Vetting and constitutional changes – where will judicial reform go? Lawyer Ivaylo Dermendzhiev told FACTI

The topic of judicial reform is once again coming to the fore against the backdrop of the persistently low public trust in institutions. Signals of possible changes to the Constitution and the debate surrounding the conduct of the so-called vetting raise the question of whether Bulgaria is ready for deeper and more decisive reforms. According to experts, the problems in the system have been accumulating for years and cannot be solved with partial measures, but require a comprehensive and consistent approach. And what else… Lawyer Ivaylo Dermendzhiev, former chairman of the Supreme Bar Council and honorary consul of the Republic of Kenya in Bulgaria, spoke to FACTI.

- Lawyer Dermendzhiev, what are the main reasons for the low public trust in the judicial system in Bulgaria? Is the topic still being actively discussed?
- There are many reasons and they have been accumulating for years. The scandals that are being talked about today are not from yesterday – they are a systemic problem. Cases like the one with Krasiu Cherniya, Pepi Euroto or the recent ones around Martin Bozanov - The Notary raise valid questions.

- How are such figures created in the judicial system and why does it fail to purify itself? Is the system capable of dealing with these problems on its own?
- In principle – yes, but the dependencies are long-standing. They are so persistent that they seem to reproduce themselves. When one compromised figure falls away, another takes its place. The system does not tolerate an empty seat. The real question is why there is always someone to fulfill such a role.

- We are witnessing the resignation of Prosecutor General Borislav Sarafov and the talks about reforms – Is there a real chance for change now?
- Currently, political discussions on the subject of the judicial system are limited to two things - replacing the Supreme Judicial Council (SJC) and electing a new Prosecutor General. Have you heard anything else? There is no talk of deeper reforms.

- The idea is probably that a new SJC will initiate changes, since this is the personnel body of the system?
- You understand that the SJC cannot be replaced immediately. There are legal procedures that complicate the process. This is not a body elected only by parliament - 11 members come from the National Assembly, another 11 - from the professional community, plus the so-called "by right" members - the big three. I mean the presidents of the supreme courts and the Prosecutor General. Even if accelerated, the procedure takes at least three to six months. During this time, work will be done with the current composition of the SJC. Now, first and foremost, according to the requests, is the election of the Prosecutor General and the Head of the Supreme Administrative Court. These are key positions that cannot be filled immediately - the procedures require time, criteria and discussion. Then comes the turn of the Inspectorate to the SJC. Realistically, we are talking about at least six months of intensive work, if everything goes according to plan.

- If we work actively and seriously...
- However, if procedural blockages or political games begin, the process may drag on significantly.
- The political forces - both the emerging ruling party and the opposition - declare their readiness to elect a new SJC. How do you view this?
- It sounds good, but the logical question arises - why wasn't this done when these same forces, which are now the opposition, were in power? Nothing prevented them then. Now they are declaring their readiness, but in reality the process may no longer entirely depend on them.

- You, and many of your colleagues, are increasingly talking about the so-called “vetting“ in the judicial system. What does this term actually mean and what does it represent as a procedure?
- What does vetting mean, quite literally – it is an assessment and verification of suitability, integrity and competence for holding a certain position and performing a certain function. Integrity, integrity and competence – these are the three key elements. The term is not Bulgarian, but it is the most accurate. If we had to translate it literally, it would be complicated and long. As a comparison, we can use the word “leasing“ as an example – everyone uses it because it is clear. If we were to replace it with Bulgarian words, it would sound something like: “A contract for the acquisition of property, which is finalized after the payment of periodic installments for a certain period of time“. But if we say: he bought a car on lease. Everyone knows what it is about. Regardless of whether the lease is operational or financial. The same is true of “vetting“. When the meaning is understood, the word becomes clearly usable.

- Can a vetting procedure be implemented in Bulgaria?
- In principle, it can. This is not something that only applies to the judicial system - it can also be applied in other areas of state administration. The question is how it will be organized and whether there will be political will to do it.

