Decision No 10 of 15 November 2011 on Constitutional Case no 6/2011
Proceedings have been instituted on a petition received from 58 Members of Parliament (MPs), which sets out a request for the Constitutional Court to rule on the anti-constitutionality and incompatibility of certain provisions laid down in the Penal Procedure Code (NPK) and incorporated into the enacted Law amending and supplementing the Penal Procedure Code (State gazette (SG) No 13/2011), the Judiciary Act (ZSV) and the Law amending and supplementing the Judiciary Act (SG No 1/2011) with the recognised standards of international law and the conventions to which Bulgaria is a party.
The Constitutional Court finds the petition partly meritorious and has dismissed it in part for the following reasons:
І. With regard to creating a specialist criminal court and specialist prosecution service
1. The petitioners argue that the contested provisions provide for establishing a “specialist court” in name only as the ultimate intention of the lawmaker is to set up an “extraordinary tribunal”, which is prohibited under Article 119(3) of the Constitution.
The Constitution and the body of national law do not offer definitions of either a “specialist” or an “extraordinary” court within the meaning of Article 119(2) and (3) of the Constitution. By default, an extraordinary tribunal operates outside the system of general and specialist courts; it tries cases according to dedicated sets of rules with a view to achieving a specific objective and does not follow the general rules of procedure; such a tribunal is not composed of judges appointed according to the established rules and procedure; it is set up in exigent circumstances arising from social realities; and it operates on a temporary basis.
According to the enacted amendments to the Judiciary Act (ZSV) and the Penal Procedure Code (NPK) the specialist criminal court is to be established by law; it will have material competence in a precisely defined area; judges will be appointed according to the rules and procedure that apply to the appointments in general courts; they will administer justice according to the same set of substantive and material rules that general courts apply; they will try cases in parallel and without duplicating cases tried by general courts; and their organisational functioning will be identical to that of general courts.
Specialist courts will try cases in a specific area depending on the matter to be adjudicated and the parties to the trial. The only permissible distinction between specialist and general courts must be the material competence of each category of tribunal because the underlying rationale is to ensure judges develop as specialists in a specific area of law (criminal, administrative, labour, commercial etc.) with a view to gaining in-depth knowledge and experience thereby ensuring that the administration of justice conforms to a high standard of quality and cases are heard expediently. To avoid speculation as to whether it is an “extraordinary” tribunal a specialist criminal court must firstly apply the general rules laid down in substantive and procedural law that govern proceedings before ordinary courts; and, secondly, the judges must be appointed according to the same set of rules that apply to judges appointed at ordinary courts.
The principal criterion pertaining to whether a specialist criminal court has material competence to hear a case should be the subject matter of the case and not the capacity of the perpetrator of a criminal offence. The allegation set out in the petition according to which Article 411a(1) and (2) NPK lays down a randomly compiled set of provisions replicating ones from the Penal Code is unfounded. In view of the material competence of the specialist criminal court, it must be noted that its remit of competence is limited to trying cases involving offences expressly stipulated in the Penal Code, notably ones relating to organised crime, including certain qualified complex crimes that present a high risk to society.
However, it should also be noted that the lawmaking technique underlying the contested provisions and the manner in which the material competence of the specialist criminal court has been defined are imprecise. Insofar as the newly-established court is a part of the judiciary its rulings will be subject to judicial review by the Supreme Court of Cassation; it will administer justice in accordance with the established general rules laid down in substantive and procedural law; and its judges will be appointed in accordance with the general rules and procedure, it may not be regarded as an extraordinary tribunal in respect of its material competence. The types of cases under its jurisdiction will be decided by the legislature taking into account government policy. In other words, the matter is beyond the purview of constitutional review.
2. According to the contested provision laid down in Article 411a(4) NPK where a person has been charged under several indictments in respect of different criminal offences one of which is under the proper jurisdiction of the specialist criminal court, all cases are to be heard by that court. There are sound reasons why, even where a perpetrator has committed several criminal offences prior to being sentenced for any of them, the criminal offences concerned cannot be conjoined and tried within the same proceedings. This means that they should be tried separately with a view to sentencing the defendant for each criminal offence committed. Trying a defendant under several writs of indictment is recommended as it solves practical difficulties but is by no means compulsory.
