The Judiciary in Bulgaria

The Judiciary of the Republic of Bulgaria Legal framework -Chapter Six of the Constitution (Art. 117–134) -Law on the Judiciary -Procedural legislation Structure -courts (judges) -prosecution offices (prosecutors) -investigation services (investigators) Personnel – judges, prosecutors and investigators (generally referred to as magistrates) CSD proposal: change in the constitutional model – situation of the investigation and the prosecution outside the judicial branch, while adopting a model based on a wide consensus

Basic principles of the judiciary Independence of the judiciary – in carrying out their functions judges, prosecutors and investigators shall obey only to the law Functional immunity – magistrates shall be immune from criminal or civil liability only for steps undertaken in their official capacity, including their orders and judgments, unless the act in question represents an intentional offence prosecuted on indictment Irremovability - this status is acquired with the completion of 5 years (3 years until 2003) of work as a judge, prosecutor or investigator, and only past evaluation of performance Incompatibility - the status of magistrate is incompatible with a representative mandate or a membership in any form of political organization

Supreme Judicial Council (SJC) Main administrative and staffing body of the judiciary responsible for the organization of the judicial system Composition (25 members): -ex officio the Chairman of the Supreme Court of Cassation, the Chairman of the Supreme Administrative Court and the Prosecutor General; -11 members elected by the National Assembly -11 members elected by the bodies of the judiciary CSD suggestions -First option: the members should only be elected by the bodies of the judiciary and the chairperson should be elected by the National Assembly and report to the Assembly both regularly and on invitation; -Second option: if the parliamentary quota in shaping the SJC is retained, the election by parliament should be by a qualified majority

Supreme Judicial Council (SJC) Terms of office -5 years -not eligible for immediate re-election Powers -Makes decisions for appointing, promoting, demoting, transferring and removing from office of judges, prosecutors and investigators -Rules on disciplinary trials brought against judges, prosecutors, investigators, chairs and deputy chairs of courts, prosecution offices and investigation services -Attests and decides on magistrates irremovability in the specified circumstances stipulated in the Constitution -Submits for approval by the Council of Ministers the budget of the judiciary and supervises its spending CSD proposal: under the current constitutional model – separation of the organizational, personnel and financial management of the investigation and the prosecution from those of the courts within the SJC

The current SJC (acting since December 16, 2003 ) The meetings of the Supreme Judicial Council are chaired by the Minister of Justice, who is not entitled to a vote Eleven members elected by the judiciary -six are elected by the judges -three are elected by the prosecutors -two are elected by the investigators Eleven members elected by the National Assembly -five judges, one prosecutor, one investigator, two attorneys- at-law and two professors in law

General Courts Regional courts (112) - main first-instance courts, hearing all cases save those heard at other courts by virtue of law District courts (28) - first-instance courts for civil and criminal cases as established by law; second-instance courts for appeals and protests against regional courts’ decisions, as well as other cases assigned to them by law Courts of appeal (5) - hear the cases brought on the basis of appeals and protests against the first-instance acts of the district courts within its jurisdiction as well as other cases assigned to them by law The Supreme Court of Cassation - the highest instance for civil and criminal cases; exercises supreme judicial oversight as to the precise and equal application of the law by all courts

Specialized Courts – Supreme Administrative Court Legal framework -The Constitution -Law on the Supreme Administrative Court Powers -exercises supreme judicial oversight as to the precise and equal application of the law in administrative justice -decides on disputes involving the legality of administrative acts and regulations (acts issued by the Council of Ministers, the Prime Minister, the Vice Prime Ministers, the Ministers, etc.) Measures for strengthening administrative justice: Draft Code of Administrative Procedure Other specialized courts may be set up only by virtue of law

Prosecution Office Legal framework -Art of the Constitution -Chapter seven of the Law on the Judiciary -Criminal Procedure Code Composition, organization and structure -The Prosecution Office is composed of the Prosecutor General, Supreme Prosecution Office of Cassation, Supreme Administrative Prosecution Office, appellate, military appellate, military district and regional prosecution offices -Correspond to the structure of the courts -Unified and centralized office, headed by the Prosecutor General -Hierarchical structure: each prosecutor is subordinated to the prosecutor immediately superior in office, and all prosecutors are subordinated to the Prosecutor General

Prosecution Office Appointment and removal -Prosecutor General - appointed and removed by the President of the Republic on a motion from the Supreme Judicial Council for a period of seven years (not re-eligible) -Deputies of the Prosecutor General (who are also heads of the Supreme Prosecution Office of Cassation and the Supreme Administrative Prosecution Office) - appointed for a period of 5 years and eligible for a second mandate (the current office holders were elected in April 2004) -Prosecutors - appointed and removed from office by the same rules which hold for judges

Prosecution Office Powers -indicting the persons who have committed crimes; supporting the prosecution in general criminal cases -supervising the carrying out of punitive measures and other measures of compulsion -taking actions to rescind illegal acts and, under pressing circumstances, to restore arbitrarily violated rights -partaking in civil and administrative cases in the events provided by law

