We are publishing the full text of the letter of the Bulgarian Judges Association in which is discussed the notorious "Markovska" case. The letter is consisting actual proposals in a relation with the independence of the Bulgarian judiciary:
F A O
SUPREME JUDICIAL COUNCIL
Cc: Diana Kovacheva
Minister of Justice
Representation of the European Commission in Bulgaria
Members of the Supreme Judicial Council,
Following the failure of Mrs. Veneta Markovska to take an oath of office as a justice of the Constitutional Court on 15 November 2012, her status in the judiciary and the public outcry over information disclosed by the media in the wake of the endorsement of her nomination by Parliament, require you – acting in the capacity of supreme body responsible for career development in the judiciary – to address the consequences of the conflict that pertains to the very foundation of Statehood with sound reason and wisdom. This means that you have a duty to carry out a check to verify the disconcerting information published in the press on account of its relevance to a host of issues that are considerably broader in scope than the allegations that sparked the latest crisis of mistrust in the independence of the judiciary.
Such a check should by no means be based on the ideological premise that protecting the reputation of any State institution takes precedence over protecting the reputation of an individual because as legal professionals we firmly believe that these values are of equal importance. The best way to protect the reputation and the respect national courts command, including the integrity of each honest judge of the Supreme Administrative Court, is to ascertain the truth, which is the sole guarantee that the performance and conduct of Judge Markovska will be appraised in a professional manner that leaves no room for speculation as to possible acts of arbitrariness or vengeance. The crisis may be used reasonably because it sheds strong light on those areas in the judiciary that are in dire need of urgent reform. Hence the SJC is called upon to take measures that will be equally convincing for judges and citizens alike and will demonstrate the individual concerned has not been sacrificed in order to protect the unwholesome status quo of which, according to allegations in the public domain, Justice Markovska is a part. This should furthermore be undertaken in a manner that removes all doubt of a prearranged scenario being played out in which decisions are made by people other than you, regardless of whether or not they may be metaphorically described as belonging to the ‘white tablecloths’ circle (to borrow the phrase used by the Ombudsman Mr. Constantine Penchev) or associated with certain political and economic interests or members of the executive branch of government.
The Bulgarian Judges Association has consistently defended the independence of Bulgarian courts and opposed any unconstitutional attempts to intervene in their work. We have invariably been led by the understanding that trust in the court system is a direct function of the transparency of its work and the strict adherence to established rules. We therefore believe that the questions raised in the public domain and the media must be answered honestly, convincingly and with a high measure of legal competence.
The publications in the run-up to the escalation of the so-called Markovska case raise the following questions:
I. Do the arrangements for filing and allocating cases and determining the composition of the benches of the Supreme Administrative Court (SAC) create de facto possibilities or raise doubts as to potential trading in influence in the context of individual cases pending before the Court?
What are the rules on the basis of which the SAC benches composed of five judges are constituted, notably how are reporting judges selected (from which department and what safeguards are in place that guarantee their random selection); how are the remaining four judges sitting on the bench selected given that they form a majority (what rules are followed to determine the departments from which the judges are selected and what guarantees are in place that their random selection is not based on the nature of the case pending before the bench and that they are not personally hand-picked by the chairperson of the court or their deputies)?
Does each deputy chairperson of the SAC comply with the requirements for random case allocation and determination of the composition of the benches composed of five judges as a guarantee for compliance with the requirement laid down in Article 6 of the ECPHRFF?
The following questions indubitably arise from recent press publications and statements made before the media:
- On 7 November 2012, Members of Parliament (MPs) from the Bulgarian Socialist Party (BSP) who endorsed the nomination of Mrs. Veneta Markovska said in a statement for the media: ‘There is hardly a government minister who has not had dealings with her in her role of administrative judge and whose problems she has not been instrumental in solving’.
http://www.dnevnik.bg/bulgaria/2012/11/07/1942067_deputatite_ot_bsp_podkrepili_markovska_ot_blagodarnost/
- On 12 November 2012, the Deputy Prime Minister Mr. Tsvetanov, commenting on whether Mrs. Markovska conforms to the requirements to be elected a justice of the Constitutional Court in an interview for the Bulgarian National television (BTV), said: ‘Veneta Markovska is a deputy chairperson of the Supreme Administrative Court and if we look at the volume of work she handles there and the remit of her competence as an incumbent of the office she currently holds it is easy to see that she is in a position to cause much greater harm if she remains a judge and deputy chairperson of the SAC than as a justice of the Constitutional Court’.
