We are publishing the full text of a letter, signed by 6 reputable Bulgarian NGOs (Association for European Integration and Human Rights, Bulgarian Institute for Legal Initiatives, Institute for Public Environment Development, Access to Information Program, Bulgarian Lawyers for Human Rights, RiskMonitor Foundation) announcing themselves in support of the Bulgarian Judges Association.
SUPREME JUDICIAL COUNCIL
Cc: Diana Kovacheva
Minister of Justice
Representation of the European Commission in Bulgaria
Dear Members of the Supreme Judicial Council,
Dear Mrs. Minister of Justice,
We instantly call upon you to revisit the matters brought your attention with a letter by the Bulgarian Judges Association, dated November 22, 2012, so that an institutional reaction, adequate to the serious problems our country is facing, be demonstrated.
The unsuccessful election of Supreme Administrative Court deputy president Veneta Markovska for a Constitutional Court Justice, along with the previous procedures for appointments to high positions within the judiciary, put forth systematic questions, including:
- Why does the Supreme Judicial Council (as well as the National Assembly regarding Ms. Markovska election and other election procedures for judicial bodies before that) is not fulfilling its obligation to conduct an informed election by collecting the relevant information, available to the public and held by other competent authorities, that shades light on the moral and professional qualities of the candidates?
- Why is there still tolerance for the institutions with controlling functions (mainly the Prosecution’s office and the Inspectorate with the SJC) to work selectively and to apply double standards – by presenting significant to the evaluation of some candidates’ moral and professional qualities information, while concerning other candidates such information is being concealed or (in case of a scandal) presented in the last possible moment in the procedure or even afterwards, so that the resulting outcome in no way affirms the rule of law?
- Why in all cases when the media publish information concerning ethical, disciplinary transgressions by magistrates the SJC is not initiating an ex officio check as a rule, but instead does so selectively or only under the pressure of public discontent?
Despite the questions which still have not been answered, the events have shown that the “Markovska” case itself has been made possible due to accumulated unsolved systematic problems in two of the judicial bodies – the Supreme Administrative Court and the Prosecution’s Office. Thus, the scandal brings to the public agenda the necessity of exposing the “Markovska” model.
Despite all this, on November 27, 2012 the SJC denied the suggested by BJA concrete measures through which the problems of the SAC and the Prosecution could have been diagnosed specifically and publicly responsible solutions - administered afterwards. The moment is extremely important and urgent – because of both the forthcoming election of a Prosecutor General and the SAC’s role in the separation of powers and rule of law protection as a principle, and in the context of the coming general election next year. That is why any inaction on behalf of the judiciary’s supreme governing body, which is the only to have sovereign powers to audit the organization of activities and the administration of the judiciary, should be considered a sign of a dependent judiciary. It would increase the suspicions that the desire to conclude everything with the amicable removal of Ms. Markovska from the public scene is prevailing and that Bulgarian society and international partners are to become witnesses of another denial of institutions to bear their responsibility in the fight against corruption and abuse of power as system phenomena.
We cannot allow such an outcome to occur, wherefore we insist that you see to the problems, outlined in the BJA’s letter:
• A clear response should be given as to how exactly the Prosecution’s Office acts upon receiving data that a magistrate has committed a crime? How is it possible that a case on trading in influence in the SAC, proceeding for over 2 years, has not been drawn to the SJC attention, so the Council could ensure that cases be assigned to panels and judges who are truly independent? What are the guarantees that on cases pending “against unknown offender” but based on data, regarding magistrates’ activities, no abuse is admitted? When does the Prosecution start proceedings on its own initiative and when it does not, what are the inter-institutional guarantees that inspections against unknown offender will not be kept as a secret instrument against the given magistrate?
• What are the procedural guarantees that all the data regarding a candidate for a high state post will be presented to the deciding body duly, including data concerning individuals from the candidate’s circle, which rise questions about the candidate’s integrity? What are the guarantees that data which may not establish culpability, but otherwise gives rise to disciplinary and ethical questions, will always reach the SJC in due time?
• A clear response should be given to suspicions that the method of determining the competence of the divisions and the way panels are formed in the SAC may cause the principle of random case assignment be evaded, and it should be clarified whether this has been done in a way which rises suspicions of abuses.
• Analysis of the main problems with the Prosecution’s Office (including ECHR verdicts against Bulgaria) should be made to serve as a clear basis for determination of the position of the nominees for Prosecutor General vis-à-vis these problems and what measures for the overcoming thereof they propose.
• Any suspicion in the fairness of the procedure for electing Prosecutor General should be eliminated and the SJC shall adopt voting with paper ballots, guaranteeing the secret of the vote, and shall abandon its inexplicable persistence for an electronic vote.
We regard the SJC Ethics Committee’s announced intent to hear the candidates for Prosecutor General concerning the issues that the media has brought about as a positive sign. However, we underscore that the evaluation of the adequacy of such action will depend on whether the Committee will conduct its own thorough investigation of the relevant circumstances, including by asking all questions and demanding concrete and comprehensive answers thereto. We hope that, by contrast with practice prevailing hitherto, the Committee will not be satisfied with formal certificates issued by governmental bodies, and that it will not be tempted to substitute the standard of unquestioned integrity for that of lack of proven criminal record.
With all due respect,
Association for European Integration and Human Rights
Bulgarian Institute for Legal Initiatives
Institute for Public Environment Development
Access to Information Program
Bulgarian Lawyers for Human Rights
RiskMonitor Foundation