- What are the examples from other countries?
- In Europe, the most common example is Albania, where vetting was applied on a large scale - not only in the judicial system, but also in other public areas. There, about 40% of people dropped out, which is a very high percentage. This shows that there was a serious systemic problem, but also that the process yielded results. A similar approach is currently being applied in Moldova. There, for example, about 40% of judges leave before the verification begins. Why? There are other examples - for example, Kenya, with a traditional British judicial and state administration. There, after the adoption of the new constitution in 2010, a large-scale reassessment of the judicial staff was carried out. About 20% of magistrates dropped out. Interestingly, before the reform, trust in the judicial system was about 30%, and after it it increased to 57%. This shows a real effect of such a measure. And let me remind you that in our country, trust in the judicial system is 20-25%. You understand what I'm talking about.

- How is the vetting process itself organized?
- Usually, a special body is created to carry out this assessment. It is composed of professionals with high public trust and often includes international participation to ensure transparency. In some countries, there is judicial control over the decisions of the special body in question, but this also creates a paradox - magistrates can appeal a decision to other fellow magistrates from the same country in a higher court, who are also subject to review. Therefore, in some cases, such as in Kenya, classic judicial control is avoided, but compensated with a stronger international presence.

- Do international lawyers participate in the commission in question, in the special body?
- Yes. This is based on an impartial, broad international basis for assessing qualities.

- Does the Bulgarian Constitution allow for vetting?
- There is a dispute on this issue, mainly because of the principle of irremovability of magistrates. But in practice this can also be done within the framework of the current legislation. The Constitution and the law on the Supreme Judicial Council have mechanisms for releasing magistrates under certain conditions. If vetting is structured correctly, it can fit into this framework. Of course, if a larger-scale reform is sought, then changes to the Constitution may also be made. And as we can see, there are already political demands in this direction. We remember that while still head of state, Rumen Radev hinted that he was ready with texts for changes to the Constitution.

- And how do you view this now?
- Such information has indeed appeared - that there are prepared changes, but the topic was not fully developed. However, this shows that something is still being discussed. In the meantime, a request has already been made that there will be changes to the Constitution regarding the official offices, with the idea being to eliminate the so-called "house book". That is, the Constitution will most likely be opened and work will be done on it anyway.

- Does this mean that now is the right time to think about deeper reforms?
- If changes are going to be made to the Constitution, it makes no sense to limit ourselves to partial solutions. The problems in the judicial system have been accumulating for decades - they are not from yesterday. With such low public trust, we cannot continue with the same approach. It is obvious that more decisive and even more drastic measures are needed.

- In this context - what could be the role of vetting?
- Vetting offers different options - a tougher or softer approach. The important thing is that in countries where it has been applied, there is already case law, including under the European Court of Human Rights. The cases of dismissed magistrates in Strasbourg have ended unsuccessfully for them, which means that the court has recognized the right of the state to apply additional criteria and mechanisms for self-cleansing of the system, that is, a legitimate goal has been pursued. And here we can ask ourselves the question: “Why are such measures not applied en masse in Western Europe?“ Very simply - because there is no need there. In countries like Austria, Germany or Sweden, trust in the judicial system is high. The average level in Europe is about 55%, given that our low percentage is also included in this statistic. This means that in established democracies trust is significantly higher. In our country it is half or even a third of these values.

- What does this show about the Bulgarian judicial system?
- You can answer for yourself what it shows. It shows that the problem is deep. The interesting thing is that in terms of the number of judges and prosecutors per capita, Bulgaria is among the leaders in Europe. The question is why, with this resource, the results are weaker. Are there more cases? Or are there other systemic deficits? This is what needs to be analyzed. So, a serious and large-scale conversation about the system must definitely begin, and not cosmetic changes. Changing a court president or a chief prosecutor does not solve the problem - it remains at the root. It is necessary to reach the lower levels of the system. Otherwise, whoever is placed at the top, the system itself will "digest" him and we will get the same result - or at best a slightly different one, but not a qualitatively new one.