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Part of the structures of the Council of Europe, it is the highest body on the continent for constitutional law.
We regret that a constitutional reform has been launched in Bulgaria without being preceded by a proper public debate. The draft of a new Constitution was prepared by the parliamentary majority and, apparently, without any other input outside of it. The reasons for certain amendments are not well explained and, when done, are too concise.
The proposal to halve the 240 MPs seems to stop at an arbitrarily chosen number of 120, without a detailed assessment of the impact of such a measure on the Bulgarian political system.
Amendments to strengthen social and economic rights are welcome, but it is necessary to clarify what the state’s obligation to “support the birth rate” means, for example. This should not be used as an excuse to discriminate against cultural and ethnic minorities or women. Very general wording could be used to try to severely limit or prohibit abortions, for example, justifying stimulates fertility).
These are just some of the first evaluations of the GERB project for a new Bulgarian Constitution, carried out by the European Commission for Democracy through Law, better known as the Venice Commission. Part of the structures of the Council of Europe, it is the highest body on the continent for constitutional law.
On Monday, the Council of Europe released a mid-term evaluation conducted at the request of the Speaker of the National Assembly, Tsveta Karayancheva. The text emphasizes that a significant part of the analysis is dedicated to the administration of justice, but the commission members are ready to comment in detail on other parts of the project, if and while it is being discussed in Bulgaria. “As the constitutional reform continues, the Bulgarian authorities must explain in detail the reasons behind each of the proposals and ensure meaningful participation of the public, experts and all political forces in this process,” the commission said.
The preliminary analysis also contains positive assessments that the recommendations of the Venice Commission, especially those addressed to the judiciary and the Attorney General, have been taken into account in the draft Constitution.
Uncertainties with “more flexible” referendums and amendments to the Constitution
But constitutional lawyers also draw attention to such serious questions as how amendments to the new constitution will pass in referendums if it passes and goes into effect. It is expected that there will be no more Grand National Assembly and this will happen after three votes in parliament and a referendum with the participation of at least 50% of those who have the right to vote. According to the commission, setting such a threshold for participation in a very modest tradition of public opinion polls in Bulgaria calls into question the possibility of changing the basic law.
The explanation is that political forces that disagree with an amendment have a veto in practice, even when they are in the minority, because they can campaign not to vote against it, but simply to have their supporters boycott the referendum. GERB already applied this approach in 2013 in the referendum initiated by the BSP on the Belene nuclear power plant, when fewer than 1.5 million people showed up in front of the polls with a minimum requirement of just over 4.3 million people.
Another important question is how to determine what are the “major” and “ordinary” changes to the Constitution. An example is given: in art. 166 of the draft Constitution speaks of a special procedure for changes in the form of government, but it is not entirely clear what is meant by this wording. “What if changes in the leadership of the justice system removed all guarantees of independence for judges and placed them under government control?” Why the approval of a completely new constitution requires a referendum with minimal participation, but there is no threshold for a referendum that amends “the change of the republican and parliamentary bases of the government”, the questions continue. It is advisable to define very clearly the powers of the Constitutional Court on these issues, says the text.
Secondly, notes the Venice Commission, we do not see any sense in changing the procedure for amending the Constitution, it is not clear why the majority of MPs in Bulgaria decided to make it “more flexible”, whose important reforms have been blocked until now due to the current model of repair of the Constitution. the basic law and why these reforms cannot be carried out in the current framework, requiring the convocation of a Grand National Assembly.
Temporarily remove the Attorney General during an investigation
The Venice Commission recalls that the question of the liability of the Prosecutor General in Bulgaria has been discussed with it for years and that almost a year ago another legislative proposal was made, in December 2019. It is about introducing an independent prosecutor to investigate possible crimes. of the Attorney General. In July 2020, the Constitutional Court issued a clarification on how these cases should be handled.
But now the commission “strongly recommends that the Bulgarian authorities include in the Constitution a mechanism whereby, in the event of a potential conflict of interest, the chief prosecutor can be suspended and an independent interim prosecutor appointed to report to different authorities. of the Fiscal Council “. Apart from the fact that the independent prosecutor should not be subordinate in any way to the chief prosecutor, the Constitution should also allow the possibility of reviewing cases in which prosecutors refuse to initiate a pre-trial procedure.
There are also recommendations on the idea of creating a separate Judicial Council of Prosecutors and a Judicial Council of Judges (to succeed the current Fiscal and Judicial College in the Superior Council of the Judiciary), as the first to have members who are not and will not be hierarchical. liaison with the Attorney General and should represent other legal professionals. Both councils must have representatives appointed by professional bar associations, academia, etc., in order to diversify the composition. A clear mechanism is needed to overcome the deadlock in parliament when MPs cannot get two-thirds of the votes for these “outside” council members.
The Venice Commission also recommends that the jurisdiction of the prosecution outside the field of criminal law be reduced “to the minimum necessary”. Furthermore, constitutionalists say, it would be appropriate to abolish probation for junior judges and prosecutors and to describe in the law very clear criteria on why to approve it.
