We have already raised the topic of whether there is a significant procedural violation in the determination of Competition Commission in VKS. And the facts are that there was an absolute procedural violation in appointing Assoc. Dr. Vencislav Petrov as a member of the competition commission. And this is because he does not have a scientific specialty in commercial law. This was established by judges participating in the procedure for selecting judges in a commercial college of appeals courts. Do we then have an illegal composition of the competition committee, because the participating associate professor Dr. Ventsislav Petrov does not have a scientific specialty in commercial law and a habilitation in this scientific discipline. According to generally available public information, he is a specialist only in family and inheritance law and can only evaluate candidates for promotion in civil law.
What turns out
Associate Professor Dr. Vencislav Petrov never taught commercial law, never wrote publications on commercial law. If we recall Art. 189, para. 5 ZSV, there is provided an imperative requirement that one habilitated scholar in legal sciences in the relevant subject with the academic position of associate professor or professor be appointed in the competition committee. So far so good. We have rules to have a statutory commission. Assoc. Ph.D. Vencislav Petrov is a habilitated scholar of legal sciences with the academic position of associate professor, but in what… Not in the relevant matter - commercial law, because he is an associate professor of civil law.
Who will answer and are there any awkward questions
Participants in the competitive procedure for the appointment of judges in the Commercial College of the Courts of Appeal have asked the Supreme Judicial Council (SJC) to be publicly disclosed – this is done with a decision at a relevant meeting of the Judicial College of the SJC, respectively, to ensure access to them on the basis of Art. 34 of the APC to the motivated opinions of the competition committee on the ranking announced on 04/03/2024, regarding the competition for promotion in the commercial departments of the appeal courts announced in 2022.
Among the unranked candidates, and perhaps also for the ranked candidates who participated in the two contests, doubts were raised about the way in which the candidates were evaluated by the competition committee.
The Judicial College of the SJC itself and in view of the principles of Art. 12 and Art. 13 APC, owes, in connection with the lawful conduct of the competition, to discuss these motivated opinions in detail, having previously made them public. In this way, the doubts that have been raised about the obvious bias of the ranking of the candidates will be refuted. In addition, an informed choice will be given as to whether the unsuccessful candidates appeal the appointments of the shortlisted candidates.
The Judicial College of the SJC owes such public disclosure in view of the mystique that has existed for years about the specific criteria for evaluating the candidates and negative opinions towards the objectivity of the evaluation by the competition commission. In this regard, it is high time that the Judicial College of the SJC enters its role, established by the Law on the Judiciary, as a controlling body of the competition committee for the evaluation of candidates appointed by it as an auxiliary body.
It is the Judicial College of the SJC that should monitor the legal and objective conduct of the competitions, exercising its control powers for the proper performance of the duties of the relevant competition commission. The previous practice of the Judicial College of the SJC is indicative of a completely formal verification of the activity of the competition commissions and of justifications in the style - “nothing depends on us, this is what the commission has decided”.
However, if we look at Art. 192, para. 1 ZSV, there are imperatively objective criteria established, with which the competition commission is obliged to comply with the assessment. It is the compliance with these criteria that should be checked by the Judicial College of the SJC and it is not by chance that the law requires the competition commission to present a motivated opinion - art. 192, para. 3 ZSV.
It is common knowledge that the final evaluation of the candidates should rest on the criteria established in Art. 192, para. 1 ZSV evaluation criteria, and they are in total three separate groups. Therefore, each member of the competition committee should give three separate evaluations to each candidate, the sum of which forms his final evaluation.
The presence, for example, of 5 identical overall ratings of the first ranked candidates from the competition means that the five members of the competition commission have given each of these candidates three exactly the same ratings and according to the three groups of criteria according to Art. 192, para. 1 ZSV.
This makes a total of 15 absolute matches for each candidate,
which raises serious suspicions whether the ranking is at least “argued”, because the members of the commission are not separate or independent, but general, biased and simultaneously.
Are there links
The sympathies of some members of this commission towards members of the “Union of Judges in Bulgaria” are well known. There is nothing reprehensible in this, if, however, the ranking is objective, based on the rules of Art. 192, para. 1 ZSV. Judges have doubts that it is not based on the legal requirements of Art. 192, paragraph 1 ZSV. Therefore, they send through the administrative body under Art. Art. 193, para. 3 et seq. ZSV several questions they ask themselves. In addition, it is logical that these questions should be checked by the Judicial College of the SJC itself when rendering its decisions under Art. 193, para. 4, possibly under para. 5 of the Law on Judicial Power.
So - the uncomfortable questions
The questions to the competition committee are as follows:
It is about compliance with the first group of evaluation criteria.
