The election of the new Supreme Judicial Council (SJC) is yet another test of the independence of the judiciary and of the political forces’ readiness to put professional qualities above party agreements. Has the existing model of judicial self-governance created conditions for the concentration of influence in the hands of the presidents of the major courts and for the system becoming closed off… Here is what Judge Kalin Kalpakchiev also told Lily Marinkova in the „FAKTI“ studio and on the „Razgovor“ programme.
— Judge Kalpakchiev, the procedure for electing a new Supreme Judicial Council is progressing. Elections have already been held in two of the professional quotas. It is interesting to see whether any trend can be discerned from the election of your colleagues who are already in the judicial quota, as well as from the hearings before the parliamentary committee. Over the years, excessive expectations were created. What do you see now in the selection of your colleagues?
— The procedure for electing the new Supreme Judicial Council is progressing. You noted that the prosecutor and judicial quotas have already been partially filled. The members from the prosecutors and judges have been elected – four and six respectively. Only the investigative body remains to elect its representative, which will happen at the end of the month. Thus, the 11-member professional quota will be elected. Trends can be identified, although a more in-depth analysis of the data on the number of judges who voted is necessary. I am referring here to the judges – how they voted by appellate or district court regions. This information is available, but more time is needed to analyse it and see what the attitudes among the judges themselves are. To some extent, the judges elected repeat what has happened over the years since the vote became direct. This is already the third council elected by a delegates’ assembly, in which every judge has the right to vote. We observe that certain judges throughout the country support a group of their colleagues who are not particularly popular. And we ask ourselves why these colleagues, who are unpopular across the country, receive so many votes. One explanation, which is not conspiratorial, is visible: the presidents of the major and influential courts in the country somehow organise this vote. More than 15–16 years ago, an alternative or consultative forum of district court presidents was created, which included the presidents of the district courts in Plovdiv, Haskovo, Burgas, Stara Zagora and Vratsa. Gradually, this forum, which formally operated under a European project, ceased to exist, but as an informal organisation of presidents of the major and influential courts, it exerted influence over some of the judges in order to direct their votes in one direction or another at such important moments. According to the data we have seen over the past 20 years or so, this network or forum can engage up to around one-third of the judges. There are approximately 2,200 of them in total, and the forum can mobilise roughly 600–700 votes.
However, the remaining roughly two-thirds are not organised in any way. The Union of Judges, which in such situations is cited as the other alternative or the other source of influence, has neither such capacity nor such an approach to action, so to speak.
The remaining two-thirds of the votes are, to a large extent, as the figures show, scattered among the many candidates or concentrated on several professional authorities recognised by the entire judicial community. In this case, these are the two judges from the Supreme Court of Cassation, Svetlana Kalinova and Emilia Vasileva. They have been judges for many years, have trained a large part of their colleagues in civil and commercial law, and are known and recognised as undisputed professional and moral authorities. As expected, they gathered enough support to become part of the judicial panel, although this took place amid strong competition and the dispersal of votes.
— In other words, the network prevails one way or another?
— Under the circumstances I mentioned, it does not prevail numerically, but when faced with an unorganised vote, it still succeeds because it maintains a certain resource and can mobilise votes.
— What is the resource?
— In fact, this is not solely a Bulgarian phenomenon. It is known throughout Central and Eastern Europe, where, following the totalitarian regimes, a form of independence of the judiciary was established – the so-called self-governance through judicial councils. Judicial councils become an instrument of the presidents, of the ruling elite, so to speak, and a closed mechanism emerges. The presidents participate in the councils and accordingly appoint their colleagues as judges, who then repay the favour at a certain point when necessary. In this sense, judicial councils as a means of self-governance of the judiciary have proved to be a poor instrument.
— Rather an instrument of the status quo, which is actually a negation of the original idea. This is why we have been saying for so many years that this model is unsuccessful and that we need to think about how it can be reformed, improved and changed so that it does not concentrate so much power...
— Yes, this is one of the problems – that it concentrates so much power. This happened in Bulgaria, but not only here, over the past 30 or more years.
