To
Supreme Judicial Council
President of the Republic of Bulgaria
Minister of Justice
European Commission
Dear Ladies and Gentlemen,
We are addressing you with the issue regarding the necessity to revise the rules which will be implemented for the election of a new President of the Supreme Court of Cassation.
In its January 2014 report the EC underlined that „A series of cases where professionalism and integrity are the main drivers in an appointment process will be needed to restore public confidence particularly in the case of the most senior appointments.”
The election of President of the SCC is of crucial importance for the destiny of the judicial reform in Bulgaria. The process of determining who will be the new face of the Supreme Court of Cassation is a critical step towards the formation of a new leadership based on trust and broad legitimacy achieved through a real professional authority. The new President of the SJC will face the task to unite the professional community around a new vision for sustainable reforms. Furthermore, he/she will have to bring the court back to its natural role – being the main holder of the judicial power. (see Constitutional Court Decision № 8/2005). This is the only guarantee for a true independence of the Bulgarian judiciary.
The current SJC continued serving to some underhand interests and sacrificed the criteria for integrity and professionalism in favour of imposing the will of administrative lobbies. Thus, the management of the judicial power is on its best way of losing any trust left. Under these circumstances the election of a new President of the SCC can be carried out in a transparent way only after the elimination of any doubts about the rules and opening the procedure to the participation of the judges from the SJC. Only the authentically professional authority and the broad participation of peers can establish the basis for the reinforcement of the trust and legitimacy of the governance in the judicial power.
The current “Procedural rules for the election of candidates for President of the Supreme Cassational, Supreme Administrative Court and a Prosecutor General”, adopted with a SJC Decision № 48/08.11.2012, have already presented some deficiencies during the election of a new prosecutor general. On the first place, there was the absence of a real possibility, under the current legal frame, for the magistrates from the respective body to participate in the election and hearing processes. On the second place, the rules do not guarantee an exhaustive vetting and elimination of all reasonable doubts in the moral and professional qualities of the candidates. The SJC did not adopt the practice of performing an adequate check up of the qualities of the candidates, a fact, which leveled criticism and recommendations in the reports of the EC. Last, but not least, the doubts that the current voting rules guarantee a fair and equal election remain relevant. This issue was raised from different sites, including from the current President of the SCC. However, the SJC completely ignored it . In the meanwhile, a recent problem with the electronic voting system at the SJC confirmed the reasonable concern on this issue . At the end, the European Commission evaluated the election of the new Prosecutor General as being a “subject of controversy”, pointing out explicitly that the SJC did not clear out all doubts regarding the integrity of one of the candidates (p. 6 from the Technical Report accompanying the Report on the CVM from January 2014 ).
Nevertheless, the positive, yet scarce practice of the SJC carrying out hearings of candidates for administrative positions in front of the judges’ assembly from the respective court should be mentioned. The recent experience with the organization of internal consultations for the nomination of candidates for Chief Inspector of the ISJC needs to be recognized too.
Based on the above said, we are calling upon the SJC to revise the procedural rules in the following principal directions:
• Guaranteeing the possibility for participation of the judges’ assemblies of the SCC and the SAC in the process of distinguishing and hearing of candidates for presidents of these respective courts;
• Guaranteeing the high professional and managerial qualities; the good knowledge of the problems and needs of the supreme courts, as well as the acknowledgement of the candidates by their peers at the respective courts;
• Guaranteeing the rigorous implementation of the requirement for the existence of high moral qualities. This can be achieved through the carry out of a real, in depth vetting of all reasonable doubts in the candidates’ integrity, including an appropriate form for monitoring from the professional organizations;
• The actual election should be performed with an integral voting-paper.
We call upon the other state institutions and the EC to support the efforts for drafting and adoption of rules which will guarantee high transparency and trust in the procedure for the election of a new President of the SCC.
We are, hereby, declaring our readiness for cooperation with the SJC and participation in the drafting and discussion of particular texts.
Kind regards,
Union of Judges in Bulgaria
Bulgarian Institute for Legal Initiatives Foundation (BILI)
Bulgarian Helsinki Committee
Association for European Integration and Human Rights
Center for the Study of Democracy
RiskMonitor Foundation
NGO Center - Razgrad
Programme for the Development of the Judicial System