- the first question that arises is whether each candidate actually received 3 marks from each member of the competition committee - a total of 15 marks for each candidate?
- the next question is whether the assessments of all candidates are the same according to the first group of criteria under Art. 192, para. 1 ZSV - the results of the last attestation and inspections by the higher bodies of the judiciary and by the Inspectorate of the Supreme Judicial Council?
A well-known rule comes to the fore here – it is also valid for other classes such as doctors, military and police officers, that all candidates, participants in the competition are “very good“ marks from the attestation, and this also leads to the logical fact that these marks are the same. If the scores are different, the competition committee should also justify the criteria (principle basis) for comparison and assessment that it assigned to the candidates. In this direction, the competition commission should explicitly state whether it took into account the inspections by the higher bodies of the judicial power and by the Inspectorate of the Supreme Judicial Council when evaluating according to this criterion. If yes, then in what way and how were the candidates evaluated, for whom there were no checks by the higher bodies of the judicial power and by the Inspectorate of the Supreme Judicial Council during the three-year period?
Questions regarding compliance with the second group of evaluation criteria under Art. 192, para. 1 ZSV - the data from the personnel files of the candidates:
- since it is too general a formulation by the legislator, the competition commission owes an explanation, did they apply this criteria in the evaluation and in what way?
- are the personnel files of all candidates in the administrative file, what do they include and when were they updated?
- have the personnel files of each of the candidates been checked by each of the members of the competition committee and in what way are they evaluated?
Because it is clear that among the participants in the contests there are candidates with the educational and scientific degree of "doctor", part-time teachers in Law Faculties of universities in the country, diplomas and awards from professional organizations and unions, etc. Were these circumstances taken into account or not when the assessment was made from this set of criteria?
Questions regarding compliance with the third group of assessment criteria under Art. 192, para. 1 ZSV - assessment of the examined and closed cases and files, selected by the competition committee and presented by the candidates:
- with their applications for participation in the competition, the candidates have submitted three final judgments on cases that they have considered in the last three years since the announcement of the competition. On what principle did the competition commission determine the cases?
Are the cases themselves requested and considered, or only the final judgments issued?
- were the cases physically required, if they were required at all, or were they scanned and submitted to the competition committee on electronic media?
In connection with the last question, there are rumors that only final judicial acts are required and possibly read, in violation of Art. 192, para. 1, pre. 3 of the Civil Procedure Code, which requires the evaluation of all the judicial actions of the judge in the specified cases, and not only the final judicial act.
And so it comes to the request of the judges to hear the members of the competition commission in connection with the following circumstances, which put into serious doubt its objectivity and impartiality in the evaluation of the candidates:
- for each member of the tender committee to state when, in what way and how long it took him to familiarize himself with the tender documentation? (this question is asked in connection with claims that the members of the competition committee did not familiarize themselves with the documents presented and requested by the candidates, as well as with their personnel files, but relied on personal acquaintances and impressions, calls from friends they have confidence in the qualities of the candidates.)
- this is how a few clarifying questions arise for the qualified teacher Assoc. Dr. Ventsislav Petrov from the Faculty of Law of Sofia University, namely:
1. Is it true that there is no scientific specialty in commercial law?
2. Is it true that he was completely isolated from the other members of the competition committee?
3. How many times did you meet all the members to discuss the course of the competition and why are your grades exactly the same as the grades of some of the members - judges of the competition commission?
4. Is it true that you transcribed grades or that you were presented with a ready-made completed report with grades and you only signed it? (This question is related to a possible doubt about the existence of grounds for revocation.)
5. Is it true that the families of some of the evaluated and ranked candidates and the families of members of the competition committee are “friendly, visit each other, greet each other on holidays, go on vacations together, etc.&rdquo ;
Here are the requests that various judges are considering, because their goal is to ensure that a lawful appointment procedure is conducted for the ranked candidates.
And so we come again to the Judicial College of the Supreme Judicial Council, which should exercise its control powers in reality, not formally.
Until now, unfortunately, there has been an escape from responsibility, keeping the evaluation criteria secret and using the convenient phrase: “We cannot interfere with the competition commission“.
In this sense, is the inspection an intervention? Shouldn't the inspection be carried out in order to establish whether the assessments are based on the provisions laid down in Art. 192, para. 1 of the ZSV criteria.
And so it comes to a point where magistrates on the basis of Art. 34, para. 3 APC want to be provided with the opportunity to express an opinion on the provided motivated opinions of the competition commission, as well as on the submitted requests. And all this to be determined in the relevant term.
Specialists comment that there are similar inconsistencies in the competition for the appointment of judges in the criminal panels of the appeal courts.