Bulgaria’s constitutional quandary shows no sign of resolution

A day after Bulgarian President Rossen Plevneliev cut short the swearing-in ceremony of four new Constitutional Court judges – “to prevent the court’s reputation being brought into disrepute” – the country’s lawyers and politicians remained uncertain on how to proceed to resolve the unprecedented legal predicament and move on.

Plevneliev exited the proceedings right as Veneta Markovska, who faced a growing tide of accusations of corruption and conflict of interests at her confirmation hearing and the weeks that followed, was due to take her oath as a Constitutional Court judge (as reported in further detail here).

The issue has two aspects – the technical question of how to revoke Markovska’s appointment and the more fundamental subject of Plevneliev potentially exceeding his constitutional authority by refusing to attend Markovska’s oath.

The scene was carefully set for Plevneliev’s dramatic exit by the procedural change to have Markovska be sworn in last – normally, all incoming Constitutional Court judges are sworn in together at the same time.

Parliament Speaker Tsetska Tsacheva and Constitutional Court chairperson Evgeni Tanchev were clearly in on Plevneliev’s gambit – judging by the former’s stony-faced expression throughout the proceedings and the latter’s quick reply, to a question from the audience, that the ceremony could not continue without Plevneliev in attendance. How many other judges knew in advance what was about to pass is difficult to ascertain – although they all dutifully fell in line behind Tanchev to leave the ceremony – but Markovska was clearly not among them, given her reaction (“What about me?”).

Plevneliev’s move has drawn some plaudits, especially in the immediate aftermath – but raised the question whether the head of state had the right to effectively veto the appointment of a Constitutional Court judge (exacerbated in this case by the fact Markovska was to take one of four seats filled by Parliament).

The law requires the President to attend the ceremony, as should the Speaker of Parliament and the heads of Bulgaria’s two high courts. Their deputies are allowed to stand in – as was the case on November 15, when Supreme Court of Cassation chairperson Lazar Grouev was represented by his deputy Grozdan Iliev. Never before, however, did one of the four institutions fail to be represented.

Some observers have put the blame on Tanchev, as he was the one to formally conclude the proceedings before Markovska was sworn in. Others blamed Plevneliev, and the independent MPs who nominated Markovska most loudly so – even raising the issue of impeaching the President for overstepping his authority.

On the technical side of the issue, some lawyers – including socialist MP Yanaki Stoilov and former Constitutional Court judge Emilia Droumeva – have argued that Parliament has the right to repeal its own appointee. The opposite view is that Markovska herself has to withdraw from the appointment – some say that notifying Parliament in writing is enough, others that she should do so in person in the Parliamentary plenary hall.

In the end, Parliament’s legal affairs committee decided on November 16 that with Markovska not taking the oath, her appointment was voided and a new nomination process could begin. Parliament is expected to vote on the motion on November 21, with nominations due by November 30 and a hearing in the legal affairs committee scheduled for December 12. Parliament would then vote on the nominees on December 19.

The institution with final authority on such issues is of course the Constitutional Court itself, but the court finds itself one judge short of the full complement of 12, which are needed to elect the Constitutional Court chairperson.

Furthermore, other formal breaches of the law could mean that none of the three other judges sworn in on November 15 is legitimate. As reported by Mediapool.bg on November 16, all of them were sworn later than the one-week period after appointment, specified by law – Georgi Angelov was elected on September 24 by high court judges, while Plevneliev appointed Boris Velchev on October 31, the same day Parliament elected Markovska and Anastas Anastassov.

As if that was not enough, Markovska’s supporters claimed on November 16 that the three other judges did not say their oath in full, and thus should not be considered as having taken office either.

Not that the list of questions raised by the entire affair stops there. Why did Plevneliev object to Markovska’s “moral and ethical qualities”, but had no problem with appointing Velchev – the man who in seven years as prosecutor-general has failed to push through any meaningful reform of the quality of prosecutors’ work?

For that matter, what about Anastassov, whose career in the judiciary peaked as the chairman of a small district court and who can boast only a degree from the Interior Ministry academy, an institution often derided for successfully instilling its graduates with an unerring instinct of following orders rather than in-depth knowledge of constitutional tenets.

And why did prosecutors, who apparently launched an investigation into a businessman with close ties to Markovska – she herself disavowed knowing him, only to later walk back her statement, while Interior Minister Tsvetan Tsvetanov claimed that at one point the two were cohabiting – as far back as 2010, keep quiet on the topic throughout the entire affair, only sending a letter to Plevneliev notifying him of the investigation the day before Markovska was to be sworn in?

The members of the Supreme Judicial Council (SJC), appointed not two months ago and with their own share of controversy, were left with egg on their faces too – for accepting Markovska’s resignation as deputy chairperson of the Supreme Administrative Court (SAC) only an hour before she was due to take her oath, and then conditionally only, taking effect once she became a Constitutional Court judge. That too was an unprecedented decision, as incoming Constitutional Court judges have to resign all other positions before being sworn in.

To add another strand to an already hopelessly entangled Gordian knot, legal experts disagreed on whether Markovska could thus return to her job at the SAC – Justice Minister Diana Kovacheva being among those who said that she could. Perhaps in an attempt to dispel any doubts in that particular aspect of the story, Markovska reportedly lodged a second resignation request with the SJC late on November 15, a request that the council is expected to vote on next week.

One prevalent opinion in Bulgaria that the entire episode is the result of sharp criticism from the European Commission, which said that the appointment process failed to properly investigate the doubts hanging over Markovska and threatened to issue a Co-operation and Verification Mechanism (CVM) report before the one currently scheduled for the end of 2013.

(When Bulgaria and Romania joined the EU in January 2007, their inadequacies in fighting organised crime and corruption and in reforming the judiciary led to the two newcomer countries being subjected to the Co-operation and Verification Mechanism to bring them up to the bloc’s standards in this area. In recent years, continued CVM monitoring has become an obstacle in Bulgaria’s way of joining the Schengen visa-free travel area.)

Commission spokesperson Mark Grey was non-committal on November 16, saying that the EC “took note of the developments” and “the important domestic debate that is taking place in Bulgaria on this issue”. The Commission would continue to “monitor closely” other upcoming appointments to top jobs in the judiciary, the vacant chief prosecutor position being one, and hoped that the process would be transparent and yield nominations that “fulfill the criteria of merit and integrity”, Grey said.

(President Rossen Plevneliev, flanked by Parliament Speaker Tsetska Tsacheva on the left and Constitutional Court chairperson Evgeni Tanchev on the right, reads his prepared remarks before leaving the swearing in ceremony on November 15. Photo: president.bg)



Alex Bivol

Alex Bivol is the Deputy Editor-in-Chief of The Sofia Globe.