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THE FOURTH AMENDMENT – AN ENGINE WITH NO GEAR?

  • The Fourth Amendment (February 2007) of the Constitution (1991) provides for an Inspectorate at Supreme Judicial Council to monitor and control all branches of judiciary. It will be elected by parliament for a five/four year mandate and will be staffed by a chairman and 10 inspectors.
  • The Inspectorate will have no direct intervention functions but can only issue signals, proposals and reports to state institutions incl. to suggest disciplinary sanctions against magistrates. The Inspectoreate will have no power to control magistrates’ discretion on their judgments.
  • It is hard to judge whether the “Inspectorate cat” will frighten the “judicial mice” or they shall treat it as a harmless scarecrow. That amendment reflects EU pressure for some kind of control on the heavily criticized Bulgarian judiciary and its sponsors hope to impress the EU monitoring report on Bulgaria due in late March. One government MP called it “the social eye into the dark room of judiciary” while an opposition MP retorted that the Inspectorate was “an impotent peep show”. And top magistrates claim publicly that the Constitutional amendments bill has not been consulted with them.
  • Yet no one dares to touch the real wound of Bg justice- the constitutional introduction in 1991 of a third court instance- the Supreme Cassation court jumping over the two court instances existing for nearly 50 years. So now we have: first instance, appeal court and cassation court which added about two years to the duration of a case. And the problem is not so much with the cassation court whose functions are indispensable but with the appeal courts acting as a “second in row first instance”. Who needs this second first instance for a country in a turbulent transition? Some lawyers nickname the appeal court as “the appendicite court”.Yet once created, the appeal court bureaucracy has a vested interest to defend its expensive existence. Instead of reducing /simplifying the justice engine in constitution, they added to the appeal courts also the administrative courts- to be most European. Common sense advises that the design of a small boat should not copy the concept of an aircraft carrier. But the constitutional amendments show has been played because it was paid in advance by its foreign sponsors. The latter will not show up when the responsibility bill for the amendments’ inefficiency arrives.
  • Another major tabu of the Constitution also remained untouched. The right of appeal to constitutional court against parliamentary laws remains restricted to 20% MPs, president, government, chief prosecutor, supreme court president and national ombudsman. 16 years of experience prove how easy it is to coordinate inaction among those ”high priests” so that quite a few anti-constitutional laws survive. The fiction that what has not been repealed by constitutional court is right clashes with the fact that the court like an ancient oracle answers only questions by the high priests. The court cannot act even on its own initiative and has no its own prosecution. Ordinary citizens or their organizations have no direct access to constitutional justice. Therefore the rulers can afford the PR luxury to let into that court top legal experts whose mouth they can switch off and on by the access monopoly. This is a crucial privilege, the sacred pillar of the system which will be defended fiercely. So down the chain it makes little difference how good the judiciary is and who inspects it if the law is bad.

Will the Fourth amendment be another constitutional engine with no gear?

February 2007

Braykov’s Legal Office