Amid the coalition negotiations, we received the latest set of notes and comments on the National Recovery and Resilience Plan (NRRP). Of course, our innate self-criticism quickly led us to the conclusion that the remarks from Brussels are fatal. However, this is hardly the case, and here are the reasons why.
The Commission’s recommendations cover a couple of fields, one of which is justice, or more generally – the rule of law. Understanding this abstraction requires a few things and to assess the issues of the institutions, one must examine them briefly so that the deficiencies become clearer. The rule of law rests on restraining any authority, which is not a subject of civil or institutional control. One such authority is the chief prosecutor as part of the Judiciary (whether his name is Geshev is of no importance). It would be hard to argue that the material sense of the legal state, seen as the effective protection of basic rights and legal control over official rulings, could be defended by a politically and economically dependent court. There are data on this matter, some of which illustrate the way of administering career and administrative questions of judges and courts in general, including the selection of their chiefs on all levels. All these complexities should direct our attention to the accountability, regular control, and bearing of responsibility of prosecutors. To this, we add clear rules for appointing, promoting, and penalizing judges. The purpose of all these efforts is that we, the citizens, are sure that our rights are protected and that the government’s actions are monitored by the courts.
Why did we get the latest remarks?
There are two reasons, the first being all the compiled unfinished work from the last 30 years, and the second – the temporary absence of a regular government and parliament.
The recommendations for revising the NRRP in the field of justice remind us of long-lasting unresolved deficiencies. They also provide an opportunity for addressing all the tasks we did not complete, unlike our neighbors, in the years before the EU accession. Everyone is tired of listening about the need of reforming the Supreme Judiciary Council so that the power of the Chief Prosecutor in it is restricted, however, without this reform no progress could be made. Right now, the idea that changes on the periphery of the Judiciary System Act one can lead to significant results seems to have gained traction. Yes, this could strengthen the control over the acts of the Prosecution and finetune some functions, however, the main issue would remain unaddressed.
We must remember something else as well – the changes to the Constitution from 2003 to 2006 had the political aim of convincing the EU that work was being done, while nothing changed below the surface. If we are going to do the same 20 years later, why should we even bother?
Moreover, in a time, in which two short-lived parliaments operated and there was no regular government, no clear promises could be made since no one would take responsibility for them. In this situation, the caretaker government had to either accept the latest projects of the Supreme Judicial Council, CACIAF (the Anticorruption Agency), the Prosecution, and the Supreme Administrative Court for ineffective but expensive new legal systems or tackle the important issues. The second course of action was braver, and it ensured that the money from the Plan was not wasted and that focus of discussion did not shift. As a participant in these processes, I can share that there was a lot of resistance against this on all levels, including some of the Ministry of Justice’s staff. At the same time, the Supreme Judiciary Council was delighted by the possibility of public tenders and project bonuses ending this mandate.
Between dim but easy actions and difficult but important reforms, I would always choose the latter and this was exactly the path taken in the judicial field. In other words, no specificity means no solutions, and thus no results.
How to deal with the problem?
Whatever happened, happened. The NRRP requires responsible behavior in the present even if we did not have it in the past. Some of the political actors of the years before the EU accession can be found in the 47th National Assembly – DPS, SDS, BSP, the remains of NDSV in GERB, and the other remains of SDS in DB. And before we get too excited once again about how the new coalition will break apart the influence of GERB and DPS, we must think about whether there is a possibility for the new parties in power and the parties of the status quo to sit down, negotiate, and agree to actively pursue real change in the Judiciary. More could be accomplished in this way. Whoever does not want to participate in the process would have to explain why and take responsibility for it. I remind both the ruling parties and the opposition that they would have to unavoidably cooperate on the selection of judicial inspectors and the new members of the Supreme Judicial Council in less than a year.
The European Commission is well aware that the judicial reform would cost very little and could be handled easily with our national budget if there is political will above those in power here. It is important for the EC that we do not misuse European funds when building highways, children’s hospitals, solar parks, and all kinds of innovation centers. The Commission has all the mechanisms to defend its financial interests, however, it uses them selectively, depending on whether it likes the current Bulgarian government. The flattering reports on the Judiciary from the last couple of years prove that.
*This document is funded by Active Citizens Fund Bulgaria through the Financial Mechanism of the European Economic Area and Norwegian Financial Mechanism. All its contents are the sole responsibility of Institute for Market Economics and do not represent in any way the views of the Financial Mechanism of the European Economic Area and Norwegian Financial Mechanism and Active Citizens Fund Bulgaria. (www.activecitizensfund.bg)