WE CANNOT IGNORE THE SAFEGUARD CLAUSE
Jonathan Faull, European Commission Director General for Justice and Home Affairs, to the BANKER weeklyMr. Faull, how do you estimate the possibility of triggering the so-called safeguard clause (that will postpone Bulgaria's EU accession by a year) by the European Commission as a result of the delayed judiciary reform in Bulgaria?- Bulgaria has carried out major and significant reforms in the last few years to prepare for EU membership. A great deal of progress has been made since June 2001 when the negotiations on chapter 24 (Justice and Home Affairs) were officially opened. The negotiation process has been smooth and successful. Bulgaria has gained a lot of credit within the EU by this success. In order to complete its preparations for accession, Bulgaria needs to keep this momentum and unity, in the remaining 21 months, to deliver on key reforms and fulfil expectations. If this happens, there will be no need to use the postponement clause. Bulgaria will succeed on its own merits. However, particular attention is indeed required for the Justice and Home Affairs chapter where the sensitivity of member states is high. I think for example of the reform of pre-trial procedures. We cannot rule out the use of safeguard clauses if the necessary reforms are not carried out.There are some statements by influential Bulgarian politicians that Brussels had insisted about the liquidation of the so-called sledovateli as an investigative structure in the pre-trial phase. Meanwhile there is no common acqius in criminal law. What makes you think that the Bulgarian model of investigation is not in compliance with EU practices?- The language in the EUCP (the document on the basis of which the negotiations in chapter 24 were closed) is clear: it calls upon Bulgaria to pursue the reform of the pre-trial phase in accordance with best practices in EU member states and Articles 5 and 6 of the European Convention on Human Rights, as well as the case law of the European Court of Human Rights, as a matter of the highest priority. In particular, it stresses the need to adopt the amendments to the Criminal Procedure Code and the Judicial System Act needed to ensure that the pre-trial-system is efficient and transparent, as well as to avoid overlaps. It explicitly states that this includes the limitation of the powers of sledovateli and separating them clearly from those of criminal investigators (doznateli). Equal treatment for all citizens must be guaranteed. It is also very clear on the end result that needs to be reached: a significant simplification of criminal procedure by making the serious crime investigation phase shorter, more efficient and in line with EU practice. This being said, it is clear that there is no EU acquis on the design of the pre-trial phase, but there are fundamental rights that must be respected such as the rights to be heard and to a final decision within a reasonable time (European Convention on Human Rights). It is also generally acknowledged by Bulgarian and EU experts that the current criminal procedure is protracted and does not provide Bulgarian citizens with a sufficiently efficient and transparent judicial system. This leads to negative spill-over effect on Bulgaria's capacity to deter organised crime. The debate on whether or not changes are necessary is long over. What needs to be resolved now urgently is how far changes will go and how soon can we see them in place. Bulgarian society and the EU as a whole want to see very soon visible progress in this respect. Did Bulgarian authorities give you any guarantees that the liquidation of the sledovateli will make the process of punishment more efficient? And if yes, please mention some of them.- Allow me to start by saying that I am not sure of the relevance of this question. The role of investigating magistrates is only one element - albeit a very important one - in this debate. It would be wrong to focus the debate exclusively on the investigating magistrates or to blame them alone for the inefficiency of the judicial system. The whole pre-trial system needs to be revised. To start with, Bulgaria is in need of a new and modern Criminal Procedure Code which provides transparency, efficiency and the right to a fair trial. It goes without saying that this involves a serious rethink of current procedures and the role of the various participants. It is not the first time that we have stressed, e.g. in Regular Reports, that in the EU there is no tradition of having investigative magistrates involved in pre-trial investigations like the sledovateli in Bulgaria. The amendments to the Criminal Procedure Code adopted by the National Assembly on 30 September 2004 are only a first step in the direction of more efficiency. Is it realistic to believe that the adoption of the Criminal Procedure Code itself will be sufficient to solve all problems of Bulgaria's penal justice?- No, of course not. The situation is far more complex. As the National Concept for the Reform of the Penal Justice which was adopted on 17 December 2004 indicates, a new Criminal Procedures Code will have to be accompanied by further changes to the Criminal Code, the Judicial System Act, the Attorney Act, the Special Intelligence Devices Act, the Ministry of the Interior Act, the Mediation Act, the Legal Assistance Act, and the Act on Execution of Penalties. Some of these changes have been made: in December 2004 a new Mediation Act was adopted. Furthermore, the Protection of Persons Endangered in connection with Criminal Proceedings Act which was adopted in November 2004 is also an important step in a more efficient pre-trial investigation phase. These Acts must now be properly implemented in order to contribute to the much needed reforms. Apart from legislative changes, there will be a huge amount of training required, not least for the dosnateli who will need to acquire a certain level of specialisation, and also for prosecutors as it is becoming clear that they are becoming the leading force in the pre-trial phase, as is the case in many EU countries. Another outstanding issue is the place of the prosecutors. The debate is whether they should be a part of the judiciary or they should be within the executive. What is the proper model according to you?- As you know, both models are used in the EU. That is the good thing about this issue : it is accepted that prosecutors can be part of the executive or part of the judiciary as a fully independent force. Here Bulgaria is in the fortunate position to be able to choose the model closest to its own judicial culture. Hence, I have no recommendation to make in this respect. What is the stance of the European Commission about the process of forming the judiciary budget in Bulgaria? Usually in EU countires such budgets are formed by the judiciary itself and parliaments only adopt them. - The Government has made considerable efforts to increase the budget of the judiciary over the past years. In 2004 there was a significant increase. Nevertheless, as we have stated repeatedly in Regular Reports, public expenditure on the judiciary remains low and Bulgaria will need to ensure that the judicial budget is sufficient for the smooth functioning of the judicial system and for the effective implementation of the ambitious reform programme. This is not only a Bulgarian problem as many magistrates in EU member states complain and there is an eternal battle between what Judicial Councils propose and what Ministries of Finance finally submit to Parliament. Did the EC lay down a condition that Bulgaria should reach the EU average level of judiciary budget, i.e between 3.4-4.5% of the GDP by 2007?- Bulgaria has received a lot of support under the Phare programme and it must be realised that this support will fade away once Bulgaria is member of the EU. As of that moment, the Government will have to ensure that at least an equal level of funding is foreseen and preferably more. There are some voices that the high-level corruption among Bulgarian magistrates is not in criminal but in civil cases. How do you assess the idea of launching a new trade register that will be subordinated to the Ministry of Interior? - Corruption in law enforcement bodies is one of the most devastating forms of corruption. Let there be no doubt that it is intolerable that corruption should affect the very bodies we need in the forefront of the fight against corruption. We are aware that the Bulgarian Government has made considerable efforts to eradicate corruption in law enforcement bodies and we urge them to continue these efforts. Where to put a trade register is a decision for the Bulgarian authorities. We will insist that corrupt judges be sanctioned in a deterrent manner but also that there should be no culture of groundless allegations against magistrates specialised in civil cases as a group. The presumption of innocence should prevail in all cases.