Банкеръ Weekly

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THIRD AMENDMENT TO THE CONSTITUTION ON THE HORIZON

THE NATIONAL ASSEMBLY LEAVES THE JUDICIAL REFORM TO ITS SUCCESSORWhenever an EU enlargement commissioner is getting ready to visit Bulgaria, all local rulers begin to talk about a judicial reform and amendments to the Constitution. This is what's happening now, on the eve of the visit of Olli Rehn, EU Enlargement Commissioner who is in the team headed by the President of the European Commission (EC) Jose Manuel Barroso. Mr. Rehn is coming to Bulgaria on 17 and 18 March (after visiting Romania and Turkey) to make a final examination of the country's readiness to become a EU member. Within a few days the Bulgarian judicial system was mourned by ministers, MPs, legal experts and NGO representatives. Still, the newly-appointed Parliament Chairman Borislav Velikov decided to apply an innovative approach and initiated discussion among the main political powers for signing a consensus declaration. The document is planned to reflect the main principles of the judicial reform which the 40th National Assembly should observe after the parliamentary elections next June.The problem with the position of the investigation service seems to be the one that needs the most urgent constitutional solution. A lot has been said about it in the recent years. Many projects have been written. The Democrats for Strong Bulgaria (DSB) even prepared a draft to amend the Constitution. It stipulated that the investigation service should become completely subordinate to the Ministry of Interior. Another radical idea presented by DSB is to take the prosecutor's office out of the judicial power, too, and make it part of the executive power. Moreover, DSB members propose, the prosecutor general should be elected by the National Assembly after being proposed by the Prime Minister and his mandate should last four years. There should be a possibility to have him dismissed before the end of his mandate when there is a request from the Prime Minister or a fifth of the MPs, the DSB group insists. That would help for balancing the three powers, its members explain. Legal experts comment, however, that this model has two major disadvantages. First of all, in order to have the investigation service and the prosecutor's office taken out of the judicial power a Grand National Assembly must be established, as required by Resolution 3 of the Constitution Court dated April 10, 2003. The second and probably more significant disadvantage of the proposal made by DSB is that, if it is implemented, the executive power will become almost unapproachable in corruption or abuse cases. It is hard to imagine that a prosecutor general who depends on the prime minister's will is going to order the initiation of criminal proceedings against a member of the government. A more realistic at this stage seems the attitude in the Conception for reform of criminal jurisdiction, approved by the Government in end-2004. According to it, the new Criminal Procedures Code which is presently under draft, will stipulate that the investigation service shall be divided in two structures. One of them will continue as now to work under the supervision of the prosecutors' office, and the other one will control the activities of police preliminary investigation. A similar solution was prompted by the EU experts who took part in the partners' review of the Justice and Home Affairs negotiations chapter in June 2004. BSP also made some proposals. During the Europe and the National Constitution discussion, organized this week by the Institute of European Law, the Coalition for Bulgaria MP Yanaki Stoilov launched the idea for an amendment to the Constitution, allowing the Inspectorate of the Justice Ministry to impose punishments to magistrates from the Supreme Cassation Court, the Supreme Administration Court, and the Supreme Cassation Prosecutors's Office, who have been found at fault. In his words, such an amendment to the Constitution would result in a quicker procedure of fixing dates for hearing criminal and civil cases and would also reduce corruption among magistrates. A serious debate will be held as well on the way of electing the members of the Supreme Judicial Council and its rights. Under the effective legislation, that body has 25 members. Eleven of them are elected by simple majority of MPs. Another 11 are chosen by the judges, investigators and public prosecutors. The chairmen of the two supreme courts and the prosecutor general take part in the work of the Supreme Judicial Council. But legal circles largely share the opinion that a change is necessary in the majority which elects the members from the parliamentary quota. A stance of the Supreme Cassation Court, signed by its Chairman Ivan Grigorov and sent to the interim parliamentary committee for amendments to the Constitution, proposes the introduction of a qualified majority of three thirds when electing Supreme Judicial Council members in the National Assembly. There is also such a proposal in the DSB's draft for constitutional amendments. Parliamentary Deputy Chairperson Kamelia Kassabova is among the advocates of that idea. Recently Ivan Grigorov launched the idea that investigators, public prosecutors and lawyers should not be included in the Supreme Judicial Council. According to him, it is inadmissible that judges should be attested by committees with the Supreme Judicial Council, including representatives of the two sides in a lawsuit (prosecution and defence). The Supreme Administration Court, on its part, has proposed amendments to article 120, item (1) of the Constitution, allowing to appeal at court all deeds, issued by the government and local authorities. There is such a practice in Germany. The alternative, according to the Supreme Administration Court, is that the constitution stipulates that only administrative deeds connected with the national security, defence and external security of the country shall not be liable to appeal at court. Currently, appealing against any decisions of the ministers could be limited by voting a separate law.

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