Two will fight for the position of chairman of the Supreme Bar Council (SBC). These are Stefan Marchev and the current chairman Dr. Ivaylo Dermendzhiev. The elections are this weekend, and all the colleges in the country have already sent their delegates. What can we expect… Lawyer Alexander Kashumov speaks to FAKTI.
- Lawyer Kashumov, the elections for chairman of the Supreme Bar Council (SBC) are already knocking on the door, as they say. The bar associations in the country have sent their candidates. Why is it important who the new chairman will be. Let's start like this?
- Who is at the head of the Supreme Judicial Council is important, because this institution has power and influence. It can submit requests to the Constitutional Court to establish the unconstitutionality of a law, to interpret laws and unify practice through interpretative cases before the Supreme Court of Cassation and/or the Supreme Administrative Court, to give opinions on draft laws and amendments to legislation. Of course, it can advocate for facilitating the work of the ordinary lawyer, his access to documents, cases - in court, in administrations, in police departments. It can interact with the Supreme Judicial Council, the National Assembly, the Council of Ministers and the ministries. Of course, lawyers can work without the VADS, but it is their image before the institutions, it can pave the way, it can be inactive, it can radiate dignity in the bin of legality and protection of rights, and it can drown in its own squabbles and gossip.
- Which of the candidates enters the fray with what concept? You know each other well…
- Currently, the candidates represent two trends in the current VADS. One group is around the deputy chairman Valya Gigova, whose husband Stefan Marchev is running for the next chairman. She currently dominates the council and marks a mandate of intrigue, unclear and opaque replacements of colleagues from positions without justification – general secretary, data protection officer, editorial board of the magazine “Advokatski pregled“. Some of the scandals gained publicity – amendment of the regulation on attorney fees in case of conflict of interest, an attempt to give millions from the lawyers' pockets between Christmas and New Year for an unclear real estate deal, support for lobbying legal changes pushed by Delyan Peevski's group, which met with opposition from the judicial community and were vetoed by the president.
The alternative is headed by Dr. Dermendzhiev, current chairman of the Supreme Court of Justice, but in isolation from the aforementioned majority. We also have colleagues from the current composition of the council, such as Ina Lulcheva, Petar Slavov, Eli Hristova, Albena Piskova, Ivan Cholakov, and there are also new faces.
Over the past four years, a number of successes have been achieved, such as contributing to the reduction of the tax burden for lawyers, defending fundamental rights in important interpretative cases, such as those in the Supreme Administrative Court for effective judicial control over the withdrawal of permits for access to classified information, for the publicity of decisions in cases classified as state secrets. In this way, we advocated for greater publicity and transparency of the administration of justice, for real control over the security services and deterring their possible non-transparent influence on legitimately elected institutions and officials.
Some things could not be achieved due to overt or covert resistance from the majority. In a non-transparent manner, the rapporteurs of the Supreme Administrative Court in interpretative case No. 1/2023 of the Supreme Court of Cassation and the Supreme Administrative Court were replaced behind our backs, including the authoritative professor Ivan Ruschev, in order to submit and defend an opinion in support of the idea of state institutions and companies suing journalists and media through claims for “moral damages”, opening the doors wide for “slap-cases” and suppression of freedom of speech. On the eve of a New Year, the “majority” gathered the council with the intention of deciding to conclude a contract for millions for a supposedly profitable deal for the building of the former “Korekom”. Not to mention the support for the strange idea of unilaterally determining the remuneration of special representatives unilaterally by the bar councils, for the reshuffles in positions held by experienced colleagues, etc.
There was also outright resistance to causes important to lawyers. For example, the battle to protect attorney-client privilege, which we are waging by appealing the unclear and imprecise rules on money laundering adopted by a previous composition of the Supreme Administrative Court, is being belittled and undermined. According to the colleagues I represent before the Supreme Administrative Court, the Constitution, the European Convention on Human Rights and the General Data Protection Regulation do not allow personal data, especially of clients, to be collected without reason and purpose, and to be provided by lawyers upon request to anyone from among the hundreds of state authorities, without motives and justification, without having narrowly and precisely formulated grounds and without being able to appeal such a request to an independent body, such as a court. Disputes over who should receive a leva from the contributions duly paid by lawyers leave no time to delve into disciplinary issues or the protection of our fundamental commitments, such as attorney-client privilege, which are important for the profession. There is also no initiative to implement the 2022 decision of the European Court of Human Rights in the case of Ekimdzhiev and others v. Bulgaria, in which my colleague Ekimdzhiev and I proved before the Court in Strasbourg, for the second time since his victory years ago, that there are no real guarantees against abuse of the system of secret surveillance through wiretapping, retention and monitoring of electronic communication traffic. This is what should be done for society and the bar, after years ago we convinced the Supreme Administrative Court to limit the arbitrariness of state bodies towards lawyers under the pretext of “control of personal data protection“.
