< p>It must be clearly said that for the crisis of legitimacy in the judiciary in the procedures for the election of the chief prosecutor and the president of the Supreme Administrative Court (SAC) is directly and solely responsible The National Assembly, all members of which, after the expiration of the mandate of the Supreme Judicial Council (SJC), in every possible way refuse to elect the parliamentary quota in the Council.
This is what Vladimir Nikolov, the chairman of the Association of Prosecutors in Bulgaria, said in an interview with BTA.
The transformation of the prosecutor's office and the court - including who will personally head individual subsystems of the judiciary – into a bargaining chip to be traded in a political “marketplace” is a flagrant violation of the independence of the judiciary. It does not represent legitimate public and public control over this power, but an illegitimate and illegal attempt to be controlled by private interests and circles, said Nikolov.
The law should be followed as it is, regardless of our personal opinions and biases, he added. This is the main hallmark of the rule of law and the pillar around which the entire structure of the modern democratic system is built. The principle of the rule of law is not an empty phrase or a banner to be waved only when it pleases us and tossed in a dusty corner when it does not serve our opportunistic interests. It is a philosophy, a worldview, a culture that are either everyday in all spheres of state and public life, or have given way to political arbitrariness. A middle position is not possible, said Nikolov.
For several years now, we have been in an absurd situation in which entire bodies or individual leadership positions within them are involved in a kind of “war” and they are seen as an appetizing asset that must be brought under control at all costs in order to subsequently serve certain interests. This destroys the state and social structure. The authority of a given body is not only its right, but also an obligation, added Nikolov.
According to him, the SJC is placed in a position where it is obliged to exercise its powers in connection with the election of the chief prosecutor and the chairman of the SAC. Otherwise, he would commit another violation of the Constitution and the Law on the Judiciary, Vladimir Nikolov specified.
The members of the SJC bear the enormous responsibility of conducting the procedures in a lawful, public and transparent manner. The result should fully guarantee that the interest of all of us will be protected by the functioning of a working prosecutor's office and a court that enjoys professional and civil trust. Otherwise, the process of delegitimization of the judiciary will only deepen, said the president of the Association of Prosecutors.
We have had an acting chief prosecutor for a long time now. The Chairman of the Supreme Court is also like that. To prohibit the SJC from electing new incumbents, especially with the irresponsible position of the National Assembly on the election of a new composition of the Council, means deepening the crisis with its transfer from the personnel body to the actual bodies of justice – court and prosecutor's office, said Nikolov.
The main point of contention in both proceedings – for the election of the chief prosecutor and president of the Supreme Administrative Court (SAC), should the Supreme Judicial Council, whose mandate has long since expired, carry out the relevant procedures. However, the leading criterion should be the constitutionality and legality of the actions of the SJC.
The Constitutional Court (SC) ruled that when the mandate of a constitutional body expires, it continues to exercise its powers until the next body is elected, as it is constitutionally intolerable for a vacuum to exist in the exercise of state power. According to the SC, the latter should be exercised continuously in order to ensure the normal functioning of the systems important for the entire society. Therefore, until the constitution of the next composition of the SJC according to the relevant legal order, the current one performs its functions - and not limited, but in full, Nikolov pointed out.
The tension comes from the fact that this state of emergency, which should arise as a very short-term and only in exceptional cases, has established itself not only as long-term, but practically has no foreseeable prospect of being overcome. The crisis can and should be resolved by the National Assembly simply fulfilling its constitutional obligation to elect members of the SJC from its quota, and not by looking for any ridiculous and unconstitutional ways to limit the powers of the SJC, he further stated.
In the words of Vladimir Nikolov, the situation with the procedure for the election of the President of the Supreme Court, within which no candidate was nominated, is truly unprecedented.
My deep conviction, and also the consistent opinion of the Association of Prosecutors in Bulgaria, is that there should not be any unregulated external interference in judicial independence and self-governance. Bulgarian prosecutors have never interfered in the personnel policy of the court and in the procedures for electing the presidents of the two supreme instances – The Supreme Court of Cassation and the Supreme Court. The judicial collegium of the SJC is competent and responsible for its decisions, actions and inactions, he said.
In general terms, as this applies to both the prosecutor's office and the court, I believe that it is extremely socially harmful for them to be kept in weightlessness and in a kind of waking coma, without titular and appropriately elected leaders. There is no way to build public trust in such a situation, nor to have security, stability and upward development, added Nikolov and specified – is eroding the legal immunity of the nation and in this matter the society should support the judges, prosecutors and investigators in the claim to stabilize the judiciary.
Demonstrative and consistent drastic non-compliance with the Constitution by the parliamentary authorities contributes to the collapse of public trust in justice, and in the authorities in general, said Vladimir Nikolov.
According to him, in a normal situation, the same composition of the SJC should categorically not re-elect someone between the so-called three bigwigs in the judiciary – chief prosecutor, presidents of the Supreme Court and Supreme Court. “It is not by chance that the mandate is established as a basic constitutional guarantee, so that there is no permanent concentration of power in the same personnel of a given body for an unacceptably long period of time. Violation of the mandate principle results in inevitable distortions and negative processes – it prevents the ideological and functional renewal of the relevant bodies, the maintenance of their self-criticism and responsiveness to professional and public interests, said the chairman of the prosecutor's association.
Encapsulation tendencies crystallize and authoritarian characteristics emerge, and their influence on state power, its policies and the composition of the bodies they elect, loses the pluralism on which democracies rely for their viability.“
Could it wait?
