Venice Commission says more changes needed in Bulgarian constitutional amendments

The Venice Commission, the Council of Europe’s advisory body on constitutional matters, said on November 23 that it welcomed some of the amendments put forth in the proposal to change Bulgaria’s constitution, but noted that “further changes and clarifications” were needed.

In its urgent interim opinion on the draft constitutional amendments, which focused on the proposals for reform of the judiciary and the prosecutor’s office, the body said that “the launch of the constitutional reform was not preceded by an appropriate public debate, the draft has been prepared within the parliamentary majority, seemingly without any external input, and the reasons for certain amendments were not well-explained.”

While it was “commendable” that the Venice Commission was being involved in the constitutional reform process at such an early stage, 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 commission said.

It noted that abolishing the Supreme Judiciary Council’s plenary, setting up instead separate councils for judges and prosecutors, was a positive development, but said that “certain issues still have to be addressed, either in the proposed craft or at the legislative level.”

Specifically, 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 prosecutor’s 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 2/3 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 also re-iterated an earlier line of criticism, saying that it would be “it would be a missed opportunity if the current constitutional reform did not address the issue” of making the prosecutor-general subject to criminal investigation.

Under Bulgarian law, the prosecutor-general has complete oversight over all prosecutors and ongoing investigations – allowing the holder of the office to shut down a probe against themselves, should they choose to, as there is no provision for conflict of interest in such a case.

The commission also welcomed 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.

It offered qualified support for making the Constitution more easy to amend by removing the requirement to convoke the Grand National Assembly, saying that “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 commission also found amendments enhancing the protection of social and economic rights as “either welcome or unobjectionable,” but said that clarifications are needed, in particular on the obligation of the state “to promote the birth rate,” noting that it should not be used to justify discrimination of cultural or ethnic minorities or of women.

Additionally, 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 case law of the European Court, the Venice Commission said.

The constitutional amendments, announced by Prime Minister Boiko Borissov in mid-August, have made little headway since then, with the largest two opposition parties in Parliament saying that they would not back the motion for a Grand National Assembly, which would prevent such a motion from receiving the required two-thirds qualified majority of MPs.

(Bulgaria’s National Assembly has suspended discussion of the amendments pending the Venice Commission’s opinion on the proposal. Photo:

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