/ world today news/ The constitutional reform of the judicial system must be much larger than the one announced by the government. For the reform to be successful, we need to determine in advance what the goal is, what is not working and what we want to change in the judicial system. Without this, we cannot move forward, we will only flow from empty to empty.
The effectiveness of the justice system depends on three factors: First, fairness, which means that the punishment fits the crime. Second – swiftness of punishment, because the more distant the punishment from the crime, the less its corrective and preventive effect. And thirdly, the inevitability of punishment, which means that after every crime, punishment inevitably follows.
What means should be used to achieve these three goals?
First of all, local control should be strengthened, i.e. the control of higher courts over lower ones. The analysis of judicial practice shows that too many sentences are canceled or modified by the higher instance due to violations of procedural or substantive law. It is necessary for all more serious violations that the second and third instances signal the relevant control authorities. And these control bodies are three – the Inspectorate of the SJC, the Ministry of Justice and the Supreme Judicial Council.
After that, it is necessary to define strict deadlines in which the control body must react – to carry out an inspection, to ascertain the violation, in order to punish the guilty magistrate. For example, within one month of committing the violation, the proposal to punish the guilty magistrate should have been made. The procedure for imposing disciplinary sanctions should be simplified.
In the past, before 1990, this activity of the control bodies was carried out and summarized by the Ministry of Justice. And the activity of the judges to punish the lower-ranking magistrates who broke the law influenced their career advancement. Even today, the number of signals that they send to the control bodies for detected violations of the procedural and material law can be introduced as a criterion for evaluating the work of judges.
Today there is an extremely developed system of numerous control bodies in the judicial system – the SJC inspectorate with associates, the Ministry of Justice with countless inspectors and associates, the Supreme Judicial Council with associates. All these controllers are paid way too high. And the result of their control activity is not visible. More precisely, they don’t work. They do not carry out control activities. You can only see some leaders who go around the televisions as if in a daze and irradiate the impoverished, sick and crushed people with slogans, how they are going to make a judicial reform, they are going to remove this, they are going to put that in and thus fix the matter. It is asked, since the state of justice is so bad, where are the reports of the control bodies. What do they check and what are the results of their checks. Is the activity of the courts, prosecutor’s offices and investigative services analyzed? What conclusions have been drawn? What are the vices in their work and what measures are the control bodies taking to remove them and punish the guilty magistrates? What responsibility do the magistrates bear for the committed violations of the procedural and substantive law? Since the issue of the judiciary is so important, it should all be public, put on the table and under the public eye. And the truth is that such control activity is not carried out at all.
42 years ago, when I started my career as a district judge, there was a simple and effective system of control in the judicial system. The inspectors from the Ministry of Justice and the Supreme Court came, checked, and within a month the Minister of Justice punished the person responsible for the violation. And this was published on the last page of the Ministry Bulletin, which was the most terrifying read. Today, the procedure is complicated to the point of absurdity. – After long secret and open signals to the SJC, a commission is created, which carries out a complex check and proposes to another commission, which proposes to the Supreme Judicial Council, and it, in its plenary composition of 25 people, determines a punishment, which is appealed to a three-member panel of the Supreme Administrative court, and then its decision is appealed before a five-member panel of the Supreme Court. It is as if this procedure was done with the aim of covering up the guilty magistrate and thwarting his demand for responsibility.
The control of the Supreme Administrative Court over personnel decisions of the SJC is unconstitutional. The Constitution stipulates that the SJC imposes the severe disciplinary penalties. He appoints, promotes, demotes, transfers and dismisses judges, prosecutors and investigators. And assuming that the decisions of the SJC are subject to appeal before the SAC, the resolution of the issue is transferred to another body – the court. First, it is against the Constitution. Secondly, in this way, the possibility is created for the magistrate punished by the SJC to avoid the punishment. Third, the resolution of the matter is delayed too much. Usually scandalous decisions are announced in the summer or at Christmas.
In order for the control system to function, justice also needs professionalism, which young colleagues must learn from the more experienced, old judges of the Supreme Court. And not to think that life begins with them.
A serious violation of procedural discipline is the delay in the scheduling and resolution of cases, and the writing of decisions. Missing deadlines is often a sign of corruption. This violation should entail heavy responsibility for the guilty parties.
There is nothing like that in our judicial system. Those days, on television, an infamous judge from the Sofia City Court, who heroically declared herself a victim of political repression, explained to us how she was going to reform the prosecutor’s office. And in fact, she is known for keeping a decided case against a defendant banker on her desk for five years until the absolute statute of limitations expired. At first glance, “she delayed the decision a little because she was overwhelmed”. There is no doubt, however, that for this “slight delay” she was richly rewarded. In another case, the same lady, after delaying it for several years, terminated it and sent it to another court for jurisdiction. This enabled the defendant to escape and escape responsibility for a serious crime. And where was she looking when she filed the case? For such violations in the past, you could not stay a day as a judge. And if you avoid criminal liability, you were very lucky. But as you can see, the lady today is the first guardian of morality in society.
