The Constitutional Court ruled on the changes to the Constitution, but did it take brightly colored political decisions on cases of fate for Bulgaria regarding the structure of the state. And why is the CC silent for months instead of immediately pronouncing “for“ or “against“ the corrections. What did KS… Attorney Petar Slavov spoke to FAKTI.
- Lawyer Slavov, has the Constitutional Court become a political body? And do we even need a CC that meets after seeing “which way the wind is blowing” relative to the political situation in the country?
- Indeed, similar criticisms were heard against the Constitutional Court, but the interesting thing is that they came mostly from people who participated in one form or another in the adoption of the declared unconstitutional changes in the basic law. And here the most interesting thing is that in reality this “politicization” derives from the key vote on some of the texts of the newly elected by the 49th Parliament two new constitutional judges, including a former deputy, who directly voted for these constitutional changes, on some of which with its decision the Constitutional Court partially exercised annulment control, and on others it did not managed to form a majority precisely because of this decisive vote.
So it seems to me that it is more appropriate for the people in question to remain silent in this situation and take responsibility, instead of looking for justifications in old decisions of the SC or declaring it a complete politicization!
- The big fight to define a mechanism to investigate the Attorney General remains "unclear”. What's next…
- The exact expression used by the constitutional judges is “the contested provision of Art. 130, para. 4, ex. first of all, it is vague to the point of being unenforceable“, which largely determined the decision to declare it unconstitutional. By the way, no one here is disputing the need for a mechanism for the investigation of the Attorney General in the case of allegations of a crime, but the point is to do this in a way where the regulation is clear and uncontroversial, in sync with the other bodies in the judicial system and with clearly spelled out powers. And this is so that we do not at some point fall into the situation of who will investigate the investigator…
What's more, a similar mechanism could be considered even now at the legal level, and similar powers could be delegated to an existing body in the system of judicial power – the Director of the National Investigative Service, Deputy Prosecutor General, etc., creating a special order to exercise these powers and guarantee the independence and objectivity of the investigation.
- The SC notes that the mechanism for the investigation of the Prosecutor General can be regulated by law. When will this happen?
- As I have already mentioned, this is actually completely achievable and in significantly shorter terms than a new constitutional procedure would last, if the necessary parliamentary majority can be gathered for it at all.
The logical approach would be for a new Bill to amend the Judiciary Act to make similar changes, addressing a number of other “pending” issues after the decision of the SC. In this sense, the project for a “new ZSV“ of the same people who worked on the announced unconstitutional changes is obviously missing, but many of the important issues such as problems with secondment, career development of magistrates, including the introduction of a working mechanism for investigating the Prosecutor General could be successfully done with amendments to the existing ZSV from one next parliament. I say next, because this one has clearly already entered an election campaign, and it would be quite unreasonable to give him such a responsible task.
But a subsequent National Assembly - in addition to the above-mentioned issues, can easily deal with the main problem of “politicization” of the Supreme Judicial Council, through the so-called “parliamentary quota” by introducing criteria for selecting a part of it in the way we proposed earlier from the Supreme Bar Council, namely: one member of the Judicial and Prosecutorial Colleges should be elected by the Parliament on the proposal of the Bar; one more – from the most renowned higher education institutions in the country, etc., and the deputies can accept or reject the nominations made in this way, without being able to replace them. Thus, the possibility for the politicians in the parliament to “argue” and to elect the SJC according to the model of 2017, when each party there parceled out a certain quota and proposed people, some of them with unclear biography, competence and integrity!
- Parliament remains permanently active, however, it will not elect the regulators with a 2/3 majority. Is this a positive thing…
? - The declared unconstitutional provision 91b in its para. 2 actually said something else: that these decisions of the National Assembly on the election of members of regulators and other high state bodies elected by the Parliament can be voted by a 2/3 majority in cases where this is provided for by law. I.e. the ambiguity introduced by this paragraph was quite dangerous and could lead to in one case the members of the KPCONPI, for example, being elected by a 2/3 majority, then a subsequent parliamentary majority amending the law and reducing it to ordinary, then prematurely terminate their mandate and elect other “his“ people on the new “lightened“ row This, in fact, is the main reason why this provision was also declared invalid, as it was also in conflict with Art. 86 of the basic law on the procedure for adopting decisions of the parliament.
- The powers of the President – in the case of Radev, and in principle, whoever he is, remain cut off. The incumbent PM will depend on the “house book“…
- It is so, because it was here that the votes of the most recently elected constitutional judges were decisive in favor of preserving these provisions, and a majority was not reached to declare them unconstitutional, as was the project of the rapporteur in the case. I.e. again we return to the question morally and was it permissible at all for them, or at least one of them, who directly participated in the adoption of these amendments by the 49th National Assembly to participate in the vote, given that there is a gap in the Law on the Constitutional Court on the matter. The general rules of judicial proceedings - not only in Bulgaria, but practically throughout the civilized world, do not allow a person to be a “judge” and to control its acts as a higher authority.
With the impeachment of even one of the two newly elected constitutional judges, these changes to the powers of the president would also be declared unconstitutional.
- The dual citizenship of the deputies also remains. Is this a coincidence?
- That's right, this is another text where the CC did not reach a majority to adopt a decision, again for the same reasons – due to the decisive vote of the newly elected constitutional judges of the parliament. The qualification of the constitutional judges above for “ambiguity to the point of inapplicability“ can also be used for this provision, because the first sentence of Art. 65 speaks of the prohibition of holding foreign citizenships other than Bulgarian for the election of national representatives, while sentence two says the exact opposite – that a person with dual citizenship can be elected.
Personally, I expect that we will have significant problems with preserving the effect of this provision in the future, as the text adopted by the deputies gives the opportunity to foreigners who have Bulgarian citizenship and have lived in the country for the last eighteen months to be elected as deputies – i.e. here we are not only talking about our compatriots, Bulgarian citizens by origin or by birth, who emigrated at some point abroad and returned, but about any person who also holds Bulgarian citizenship, as this can also be any foreigner who became a Bulgarian citizen of any of the already canceled grounds for “investment“ in Bulgaria – the so-called “golden passports“ that could have happened only eighteen months ago?!
Such people, however, will be able to adopt and amend Bulgarian laws, and even the Constitution, if they gather the necessary majority.