— What can you say about the hearings before the committee? The candidates were subjected to serious questions. Did they withstand them and the expectations related to examining their careers and, of course, their financial situation?
— The hearings in the National Assembly took place in a fairly relaxed atmosphere. This made an impression – there was no unnecessary escalation of tension. All the questions were asked, not only by the MPs but also by observers, including independent non-governmental organisations. However, in my opinion, this is not enough. The hearing and the way in which the candidates answered were very useful and informative. But now it would be good, as the rules also stipulate, for the standing committee to summarise the results of the hearing. It has promised to do so because it also has such an obligation. This summary must contain an evaluative element, that is, it must provide an assessment. After hearing the candidates, it became clear that there were some who did not meet the necessary criteria. For example, in the case of one of them, it was established from the documents he had submitted that during his 15-year judicial career he had been seconded from one court to another for half of the time and could not give a logical explanation as to why this had happened. Obviously, this candidate is unsuitable. There were at least several such candidates during the hearing. We will now see what assessment the MPs will give. There were also candidates who, in no way throughout their professional careers, had expressed an opinion on issues concerning the judiciary, nor had they shown any interest or specific skills that are nevertheless necessary. How has this interest of theirs now been awakened, and why are they running?
— According to the rules, must they issue such an evaluative report, with some kind of ranking?
— Yes. Although there is no explicit requirement for the candidates to be ranked, the evaluative analysis will provide information on how the MPs should vote. That is the point. The unfortunate thing is that previous procedures also contained such a requirement, but it was circumvented by the committees conducting the hearings. Usually, these are the legal affairs committees. The report simply contained a purely factual and detached presentation of the documents submitted by the candidates during the procedure. This is not sufficient at all. Another thing that has not been done so far, and which I hope will be done despite the lack of much time, is related to the candidates’ asset declarations. I think we also discussed this with you in a previous conversation. Candidates are required to submit, and all of them have submitted, a very detailed asset declaration concerning the property they own – movable and immovable assets, funds, as well as the assets of their close family circle. This information itself must be analysed appropriately, using suitable tools and specialised knowledge, in order to establish whether there are any risk factors. I do not know how MPs who lack such specialised knowledge will do this. Most of us observers do not have such knowledge either. Specialised tools for analysing assets and identifying risk factors, elements and so on are known around the world.
— How will party dependence be neutralised? This is a very controversial issue, since candidates often swear that they have no affiliation with a particular party, but this is very difficult to prove...
— Over the years, a number of requirements have appeared both in the rules and in the law, aimed at establishing and somehow curbing party dependence among the candidates who are nominated and subsequently elected. One of these requirements was that the MPs nominating certain candidates should state the reasons why they had chosen that particular professional. There was one new development in the procedure this time, which to some extent shed light on the so-called nomination process. An opportunity was opened for non-governmental organisations, citizens and lawyers to propose candidates to MPs, from among whom the MPs would nominate candidates. But here too we can see that this democratic instrument can be mimicked, that is, used to circumvent the genuine establishment of the reasons for the nomination. In this sense, this too is subject to assessment.
— But the next step is precisely for the parties to reach an agreement...
— Exactly. This is actually the biggest problem that has always existed. And now, in practice, we risk the same thing happening again. Precisely for this reason, once the evaluative report for each candidate has been issued, presenting their professional qualifications on the basis of the documents, information and data collected from other sources, there must not be quota-based voting, as we have seen over the years. In other words, each party should receive a certain quota. There must be a vote with a clear statement of the reasons why we support one candidate and why we do not support another. MPs can do this themselves by proceeding to vote and stating their positions. There is no need to invent some complicated procedure if there is genuine desire and will. They should adopt a procedure whereby, let us say, there are 20 candidates for the judicial panel. Before each one of them is put to a vote, there must be a meaningful discussion of why a particular parliamentary group or individual MPs will or will not support them. This must be clearly stated. Of course, the process may not proceed so smoothly. It may be undermined in various ways, including by the other political parties in Parliament that did not nominate candidates. They may in one way or another create fictitious grounds for sabotaging the procedure – by supporting one candidate or not supporting another without giving reasons, or even by citing unprincipled motives.
