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MEDEL letter to the President of the EU Commission and to the EU Commissioner of Justice about the CVM report on Bulgaria and Romania

MEDELMEDEL – Magistrats Européens pour la Démocratie et les Libertés, has sent last Friday, December 14th, 2018, a letter to Mr. Jean-Claude Juncker (President of the European Commission) and Ms. Vera Jourová (European Commissioner of Justice, Consumers and Gender Equality), regarding the recently issued reports of the Cooperation and Verification Mechanism (CVM) on Bulgaria and Romania.

In that letter, MEDEL raises serious concerns regarding the conclusions expressed in those reports which, from its perspective, do not match the realities in both countries.

The letter points out concerns regarding:

  • the lack of any reference to the interference of the Secret Services in the Romanian Judiciary;
  • the independence of the judiciary, mainly in what regards the prevailing number of members appointed by the Parliament in the Bulgarian Judicial Chamber of the Supreme Judicial Council;
  • the recurrent pressures faced by the president of the Bulgarian Supreme Court of Cassation (both through the media and from different institutions), threatening not only his career, but also his life and physical integrity;
  • the lack of any reform in the prosecutor’s office in Bulgaria, which has remained practically untouched in its substance, maintaining its Soviet-style structure, despite the criticisms coming both from inside and outside the country;
  • the establishment of a new Anticorruption Agency in Bulgaria, incorporating, among others, a department previous belonging to the State Agency for National Security, with the competence to assist prosecutors in investigating high-level corruption suspects and extensive competences to carry out surveillance and intelligence measures, and that despite having such a great force, has a political leadership and has no explicit rules regarding its control.

    In the letter, MEDEL urges the European Commission:

  • to take into account all the facts and urgently ask the proper Romanian and Bulgarian authorities for further information and clarifications on the issues addressed;
  • to urgently give full and close attention to the particular situation of Justice Lozan Panov, President of the Supreme Court of Cassation of Bulgaria.

 

To:

Mr. JEAN-CLAUDE JUNCKER
President of the European Commission

Ms. VERA JOUROVÁ
European Commissioner of Justice, Consumers and Gender Equality

December 14th, 2018.

Your Excellencies,

After the release of the Cooperation and Verification Mechanism (CVM) reports on Bulgaria and Romania, MEDEL – Magistrats Européens pour la Démocratie et les Libertés must raise serious concerns regarding the conclusions expressed in these reports which, from the perspective of our organization and its members, seem far off from the realities in both countries.

The force of this report should reside in its technicality and objectiveness, as well as in its ability to reflect relevant facts and to express, when necessary, conclusions issued after consulting divergent points of view on sensitive topics strictly based on legal, factual and non-partisan arguments.

Unfortunately, though, based on our observation, the CVM report failed to offer an objective analysis and to give valid recommendations in order to really support the two countries towards the progress of their judicial systems.

In the case of Romania, MEDEL has raised on numerous occasions the issue of the involvement of the intelligence services in criminal investigations and courts, stating clearly that this undermines the rule of law. We have not only addressed that issue on our statement approved on May 25th, 2018 (sent to the European Commission), but have also informed directly the DG Justice in a meeting held in that same month.

Unfortunately, the CVM Report on Romania covered the issue of the intelligence agencies’ involvement in the judiciary superficially, ignoring the serious consequences that this fact has on the independence of the judiciary and the right to a fair trial. The credibility of the report is seriously affected when, by reading it, it results that words of politicians or journalists seem to be affecting the independence of judiciary more than covert actions of intelligence agencies.

As far as Bulgaria is concerned, we find it surprising that the European Commission discerns “steady progress” and declared three benchmarks “provisionally closed”: judicial independence, the legal framework, and the fight against organized crime.

In the discussions with the experts of the European Commission, the Bulgarian Judges’ Association (member of MEDEL) pointed out serious deficiencies in the judiciary, the severe and constant pressures on judges – specially against the president of the Supreme Court – and the disproportion of forces among judges and prosecutors, in a country where the prosecutors are still organized based on the Soviet model of “prokuratura”.

All these observations and concerns from Bulgaria, supported by concrete examples, were ignored by European Commission’s experts.

Here are some of their most important observations and concerns:

  1. Concerns, regarding the independence of the judiciary

The Consultative Council of European Judges (a professional and independent body of the Council of Europe) points out, in its Opinion No. 1/2001, the standards concerning the independence of the judiciary. Amongst them, the Council recommends that, in respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers, in which composition at least one half of those who sit are judges elected by their peers, following methods guaranteeing the widest representation of the judiciary.