At the same time, other MPs took cue from the Markovska case and summarised the career development of judges as follows:
- On 11 November 2012, Yanaki Stoilov said: ‘In the judiciary promotions are decided solely on the willingness of magistrates to do favours to politicians’.
http://www.mediapool.bg/янаки-стоилов-в-съдебната-система-се-издигат-хора-правещи-услуги-news199436.html
- On 16 November 2012, Mihail Mikov said the following for the Bulgarian National Radio: ‘One of the nominations sent a shock through the system and yesterday’s act of the President of the Republic swept an important issue under the carpet. That issue pertains to senior appointments in the judiciary and the mechanisms underlying such appointments’.
- Other publications alleged have that the allocation of cases at the SAC to different departments and benches is not based on firmly established rules that are consistently applied but largely depends on the discretion and decisions of the chairperson and deputy chairpersons of the SAC. To date the SJC has failed to address these issues. Likewise, they have failed to elicit any response from the administrative management of the SAC despite being essential for the functioning of the State based on the rule of law. The expression of doubts as to the legality of the constitutive rules applicable to the judiciary is harmful because it undermines the trust in the fairness of justice administration and the independence of each bench in equal measure.
http://www.dnevnik.bg/bulgaria/2012/10/29/1934745_zavisimosti_nesluchainoto_pravosudie_na_vurhovniia/
- Prior to the endorsement of the nomination of Mrs. Markovska by Parliament Mr. Constantine Penchev reiterated that during the transition period career development in the judiciary is decided ‘in the dark’ by high-ranking legal professionals. When asked directly whether Mrs. Markovska belonged to the so-called ‘white tablecloths circle’, the Ombudsman did not discard the possibility that this may be the case.
We are convinced that the developments, which ultimately prevented the deputy chairperson of the SAC from taking an oath of office as a justice of the Constitutional Court, constitute grounds for a thorough investigation to be conducted with the aim of protecting the reputation of the court and the supremacy of law. In particular, the following the questions should be addressed:
- What is the distribution in terms of law administration functions and specialisation in different areas of law the judges in the different departments of the SAC are required to have?
- Is it true that the competence of each department of the two chambers of the SAC is determined and altered by orders issued by the chairperson of the SAC?
The systematic and teleological interpretation of the provisions laid down in Articles 92(1), 119(2)(1) and 122(1) of the Judiciary Act warrants the unambiguous conclusion that when the structure of a court comprises individual departments competent to hear cases in different areas of law, the body competent to determine the judges of each department is the General Assembly, respectively the Plenary of the SAC. These powers are strictly outside the remit of competence of the chairperson of the court (cp. At the Supreme Court of Cassation the substantive competency of each department has always been determined by the Plenary).
The rationale of the law unambiguously clarifies the meaning of the provision laid down in Article 119(2)(1) of the Judiciary Act – the assignment of a judge to a particular chamber and department does not aim to make it possible to identify that judge as belonging to a department designated by a specific number or place them in a particular work environment (choice of fellow judges with whom a judge sits on a bench). The manifest purpose is to determine the substantive competency in terms of the cases to be tried by each judge. The cited provision safeguards both the principle of specialisation SAC judges are required to have with a view to ensuring the administration of justice conforms to the requisite high standard and the independence of the individual judge who can rely on the assurance that their area of specialisation does not depend on persons carrying out administrative functions, ad hoc the chairperson and deputy chairpersons of the SAC. The specialisation of judges (particularly in Supreme Courts) has been expressly formulated as a safeguard for the high quality of justice administration in a number of international treaties. On 13 November 2012 this was reiterated in Opinion No 15 of the Consultative Council of European Judges (CCEJ).
(https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE%282012%294&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864)
The orders issued by the chairperson of the SAC by which the substantive competency of each department is determined fail to ensure that benches are constituted in a legal manner that complies with the standards laid down in Article 6 ECPHRFF. This is so because the administrative manager of a court may not detract from or usurp powers vested in all judges of the SAC who effectively make up the Plenary of the court. The choice of judges that make up each department at the discretion of the chairperson of the court – who essentially holds an administrative office – is a violation that comes into direct conflict with the competency of the Plenary of the SAC.
Furthermore, it both contravenes the aim of Article 9(1) of the Judiciary Act and falls short of the requirements stipulated in Article 6 ECPHRFF in respect of the right to a fair trial.