There are arguments “for” and “against” about the division of the SJC. Most of them have already been discussed. Personally, I do not see the benefit of splitting the SJC. The smaller an organ is, the greater the possibility of influencing it.
There is sense in the proposal to reduce the term of office of the SJC to 3-4 years. The members of the SJC perform administrative activities, they administer. And by profession they are magistrates – judges, prosecutors and investigators. Well, then they should go and administer justice, and not get stuck in an administrative position.
It is indisputable that the goal of judicial reform cannot be to remove these members of the SJC in order to appoint our own, i.e. the sympathizers of our party. Very often the current members of the SJC were also appointed by the ruling party.
The mandate of the SJC can be terminated only on constitutional grounds, i.e. only on such a legal basis as is provided for in the Constitution. This was accepted by the Constitutional Court twenty years ago during the last premature termination of the mandate of the SJC.
Regarding Decision No. 3 of 2003 of the Constitutional Court. This decision is caused by me. As Chief Prosecutor in 2002. I asked the Constitutional Court to interpret the provision of Art. 158, item 3 of the Constitution, I proposed an opinion and argued it. And the Constitutional Court accepted my interpretation. And it is that the state bodies defined in the Constitution and the connections between them form the system of the state, the constitutional model. This system of the state, the established balance between the authorities and their organs can only be changed by a Grand National Assembly. In particular for the bodies of the judiciary, this means that the status, mandate, method of election, powers of these bodies, etc. can only be changed by the HSC.
This decision still plays a positive role in our state and public life. Given the specific atmosphere of the Balkans, it prevents parties from amending the Constitution according to their partisan interests, modeling the judiciary to control it and cracking down on their political opponents by ensuring impunity for their sympathizers
In this regard, it sounds strange that Kuneva’s call to implement the special opinion to the decision of the Supreme Court, and not the decision itself. Here I agree with the advice given to her by former constitutional judge Georgi Markov to read more.
As for the opinion of Georgi Bliznashki, who was a very alert student and came a long way from being a favorite of academician Yaroslav Radev to his current incarnations, I do not accept his opinion that the decision of the Constitutional Court in question was written by non-professionals. It only remained to say that when he is appointed to the Constitutional Court, the competence of the judges will increase a lot. Otherwise G. A Gemini should be congratulated for having his own opinion and often being right.
You also asked me about the control over the prosecutor’s office. I believe that the prosecutor’s office is the most controlled state body. The problem is that the prosecutor’s office accuses and therefore has no fans. Currently, there is complete control over the prosecution. First, the Chief Prosecutor periodically reports to the National Assembly. This was done on my written proposal years ago, which was adopted in the Judiciary Act, and then enshrined in the Constitution. Second, all personnel and financial issues of the prosecutor’s office are decided by the SJC – it appoints, dismisses and punishes the prosecutors. It also determines the finances of the prosecutor’s office. Third, the court controls the most important act of the prosecutor – the indictment. The prosecutor accuses, but the court decides whether to convict or acquit the accused.
In addition, when we harmonized our legislation with the European one in 1997-1999, I was Deputy Minister of Justice and we adopted the European standards – court control over all actions of the prosecution in the pre-trial proceedings, which limit basic human rights. Today, the court allows the collection of evidence during the pre-trial investigation (search and seizure, witnessing, search, detention and seizure of correspondence, use of special intelligence means to collect evidence). The court takes measures of procedural coercion at the stage of the pre-trial investigation (removal of the accused from office, provision of confiscation and civil action, ban on leaving the country). The court detained and released the accused. In this way, the court is seriously involved in gathering evidence. And the prosecution is based on this evidence. The court, in other words, is also engaged in the accusatory function. In a certain sense, this violates the Constitution, which assigns the prosecutor the accusatory function, and the court the decisive function (to convict or acquit the accused). Well, what greater control can there be over the prosecutor’s office? All that remains is to close the prosecutor’s office and formulate the accusations in the party headquarters, and the leader of the ruling party to fulfill the position of chief prosecutor. This is a negation of the legal, democratic state. The Attorney General cannot be subordinated to the political majority in Parliament
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Prof. Nikola Filchev is a former chief prosecutor of Bulgaria in 1999. – 2006 , Supreme Court judge from 1990 to 1997, Deputy Minister of Justice from 1997. until 1999, Ambassador to Kazakhstan since 2006 until 2008, head of the Department of Criminal Law at the Faculty of Law of the UNSS, author of numerous publications, monographs, textbooks, studies and articles on criminal law.
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