The material jurisdiction of the specialist criminal court has been defined in terms of types of offences that are exhaustively listed. Hence it follows that the specialist criminal court does not have competence to hear cases in respect of offences committed by the same perpetrators that are not expressly mentioned in Article 411a(1) and (2) NPK. An assumption to the contrary would mean that the material competence of the specialist criminal court has failed to be precisely defined and that it exceeds the scope of the offences under its proper jurisdiction. Conjoining cases instituted in respect of multiple offences committed by the same person is a possibility available to the specialist criminal court if the offences committed by a defendant are expressly listed in Article 411a(1) and (2) NPK. On the other hand, Article 411a(4) creates a possibility for the cases under the proper jurisdiction of the criminal chambers of municipal and provincial courts to fully coincide with those under the jurisdiction of the specialist criminal court. In other words, the contested provision entails an objective possibility for unlimited expansion of the competence of the specialist criminal court.
On the grounds of the arguments set out above the Constitutional Court finds that Article 411a(4) should be declared anti-constitutional as it is contrary to the idea of setting up a specialist criminal court to be distinguished from ordinary courts on the basis of its material competence only and not on the basis of the subject of law. The contested provision effectively means that the specialist criminal court will have material competence to try all cases under the Penal Code even where there is no link between them other than the identity of the perpetrator on trial. This would also be the case when a committed offence that is not expressly mentioned in Article 411a NPK has a greater degree of severity.
3. The petitioners contest the provision laid down in Article 411(5) alleging that in certain cases where an offence includes an element of aiding and abetting the defendant may not be the de facto perpetrator but would still be tried by the specialist criminal court in breach of jurisdictional rules.
The contested provision does not concern the different forms of aiding and abetting a crime. It makes provisions for conjoining two or more related cases when proceedings have been instituted against different persons in respect of different offences provided this is in the interest of correctly ascertaining the facts of each case. Where one of the defendants is to be tried by the specialist criminal court, the conjoined case will also be heard by that court.
The rule on conjoining criminal cases when there is a link between them, which is laid down in Article 41 NPK, has been replicated in the first sentence of the contested provision without any discernible differences as compared to the rules applicable to general courts. The possibility to conjoin cases when there is a link between them and proceedings have been instituted against different persons is an established instrument that has long been used by courts. Its rationale is to achieve economies and accelerate proceedings as well as greater enhance legal certainty in cases where the facts to be ascertained in two or more cases fully or partially coincide. The contested provision of Article 411a(5) has the same rationale and is fully in line with the objective of guaranteeing the right of a defendant to a fair trial. The contested jurisdictional arrangements in respect of the conjoined case envisaged in Article 411a(5) NPK are not contrary to the principle of a State based on the rule of law proclaimed in Article 4(1) of the Constitution, which includes the principles of legal certainty and substantive fairness. This is only natural assuming that the specialist criminal court is not an extraordinary tribunal but a specialist court whose ranking is equal to that of provincial courts; that by law is it a part of the system of courts whose judgments are subject to judicial review by the Supreme Court of Cassation; that is applies the same rules laid down in substantive and procedural criminal law that other courts do; and that its judges are appointed in accordance with the general rules and procedure.
The contested provision is not detrimental to legal certainty as judgments are to be passed by a properly established court. The advantage to be enjoyed by the specialist criminal court does not breach the requirement for establishing jurisdictional competence on the basis of an objective criterion – in the case at hand the link between several cases instituted against different persons in respect of different criminal offences, which requires conjoining the cases concerned in order to correctly appraise the facts and circumstances of each case.
Article 411a(5) NPK does not limit the rights of defendants. Hence it is not contrary to Article 31(4) of the Constitution. In light of the principle of proportionality the perpetrators of criminal offences are to be tried by a court established by law and under the contested provision that court is the specialist criminal court. Appraised in the abstract framework of the body of law, the specialist criminal court has the same ranking as provincial courts in the system of general courts. Hence, the referral of cases instituted in respect of criminal offences other than those expressly mentioned in Article 411a(1) and (2) for trial by the specialist criminal court does not restrict the legal rights and remedies available to defendants. On the contrary, such a referral creates conditions for conducting a comprehensive and fair trial and safeguards legal certainty.
The provision laid down in Article 411a(5) NPK is also in line with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) as it ensures that “[In the determination of his civil rights and obligations or of any criminal charge against him] everyone is entitled to a fair and public hearing […] by an independent and impartial tribunal established by law” such as the specialist criminal court.
4. According to the petitioners the investigating magistrates at the department responsible for investigations of the specialist prosecution service are to be appointed by an order of the Minister of Internal Affairs to whom they will directly report, which compromises their impartiality – a breach of the principles of a State based on the rule of law and separation of powers.