Being the supreme administrative body of the judiciary, the SJC has the requisite competence to ascertain whether the judges sitting on each bench are determined in a lawful manner and whether that principle is safeguarded in the same manner by the two supreme courts in Bulgaria as a key prerequisite for removing any reasonable doubt as to the independence and impartiality of the courts concerned. Random case allocation may only function if the substantive competency of each department of the two supreme courts has been unambiguously determined in advance. We recall the standards formulated by the ECHR according to which the de facto independence of judges from factors outside the law and the case and the appearance of impartiality that a court leaves enjoy equal protection as safeguards ensuring a fair trial (cf. the ECHR Judgments in Cases Kyprianou v. Cyprus of 15 December 2005; Barberà, Messegué and Jabardo v. Spain of 6 December 1988; and Moiseyev v. Russia of 9 October 2008).
The cited statements of the Deputy Prime Minister, Mps and the information disclosed in the media clearly raise doubts as to the impartiality of the court. High-ranking officials of the other two branches of government have voiced an opinion that the competency of the deputy chairperson of the SAC allows them to influence the outcome of lawsuits – by either causing harm or inspiring a feeling of gratitude. That visibility is clearly incompatible with the principle of rule of law and calls for taking decisive measures, which disprove the underlying assumption and ensure that henceforth the composition of benches and case allocation will not depend on the decision of a single magistrate holding an administrative office. This is the only way to ensure that the expectations of certain officials holding offices in the executive branch of government that SAC judges ‘will solve their problems’ will remain in the past. Such expectations create an environment that favours corruption in the judiciary.
II. The case with the endorsement by Parliament of the nomination of Mrs. Markovska for the office of a justice of the Constitutional Court also places a host of ethical issues pertaining to the responsibility of the magistrate for the visibility of their personal life at the top of public agenda.
These questions call for clear definitions with a view to ensuring a firm line and distinction is drawn between right and wrong and precluding the possibility for morality to be used for the achievement of goals that are essentially immoral. For this reason, by drawing on the facts of the case at hand, you need to give convincing answers to the following questions for the benefit of citizens:
- What are the boundaries of acceptable public interest in and attention to the private life of a judge?
- What are the requirements for appropriate conduct of a judge in cases when they participate in a procedure for election to a high public office and their involvement generates a strong interest on the part of the media? Is it necessary for a judge to disclose all relevant facts or may a part of the information remain undisclosed?
In our opinion, may only seek to derive moral legitimacy from point 4.2 of the Bangalore principles of judicial conduct according to which ‘As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office’.
In this sense a formal compliance with the requirements laid down by law may not be used as a substitute for the morality of a judge as the latter concerns basic ethical concepts such as integrity, dignity, professional duty, respect for citizens and their trust in magistrates.
We propose that the following rules laid down in the Bangalore principles be deliberated:
- Paragraph 4.3 A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations that might reasonably give rise to the suspicion or appearance of favouritism or partiality.
- Paragraph 4.9 A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties.
- For the purposes of ethical self-regulation the definition a “Judge’s family” includes a judge’s spouse, son, daughter, son-in-law, daughter-in-law and any other close relative or person who is a companion or employee of the judge and who lives in the judge’s household.
III. Are there any guarantees that the Prosecution Service acts independently?
We have learned that prior to the failed attempt of Judge Markovska to take an oath of office as a justice of the Constitutional Court following the endorsement of her nomination by Parliament the President of the Republic had received information that a pretrial investigation against an unknown perpetrator had been instituted on allegations of trading in influence involving magistrates of the Supreme Administrative Court. The media quoted the official press release of the Prosecution Service according to which: ‘The investigation has been instituted on the basis of information about corruption practices and a conduct that exceeds the rights of Georgi Georgiev, who maintains a close relationship with Mrs. Veneta Markovska, notably using influence to cause the dismissal of officers of the Ministry of Internal Affairs in relation to an incident and the acquisition by donation of a number of properties and exerting influence on the outcome of administrative lawsuits. The investigation covers the period 2005 – 2010’.
The disclosure of information about a pending criminal investigation at the very last moment before Mrs. Markovska was to take an oath of office; the institution of proceedings against an ‘unknown’ perpetrator whose identity has been clearly indicated in the subject of investigation; and the fact that it had failed to be finalised (by bringing a bill of indictment before the court or terminated on the grounds of lack of evidence) further fuel the doubts expressed in public that the Prosecution Service may be used as an instrument that fosters or allows certain parties to take advantage of publicly undisclosed dependencies. Furthermore, pretrial investigations instituted against unknown perpetrators that implicate magistrates must be handled as a matter of priority because the magistrates concerned remain in office whilst they are still ongoing. Public interest and legal security create an imperative need for the magistrates concerned to either be sentenced, should they be found guilty of a criminal offence, or cleared by the Prosecution Service if found to be innocent.
