The Path toward Article 7 of EU Treaty Is Now Clear
Adelina Marini, March 24, 2014
In the past years, in Bulgaria, I have noticed that the phrase "rule of law" is completely incomprehensible and therefore it is empty of content. For most people this is some kind of a western fiction which sounds as non-understandable as trade with derivatives. The result is not surprising bearing in mind that in Bulgaria justice rarely prevails. The majority of people have established their own justice system and norms of behaviour. Violations of traffic rules, for instance, are being resolved quickly and without trouble by offering a bribe to the traffic police. In the state administration, problems are resolved in the petty cases with chocolate pralines or expensive alcohol in some more intricate cases, while at the high level work is being done by the anonymous envelope. According to the first ever report of the European Commission about the situation of the fight against corruption, the lowest share of people who believe that there are enough anti-corruption court cases that prevent people from corruption practises - only 9% - is in Bulgaria.
The sense of impunity is widespread and is pointed out in the latest report of the European Commission under the special Control and Verification Mechanism (CVM) for Bulgaria. And the rule of law is, in fact, the backbone of constitutional democracies and is one of the founding principles the European Union is founded upon. In the past seven years, since Bulgaria joined the EU with the special mechanism whose purpose was to ensure that Bulgaria will complete the reforms in the judiciary and will lead the fight against organised crime and corruption to the end, the country has scored regress and is returning to its earliest periods after the change of the communist system with a democratic one.
Moreover, boredom from the functioning of the mechanism is now visible both on behalf of governing politicians and opposition leaders and by citizens as well who are supposed to be the biggest driver of reforms, demanding them from their elected representatives at least in regular elections. Beside the boredom, an emancipation can also be noted among more arrogant politicians who in the first years of the membership kept low profile and were cautious not to criticise European decisions and recommendations because of guilty conscience. But now, there are growing voices saying "In the developed countries, too, such things happen", which serves as the perfect excuse not to do anything to improve the situation. The freshest example is with the Bulgarian foreign minister, Kristian Vigenin, who recently said that the Bulgarian government will work for the creation of a common European mechanism because Bulgaria is not the only country where there are violations of the rule of law.
Can this change?
Corruption and organised crime are not the only problem when it comes to violations of the rule of law. The return of some totalitarian practises, like in Hungary for instance, where the government of Prime Minister Viktor Orban tried to cut the independence of media and the central bank, is as worrying. The scorning of the fundamentals of the rule of law is a problem too, which happened in Romania during the inter-institutional crisis in the country two years ago. European Commission Vice President Viviane Reding, who is responsible for justice, citizenship and fundamental rights, loves to quote also the example of France when the country expelled Bulgarian and Romanian Roma people from the country. And if Bulgaria and Romania still have a mechanism through which the European Commission could exert some pressure, although constantly weakening, for the other member states there are no tools on community level to push a country toward the European values which they themselves have signed for in the EU founding treaties.
That is why, the European Commission was planning the creation of a common European mechanism for protection of the rule of law. It is now ready and was presented on March 11th. A curious detail is that the rule of law framework is inspired by the mechanism for Bulgaria and Romania. The new mechanism was presented precisely on the day when the former Croatian prime minister Ivo Sanader got another prison sentence this time for corruption on the mega trial Fimi Media. Sanader is currently in prison serving a sentence for war profiteering and abuse of power. The trials against him are considered an emanation of the newest EU member state's efforts to put the law above everyone.
A focus in the Commission's proposal is to facilitate the path to triggering Article 7 of the Treaty of the EU, also known as the Union's atom bomb because it envisages a member state to be deprived of voting rights in the Council and from taking part in family photos after joint meetings. Practically, this means freezing of a membership. So far, there was only one attempt to trigger Article 7 when the far right party of late Joerg Heider entered the government of Austria in the beginning of the 2000s. The article was never triggered, but back then the Commission began considerations about how to regulate its use more precisely.
According to the European Commission, the published on March 11th communication is not an alternative to but rather precedes Article 7. If the mechanism were to be approved by the member states and the European Parliament in the same form as it is proposed by the Commission, the atom bomb would be triggered when the authorities in a member state undertake measures or tolerate situations in which the integrity, stability and functioning of institutions is systemically dismantled. When the political, institutional or legal order of a member state is breached, its constitutional system or the system for judicial control. When some of all these things are available the European Commission will try to find a solution via talks with the guilty member.
The Commission will send a motivated opinion to the authorities which will be confidential. If there is no satisfactory response to the Commission's recommendations, then it will consider triggering some of the provisions of Article 7. In its work with the guilty member, the Commission will use external assistance as well from the European human rights agency or the Venice Commission of the Council of Europe. What makes the proposed mechanism especially valuable is that it defines more generally what rule of law means because every member state has it own legal history and system of values which makes it hard to assess violations of the rule of law.