The Constitutional Court finds that the provision laid down in Article 411c NPK does not necessarily mean that the specialist criminal court will operate as an extraordinary tribunal for two reasons. Firstly, the provision concerned does not depart from the general rules for conducting pretrial investigations according to which investigations are carried out by “investigating police officers” appointed by the Ministry of Internal Affairs and the police services under the jurisdiction of the same ministry. Secondly, the investigative services do not operate under the jurisdiction of the Minister of Internal Affairs but under that of a prosecutor who also supervises their work (Article 52(3) NPK). In other words, the prosecutor is charged with ensuring investigations are conducted in accordance with the law, which is fully in line with the provision laid down in Article 127(1) of the Constitution.
Indeed investigating police officers are formally employed by the police service and as such carry out their functions under the jurisdiction of the Ministry of Internal Affairs and report, in an administrative sense, to the Minister of Internal Affairs. The safeguards for their independence are laid down in Article 54 of the Ministry of Internal Affairs Act according to which “criminal offences are investigated in accordance with the rules and procedure laid down in the Penal Procedure Code by investigating police officers who act in compliance with the law and follow the mandatory written instructions of the prosecutor assigned to the case”. The orders issued by the Minister of Internal Affairs that assign investigating police officers to criminal investigation cases do not mean that the officers concerned are functionally dependant on the executive power when carrying out their investigative work. This means that the contested provision does not contravene the principles of the State based on the rule of law and the separation of powers established by Constitution.
5. The petitioners contest Article 411e(3) NPK according to which the parties to a trial must attend hearings before the specialist criminal court regardless of whether they have been summoned to appear before another court or body involved in the pretrial investigation. It is argued that this creates inequality between the specialist criminal court and other courts and government bodies and that regardless of other commitments defendants must, as a matter of priority, appear before the specialist criminal court to avoid incurring a penalty.
The problems stemming from the postponement of hearings due to the failure of summoned parties to appear before the court is highly contentious and much debated in the judiciary in view of the unreasonably high workload in some courts in Bulgaria. The law does not prescribe cut and dried rules on the sequence in which the litigants are to appear before the different bodies of the judiciary. This is so because the matter does not concern procedural rules but rather the administrative arrangements for scheduling and hearing cases. A rivalry between the courts and the services responsible for pretrial investigations as to the order of priority to be observed by the parties summoned to appear before them existed even before the specialist criminal court was established. The reasons why a priority may be accorded to appearing before one or the other, when a defendant is summoned to appear before two institutions at the same time, may depend on factors such as which writ summons was served earlier; which case is of greater factual and legal complexity or is to be heard by a higher instance court; the amount of the sum of money or another consideration the court is requested to adjudicate etc. In practice these problems are addressed differently depending on the case.
The enacted provision of Article 411e(3) NPK is the first attempt to legislate the priority order in which litigants are to attend the hearings in cases tried by a specific court. The Constitutional Court finds that this is an attempt to place the court in an exclusive position. The rationale of the lawmaker is easy to comprehend as it has essentially attempted to make organisational arrangements that preclude the unreasonable postponement of the cases to be tried by the specialist criminal court in order to ensure they are concluded within a reasonable timeframe. Without prejudice to the foregoing, neither the Penal Procedure Code nor any other procedural law obligates the parties to court proceedings to appear, as a matter of priority, before a specific court or to attend hearings in cases instituted in respect of specific types of criminal offences, regardless of and without prejudice to any other commitments they may have to appear before other tribunals at the same time.
The specialist criminal court is an ordinary court within the Bulgarian system of general courts and does not enjoy any special privileges as compared to the other courts, prosecutorial or investigative services that would justify imposing a requirement for the parties to appear before it as a matter of priority. The criminal cases in which charges are brought against a defendant in respect of offences relating to organised crime are indeed specific. However, conducting proceedings in a timely manner in this case does not override public interest vis-à-vis the timeframes for administering justice in cases tried by other courts. The criminal offences under the material jurisdiction of the specialist criminal court do not necessarily present a greater risk or danger to the public as compared to other criminal offences referred for trial to provincial courts, inter alia, cases instituted in respect of high treason, subversion and inflicting intentional harm, felonies and murders carrying heavy penalties under Article 116 NK (except those under Article 116(10)) etc. Civil, commercial or administrative cases may be of greater interest to the general public and should not be accorded a lower significance than those to be tried by the specialist criminal court. Accelerated or abbreviated proceedings are equally important for the parties to proceedings and for society.
The obligation to appear, as a matter of priority, before the specialist criminal court under Article 411e(3) NPK will undoubtedly hinder the work of other courts and the services involved in the pretrial investigation and will ultimately result in cases being unreasonably postponed on those grounds. The parties to such proceedings may differ substantially (defendants, including detainees, victims of crimes, litigants in civil and commercial lawsuits, petitioners to appear in court in administrative cases etc.). It is unreasonable that such a great number of diverse proceedings be postponed and delayed regardless of the efforts of the adjudicating court nor create barriers to the effective exercise of the right to legal counsel postulated in Article 122(1) of the Constitution.
