The Supreme Administrative Court (SAC) called into question all rights of the Supreme Judicial Council (SJC) to manage the judiciary system of Bulgaria. The Constitutional Court (CC) was sent an inquiry whether the staff of the SJC can do something more than appoint magistrates, penalize them and vote the budget of the judiciary. In a decision of the Constitutional Court supporting this view, the SJC will be deprived of its basic powers in the organization of the judiciary, which it currently performs. The entire responsibility for judicial reform will remain in the hands of the National Assembly and the Ministry of Justice, say both journalists and experts, after having studied the inquiry of the SAC.
This case became even more difficult after a complaint to the President of the Administrative Court of Sofia City, Radostin Radkov, to SAC. He appealed the decision of the Supreme Judicial Council of this spring adopting a standard minimum load with court cases for the heads in the system. With this decision, the Supreme Judicial Council accepts that the heads of the larger courts are entitled to a 30% lower load than ordinary magistrates. SAC realizes, however, that it is placed in a situation to decide whether the judicial council has the right to manage the system. The Supreme Court made a complete analysis of the practice of the Constitutional Court and failed to answer the question. The Constitution is also silent whether the SJC can tell judges how many cases they should view annually.
The Constitution is too frugal on this topic. It reads that the judicial council appoints staff in the system, organizes the qualifications of magistrates, adopts a budget and indicates how to write annual reports. The constitution does not say whether the SJC has the right to organize the work of the judiciary system and to manage it.
The knot is tied more by the Judiciary Act. It reads that the SJC creates organization of work of the judiciary and carries out the "management" of its activity, but without affecting the independence of its organs. This way the law appends the country’s Constitution.
Therefore SAC are trying to solve the conflict through the practice of the Constitutional Court. However, it proved to be too controversial. In 1994 the Constitutional Court held that the SJC has powers to "guide" the structures of the judiciary. In 2011, however, it says otherwise – SJC only "serves" the functioning of the judiciary and does not "manage" it as is as the role of the Council of Ministers in the area of executive power.
The second decision of the Constitutional Court held that the Supreme Judicial Council, according to the Constitution, has no managerial or executive powers in respect of magistrates. They are recognized as independent bodies in the performance of its functions. In 2014, however, the Constitutional Court took another decision which held that the SJC has the right to exercise "total control of the judiciary." All these contradictions in practice are due to the fact that the Constitutional Court is not obliged to follow its own decisions.
Thus the whole question that sounds simple: whether SJC can manage or not the judiciary – became rather too complex. The reason is the basic rule that judges should be independent and be guided only by the law. The word "manage" means that they are somewhat dependent in their activities on the Supreme Judicial Council. SAC refused to decide this case because of the many contradictions and forwarded it to the Constitutional Court.
A withdrawal of the right of SJC to manage or organize the judiciary would lead to major problems. The staff body of Themis will not be able to resolve the issue of the uniform workload of the magistrates, which was asked by the European Commission. Disputes will arise as to whether the SJC may decide the scandals with random allocation of cases and whether the council can close unnecessary courts and prosecution offices.
The transfer of all this responsibility to the National Assembly means that all these issues need to be addressed in the Judiciary Act. SJC will be skipped as an institution to decide and the application of the law may be delegated to the direct heads of bodies in the judiciary. This way they will gain much more power, which will create a need for much greater transparency. The financing of the reform in turn can be completely removed from the judicial budget and transferred to the budget of the Ministry of Justice.