To wait for what and until when, said Nikolov. “The mandate of the SJC expired two years ago, he added. I am sure that even most professionals have already lost track of when exactly the mandate of the Inspectorate at the SJC expired. Do we see a real prospect for the recent constitution of a new composition of the SJC, he continued – pessimism seems to prevail. The SJC itself cannot wait, as the law obliges it to act. Failure to act would be a pure and simple violation of the Constitution, and cannot in any way be justified by political waiting for some bright future that will arrive no matter when.
Any such,,waiting“ will bring us in addition to the SJC out of mandate, also and i.f. chief prosecutor and i.f. chairman of the Supreme Court, to lead the prosecution and one of the supreme courts for an indefinite period of time, commented Vladimir Nikolov.
According to him, especially with regard to the prosecutor's office, after all the crises and turbulences, after the attempts to make it totally politically subordinate through the ugly and blatantly unprofessional unconstitutional attempt to change the basic law, it is necessary to calm down.
„Returning to the normal course of sustainability and interaction with other authorities is vital. All this cannot happen without stability, without a wise, far-sighted and professional leadership that will realize a concept of governance within the framework of a titular constitutional mandate.
In reality, the SJC, despite some objective criticism regarding its activities in the past, is not to blame for the current situation. After the SC has ruled that even after the expiration of its mandate it is obliged to act, it can and should only start the selection procedures. If we want the elections to be held not by the current SJC, a new composition should be elected, and not unlawfully prevent the current one from working”, Nikolov added.
After everything that has happened in recent years, almost nothing can surprise me anymore, said Nikolov, when asked if he was surprised that there was only one candidate for the position of “Chief Prosecutor”.
„According to the regulations, three of the members of the Prosecution College of the SJC and the Minister of Justice have the right to nominate a chief prosecutor. Given the minister's stated position that he will not exercise his right to propose a candidate, the situation is as it is. It is in accordance with the law, as there is no requirement for nominations to be more than one.
The previous practice shows that there were other procedures, not only for the election of the chief prosecutor, but also for the election of the president of the supreme court, where there was only one candidate. In itself, this is not a question of legality. Were other applications possible? Surely, there are worthy and honest professionals who meet the necessary criteria. It is hardly surprising that the desire to take office does not burn them uncontrollably. The motivation could not be weaker. There is no way that the members of the Prosecution College of the SJC should be obliged to nominate more candidates - this is their judgment and the candidate for titular head of the prosecution is Borislav Sarafov, who has been performing this function for the past year and a half, Nikolov also recalled.
In his words, the election of a new composition of the SJC is one of the key moments for overcoming the deep crisis and will create the prerequisites for restoring normality and getting out of the spiral of doubts and constant attacks on the judicial system. “We all need a strong foundation and a clear mandate during which weaknesses can be overcome through hard work and decisive action. A new SJC, titular and trusted heads of the prosecution and the court will open a horizon for the real improvement of the system. Enough time has been lost, many hopes have been lied to, and enormous public energy has been wasted in trying to force through a distorted and bogus judicial reform, often promoted and appropriated by people with ulterior interests or without any skills, knowledge or capacity. Their improvisations had an unfortunate effect on everyone.
Authentic judicial reform belongs to everyone.
It must be carried out responsibly and visionarily, as a result of a real public consensus and as a result of a very professional amendment of the normative base. It should definitely not be abused in the name of narrow party, economic or personal interests and beliefs," Nikolov pointed out.
In his words, the postponement of this process inevitably leads to additional tension and deepening distrust among people. “For the most part, Bulgarian prosecutors comply with the law and work professionally, conscientiously and with integrity, protecting the public interest and justice on a daily basis, and deserve recognition and respect. Of course, there are also weaknesses, mistakes are made, which must be objectively evaluated and decisively corrected, and should neither belittle the achievements nor be denied. Only a system whose merits and negative sides are soberly and objectively highlighted and analyzed is subject to development and reform, said the chairman of the Association of Prosecutors in Bulgaria.
He added that “Bulgarian magistrates – judges, prosecutors and investigators, more than two years ago, with a sense of respect for the Constitution, we held elections for members of the SJC from the professional quotas and broadcast our representatives. Several successive parliaments refused to implement the law and did not start a procedure for the election of the so-called parliamentary quota, caught up in petty fights and ignoring the consequences, sent the judicial system, the state and the whole society into the current “swamp”. If the Constitution had been respected, we would not have had to comment at all on whether the current SJC is legitimate, whether it should elect a chief prosecutor and chairman of the SAC, etc.“
In Nikolov's words, a statesmanlike approach, wisdom and the realization that the only cure for the disease that has infected the state fabric is something very simple – the daily observance of the law by all and especially by those clothed with power.
According to the chairman of the Association of Prosecutors in Bulgaria, the incomplete composition of the SC from the parliamentary quota is a sign of immaturity, irresponsibility and a basic misunderstanding of how the democratic state system functions and what are the consequences of the constant attacks on it. The normalization of undemocratic and illegal governance styles has never in history benefited anyone, least of all its authors, he recalled.
There is nothing accidental in the fact that collective bodies, such as the CC, consist of a certain number of members – in this case judges. These judges are elected or appointed according to certain procedures by different bodies, and their mandates expire at different times, specified the chairman of the procurator's association and explained that “in this way, the independence of the court is ensured and the diversity of viewpoints is guaranteed, if you will. points and the diversity of expertise within it. Each unoccupied seat limits the wealth of opinions and positions in the SC, which should, to the highest degree, have a pluralism of legal and public thought.“ The result, according to Vladimir Nikolov, is a real reduction in the ability of the Constitutional Court to fully fulfill its main role of guaranteeing the constitutional functioning of our legal and institutional system.