In view of the considerations set out above the Constitutional Court finds that the contested provision of Article 411e(3) is anti-constitutional because it places a single court in a privileged position whilst concurrently restricting the right, and in some cases the obligation, of the parties to proceedings to appear before other bodies of the judiciary. The restriction of rights – weighed against the achievement of another constitutional goal, is not proportionate because the interest of the public in the hearing of cases within a reasonable timeframe does not always exceed that which society has in other cases being adjudicated.
The provision concerned also contravenes Article 6 CPHRFF because it will cause an unreasonable delay in the cases tried by other general and specialist courts and hinder the work of the bodies conducting pretrial investigations, which will not be able to carry out their tasks in line with the requirement laid down in the cited provision of the international treaty.
6. The petitioners contest the provision of Article 68(2) of the Judiciary Act (ZSV) according to which jurors to sit in hearings brought before the specialist criminal court may be nominated by the members of the Sofia Municipal Council alleging that it is a political body and hence the nominations will be underlined by political considerations.
The Constitutional Court finds that the cited provision, which concerns the nomination and appointment of jurors to sit in hearings conducted by the general and the specialist criminal court, conforms to the legal standard and does not accord the specialist court any degree of exclusivity. According to the general rule the jurors in cases to be heard by a particular court are nominated by the local council in the judicial district under the jurisdiction of the court concerned (Article 68(1) ZSV). The contested provision of Article 68(2) ZSV does not depart from the established rule but makes arrangements for the jurors in cases to be tried by the Sofia-based specialist criminal court to be nominated by the Sofia Municipal Council (Article 100a(2) ZSV). It is more important to note that municipal councils only nominate jurors who are then approved by the General Assembly of the judges of the competent higher tribunal in accordance with Article 68(3). Hence the procedure according to which the jurors in cases to be tried by the specialist criminal court are to be confirmed by the General Assembly of Judges of the appellate specialist criminal court is fully in line with Article 68(3) ZSV.
7. In order to conform to the definition of an ordinary court, the judges of the specialist criminal court must be appointed in accordance with the general rules and procedure for the appointment of judges and prosecutors in the judiciary. The Court finds that this is so and that the arrangements set in place do not depart from those applicable to general courts. The appointment, promotion, secondment and dismissal of judges and prosecutors from the newly-established specialist criminal court and prosecution service is within the remit of competence of the Supreme Judicial Council and conforms to the general requirements for the appointment of judges and prosecutors laid down in Article 160 ZSV.
The Constitutional Court finds that a requirement for the magistrates of the specialist criminal court and prosecution service to have longer general and specialist professional experience does not equate the two bodies to an extraordinary tribunal. According to the Venice Commission a requirement for longer professional experience should not exempt judges and prosecutors from the requirement for high moral integrity and professionalism that apply to all magistrates. The more stringent requirements are an attempt on the part of the lawmaker to ensure that the judges and prosecutors to be appointed to the specialist criminal court and prosecution service have a wealth of practical experience. The requirement to conform to a set of higher standards is justified insofar as a longer professional experience entails better knowledge of the specifics of a magistrate’s work. The requirement for general and specialist work experience is a measure of high professionalism and does not constitute a violation of Article 6(2) of the Constitution because professionalism is not included in the detailed list setting out the discriminatory grounds on the basis of which the rights of an individual can be restricted (in this sense see Judgment No 9/1994 in Case No 11.1994 on the record of the Constitutional Court).
However, the requirement for the judges and prosecutors to be appointed at the two specialist bodies to hold a magistrate’s office at the date of their appointment is anti-constitutional. Unlike the length of professional experience the requirement concerned is not indicative of the applicant’s professionalism. In some cases judges or prosecutors may be temporarily working outside of the judiciary whilst being eligible to take up their appointment on their return (Article 129(5) of the Constitution). Such persons would be ineligible to apply for an appointment at the specialist criminal court and prosecution service despite having a wealth of varied professional experience. There are no such requirements for the applicants wishing to receive an appointment with the Supreme Court of Cassation and the Supreme Prosecution Service, including all other specialist military and administrative courts.
The Constitutional Court finds that the cited requirement is beyond the remit of competence of the legislature and is discriminatory as it violates the principle of equality of all citizens before the law proclaimed in Article 6(2) of the Constitution. This principle applies to the entire judiciary and prohibits arbitrary inequality, i.e. it postulates equal treatment (Judgment No 1/2005 in Case No 8/2004 on the record of the Constitutional Court). The prohibition of appointments that are external to the judiciary is discriminatory on the grounds of social status because it restricts the possibilities available to all other members of the legal profession who satisfy the requirements for general and specialist professional experience to apply for an appointment. Furthermore, the restriction places the magistrates working in only two of the many bodies in the judiciary in a privileged position by ensuring no external applicants may apply regardless of a relatively small number of appointments.