This highest standard is also pointed out in Recommendation No. R (94) 12 of UN on the Independence, Efficiency and Role of Judges, as well as in numerous reports of the Venice Commission.

Despite the constitutional reform in 2015, the members of the Judicial Chamber of the Supreme Judicial Council in Bulgaria elected by judges do not prevail over the members appointed by the Parliament. Thus each recruitment, appointment, career progress or termination of office of a judge in Bulgaria remains politically dominated.

The Council of Europe’s Venice Commission issued an Opinion on October 9, 2017, in which it addressed the need for further judicial reforms in order to guarantee the independence of the courts1. These recommendations are still not fulfilled. The same is valid for recommendations issued by the Consultative Council of European Judges2, the European Judges Association3 and MEDEL4. In fact, they are completely ignored by the current political status quo.

  1. The recurrent pressures faced by the president of the Supreme Court of Cassation

The President of the Supreme Court of Cassation, justice Lozan Panov, has been subjected to systematic harassment, both through the media and from different institutions, even the ones from within the judiciary. Things have degenerated so much that his life and physical integrity have been directly threatened: the bolts of the back tire of his official car were found to be loosened, and masked men “greeted” him at the door of the Supreme Judicial Council with freshly cut-off lamb heads – a threat usually used by the Sicilian mafia during the 1970’s. No serious investigation has been conducted by the police in these cases.

These are just some of the many threats and pressures faced by the president of the Supreme Court of Bulgaria, a country which is praised by the European Commission in the CVM report for its great achievements in the fight against organized crime.

A very last example of the pressure towards the president of the Bulgarian Supreme Court of Cassation is the attempt of 10 members of the Supreme Judicial Council “to ask him for explanations” for the speech he gave on the international conference organized by MEDEL and the Bulgarian Judges’ Association which took place in Sofia on November 16th this year. The letter of the same 10 members of the Supreme Judicial Council to the president of the Supreme Court of Cassation contains unrevealed accusations of a “political speak” and there are concerns among judges in Bulgaria that these accusations will be used as a motive for justice Lozan Panov to be removed from his office.

  1. The lack of any reform in the prosecutor’s office

During the communist regime, the “Prokuratura” (Prosecutor’s Office) represented the armed arm of law in the service of power, ready to “lawfully” remove or silence opponents of the regime.

After the communist regime changed in Bulgaria, the prosecutor's office remained practically untouched in its substance, maintaining its Soviet-style structure, despite the criticisms coming both from inside and outside the country. The Prosecutor General remains an extremely important power factor and trader, but without any accountability, like it used to be under communism.

This system has survived under the watch of the European Commission which, through the latest CVM report, is ready to recognize its legitimacy.

MEDEL finds this conclusion defiant and unacceptable, and totally against the recent Venice Commission recommendation.5

Furthermore, in its judgement in Kolevi vs. Bulgaria in 2009, the ECHR criticized the structure of the public prosecution by stating the following:

“This situation was apparently the result of a combination of factors including the impossibility of bringing charges against the Chief Public Prosecutor, the authoritarian style of the Chief Public Prosecutor, the apparently unlawful working methods he resorted to and also institutional deficiencies. In particular, the prosecutors' exclusive power to bring criminal charges against offenders, combined with the Chief Public Prosecutor's full control over each and every decision issued by a prosecutor or an investigator and the fact that the Chief Public Prosecutor can only be removed from office by decision of the Supreme Judicial Council, some of whose members are his subordinates, is an institutional arrangement that has been repeatedly criticized…”

Despite the findings of this respected international court, the institutional structure of the prosecutor’s office remains unchanged.

The absolute power of the General Prosecutor in Bulgaria was denounced by the President of the Supreme Court of Cassation, attitude which had serious repercussions against him, as we already pointed out.

“Woe betides anyone who opposes the untouchable status of [Bulgaria’s] Chief Prosecutor”, the President of the Supreme Court of Cassation said, being quoted by the media. He also pointed out that in present day Bulgaria there is no mechanism for controlling the abuses of the General Prosecutor.6

  1. The establishment of a New Anticorruption Agency

Bulgaria adopted in January 2018 a new anticorruption legislation, praised by the Commission: "the most significant single step was the adoption of the reform of the general anti-corruption framework in January 2018”.

