Cause and Effect in European Politics and Law

Nerves Do not Withstand Awaiting the CVM Report of the European Commission

Ralitsa Kovacheva, July 17, 2012

Judging by the situation, in which the next Commission’s report under the Cooperation and Verification Mechanism (CVM) is expected, it is likely to be more than critical. Moreover, it is not just any report but a summary of the five years of functioning of the mechanism, aimed to help Bulgaria (and Romania) to overcome weaknesses in the field of justice and home affairs, in spite of which it became a member of the EU in 2007.

The mechanism in question, the CVM, consists of monitoring the country`s progress on certain benchmarks, as for this purpose the EC uses its own expert missions, data from Bulgarian institutions, opinions of foreign ambassadors in Bulgaria, positions of NGOs, signals of citizens and of course media publications on the assumption that media are the channel through which public communication takes place.

So, as I said, the upcoming report will not be an ordinary report. It is expected aside from summarising Bulgaria's progress during the five years of EU membership, but to say what will happen with the mechanism hereafter. Because it is clear that the CVM cannot continue existing in its current form. On the one hand (internal), despite its undoubted role as means for pressure for reform, it has failed to produce the expected results and this is evident even from the repetition of the same recommendations in every report.

On the other hand (external), the existence of the mechanism is called into question by the accession of new countries (Croatia) in the EU without such a mechanism. However, given the problems in terms of justice and home affairs at EU level (for example, in terms of Schengen), there is a growing sense of the need for such a mechanism for all EU countries. "There is a process of increasing the controlling and prescribing institutions in the form of a network. This network is one of the possible continuations of the control mechanism for countries like Bulgaria," political scientist Vladimir Shopov told euinside some time ago.

The fulfilled recommendations

In the past months, the government tried to implement some of the main recommendations of the EC. In May, the National Assembly adopted the law on confiscation, which was an explicit requirement of the EC. Meanwhile, Brussels proposed a directive in line with the changes it requested from Bulgaria. But the law was challenged before the Constitutional Court by opposition MPs.

The Judicial System Act, which is also a key requirement of Brussels, was amended by Parliament, but ... it solidified the indirect election of the members of the next Supreme Judicial Council (SJC), despite the insistence of the European Commission for direct election. So the next SJC will be elected by delegates of judges and prosecutors, rather than according to the principle "one man - one vote". The Bulgarian authorities quoted technological and organisational reasons for the direct election not to be implemented now, but the Commission said direct election was both desirable and feasible. However, the ministers of justice and internal affairs of Bulgaria unanimously announced that all requirements by Brussels had been met in terms of the

election of the new SJC.

The election of the so-called government of the judiciary is important because, as noted by the European Commission in its interim report in February 2012, the credibility of the Supreme Judicial Council has been in question and reforms should be carried out before the expiry of the current Council's mandate in the autumn of 2012. The SJC is composed by 25 members. From this members’ college, members by law are the chairperson of the Supreme Court of Cassation, the chairperson of the Supreme Administration Court and the Prosecutor General. Eleven of the members of the council are elected by Parliament and the other eleven members - by the bodies of the judicial system.

"A reform of the election process of the Supreme Judicial Council is needed to enhance the Council's transparency and integrity," the EC report recommends. This recommendation is reflected in the special rules for election of members of the SJC from the parliamentary quota, recently adopted by the parliament. Applicants will be heard in an open session by the Parliamentary Committee on Legal Affairs on 11 September 2012 in the plenary of the National Assembly. The hearing will be webcast live on Parliament`s web site. English translation will be provided as well.

Applicants will be evaluated not only according to their professional skills but also according to whether they have benefited from their position, or they have had a conflict of interest, or they have damaged the prestige of the profession etc. After the hearing, the Committee on Legal Affairs will propose the candidates to be discussed and voted by Parliament. The session during which the members of the SJC will be voted will be broadcast live by the Bulgarian national television and radio, and will be webcast by Parliament`s website.