8. The Constitution does not lay down rules on the calculation of the remuneration of judges and prosecutors hence the matter is to be decided by the legislature. The Court finds that the contested provisions concerning the remuneration of the magistrates at the two specialist bodies do not contravene the Constitution because they do not create an imbalance between the judges and prosecutors working at the specialist and ordinary criminal courts and prosecution services, respectively. Furthermore, under Article 133 of the Constitution the legislature has proper competence to determine the remuneration of magistrates.
9. The petitioners argue that in the main the Laws amending and supplementing the Penal Procedure Code and the Judiciary Act, respectively, do not conform to Articles 10 and 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights and Article 6(1) CPHRFF. Establishing a specialist criminal court competent to try cases instituted in respect of certain types of criminal offences that are different from those under the jurisdiction of general criminal courts does not contravene the stated international treaties per se. The jurisdictional rules that determine the types of cases to be tried by each category of courts are an inherent feature of each legal system. This approach is allowable under international standards and has been implicitly recognised in Article 2 of Protocol No 7 to the Convention. A specialist criminal court conforms to the requirements for an ordinary court that is independent and impartial because it has been established by law, follows the same rules laid down in substantive and procedural law that apply to other courts and its judges are appointed in accordance with the general rules and procedure for the appointment of all other magistrates, which is a guarantee for their independence within the meaning of Article 6 CPHRFF. The accurate and uniform application of laws in the cases tried by the specialist criminal court is further guaranteed by the fact that its judgments are subject to judicial review by the Supreme Court of Cassation.
ІІ. With regard to the other amendments to the Judiciary Act
1. According to the contested provision of the newly enacted Article 26a ZSV the members of the Supreme Judicial Council (SJC) may request access to classified information. Where a member fails to be vetted and granted access to classified information they may no longer participate in the meetings of the Council during which classified materials and documents are discussed. The Constitutional Court finds that in breach of the principle of separation of powers, and regardless of the wide circle of officials in the executive power and the legislature who by law have access to classified information without a requirement for their credibility to be established by means of the so-called vetting procedure, the members of the Supreme Judicial Council, which is a fully autonomous body within the judiciary, should have been granted the same privilege. In light of the principle of separation of powers proclaimed in Article 8 of the Constitution according there are three branches of government – legislative, executive and judiciary – within the former two the Speaker of Parliament, Members of Parliament and the Prime Minister, all Cabinet Ministers and the Secretary-General of the Council of Ministers have access to all levels of classified information without a requirement for their credibility to be vetted. This demonstrates that the members of the Supreme Judicial Council have not been treated in line with the principle of equality.
Obtaining access to classified information has been introduced as a requirement that enables SJC members to carry out the duties of their office, notably to participate in meetings during which classified materials and documents are to be reviewed. However, according to Article 130 of the Constitution the members of the SJC must have obtained or obtain access to such information either prior to or following their appointment. Furthermore, the refusal to grant access to or the termination of previously granted access to classified information does not constitute grounds for the early termination of the tenure of a member of the SJC. The challenged amendment of the Judiciary Act is not in line with the Constitution and represents a serious, unlawful attempt on the part of the executive power to undermine the independence and autonomy of the body responsible for career development matters in the judiciary and hence of the entire system.
The Constitutional Court declares Article 26a ZSV anti-constitutional because in breach of Article 130(2)(8) of the Constitution it introduces a new requirement for the appointment and termination of the tenure of SJC members in contravention of the fundamental law. The inclusion of a requirement to apply for and obtain access to classified information into the Chapter dealing with the status of SJC members of the Judiciary Act means that the provision concerned is an eligibility requirement that an applicant should satisfy in order to be appointed. Hence, a refusal on the part of a member of the SJC to apply for access to classified information and, equally, a refusal to grant them such access can render them unfit or ineligible to serve as a member of the Council and ultimately lead to their discharge from office. The contested provision applies to all SJC members and not only to those elected, including the three members entitled to sit on the Council by virtue of the public office held. The latter are judges and a prosecutor who by virtue of their tenure have access to classified information relating only to specific cases. According to the enacted provision they are also required to apply for and obtain access to classified information. Should such access be refused they will not be able to take part in certain meetings of the Council of which they are members for their entire seven-year tenure. Hypothetically a situation may arise where an elected member of the SJC is refused access to classified information that will automatically restrict their powers for a certain period and will effectively prevent them from discharging the duties of their office, which may ultimately serve as grounds for termination of their mandate under Article 130(8)(3) of the Constitution.
