The Bulgarian judiciary explained

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Bulgarian Prime minister Boyko Borissov in Parliament. The highest magistrates stand up in front of him like soldiers in front of an officer. [Vassil Donev/EPA]

The judiciary in Bulgaria has been a victim of political dependence and of civil society indifference, the only novelty now is that even the European Commission is willing to close its eyes, writes Krassen Nikolov.

Krassen Nikolov is a journalist specialised in judiciary affairs. He works for Mediapool and a contributor for BulgarianPresidency.eu during the six months of the Bulgarian Presidency of the Council of the EU, until June 2018.

In mid-January 2016, exactly two weeks before the European Commission’s regular report on Bulgaria was published, Prime Minister Boyko Borissov suddenly appeared at the Supreme Judicial Council meeting. At that time, the institution, which should keep the independence of judges and prosecutors, had to decide on the so-called “Yanevagate” scandal.

The affair has shaken the Bulgarian judiciary. The leaked recordings, disclosed by the Bivol website, between two high-ranking judges and an advocate close to those in power, revealed scandalous trade in influence reaching the highest circles of power.

The recordings said that the prime minister could order the Chief Prosecutor, who should be independent in theory, to prosecute a judge. They also revealed who the faithful members of the Supreme Judicial Council (SJC) are. Almost all those involved said that the talks were orchestrated, but the facts were different.

The specific reason for Borissov to enter the room was an SMS. The message was sent to the prime minister first by a member of the SJC, which is still unknown. With this message, the SJC member informed the Prime Minister that the chairman of the Supreme Court of Cassation Lozan Panov pleaded Borissov to be auditioned for his role in the Yanevagate scandal. So Borissov decided to go personally to the SJC to deal with the situation.

When the prime minister joined the SJC, the judiciary officials reportedly showed that they did not intend to ask him to explain his behavior. Half of them instinctively stood up in front of the Prime Minister as soldiers in front of an officer. This became a symbol of the subordinate role of Bulgarian justice. Such a scene cannot happen in another EU country.

In the other country, monitored by the European Commission, Romania, a scandal of such caliber would lead to mass protests. In the beginning of 2017 tens of thousands of Romanians took to the streets of Bucharest to protest against changes to legislation introduced by the new Socialist government. The amendments were intended to decriminalise part of the corruption offenses. A few months later, in August, Romanians again protested over proposed changes in the law that affect the way of appointment of the Chief Prosecutor and Head of Anti-Corruption Directorate (DNA). In both cases, protesters managed to block the government’s initiative.

Protests of this magnitude in defense of the independence of the judiciary in Bulgaria seem impossible. There are several civil society groups in the country, such as the “Protest Network” and the Justice for All Initiative, which are pushing for a judicial reform. They didn’t succeed to gather more than 2-3000 people to the streets, and only in the capital.

The Bulgarian parties, which place the reform as their top priority, have remained outside parliament, as they didn’t manage to reach the 4% threshold of votes. At the same time, Bulgarian citizens declare that corruption in the judiciary is one of the biggest problems in the country. The court and the prosecutor’s office enjoy extremely low confidence – barely between 6 and 10% of citizens believe the two institutions are working well. But the Bulgarians are not ready to fight for a change in the status quo. The final result is dozens of high-ranking politicians sentenced in Romania and not a single one in Bulgaria.

Diagnosis

The problems of the Bulgarian judicial system are described in numerous reports by the European Commission and by the Venice Commission of the Council of Europe. The latest report of the Venice Commission says that Bulgaria must provide further guarantees for the independence of its judges and strengthen the accountability of the Prosecutor General.

Some time ago, the Commission had said that the structure of the Bulgarian prosecutor’s office was “a remnant of totalitarianism”. The reason is that the Chief Prosecutor, who is above all prosecutors, can stop any investigation, including a hypothetic investigation against himself. Clearly, none of his subordinates would even imagine to investigate him.

The other problem is the oversize, large political quota in the Supreme Judicial Council. Of the 25 members of the council, the parliamentary parties elected 11. Another three are appointed by a decree of the president – the presidents of both Supreme Courts and the Chief Prosecutor. This means that the politically elected members have a majority of 14 to 11. By comparison, the judges elect only six of their representatives in the SJC.

Parties usually allocate these positions according to quotas and fill the SJC with people whose first task is certainly not the independence of the judiciary. Thus, the system falls under political influence because the SJC appoints all judges and prosecutors. The “three big ones” in the Bulgarian judicial system – the Chief Prosecutor and the presidents of the two Supreme Courts, who are members of the law and the Supreme Judicial Council, are also elected with political protection. Thus the circle closes.

Constitutional judge Rumen Nenkov, a former vice-president of the Supreme Court and former member of the SJC, knows a lot about political pressure. He is convinced that those in power always choose “the big three” behind the scenes.

“Unfortunately, the ruling politicians haven’t learned from the past mistakes and still do not understand that it is better to support those who have the power to serve only the law, and those who serve them. Because the people who have become accustomed to serving will serve any future government, “Nenkov says in one of his rare interviews.

“The question is how in the prosecutor’s office, and in the courts, can we create a layer of free people. If a person is not free to decide and to stand behind his decisions, it is better for him to abandon the magistrate career, but all this is difficult to be evaluated, even within a competition”, said the judge.

This goal is clearly far away for Bulgaria. Judge Kalin Kalpakchiev was elected representative of the judges in the SJC in 2012 and, after the end of its mandate in 2017, he took stock of the institution’s work:

“The intolerable and poisonous atmosphere of work in the SJC, the attempts to bring illegitimate party-oligarchic influences into the council’s human resources selection, the fierce slanderous media campaigns directed against certain judges with critical and free opinion, the inability to engage in reasonable dialogue, the lack of competence and will to solve the pressing problems of justice – these are the main features that marked the mandate of the SJC in the period 2012-2017”, Kalpakchiev stated.

With a similar atmosphere in the governing body of the judiciary, Bulgaria cannot shake off its image of the most corrupt country in the EU and give the necessary security to investors. The Balkan state cannot hope for a recent cessation of the Brussels monitoring, only for a milder tone because of political considerations. But this has nothing in common with the real situation of the Bulagrian judiciary