— The governing parties have prepared a backup option, in case the necessary majority is not reached, to amend the law and elect members with a lower majority, is that right?
— Yes, but they cannot do that now, because in order to activate this backup option, the Constitution would have to be amended. Therefore, there is neither enough time nor a majority, and the expected deadline will not be met. Moreover, the Constitution cannot be amended during the procedure itself. But there is another proposal, about which information has also emerged: if they fail to elect the parliamentary quota, an amendment to the Judiciary Act could provide for the newly elected professional quota, which will in any case be elected at the end of November, and the old parliamentary quota to operate together. This is quite controversial from the standpoint of legal reasoning, not to mention legitimacy.
— How would they operate together?
— In other words, an explicit provision would be adopted in the law stating that the old parliamentary quota would continue to function together with the newly elected professional quota. This would be a kind of hybrid body.
— A hybrid, so to speak...
— Yes, a hybrid. This has never happened before. I think it is indeed highly questionable from the standpoint of the Constitution.
— It is vulnerable and could be challenged...
— Most likely, yes.
— I do not know whether you should say if you are optimistic. As a result of the pre-election rhetoric as well, there remains an extraordinary fury on the part of the opposition towards the government. I cannot understand whether this is because of the expectation of failure in filling the Supreme Judicial Council, or whether it is pressure on the majority to be more active and more accommodating with regard to the expected support. This support was the pinnacle of the liberal-democratic sector’s dream over the years. In my opinion, this would be a terrible collapse in the eyes of the voters?
— Yes, this will bring a lot of negativity to all political parties, but especially to the one that has a majority. That is the logic of parliament. However, I think there are good chances, judging by the statements of representatives of the various political forces participating in the process, that the parliamentary quota will indeed be elected. It appears that the political forces are inclined to compromise, because compromises obviously have to be made by both sides in this process. Moreover, from a purely practical and pragmatic point of view, among the proposed candidates there are some who, although not perfect – whatever that means, because certain shortcomings can be found in every candidate – nevertheless meet the basic criteria and can rally 160 votes around themselves. There are such candidates for both the prosecutor and judicial panels.
— I heard Tatyana Doncheva say, let me quote her, that for some people it is a matter of life and death to be on the Supreme Judicial Council. It sounds strange. It is not quite such a drama. We are talking about some of the candidates for the parliamentary quota...
— It is possible, although I have never understood this. Ultimately, lawyers are elected to the Supreme Judicial Council who, under the Constitution, must have 15 years of legal experience and be high-calibre professionals. In other words, they are presumed to have careers outside the Supreme Judicial Council – legal careers that are much more valuable to them and worth working for. Incidentally, this brings us to what may be the first issue. We have discussed this in previous conversations as well – that the Supreme Judicial Council in its current form, as a permanently functioning body, attracts people for whom membership in it is an end in itself. If, as was the case until 2007 and as many lawyers called for, the body were not permanently functioning, its members would continue to work as judges, prosecutors, lawyers, lecturers and so on. Once a week or twice a month, they would meet, vote on certain issues and decide specific tasks prepared by the administration that exists alongside the council in any event. It could be developed and its capacity increased. But that is not the case. The refusal to change this under various pretexts – that there is no time, that the council has many functions which it would not be able to perform otherwise – has led to the current situation.
— Yes, this of course sounds rather mafia-like. Especially when it comes to a matter of life and death...
— Yes, that is how it sounds. This is not good at all.
— Not at all. Now, of course, we can promise ourselves that we will continue discussing the topic, because there may be very serious confrontations or, let us say, unexpected success...
— It is indeed possible; I do not rule it out. So we may discuss it again in a month or so. It may take a little more time, but in any case there must be an outcome by the end of the year.
Watch more from the conversation in the VIDEO.