the united DPS (Movement for Rights and Freedoms): “Exceptionally, the secondment may be to an unfilled post, subject to the conditions of Article 227, paragraphs 2 – 9 of the Judicial System Act”. This would effectively end the migration of seconded magistrates, it would be curbed within the appellate region when posted to the appellate court, there is a requirement of 10 years of service and the rank of judge in the appellate court. Exceptional secondments are waived. In the SCC, accordingly, only from the appellate courts, not from the district courts, can be seconded, and that too with 12 years of service and the rank of a judge in the SCC as the exception is also abolished. However, the controversial power of the President of the SAC to second judges from the common courts remains and the seconded judges will have to have 12 years of service, with the addition of the requirement of the rank of judge in the SAC.

However, not a word from ITN on one of the most controversial texts – restraining the courts’ chairpersons from influencing the bonuses of the seconded judges to buy their obedience. The texts are mirrored for the prosecution.

ITN’s views on the prosecutor’s office are far more detailed.

The Prosecutor General will not manage the activities of the National Investigative Service (NIS), he will not appoint the staff of the NIS either, the Director of NIS will not be the Deputy Prosecutor General, and the Deputy Prosecutors General are limited to two. This is most likely to cause resistance because the power of the SJC to appoint the deputy prosecutor generals is being taken away. Nothing of the sort – statutory limits are being put on how many and when in order to curb this appointment spree as well. Apart from that, there is no limit on the number of heads of departments in the Supreme Prosecutor’s Office of Cassation, which is the real operational capacity of the prosecutor’s office and thus in no way hinders its activities.

The most essential idea of the ITN is also the most controversial and requires more patience from the reader:

The provision of Art. 139-2 of the Judicial System Act: PG and his deputies who are entitled with specific legal powers according to Art. 1 may revoke or amend prosecutorial acts in writing, unless they have been subject to judicial review. A controversial decision that reshapes and obliterates the oversight of legality exercised by the PG in one of its elements. In practice, a large number of prosecutorial acts will remain without institutional control, i.e. without any control. Such a decision must necessarily be accompanied by expanding the limits of judicial control, the abolition of the conditions under Article 93(7) of the Criminal Code. Taking these competences away from the GG would require vesting the power to reopen criminal cases to another level prosecutor or institution. Fine, but the court cannot exercise this itself, we do not have a prosecutor at the court as in the past, and the rank-and-file prosecutor only has only the power to review the legality of the act of the prosecutor standing below him, and from here on the procedural merry-go-round becomes mind-boggling. It would be appropriate for such an undertaking to be accompanied by at least some kind of amendment to the Code of Criminal Procedure (CCP).

There is no clear reasoning as to what necessitates this; we can only speculate, such as – some supposed independence of the rank-and-file prosecutor from the GP, purely normatively the PG cannot arrogate procedural powers to himself. Institutional control based on the hierarchy of the prosecution, including by the PG, is still in place; the CCP sets out what, when and how could be carried out by the GP as a procedural activity. Reconsidering this concept by law is a bold undertaking, but not feasible with this method and approach. It is also clear in this regard that there is no way to protect the rank-and-file prosecutor with a procedural method – he alone enjoys the protection of his internal conviction, and the written trail for any revocation is only a stronger guarantee in this direction. We also know that the rank-and-file prosecutor’s internal conviction cannot be attacked procedurally; on the contrary, it rests on issues and dependencies that are structural to the prosecutor’s office. There are many examples from practice, we can only mention a few – the city prosecutor calls you and the PG is waiting for you in his office, or one of the chiefs takes you to the PG’s office, organizes disciplinary proceedings that may affect your secodnment or bonus, etc. That is to say, the guarantee here should be structural and not so much procedural. And, yes, the controversial decision of the Constitutional Court striking down the Sixth Amendment to the Constitution in the Judiciary chapter is helpful for one thing – the reasoning of Decisoin No. 13/2023 is relevant here.

The supervisory function itself rests on hierarchical discipline, and the supervision exercised by the PG gives organic unity to the prosecutor’s office – the text of Art. 1 of the Constitution still imputes this duty. The responsibility for the supervision exercised in the hierarchical Bulgarian prosecution service should be that of the one who stands at the top of it, which is the PG. Whether there is a regime for demanding such accountability is another matter, but that in itself is again a structural issue.

In conclusion, we can say that the issue of reconstructing the judiciary is no longer the monopoly of one political party. There seems to be legislative competition, but there also seems to be a deficit of real political will for more. And Sarafov is counting the days.

*On 16 January 2025, a new ordinary government was formed.