According to Article 117(2) of the Constitution the judiciary is independent. Given that this is its main underlying feature in a State based on the rule of law, its independence may not be undermined by making the members of the body responsible for career development in the judiciary dependent on a requirement to undergo vetting. The principle of independence of the judiciary from the two other branches of power is fundamental. This means that it may be subjected to procedures such as vetting, which are a form of external control, only in the cases envisaged in the Constitution. Subjecting the members of the SJC to a procedure ultimately designed to appraise their credibility as the institution is one of the safeguards guaranteeing the independence of the judiciary and in no circumstances may such an act be construed as cooperation or collaboration between the three branches of power. The tenure of the Council members may not be restricted in any way whatsoever nor may their status be subjected to requirements other than those stipulated in the Constitution.
2. Following the amendment of Article 35(1) ZSV a member of the SJC may be unable to vote on decisions on the grounds of “other circumstances, which raise doubts as to the impartiality of the member concerned”. Where such barriers arise, i.e. a member is no longer able to take part in conducted discussions or vote on decisions, they must recuse himself and/or herself and state the nature of the circumstances, which do not allow them to carry out the duties of their office (Article 35(2) ZSV). According to the contested Article 35(3) ZSV “where reasonable doubts arise in respect of a member’s impartiality under paragraph 1 and the member concerned fails to recuse himself and/or herself, the Anti-Conflict of Interest Committee of the SJC shall draw up a report”. If the report corroborates the doubts or information referred to in paragraph 1 the member concerned shall be suspended from the proceedings of the Council and the reasons for that suspension shall be announced.
The Supreme Judicial Council in its capacity as a body of the judiciary is called upon to act in compliance with the principles of publicity, accessibility and transparency proclaimed in Article 5(2) ZSV. Council members must carry out the duties of their office in the interest of society with honesty, integrity, responsibility and impartiality. The special Prevention and Detection of Conflict of Interests Act envisages certain actions to be taken with a view to preventing conflicts of interest, which include a Council member recusing himself and/or herself or being suspended by the Council or support for their membership being withdrawn by the body that nominated them for the position. The actions concerned may be taken in the case of a declared private interest in a matter. The cited law does not envisage a possibility for a Council member to be suspended from a meeting by a decision of the body responsible for their appointment or on the initiative of the other Council members where doubts arise as regards the possibility of a non-disclosed private interest.
The contested provision sets a dangerous precedent in national law. All members of the SJC have the same rights and obligations because they have an equal rank regardless of whether they are entitled to sit on the Council by virtue of the office they hold or have been elected; whether they have a full tenure or were appointed in place of a member who no longer sits on the Council; and regardless of the office they held before they became a Council member. Individual tenures may not be terminated early, or restricted permanently or incidentally on grounds other than those stipulated in the Constitution, including by suspending the member so that they are no longer able to vote on specific decisions even where this is done on the pretext of a suspected conflict of interest. The members of a collegiate body established by the Constitution may not suspend another member from participation in proceedings where a private interest has been declared. Likewise, this may not be carried out where such interest has not actually been declared but “doubts exist as to the impartiality of the member concerned”.
It is imperative that the SJC functions in strict compliance with the principle of transparency. However, this does not mean that in order to achieve this legitimate goal the principle underlying the mandates of its members must be compromised or any of their powers restricted, albeit temporarily. Should an adopted decision be contested in court the interested party may request its revocation on the grounds of being unlawful or due to a material breach of applicable administrative and procedural rules if the suspension of a member of the Council means that the decision had failed to be adopted with the necessary quorum and majority of votes.
Suspending a member from a collegiate body in which public powers are vested on the initiative of another member or members of the body concerned is a violation of the principles of the State based on the rule of law because it restricts the powers of the suspended members by questioning their impartiality. This is not only undemocratic but also goes against the understanding of a mandate as defined in the Constitution, notably the exercise of powers in any of the three branches of government for a certain period of time. The members of a public institution serving a mandate may not be dismissed, made redundant or suspended on any grounds (in this sense see Judgment No 13/2010 in Case No 12/2010 on the record of the Constitutional Court). In a similar case the Constitutional Court passed Judgment No 13/2002 in Case No 17/2002 on its record by which it ruled that imposing restrictions on the powers of a member of the SJC who was already serving a mandate, although their appointment was contested, retained their right to sit on the Council and take part in its proceedings as the opposite would be contrary to the principles of a State based on the rule of law.
