site.btaSofia Bar Association Chair Speaks on SAC President Conundrum

The way the procedure for president of the Supreme Administrative Court (SAC) is developing is without analogue, although analogies are being made with previous practice of the Constitutional Court (CC), Sofia Bar Association Chair Stefan Marchev said in an interview for BTA. 

According to him, however, the ruling of the CC, on which the Supreme Judicial Council (SJC) relies, is about the unconstitutionality of a text of the Judicial System Act, which provided at the legislative level a mandate different from the constitutionally established one, he said.

In 2005, the CC correctly ruled that this provision was unconstitutional, Marchev added. 

"The case with the election of the current President of the SAC to perform the functions of acting President until the election of a new regular one is not the same, although the same practical result is reached - the same person to exercise the powers of SAC President for more than the constitutionally defined term of office. The acting SAC President will exercise the powers of a SAC President not within his term of office, which has expired, but in another capacity - as a judge of the SAC, appointed to exercise the functions of the president, and for another period - until the election of a new SAC president, which period is not bound by a term in office," Marchev underlined.

In his words, however, neither the Constitution nor the Judicial System Act restrict the SJC to choose which judge from the SAC to perform the functions of the SAC president nd there is no legal obstacle for this to be the current president with an expired term. 

However, the issue is controversial from a legal and especially constitutional point of view. Therefore, the right and reasonable approach is for the Constitutional Court to rule on it, Marchev added.

According to him, only the Constitutional Court can give a binding answer whether it is permissible for a president of a supreme court with an expired term to be elected as acting president until the election of a new head of the same court. 

The idea of the different length of the term of the elected members of the SJC and the term of the prosecutor general and the presidents of the SCC and the SAC is to stagger the mandates so that the same SJC staff cannot make more than once during its term a regular election of a prosecutor general or a president of a supreme court. When, however, the term of the members of the body that has to carry out the election - the SJC - has long expired, it is inevitable to end up with a situation like the current one, the Sofia Bar Association Chair said.

According to him, in the absence of an explicit legislative authorization prohibiting the current SJC from conducting an election for prosecutor general or president of a supreme court, and taking into account the practice of the Constitutional Court, the SJC in its current composition can elect the next prosecutor general and president of the SAC respectively.

In order to hold an election from a new SJC staff, the legislature must intervene: by adopting an explicit rule in the Judicial System Act that restricts the expired SJC from conducting the election, at the risk of such a change being unconstitutional, or by electing the SJC members from the parliamentary quota immediately. "The responsibility for the selection of the positions at the top of the judiciary cannot be transferred entirely to the SJC, while the National Assembly stands idle," Marchev said. 

He stressed that issues related to statehood and public relations have two sides:

"On the one side is the question of legal legitimacy - the ability of the SJC with an expired mandate to carry out valid actions, including the election of the presidents of the supreme courts and the prosecutor general. According to the jurisprudence of the Constitutional Court, the SJC has the legal legitimacy to carry out these elections. The SJC is a permanent body that has no mandate. Its members have a mandate. Therefore, the expiration of the term of office of the members of the SJC does not terminate the powers of the SJC body and the body continues to have the ability to exercise the powers conferred on it in full," said the Sofia Bar Association Chair.

"On the other hand, however, there is also the issue of public legitimacy - when a body does not enjoy public trust, even though it may be obliged to exercise its powers and when its members' mandate has expired, its decisions will always be subject to doubt, to say the least. The SJC in its present composition has adopted a series of unjustified and frankly unprincipled and non-transparent decisions, with negative consequences for the authority of the judiciary. The example of the election of the previous prosecutor general is sufficient. It is the doubt in the motives for the actions of the SJC as a body that deprives it of public legitimacy to make important, fateful choices with long-term effect for the legal system," Marchev added.

According to him, public legitimacy implies trust that decisions are made thoughtfully and transparently, by free and independent professionals, within a procedure in which every uncomfortable question will receive a clear and credible answer, so that any doubt about the correctness of the choice will be overcome.

This is what is missing - public trust, Marchev highlighted.