A new unified anti-corruption agency has been set up. The agency incorporates, among others, a department previous belonging to the State Agency for National Security and has the competence to assist prosecutors in investigating high-level corruption suspects. Although it has no competence to do criminal investigations itself, the agency has extensive competence to carry out surveillance and intelligence measures within its remit. It is the main agency responsible for the seizure and confiscation of illicit assets in Bulgaria.

The CVM report shows no concerns about the fact that an agency which has such a great force – from the tasks specific of the intelligence services to interceptions and confiscations – has a political leadership. Also, we must point out that there are no rules regarding the control of such an agency.

It is deeply troubling that this Commission has started its activity by summoning the President of the Supreme Court of Cassation. The judges complained that this could be used by the Prosecutor's Office to start an investigation, which, in the final analysis, may lead to the removal of Mr. Panov as President of the Supreme Court of Cassation.

The President of the Supreme Court of Cassation refused to appear before the Anti-Corruption Commission, arguing that such an approach violates the separation of powers and the essence of the rule of law.7

Moreover, the first professional analysis of the new law in respect with its provisions regarding the confiscation of illicitly acquired assets has shown that its fundamental principles are in serious contradiction with the European legislation – Directive 2014/42/EU of the European Parliament and of the Council. The seizure of assets without conviction under the Directive regulation is an absolute exception and is only applicable when the defendant is absconding the trial; the Directive does not allow confiscation of property which is not a direct benefit from criminal activity; the Directive does not allow confiscation of assets, obtained from the criminal by third parties in a good faith. The Bulgarian law contains provisions which do not comply with these principles enshrined in the Directive.

Meanwhile, when a judge from the Sofia City Court decided to temporarily suspend a confiscation case and refer to the Court of the EU with the abovementioned preliminary questions, the Chairman of the Anti-corruption agency publicly accused the judge of incompetence and malice. The Chief of the Anti-corruption agency made a public suggestion that the reporting judge was a liar and that referring to the EU Court would have serious consequences for Bulgaria.

This statement was followed by a series of extremely offensive publications in the media. These publications accused the judge of being heavily dependent of the criminals and called for a Polish model of judicial reform.

In this factual situation, the Judicial Chamber of the Supreme Judicial Council refused to protect the judge.

None of these serious issues appear in the CVM report, raising serious questions not only about its objectivity, but also about the actual knowledge of those who wrote it about what is actually happening in Bulgaria.

The Cooperation and Verification Mechanism was set up as a tool to help Bulgaria and Romania to fully respect the Copenhagen Criteria in the building of a modern and really independent Judicial System.

As guardian of the Treaties, it’s an essential competence of the European Commission to fully assess and respect those criteria, so the reports are a vital instrument towards helping both States in their way to achieve that goal.

The CVM reports now presented, however, don’t go in this direction, giving contradictory signs that can be misinterpreted and could be read in a very dangerous way, with effect in undermining the independence of the Romanian and Bulgarian Judicial systems.

For all these reasons, MEDEL hereby urges the European Commission:

  • to take into account all of the above facts, and urgently ask the proper Romanian and Bulgarian authorities for further information and clarifications on the issues addressed;
  • to urgently give full and close attention to the particular situation of Justice Lozan Panov, President of the Supreme Court of Cassation of Bulgaria, who is facing various serious pressures and

MEDEL remains fully available to offer to the Commission any further clarification, information or relevant expertise on the situation at hand in the judiciary in Romania and Bulgaria.

Yours Sincerely,

FILIPE MARQUES, m.p.

(President of MEDEL – Magistrats Européens pour la Démocratie et les Libertés)

EC Transparency Register nr. : 981119221130-18

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1  https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)018-e

2  https://rm.coe.int/opinion-of-the-ccje-bureau-following-the-request-of-the-bulgarian-judg/16807630af

3  https://www.iaj-uim.org/iuw/wp-content/uploads/2017/11/RESOLUTION-on-BULGARIA-12-NOVEMBER-2017.pdf

4  https://medelnet.eu/index.php/news/europe/399-medel-communique-on-the-proposed-amendments-to-the-judiciary-act- of-bulgaria

5  https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)018-e : “In sum, in the current Bulgarian system there is a weak structure for accountability of the PG who is essentially immune from criminal prosecution and is virtually irremovable by means of impeachment for other misconduct. This is problematic in itself, and in the system of judicial governance it distorts the balance of power as a strong PG sits as an ex officio member of the SJC while being the hierarchical superior to at least five its members”.

6  https://verfassungsblog.de/the-disheartening-speech-by-the-president-of-bulgarias-supreme-court-which-nobody-in- brussels-noticed/

7  http://www.bta.bg/en/c/DF/id/1904376

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