3. The contested amendment of Article 171(1) ZSV concerns the procedure by which the SJC adopts decisions on the appointment of administrative managers of courts or their deputies by a show of hands.
The rules governing the appointment, promotion, secondment and dismissal of judges, prosecutors and investigating magistrates are laid down in Article 129(1) of the Constitution. The powers vested in the SJC in this area are exhaustively stipulated in Article 130(6)(1) of the Constitution. Both provisions mention the categories of a judge, prosecutor and an investigating magistrate as a blanket term without a distinction being made between them and other positions whose incumbents discharge the same constitutional powers. The provision laid down in Article 129(2) of the Constitution concerns only the chairpersons of the supreme courts and the Prosecutor General in respect of whom the procedure is applied not with a view to appointing them but to put forth their nominations to the President of the Republic. These constitutional arrangements warrant the conclusion that a single, uniform procedure is followed for the appointment, promotion, demotion, secondment and dismissal of all judges, prosecutors or investigating magistrates or the incumbents of an equivalent office, hence the SJC must adopt its decisions by secret ballot (Article 131 of the Constitution). This is corroborated by the provision of Article 133 according to which the SJC discharges its constitutional powers in line with a statute enacted by Parliament. That provision also does not contain alternative wording in the part referring to the appointment and dismissal of judges, prosecutors and investigating magistrates.
4. According to the contested provisions the SJC adopts a regulation laying down the rules and procedure for choosing jurors, determining their remuneration and making other organisational arrangements; a regulation on conducting competitions and determining the members of the commissions responsible for them; and a regulation laying down the criteria and methodology for performance evaluation of judges, prosecutors, investigating magistrates and the administrative managers of courts and their deputies and criteria for assessing the workload of courts and other bodies of the judiciary.
Public institutions, in addition to carrying out certain organisational functions and tasks aiming to ensure compliance with the law, may also enact legal acts, including – in certain cases – bylaws. The bodies of the executive power may enact decrees and rules of conduct because should a necessity arise to do so they may also apply methods of compulsion to enforce them. In principle, bylaws are enacted by the executive power so that the government can adapt the requirements laid down by law to the needs of the government in power. However, whether a public institution may do so depends on its nature and ranking and position in State hierarchy. Some of the statutory acts that may be enacted by the parliament, Council of Ministers and Cabinet Ministers are governed by the provisions of the Constitution (Articles 86, 114 and 115, respectively). The regulations and rules of procedure adopted by the Council of Ministers and Cabinet Ministers are essentially bylaws, which according to Article 114(1) of the Constitution are issued in line with enacted laws or, alternatively, to ensure compliance with enacted laws. In other words, they are issued by the bodies of the executive power. In its jurisprudence the Constitutional Court has consistently maintained that by default administrative bylaws are issued by the government (cf. Judgment No 5/2007 in Case No 11/2006 on the record of the Constitutional Court). Administrative regulations or bylaws lay down the rules governing the executive actions taken on behalf of the State. In parliamentary democracies, including in Bulgaria, bylaws are issued by the central government and its bodies – the Council of Ministers and cabinet ministers because unlike other bodies and institutions they are subject to direct parliamentary control. By the same token, according to Article 114(1) of the Constitution by default the bylaws with implications for the judiciary are issued by the Minister of Justice (the only Cabinet minister expressly mentioned in the Constitution). These arrangements mean that adopted bylaws are subject to direct parliamentary control and the bodies responsible for their enactment may be held accountable.
The judiciary may not adopt rules of conduct. It is called upon to apply the laws enacted by the legislature and the bylaws adopted by the executive power. Hence a body of the judiciary whose principal responsibility is the career development of magistrates may not enact bylaws. This is so because according to Article 130(6) of the Constitution it may only adopt general and specific administrative decisions. The provision, which allows the SJC to adopt rules of procedure does not mean that the rules concerned should be enacted in the form of a bylaw because the institution may not adopt rules but only approve a procedure for the appointment and career development of judges, prosecutors and investigating magistrates.
By Constitution the legislature may not delegate any of its powers to enact legislation governing the judiciary to another institution. The enactment of rules governing social relations referred to in Article 133 of the Constitution in the form of statutes is one of the mechanisms by which the legislature influences the judiciary. The underlying rationale of an enacted law is to stipulate a set of rules governing public relations in the long-term, ad hoc rules and criteria for performance evaluation and career development in the judiciary instead of relying on frequent amendments to bylaws adopted by the SJC, which has been established to apply them in carrying out its duties and responsibilities in its area of competence.
The enactment of bylaws by the judiciary is a breach of the principle of separation of powers proclaimed in Article 8 of the Constitution because the rules governing social relations in a particular area should be enacted in compliance with the requirements laid down the fundamental law as an element of the legal stability of the State based on the rule of law.
