site.btaJustice Minister's Proposal for Dismissal of Judge Implicated in Corruption Is Deficient and Unclear - Supreme Court President

February 11 (BTA) - Bulgaria's Supreme Court of Cassation (SCC) President Lozan Panov said on Tuesday that Justice Minister Danail Kirilov's proposal for Judge Andon Mitalov's dismissal is deficient and unclear and does not specify the acts by which Mitalov damaged the prestige of the judiciary and breached his official duties.

On February 7, Kirilov approached the Supreme Judicial Council (SJC) with a proposal to release Mitalov from office as judge at the Specialized Criminal Court after a February 5, 2020 statement by US Secretary of State Mike Pompeo which designated the judge and barred him, his wife and his daughter from entering the US because of his alleged involvement in "significant corruption". "In his official capacity, Mitalov was involved in corrupt acts that undermined the rule of law and severely compromised the independence of democratic institutions in Bulgaria," Pompeo's statement said. Mitalov was the first Bulgarian national to be designated according to that procedure.

The SCC has received a letter from the Inspectorate with the SJC, which confirms that instituting a check against Mitalov is unwarranted. In early November 2019, the Inspectorate was asked by then Prosecutor General Sotir Tsatsarov to check how the allowed Russophiles National Movement leader Nikolai Malinov in late October 2019 to travel to Moscow to receive the Order of Friendship from Russian President Vladimir Putin despite having been charged with spying for Russia and barred from leaving Bulgaria.

"A question that is very frequently asked is why nobody is convicted for corruption in Bulgaria. To have such convictions, there should be a case, an indictment, and pre-trial proceedings. The word 'corruption' implies that somebody must have obtained a gain, which presupposes a criminal case, and nobody has pointed to such a case," Panov noted.

"Disciplinary prosecution of judges on account of judicial instruments they have issued, deviating from the prerequisites of Article 132 of the Constitution, will have a bloodcurdling effect on the rest of the judges, will impact adversely the freedom of forming an inner conviction in the exercise of judicial review in pre-trial proceedings, when material restriction of fundamental human rights is sought and, ultimately, will lead to devastating consequences for citizens and the independence of justice," the Bulgarian Judges Association (BJA) wrote on Tuesday in a letter to the SJC Judges Chamber in connection with Kirilov's proposal. The reference is to a constitutional provision which exempts judges, prosecutors and investigating magistrates from criminal and civil liability for acts they perform in their official capacity and for instruments they issue unless what they have done constitutes an intentional publicly prosecutable offence.

The BJA argues that "neither the Justice Minister nor the SJC, as an administrative authority, is competent to determine whether the judge has misapplied the law. The only competent authority to do so is the court in the appropriate criminal procedure."

Also on Tuesday, Panov's Chief of Cabinet said that the SCC President had sent letters to Prosecutor General Ivan Geshev and to the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Commission (CCUAAFC), reminding them that he had not received information he requested from them on February 6. Panov asked Geshev whether pre-trial proceedings in connection with a publicly prosecutable offence had been instituted against Mitalov and queried the CCUAAFC whether it had received any alerts and/or complaints against Mitalov over wrongful activity and whether any checks had been conducted against him in this connection. The SCC President insists that the information requested is urgently needed for a response by the Bulgarian judicial system to the US Secretary of State's statement alleging Mitalov's involvement in corrupt acts.

In a related development, the SJC Judges Chamber on Tuesday gave Justice Minister Danail Kirilov one week to present evidence supporting his proposal for Mitalov's dismissal. The Chamber adopted this decision by 12 votes in favour, and only one member (Sevdalin Mavrov) recused himself. Kirilov is supposed to specify the date and place where the judge committed the violation, a particular case, and the provisions of the Criminal Procedure Code that had been violated. NV/LG
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