This is one of the principles laid out by the Commission, which includes also transparent, accountable and democratic process for enacting law. Justice Neli Koutskova, a member of the Bulgarian Union of Judges, believes that this principle is about what she called "legislative production". In Bulgaria, for instance, there is a major problem which has not resolved for years and is pointed out many times by the Commission in its reports under the Mechanism but to no avail. It is about the law on normative acts - a law which regulates how laws are being written. This law was adopted in 1973 and since 1989 there only three amendments have been made. Practically, there is no modern legal basis that could introduce the rules for transparent, accountable and democratically adopted legislation.
Asked by euinside on to comment these definitions, Ms Koutskova wrote the following regarding the principle of legal certainty: "During the transition, the legal certainty faced significant tests. Because of the transition from communist central planning economy toward free market the legislation in many areas had to change radically as even new laws had to be written before that unknown both to citizens and to jurists. For example, laws on restitution, the commercial law, the tax legislation and many others. Crime increased and took new forms so the criminal legislation had to be changed, too. Main pieces of legislation were changed many times and sometimes controversially. This created huge uncertainty and controversy in the judiciary practise as well. Not to mention the businesses which were forced to constantly adapt to new regulations. Changing legislation and instable judicial practise created also good nourishing environment for corruption".
Prohibition of arbitrariness
This principle Neli Koutskova interprets rather as an economic one - interference of the executive in activities of individual or legal entities. Some governments were inclined toward excessive regulations, while others worked for complete freedom of the market mechanisms, she said.
Access to justice before independent and impartial courts
"On paper, this principle is completely ensured", Ms Koutskova believes. "Citizens have access to justice, for those of them who have no financial means free legal assistance is provided, they are not obliged to pay state fees and that is a fact. Regarding independent and impartial courts, however, here things are much more complicated. On the one hand, the law gives very serious guarantees for independence, but on the other there are growing attempts to influence the courts both politically and economically. And, unfortunately, not everyone is capable to resist pressure". She recalls that there are many analyses, including by the Venice Commission, the International Association of Judges and the European Commission, where the persistent attempts for pressure on courts are noted which, in her words, are sometimes "too unscrupulous".
One of the problems with court independence is linked to the composition of their management body - the Supreme Judicial Council (SJC) - where, in violation of the European standards, "the judges elected by judges" are less than one third. Eleven members of the council are appointed by parliament. In the composition of the SJC are included also prosecutors who are a side in court proceedings but in SJC they decide on the professional career and disciplinary responsibility of judges, Neli Koutskova wrote to euinside. This problem was singled out as a major one by Vihar Georgiev as well, a professor of European law in the University of Sofia. The main problems, he says, are related to the guarantees for independence of the judiciary. More specifically, there are no principles and rules for the appointment of people on leading positions in the judiciary.
"The attempts to appoint, to put it mildly, controversial individuals in the Constitutional court, the SJC inspectorate and the prosecution, additionally undermine the legitimacy of the judiciary. From the point of view of the EU, the main problems are related to uneven application of law in terms of the internal market. And here we have problems, too. The prosecution is being used as a tool for government policy against electricity distribution companies (owned by foreign companies)", Mr Georgiev wrote in an e-mail to euinside. The rule of law mechanism can be useful if only used pro-actively to encourage reforms in the judiciary where they are needed the most and to limit the attempts for discriminatory treatment of European citizens by law enforcement authorities in some member states, he added.
Respect for human rights, non-discrimination and equality before the law
According to Neli Koutskova, this principle is very well settled legally and in the judicial practise it is not violated often. She, however, admits that human rights organisations have worrying analyses not only in terms of minorities but also in terms of disabled people. Another problem in Bulgaria specifically are manipulations by politicians in terms of ethnic divergences which in the past year have reached shocking dimensions.
It is envisaged the European Commission to play a central role in the management of the mechanism as an independent arbiter. It will be good if at least for this mechanism this remains so because it is a good attempt to bring together not divide the new from the old member states. The eurozone crisis clearly showed that in stable old democracies the emergence of destroyers of the rule of law is possible. That is why, it will be a big test for the coherence of the European integration to see if the member states will support this mechanism or will find excuses, again, with their sovereignty to do nothing. Jose Manuel Barroso said during the presentation of the mechanism that the Commission is not the only guardian of the rule of law in Europe. The national courts in every member state, too, are responsible for that. It is good, however, when a member state cannot manage on its own that there is someone who can push it in the right direction.