5. The contested Article 42(2) ZSV introduces additional requirements for the candidates for the position Inspector General. In a prior judgment the Constitutional Court has already ruled that the requirement for specialist professional experience in the legal domain stems from the need to ensure the incumbents satisfy a set of high requirements for professional skills and integrity. Hence it is permissible and conforms to the Constitution (cf. Judgment No 8/1994 in Case No 9/1994 on the record of the Constitutional Court).
However, the Constitutional Court finds that the requirement for the Inspector General to be an acting judge, prosecutor or investigating magistrate at the time of their appointment is anti-constitutional. It is incontrovertibly true that in order to be able to competently supervise the work of judiciary bodies in line with the powers vested in them under the Constitution and the ZSV the Inspectors General and individual inspectors must have sound knowledge of the functioning of the bodies concerned. In light of this, practical experience gained in the course of working for judiciary bodies, along with a sound grasp of the theory of law, is highly desirable. However, the capacity of an appointee prior to taking the office of Inspector General as an acting judge, prosecutor or investigating magistrate should not be made into a mandatory requirement. Holding a certain position within the judiciary at a given time is not necessarily a guarantee for professional excellence or sound knowledge of the functioning of the court, the prosecutorial or the investigative service.
Article 6 of the Constitution proclaims that all citizens are equal before the law and prohibits any restriction of rights or privileges based on personal status and social standing. Creating inequality by placing a certain category of legal professionals, notably judges, prosecutors and investigating magistrates, in a more favourable position is discriminatory vis-à-vis the greatest part of legal professionals who satisfy the requirements for high personal and professional integrity and have the requisite minimum general and specialist experience to successfully apply for the position of an Inspector General of the Judiciary. It should also be noted that the contested provision is discriminatory vis-à-vis the legal professionals working for the Inspection Service because the professional requirements for their appointment and that of the Inspector General are different. The inspection service is a part of a collegiate body hence there are no reasons why a different set of requirements should apply to ordinary inspectors and the Head of the Service. By Constitution applying a double standard by failing to ensure legal professionals are treated in line with the principle of equality, which bestows privileges on a particular group of professions and raises barriers before the rest on the grounds of acting in a certain professional capacity at a given time is anti-constitutional. The position of an Inspector General requires the incumbent to carry out primarily organisational and operational tasks and stipulating more stringent appointment requirements for the position, which essentially facilitates the work of the SJC, is unwarranted.
6. The petitioners contest the provisions on recalling jurors whose mandate has expired. The matter concerns an exception from the principle of ex nunc application of laws, which is fully justified because its purpose is to ensure that pending court cases involving jurors whose mandate has expired can be adjudicated in a timely manner. In essence, the rule ensures that cases will be finalised without a need to appoint new jurors as a guarantee for legal certainty and the stability of court rulings. It will also ensure that no grounds arise for the revocation of adjudicated cases and subsequent retrials on those grounds. This ultimately ensures compliance with the requirement for hearing cases within a reasonable timeframe postulated in Article 6 CPHRFF.
The principle of ex nunc application of laws is proclaimed in the Constitution, which allows the lawmaker to derogate from the general rule only if it deems it imperative that a law should not enter into force three days from the date on which it is promulgated but from an earlier or a later date. The express prohibition of retroactive legislation is laid down in Article 5(3) of the Constitution and Article 14(3) of the Law on Statutory Acts. However, it applies solely to penal laws that envisage levying sanctions and penalties unless the penalties concerned are lighter than those originally levied or imposed because causing the situation of a person whose criminal liability has been engaged to deteriorate is not allowed. The prohibition of retroactive legislation must be applied without exception when the intended purpose of an enacted piece of legislation is to encroach on rights or create retroactive obligations. However, the rule does not apply where under an enacted law rights are gained. The provision laid down in Article 69(2) ZSV has structural importance and therefore it may be applied retroactively. The exceptional significance and peculiarities of the case at hand warrant the conclusion that the contested provision laid down in paragraph 136 of the Transitional and Final Provisions of the Law amending and supplementing the Judiciary Act is justified because it addresses an anomaly whose potential detrimental legal implications are unpredictable. The possibility to address deficiencies in the law by enacting retroactive legislation exists because by Constitution the Parliament is entitled to legislate retroactively. The contested provision neither affects subjective rights and the stability of the legal order nor creates penalties. It is warranted by the exigent circumstances that led to its enactment. On a final note, it serves a higher social interest insofar as it enables the adjudication of pending criminal cases involving jurors.
Председател: Евгени Танчев