DECREE 231 of 14.06.2012 RETURNING TO THE NATIONAL ASSEMBLY THE LAW AMENDING AND SUPPLEMENTING THE JUDICIARY ACT Promulgated in the State Gazette Issue 46 of June 19 2012
Pursuant to Art. 101, para. 1 of the Constitution of the Republic of Bulgaria
I am referring back to the National Assembly the Act amending the Judiciary Act, approved by the 41st National Assembly on June 7 2012.
Published in Sofia on June 14 2012
For referring back to the National Assembly provisions of the Act amending the Judiciary Act, adopted by the National Assembly on June 7 2012
The Act Amending and Supplementing the Judiciary Act, adopted on June 7 2012, is a step forward in the process to continue the reform of the judiciary. It introduces new rules for the nomination and election of members of the Supreme Judicial Council by the National Assembly and the judiciary to ensure the transparency of applications. With the idea of transparency and public access in regard to applications, there are the rules by which the National Assembly must elect an Inspector General and inspectors.
For the first time, Bulgarian legislation provides a procedure by which approaches may be made to national authorities for rulings on penalties for violations of the right to review and rule on a case within a reasonable time, as part of the rights under Art. 6 §. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The idea is to establish a fast and effective national mechanism by which to compensate those whose rights were affected by the duration of a court or pre-trial proceedings beyond the reasonable deadline. As the first such system of its kind, it is accompanied by questions and uncertainties, which can easily be overcome before its entry into force on October 1 2012. It should be emphasised that there will be preventative measures to eliminate the causes of the violations of the right to have a case considered and dealt with within a reasonable time.
The specific activities of the Inspector General and the Supreme Judicial Council will depend on how violations may be prevented. I welcomed the public access to information on the causes of the violations and the measures to remove them.
Along with the steps in a positive direction, I cannot stay indifferent to certain provisions of the adopted law, which provoked sharp public reaction and also raised the question of whether they comply with the Constitution. In particular I am referring to § 12 (on art. 28, para. 1) and § 16. With the changes to art. 28, para. 1, it is provided that after the expiration of the term in office, a “voting member of the Supreme Judicial Council shall be appointed a judge, prosecutor or investigator, a notch higher than occupied before the election, or at his request return to the previously occupied elective office”. In § 16 (on the new wording of Art. 50) provision is made for appointment at a rank higher than that occupied before appointment, or at the request of the person to return after the expiry of his term as Inspector General of inspector to the office occupied before taking up that post.
I support the need to seek mechanisms, as the bill produced by the Council of Ministers and the reasons for it, enables, “to attract prominent magistrates, highly professional and motivated, to participate fully in the quality and implementation of judicial reform”. I share the understanding of the submitter of the bill, that while holding office people would not undergo appraisals of their tenures and that this would lead to deprivation of opportunities for career development as magistrates.
I do not accept, however, the blanket authorizations provided for in § § 12 and 16 of the adopted law, finding that it may be suspected that they do not comply with the Constitution. They provide that when the term of an elected member of the Supreme Judicial Council, Chief Inspector and Inspector of the Inspectorate at the Supreme Judicial Council is over, that person automatically occupies a higher position than that held before the election. I think that this could be described as interference in the judiciary by the legislature, given that art. 129, para. 1 and Art. 130, para. Article 6 § 1 of the Constitution, provide that only the Supreme Judicial Council has the jurisdiction to appoint, promote, demote, transfer and dismiss judges, prosecutors and investigators. The law in effect amounts to promotion, which depends on the legislature and may not be accomplished solely by the will of the person to whom it relates. In any case, the matter would be excluded from the assessment of the next panel of the Supreme Judicial Council, as it ought to be at the end of the previous term. “The underlying principle is that the judiciary is independent - art. 117, para. 2 of the Constitution. One of the guarantees of this independence is that it has its own right to appoint, demote, transfer and dismiss judges, prosecutors and investigators - art. 131 the Constitution. To this end a specific judicial authority has been created with specific administrative and organizational duties. This is the SJC - art. 130 of the Constitution” (from motives of Decision ? 8 of 15.09.1994 on cc ? 9 of 1994, publ., SG. 27.09.1994, issue 78).
A modern rule-of-law state allows privileges as an exception whenever justified by public and social needs, as the Constitutional Court said in its reasoning for Decision ? 14 of November 10, 1992 (promulgated, SG. 17/11/1992 issue 93). The § 12 and § 16 adopted establishes a privilege for the career development of the elected members of the Supreme Judicial Council who held posts as magistrates before the election, the Inspector General and inspectors within the Inspectorate at the Supreme Judicial Council.
I do not accept that the benefits imposed by § 12 and § 16 for current elected members of the Supreme Judicial Council, the Inspector General and inspectors within the Inspectorate at the Supreme Judicial Council meet public needs and social expectations.
An additional argument is that the possibility of being appointed to the position of judge, prosecutor or investigator at a rank higher than that occupied before the election will apply only to those members of the Supreme Judicial Council who prior to their appointment were magistrates. In setting out the composition of the Supreme Judicial Council, however, the Constitution does not require that all of them are judges, prosecutors or investigators, but lawyers of high professional and moral qualities that have at least 15 years of professional experience (Art. 130, para. 2). Therefore, even in the composition of the Supreme Judicial Council, the rule adopted under § 12 of the law would be applied unevenly.
The version of § 16 as adopted gives the impression that the privilege can benefit the Inspector General and all inspectors. But in practice the norm creates a privilege only for those who previously occupied post as magistrates.
This means that in § 12 and § 16 there is inequality between lawyers on a narrow shaped mark on the legal profession which does not comply with Art. 6, para. 2 of the Constitution (as Decision ? 9 from 09/30/1994 on cc ? 11 1994, publ., SG. 25.10.1994 issue 87).
Guided by the above reasoning, and on the basis of Art. 101, para. 1 of the Constitution of the Republic of Bulgaria I am referring back § 12 (at art. 28, para. 1) and § 16 of the Act Amending the Judiciary Act for further consideration by the National Assembly.
PRESIDENT OF THE REPUBLIC OF BULGARIA