site.btaVenice Commission on Bulgaria's Draft New Constitution: Welcome Amendments Introduced but Further Changes, Clarifications Needed

November 23 (BTA correspondent Nikolay Jeliazkov) - The Council of Europe's (CoE) body of constitutional legal experts, the Venice Commission, has adopted an urgent interim opinion on a proposed new Bulgarian constitution, the CoE said in a press release Monday. Prepared at the request of the Bulgarian National Assembly leader, the opinion focuses on the reform of the judiciary and the prosecution service where the most important amendments to the current Constitution were made.

"The Venice Commission regrets that the launch of the constitutional reform was not preceded by an appropriate public debate, that the draft new constitution has been prepared within the parliamentary majority seemingly without any external input, and that the reasons for certain amendments were not well-explained. However, it is commendable that the Venice Commission has been involved in the constitutional reform process at such an early stage," the opinion reads. "As the reform continues, the Bulgarian authorities should elaborate on the reasons behind each proposal and ensure meaningful participation of the public, experts and all political forces in this process," the Venice Commission says further.

According to the Venice Commission, the amendments enhancing the protection of social and economic rights are "either welcome or unobjectionable, but some clarifications are needed, in particular on the obligation of the State 'to promote the birth rate': it should not be used to justify discrimination of cultural or ethnic minorities or of women". Also, a blanket restriction on the right to vote for convicts sentenced to imprisonment should be replaced by a more flexible rule, in line with the European Court's case law.

Commenting on the proposal to reduce the number of MPs in the National Assembly from 240 to 120, the Venice Commission says that this number seems to have been chosen arbitrarily, without a thorough assessment of its impact on the Bulgarian political system.

The CoE experts think that the draft makes several steps in the right direction concerning the Bulgarian judiciary and the prosecution service. In particular, they see as a positive development the abolition of the plenary Supreme Judicial Council and the creation of two independent councils, one for judges and one for prosecutors and investigators.

The Venice Commission, however, recommends that certain issues be addressed, either in the proposed draft or at the legislative level: at least half of the seats in the future Judicial Council should belong to judges chosen by their peers from all levels of the judiciary; lay members of the Prosecutorial Council should have no present or future hierarchical ties to the Prosecutor General and should represent other legal professions; an anti-deadlock mechanism should be provided for the situations where the National Assembly cannot reach the two-third of votes for electing lay members; the competencies of the prosecution service outside of the criminal law field should be reduced to the necessary minimum; and probationary periods for the young judges or prosecutors should be removed.

The Venice Commission experts argue that it would be a missed opportunity if the current constitutional reform effort does not address the issue of the Prosecutor General's criminal liability. "The new constitution should allow, in cases of potential conflict of interests, for the suspension of a Prosecutor General who is subject to criminal investigation or prosecution and for the creation of a mechanism of independent prosecution, not subordinated in any manner to the Prosecutor General, and for the judicial review of the decisions not to open investigations or not to prosecute," the Venice Commission argues.

The Venice Commission welcomes the introduction of the right of individual complaint before the Constitutional Court and of the referral of the cases by ordinary courts to the Constitutional Court, as that strengthens individual rights.

"Making the Constitution more easily amendable by removing the requirement to convoke a General National Assembly is, as such, not contrary to the European standards. However, such an important change should have a convincing explanation, should be subject to a very thorough public debate, and the existence of different procedures of amendment should be considered thoroughly," the interim opinion reads. RI/DS

//