A swift investigation is a sound anti-corruption measure and ensures that the investigated magistrates do not carry out the duties of their office in an environment of fear and uncertainty. The opposite raises doubts that the failure to close such investigations fosters dependence and allows magistrates to be manipulated, regardless of their guilt or innocence as the case may be.
We are convinced that this aspect of the Markovska scandal can have a strong positive impact because it serves to highlight a problem whose solution can be sought at this moment in time in the context of the selection of a new Prosecutor General.
Hence we propose the following:
- That the SJC carries out a check on the progress of all pretrial investigations against unknown perpetrators with the alleged involvement of judges, prosecutors and investigators;
- That each of the applicants for the office of Prosecutor General be asked to make an appraisal in principle of the Markovska case (without disclosure of any sensitive information) with a view to ascertaining the competence of the applicant concerned to implement concrete measures that safeguard the independence of the judiciary;
- That the SJC takes measures to ensure that the procedure for the selection of the next Prosecutor General be conducted in a manner that removes any doubt that SJC members may be manipulated or subjected to undue external influence.
Other facts disclosed in the public domain further demonstrate the need for transparency.
- On 18 November 2012 in a TV interview the Vice President Mrs. Margarita Popova, a prosecutors with a wealth of experience in the service, said: ‘How in today’s environment can you possibly expect me to be appointed prosecutor general. Our society is ruled by bargaining and I do now want to give an impression of being ready and willing to accept a bargain’.
- On 19 November 2012 at a press briefing the Prime Minister Mr. Boyko Borisov said the following about Mr. Tsatsarov, Chairperson of the Plovdiv Provincial Court and a nominee for the office of the Prosecutor General: ‘He is the best district judge with whom I worked as Secretary-General of the Ministry of Internal Affairs’.
In order to ensure that a sound voting procedure has been set in place and adequately protect your institutional independence, we propose that you adopt a set of rules for the selection of incumbents of the office of Prosecutor General that in the future will also apply to the selection of chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court. In particular, we propose:
- that the SJC conducts an analysis of the state-of-play of the Prosecution Service in advance to be used as a basis for the development of the requirements which the incumbent of the office of Prosecutor General must conform to. A professional profile that matches the requirements for the office in light of the specific problems and deficiencies in the work of the prosecution Service is the only way to ensure a sound appraisal of which candidate is best equipped and has the necessary competency to overcome them;
- that a special committee be set up and tasked with gathering and verifying all available information (published in public records and other accessible sources, including the media) about the candidates and drawing up a report to the SJC without making an appraisal of ascertained facts. That information will directly address the recommendations made by the European Commission concerning the need for greater transparency and will demonstrate the willingness of the judicature to learn from the failure on the part of Mrs. Markovska to take an oath of office as a justice of the Constitutional Court; and
- that all doubts concerning the possibility for a breach of the secrecy of the vote be removed by electing to vote by using ballots simultaneously on which the names of all candidates are indicated. This is the only way to ensure equal treatment of all nominees. On the other hand, the use of an electronic voting system distorts the focus of the public discussion concerning the qualities of the nominees and raises a number of questions such as why is the SJC insisting on using an electronic system and wishes to discard the practice of casting ballots used to date? Are there any possibilities to manipulate the electronic system or retain a record of the votes cast by each member? How can the secrecy of the vote of each SCC member be protected from those sitting next to them etc.? The use of ballots categorically dispels any such doubts. The arguments set forth according to which electronic voting is a step forward that takes into account the recommendations of the European Commission or reflect the latest advances in technology are untenable. The European Commission has consistently recommended that the procedure be unquestionably honest, which does not mean that decisions made at senior level should preclude different interpretations of the underlying motives. At the same time, the necessity to safeguard the secrecy of the votes cast in favour or against the candidates in the procedure for the selection of a Prosecutor General at present – in view of the consequences of the scandal surrounding Mrs. Markovska – will hardly raise any doubts in the capability of the SJC to make use of the latest achievements of technology.
On behalf of the BULGARIAN JUDGES ASSOCIATION
Miroslava Todorova - President