- What powers does the chairman have and how does he protect the interests of the bar?
- The chairman represents the Supreme Administrative Court, he has the right to participate in interpretative cases before the supreme courts, makes decisions, signs documents, but is still first among equals. During this term, a kind of battle of the majority against the chairman broke out, in which limits were set at every step to the point of hindering operational work. We must remember that from ancient Athens to the establishment of modern democracies, we have witnessed numerous precedents of oligarchic seizure of collective bodies and their transformation into the power of the crowd, where arbitrariness and corruption reign supreme. A good balance requires that the council discuss important issues, determine the limits of action, and that the chairman execute and have a certain operational freedom to achieve goals. Otherwise, inefficiency and pointless spinning of the wheel result. The chairman himself must demonstrate leadership and radiate the dignity of the profession, but must also be authoritative among the legal community.
- Not much is known about the public, but the Supreme Bar Council has a lot of funds that accumulate from membership fees. Is there a struggle over how to manage this money?
- Yes, there are often debates. The most shocking thing about the mandate was the proposal on the eve of Christmas, at an extraordinary meeting, to commit ourselves to a preliminary contract by the New Year to purchase the building of the former “Korekom“ for millions of levs. Although the functions of the VAdS are important, its activities are modest for the parameters of such a building, which also requires serious maintenance, apart from the issues of the profitability of the price, interest, future indebtedness and making a memorial with the contributions of the ordinary lawyer. The Council has a decent financial resource that can support the publication of books, the organization of events, assistance to the associations in the country, to lawyers in need, to university teams in international competitions. This is partly done, but there were also strange decisions, controversial supports, and initiatives in private interest.
- How does the Supreme Bar Council protect the rights of lawyers?
- By creating opportunities for better access to institutions, documents, and databases. It must constantly discuss with the Supreme Judicial Council, court managements, parliament, and key ministries. In the work of lawyers, initiating interpretative cases, requests to the Constitutional Court, and participation in the legislative process are also important. However, it is very important to emphasize that the council is an institution of a liberal profession. Its task is not to create a clientele, to place people in chairs and positions, or to place pawns in the legal community.
- Little is known that the Supreme Bar Council has the right to refer cases to the Constitutional Court. What an option this is for citizens and companies. And how is it determined which complaint is justified in order to be referred to the Constitutional Court?
- This authority of the Supreme Bar Council, that it has the right to refer the matter to the Constitutional Court, is of essential importance. Currently, it is not used to a sufficient extent. The experts of the council give their opinions on various proposals for referral to the Constitutional Court, and the council discusses and makes a decision. Whether because of the many small matters that took up the time of this council, or because of the specificity of the profile and professional interests of the individual members, fundamental rights were not at the center of the discussions. Excessive self-observation seemed to exhaust the energy of the composition, without producing the expected positive result. But the biggest problem was the lack of dialogue, the dictatorial approach, the rude attitude towards colleagues, the desire to overrule the other opinion.
- Prestige or responsibility - which weighs more when we talk about the role of the chairman of the Supreme Bar Council?
- These two concepts are not mutually exclusive. On the contrary, they can and should be combined. Personal authority is important and is often based on life and professional experience. The chairman must also be a consensus figure, able to reconcile people from different groups and resolve conflicts. Therefore, I am not convinced that a colleague belonging to the camp of today's majority has the necessary qualities and ability to overcome the lack of dialogue, tyranny, and intrigue that have burdened these four years in power today. Responsibility goes through the ability to listen to others and to calmly and respectfully moderate the conversation and debate. Dr. Dermendzhiev has this ability, but his refusal to serve tyranny doomed him to isolation from the majority. Therefore, we are talking not only about the chairman, but also about the entire composition of the council, about the need for quality and worthy members, but also capable of talking to each other and conducting a dialogue. And now we have individuals in the Council of State, individually they are strong and skilled, but for reasons inexplicable to me and in a paradoxical way united they become weak, uncritically supporting an authoritarian model, and not dialogue and reason. The intolerance of the atmosphere in the meetings, the tension, the bad tone, the low level of conversation led to an unprecedented wave of members leaving the council. We must overcome this bottom and begin to emerge boldly and energetically upwards towards the light, in order to be useful not only to our community, but also to all citizens, since we are the front-line fighters in defense of rights.