The SJC, in turn, has created a special section on its website (unfortunately, only in Bulgarian) where all the information about the election of new members of the SJC from the judicial quota can be seen. There will be published the names of the nominees, their CVs, the reasons for their nomination, the concept of each candidate and opinions by non-governmental organisations, universities and scientific organisations. The general gatherings for the election of SJC members will be webcast in real time on the Council's website.

Although it insisted on direct election of the SJC members to the very last moment, the Union of Judges in Bulgaria urged its members to actively participate in the elections, despite the fact that "we were denied the right to appoint representatives directly with our own voices and the procedure was maintained which largely suggests mistrust, as the results do not depend on the ordinary judge."

The scandal

On 12 July, however, the SJC surprisingly dismissed the head of the Union of Judges in Bulgaria, Miroslava Todorova, because of delayed motives on a case of abduction, which resulted in suspension of the case. This provoked stormy public reaction and accusations of interference by the executive and of political motives behind the decision because of the conflict between Interior Minister Tsvetan Tsvetanov, also a deputy prime minister, and Miroslava Todorova, which started after the EC report in the summer of 2010 and gradually escalated. Subsequently, the interior minister accused Judge Todorova of links to the organised crime, and she in turn filed a lawsuit against him for damaging her prestige.

The main criticism of the senior magistrates was that their decision is selective and is not a result of coherent practise. The decision "raises our serious professional concern in terms of equal treatment of disciplinary offences and their appropriate punishment" and "creates the impression of someone taking the law into their own hands against a magistrate [Ms Todorova] because of her active social position," the Supreme Court of Cassation said in a statement. According to the minister of justice, Diana Kovacheva, who chairs the council, "the SJC had no doubt as to whether the offences are committed. An in-depth analysis of the workload of Judge Todorova has also been made."

And while in the professional community and in the social networks people were organising a protest in support of Judge Todorova, the prime minister, Boyko Borissov, accused SJC in "provocation" on the eve of the publication of the EC CVM report. As it became clear during the meeting of Prime Minister Borissov with Commission President Jose Manuel Barroso, the report will be adopted on 18 July. "This is a provocation against the enormous efforts we make to improve the image of Bulgaria and the way in which the judiciary is being reformed," Borissov said.

Awaiting the report

We do not know why the SJC would provoke the prime minister. What we do know is that the SJC was clearly expressing its opposition against the CVM, calling it insulting and humiliating for Bulgaria. The executive in turn described the mechanism as a "mirror" which helps us see the problems, but is was never hiding its expectation the CVM to be abolished or, at least, to be significantly changed. At the same time a change is objectively indispensable for all the reasons outlined above and mostly because of the linking of the mechanism with Bulgaria`s (and Romania`s) Schengen membership and the need for reform of the Schengen rules themselves.

And as I said several times "and Romania," let me add also the Romanian context, on the eve of the report – a referendum scheduled for the impeachment of the president, suspected violations of the constitution and accusations that the government is trying to acquire control over the three powers, in breach of the basic democratic principle of separation of powers.

In this, to put it mildly, stressful situation, the prime ministers of Bulgaria and Romania (simultaneously) visited Brussels and both expressed confidence that their progress on the CVM in the course of the past five years would be evaluated upon their merits. Romanians can hardly expect that the recent political turmoil will not affect the report. Bulgaria, however, should probably expect a very unpleasant report, since the nerves of the institutions do not withstand a whole week ahead of its publication. Because, usually, the quarrel between the executive and the judiciary, as well as the recriminations within the judiciary, start after the publication of the report when a "culprit" for the criticism must be presented to the public. This time, however, the drama has begun a week earlier.

But what would really mean a "bad" report, as Bulgarian media like to say? A “bad” report would be such that would once again contain criticisms well known for the last five years and would show that the monitoring mechanism is to continue because the country is not ready to implement alone the necessary reforms. Five years after our entry into the EU, such a conclusion would be a verdict under normal circumstances.

The debt crisis, however, has changed everything. It has changed the understanding that once having joined the EU, a country a priori fulfils the necessary criteria. So now everyone is aware of the need the readiness for membership to be constantly tested and proved. What is happening now in terms of budget and economic policies, is yet to come in terms of justice and home affairs. And Bulgaria has yet to prove that in 2007 the EU has not made a strategic mistake.