Банкеръ Daily


Judges’ College in Zugzwang on Mitalov case

Justice Minister Danail Kirilov caught  the SJC's Judicial College in an inescapable trap with his request for disciplinary dismissal of the US-designated "corrupt" judge Andon Mitalov from  the Special Criminal Court .

On Tuesday (February 11), the HRs decided to give Kirilov a 7-day deadline to provide evidence for the "corruption acts" of Judge Mitalov and the allegations that he had failed to fulfill his obligations, thereby undermining the prestige of the judiciary. Because after Kirilov had submitted the motion for dismissal, it turned out to be unfit for consideration. Because of the complete lack of specifics in it, as understood by the brief statements of the members of the Board's Disciplinary Committee.

For this reason, the committee submitted the  request of  Mitalov's dismissal with the proposal that it should remain "for information only". In the end, however, and after debates with turned off monitors, Minister Kirilov was given a seven-day adjournment to complete his dismissal proposal with some evidence. If any.

From here on, there are only two options: if Minister Kirilov fails to present prima facie evidence within the given time limit, his proposal is to go to the trash bin- no matter whether it would be with a "for information" stamp or  disciplinary proceedings against Mitalov would be rejected.

Alternatively, such proceedings may still be initiated, with or without the necessary evidence. The trouble, however, is that in this case the SJC will be asked to rule on a matter that falls completely outside its competence. Because the members of the administrative body have no power to judge whether the acts and actions of the magistrates on specific cases are correct.

It's a pretty tough dilemma, indeed. Which explains why the members of the panel  decided to discuss the subject in closed monitors.

For the sake of a judge’s head

Let’s recall that, after last week US Secretary of State Mike Pompeo named Bulgarian Judge Andon Mitalov as a participant in "grave  corruption", Justice Minister Danail Kirilov asked for the judge's dismissal. His motive is that with his actions in a particular judicial proceeding (without even mentioning what the case was), the judge violated the law and "harmed the prestige of the judiciary."

According to Kirilov, this unfavorable result has been reached because Mitalov has allowed the defendant  "to leave the country for specific dates and events." This happened without first having requested the opinion of the prosecution and the latter having rejected it. The pre-trial proceeding into espionage is alleged, under which the head of the Russophiles movement, Nikolay Malinov, is accused.

With the permission, the special court magistrate "seized" the prosecutor's office powers, which violated the law, the minister said. The actions of the judge on the administration and examination of the case led to a violation of the prestige of the judiciary. "In this case, considered in their logical connection, the actions of Judge Mitalov demonstrate a failure to perform official duties," Kirilov said.

Frontal collision

But the apparent lack of specificity in this minister's proposal is his least problem.

First, because the ex-Prosecutor General Sotir Tsatsarov's request for a check-up of the SJC Inspectorate on the case of Malinov's release has already established that Judge Mitalov did not commit infringements in the administration of the case in question (SJC Inspectorate has no powers to rule on the correctness of the judge’s decision). According to the opinion of Inspector Lidia Stoyanova of the ISJC the claim that the judge violated the law by allowing Nikolai Malinov to travel to Russia is "groundless and unjustified." And this is the same statement, which Minister Kirilov exposes in his proposal for Mitalov’s dismissal.

Second: Because the SJC's college of judges cannot assess whether a judicial act is correct or not. It’s just none of its business. The sole authority that can rule on this issue is the court – on the course of the judicial review, if provided.

To cap it all: if it turns out that there are no violations of law from the judge’s side or such cannot be established through the instance control, then it cannot be claimed  that Mitalov has damaged the prestige of Themis. And there will be nothing to punish him for.

The SJC panel of judges seems to be in a position, called "Zugzwang" in chess - there is no viable move.

Another issue is that the situation can be quite confusing if it turns out (after all the expected exchange of documents) that, in fact, the United States sanctioned Mitalov for something completely different from what was stated in the ministerial dismissal request. Because the truth is that, at the moment, in Bulgaria, nobody knows what the "reliable information" is that comes from across the ocean.

So far, the SJC has done all it could: it has requested information from all possible sources - including the United States, the prosecution and the CCC. And "postpone" in time its decision on what to do with this "hot potato". But there is obviously no way to escape from it ...

What kind of miracle is this law

Sanctions against Judge Mitalov and his family, who are already barred from entering the United States, are imposed under Section 7031 (c) of the US Budget Expenditure Act, according to which:

(1) (A) Employees of the public sphere and their immediate relatives for whom the Secretary of State has credible information that they are involved in serious corruption, including corruption related to the extraction of natural resources, or gross violations of human rights, will not have the right to enter the United States.

(B) The Secretary of State will publicly or confidentially declare or identify employees and their immediate relatives for whom reliable information is available, regardless of whether the individual has applied for a visa.

This law has already sanctioned many state officials from different countries: Bosnia and Herzegovina, Albania, Cuba, Romania, Guatemala, Nicaragua and others. Now we have a Bulgarian in the list.

However, few realize that the US State Department is too often mistaken for the Department of Foreign Affairs - and this is not accidental. This office, led by the Secretary of State, is responsible for US diplomacy and international politics. It is an executive body, a political body that has nothing to do with justice.

The Secretary of State handles information collected mainly through diplomatic channels rather than official ones. That is why the law itself, which allows the sanctioning of public figures for corruption, refers to "reliable information" and not to evidence. And no order is provided to verify the authenticity of this information.

The Acts imposing sanctions (US bans) are not equivalent to a legal act, entered into force - they express the will of an administrative authority but do not establish the veracity of any facts and circumstances.

The other feature is that  "sanctioning procedures ", passing through this executive body, do not foresee a process, let alone public, they are not influenced by the presumption of innocence, do not provide for any means of protecting the persons to whom the sanctions are imposed.

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