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President Rumen Radev PHOTO: Archive
President Rumen Radev returned for a new discussion in paragraph 1 of the National Assembly of the Law of Amendments to the Law of the Judiciary (JSA), adopted on September 3, 2020. This was announced by the press office of the head of State.
The deputies are modifying article 28 of the JSA for the second time this year, preserving the possibility of promoting some former members of the Supreme Council of the Judiciary (SCJ) once their term ends. In May of this year before the Constitutional Court the so-called “professional bonuses” were attacked by the Supreme Court of Cassation alleging that they violated the principles of separation of powers and independence of the judiciary.
The Head of State points out that the new wording of article 28 continues the contradiction with constitutional principles, including equality and the non-admission of privileges based on personal or social status (article 6, paragraph 2 of the Constitution).
The full text of the reasons is as follows:
REASONS
TO RETURN FOR A NEW DISCUSSION IN THE NATIONAL ASSEMBLY OF A PROVISION OF THE LAW OF AMENDMENT AND SUPPLEMENTATION OF THE LAW OF THE JUDICIARY, APPROVED BY THE 44th NATIONAL ASSEMBLY 20.09.
Distinguished Members of Parliament,
I continue with special attention and sympathize with the continuation of the reform of the Bulgarian judicial system to guarantee equal access to justice for citizens and legal entities, as well as with the implementation of the updated Strategy for the development of electronic government in the Republic of Bulgaria 2019-2020. I share the objective formulated in the motives of the bill to increase the guarantees of a fair trial in the execution processes by building an information system on execution and improving the efficiency and transparency in the work of its bodies. However, I am opposed to the systematic proposal of the highest political body of the country, the National Assembly, of “career bonuses” for the members of the Supreme Council of the Judiciary (CSJ), which as a constitutional body is called to guarantee the independence of the power of attorney.
By means of § 1 of the Law of the Judicial Power (JSA) approved, the National Assembly for the second time this year modifies art. 28 of the JSA and creates a legal basis for the elected members of the SJC, once their term ends or after their early termination for certain reasons to receive a promotion, ie. be appointed to a position in the Judiciary, which is a higher grade than they held prior to their election as members of the SJC.
The constitutionality of the amendments to the JSA approved earlier this year (published in SG No. 11/2020) was challenged by the Plenary of the Supreme Court of Cassation and the Constitutional Court initiated a case № 10/2020. . the norm of art. 28 will be complemented with the expression “may be appointed”, also adding requirements, which must be present in the promotion – presence of the respective seniority according to art. 164 of the JSA and a complex “very good” assessment of the last attestation before the election as a member of the SJC. Maintaining the possibility of promotion of the elected members of the SJC, however, the new wording of art. 28 contradicts important constitutional provisions.
The main guarantee of the independence of the court is that the appointments and promotions of magistrates are made solely on the basis of objective criteria, such as qualifications, skills, integrity, a sense of independence. The permanence of the magistrates in the SJC cannot lead to the acquisition of the necessary qualities to occupy a superior position in the judiciary, nor can it be equated with the achievements required for promotion.
When the law creates preconditions for certain individuals to be appointed to higher bodies of the judiciary on the basis of criteria other than objective, there is a risk that political considerations will prevail and, therefore, the independence of the judiciary is jeopardized. magistrates. In this sense, the new version of art. 28 of the ASJ contradicts the principle of separation of powers (article 8 of the Constitution) and the principle of independence of the judiciary (article 117, paragraph 2 of the Constitution).
Art’s new redaction. 28 of the JSA violates another important constitutional principle: equality and the non-admission of privileges based on personal or social status (article 6, paragraph 2 of the Constitution). The possibility of promoting SJC members will apply only to those of them who are magistrates and only to those who have not yet reached the highest levels in the judiciary. Thus, the legislator treats unequally members of the SJC who have already reached the highest levels in the judiciary, as well as those who are not magistrates. In the years since the SJC has been a permanent body, we see the National Assembly electing fewer and fewer lawyers and academics as its members, from which the quality of work and the independence of the council suffer. This trend would deepen with the entry into force of the new version of art. 28 of the JSA.
On the other hand, seats at the highest levels of the judiciary are limited in number and competitions are rarely advertised. The National Assembly transforms the members of the SJC during their tenure into competitors of the magistrate candidates for promotion and thus creates the risk that the SJC will not treat them equally.
Aside from objections to the merits of the amendments adopted pursuant to § 1 of the JSA Amendments, it once again indicates a disregard for the constitutional framework of the legislative process. The proposed modification of art. 28 of the JSA (Entry № 054-04-163 of 07.29.2020) was adopted by the National Assembly with a single vote, against the requirement of Art. 88, par. 1 of the Constitution to discuss and pass the laws by two votes. Making such a substantial change without written reasons, impact assessment, and public discussion conflicts with the principles of necessity, justification, predictability, openness, coherence, and stability that guide the legislative process in the rule of law.
Distinguished Members of Parliament,
The independence of the judiciary is a fundamental value that defines the rule of law. Our constitution guarantees an independent court for citizens and legal persons, and this value connects us in a common family with the other member states of the European Union. For these reasons, the national legislator must defend it with special care and diligence. For the reasons stated, I exercise my right under art. 101, para. 1 of the Constitution of the Republic of Bulgaria to return for a new debate in the National Assembly § 1 of the Law amending and supplementing the Law on the Judiciary, adopted by the 44th National Assembly on 3.09.2020.
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