The new Prosecutor General’s agenda Term of office: February 23, 2006 – February 22, 2013 The person: Dr. Boris Velchev -Former advisor to the President of the Republic -Associate professor in criminal law (Sofia University) Declared priorities -to prosecute corruption and organized crime, including by establishing special anti-corruption unit, reporting to the Prosecutor General -to investigate current flaws of the Prosecution Office -to support any change that will make the prosecution process more transparent, accountable and depoliticized -to closely co-operate with investigation bodies and law enforcement CSD proposals giving the prosecutors the right to object against the instructions given by a senior prosecutor or withdraw from the case in the event of disagreement introducing public official outside the prosecution office to exercise prosecutorial functions as regards cases of judicial and high level political corruption

Investigating bodies within the judiciary Legal framework -Art. 128 of the Constitution -Chapter eight of the Law on the Judiciary -Criminal Procedure Code Investigation bodies as a part of the judiciary include the National Investigation Service and 28 district investigation services Investigators deal with the preliminary proceedings on cases expressly specified in the Criminal Procedure Code With the newly adopted Criminal Procedure Code (in force as of April 29, 2006) the investigators will continue to investigate only crimes against the Republic, crimes against peace and humanity and crimes committed by persons holding immunity (about 3% of the total number of crimes); all other cases will be investigated by investigating police officers

Investigating bodies outside the judiciary Investigating police officers - investigation body within the Ministry of Interior Powers of police investigators -To investigate all cases where preliminary proceedings are not conducted -According to the newly adopted Criminal Procedure Code – to carry out investigation within the pre-trial phase (including cases relating to organized crime, economic crime and corruption) Necessity to strengthen the capacity of police investigators

The Constitutional Court of the Republic of Bulgaria The Constitutional Court is not part of the judicial system Legal framework -Chapter Eight of the Constitution -Law on the Constitutional Court Composition: 12 members, one third - elected by the National Assembly, one third - appointed by the President, and one third - elected by a joint meeting of the judges of the Supreme Court of Cassation and the Supreme Administrative Court Term of office: 9 years without possibility for re-election or re- appointment CSD suggestions for constitutional amendments -Election only by the parliament with a qualified majority

The Constitutional Court of the Republic of Bulgaria Powers -delivers binding interpretations of the Constitution -rules on challenges to the constitutionality of the laws and other acts -rules on competence suits -rules on the compatibility suits -rules on challenges to the constitutionality of political parties and associations -on challenges to the legality of the election of the President, Vice President or Members of the National Assembly -rules on impeachment by the National Assembly against the President or the Vice President The Constitutional Court acts on an initiative from not fewer than one-fifth of all Members of the National Assembly, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court or the Prosecutor General.

Constitutional Court Decisions regarding the Judiciary Decision №13/2002 -declares as unconstitutional 44 provisions of the recently adopted Law on Amending and Supplementing the Law on the Judiciary Decision №3/2003 -defines the boundaries of the authority of an ordinary National Assembly to modify texts of the Constitution, including restrictions to change the structure of the judiciary Decision №8/2005 -revises its former definitive position on structural changes in the judiciary by an ordinary National Assembly

Constitutional amendments for reforming judiciary ( ) First phase (2003) -partial amendments concerning immunity and irremovability of magistrates and introduction of terms of office (5 years) for the administrative managers of judicial bodies -no amendments as regards the structure of the judiciary Second phase (2005) – amendments directly linked to Bulgaria’s pending EU membership -transfer of national sovereignty to EU organizations -direct effect of legal instruments adopted by EU institutions -European Parliament elections and the participation of EU citizens in local elections in Bulgaria -commissioning state bodies to represent Bulgaria in EU institutions and defining the mission of Bulgarian parliament to prepare national positions on EU secondary legislation adopted by the EU -acquisition of real property in Bulgaria by EU citizens -no amendments referring to the judiciary

Current debate on constitutional amendments regarding judiciary Draft provisions adopted on the first reading (February 3, 2006) -Controlling powers of the parliament concerning the Prosecutor General and the Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court: hearing and voting their annual reports and dismissing them in specific cases -New powers of the Minister of Justice: drafting the budget and managing the property of the judiciary; submitting proposals for appointment, promotion, demotion and dismissal of magistrates; overseeing the institution, movement and closure of cases -Strengthening the leading role of the prosecution office in the process of investigation -Reducing the powers of investigators to carry out investigations (to reflect the changes done with the new Code of Criminal Procedure) CSD proposals as regards the Prosecutor General and the Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court -Election by the parliament with a qualified majority -Power of the parliament to remove them before their term expires and decide on lifting their immunity -Possibility to make them answer parliamentary questions in their administrative capacity

Current debate on constitutional amendments regarding judiciary Draft provisions adopted on the second reading (March 2, 2006) -Controlling powers of the parliament concerning the Prosecutor General and the Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court: hearing and voting their annual reports -New power of the President of the Republic: to dismiss the Prosecutor General and the Chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court in specific cases upon motion by 1/4 of the Members of Parliament voted by a qualified majority (2/3); the President may not deny a dismissal on a repeated motion -New powers of the Minister of Justice: drafting the budget and managing the property of the judiciary -Strengthening the leading role of the prosecution office in the process of investigation -Reducing the powers of investigators to carry out investigations (to reflect the changes done with the new Code of Criminal Procedure) Third reading: forthcoming

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