UNCLAS SECTION 01 OF 02 SOFIA 000250

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV KJUS KCRM EU BU
SUBJECT: BULGARIAN CONSTITUTIONAL AMENDMENTS: TOO FAR OR NOT
FAR ENOUGH?



1. (SBU) SUMMARY: The Bulgarian parliament is currently
considering a package of proposed constitutional amendments
aimed at implementing judicial reform and responding to EU
criticism of the judicial system. While most observers view
the package as essentially well-meaning, concerns have been
raised that some of its elements could boost the power of
the Ministry of Justice at the expense of the independence
of the judiciary. Extensive debate has also circled around
proposals to limit parliamentary immunity. The Embassy has
sought to encourage constructive dialogue that will bring
valid concerns to light in a way that respects the Bulgarian
constitutional process. While most of the debate has
focused on what amendments will do, little attention has
been paid to what they will not do: rein in the vast powers
of the Chief Prosecutor and significantly increase judicial
accountability. END SUMMARY.


2. (U) On February 3, the National Assembly gave tentative
approval to a package of proposed constitutional amendments
on judicial reform. Some of these amendments are necessary
in order to implement provisions of the October 2005
Criminal Procedure Code, while others represent unrelated
efforts to improve the judicial system. Although the
amendments must pass through three readings before being
formally adopted, virtually all meaningful debate will be
concluded by the time of their second reading. Parliament
has set a tentative deadline of February 17 for proposed
changes to be submitted.


3. (U) The package currently before parliament proposes
amendments which would:

- Allow the National Assembly to strip MPs of immunity for
any indictable offense. Currently, parliament can only
remove immunity if the charge carries a sentence of over 5
years imprisonment.

- Create the office of national Ombudsman.

- Require the Chief Prosecutor and the Chief Justices of the
Supreme Administrative Court and Supreme Cassation Court to
submit annual reports to parliament.

- Mandate that prosecutors manage and supervise criminal
investigations. This change is required in order to
implement October 2005 revisions to the Criminal Procedure

Code.

- Allow police officers of the Ministry of Interior to
conduct criminal investigations. The current Constitution
allows only investigating magistrates to carry out
investigations. This amendment is also required in order to
implement the updated Criminal Procedure Code.

- Enable parliament to recommend dismissal of the Chief
Prosecutor and two Chief Justices in the event of grave
violation of the law or dereliction of duties. Currently,
only the Supreme Judicial Council (on which the Chief
Justices and Chief Prosecutor sit) is empowered to make such
a recommendation.

- Authorize the Ministry of Justice (MOJ) to assume many of
the administrative duties of the Supreme Judicial Council
(SJC). Under this amendment, the MOJ would draft the
judiciary's budget, manage court property, and handle
qualification and certification of members of the judiciary.
The MOJ would be allowed to make proposals for the
appointment, promotion, demotion, and dismissal of judges,
prosecutors, and investigating magistrates. Furthermore,
the MOJ would "exercise control" over members of the
judiciary with respect to the initiation, trial, and
resolution of cases.


4. (SBU) Although offered as a package by the ruling
coalition, the proposed amendments do not necessarily
reflect a consensus approach to judicial reform. Many
leading judicial figures have openly attacked the amendment
ceding SJC powers to the MOJ as opening the door to
political interference and erosion of the independence of
the judiciary.


5. (SBU) Public and media debate on the proposed amendments
has focused almost entirely on proposals to limit
parliamentary immunity. The ruling coalition originally
proposed these limitations as a signal to the EU of
Bulgarian willingness to tackle high-level corruption. The
scope of the debate has shifted however, as a rash of high-
profile scandals involving MPs has sparked public outrage
and political grandstanding. Pundits, politicians and
newspaper columnists have responded with proposals to allow
MPs only functional immunity, or even to abolish
parliamentary immunity altogether. Despite much talk,
however, major political parties have yet to formally
propose changes to the amendment currently before
parliament.


6. (SBU) Given the strong support of all three members of
the ruling coalition, the amendments package is expected to
pass easily; however, significant alterations are possible
before the wording of the amendments is finalized. The
Bulgarian People's Union, a center-right opposition party,
voted with the coalition in approving the draft package but
has proposed changes to the amendments on immunity and
removal of judicial leaders. Other opposition parties have
criticized the proposed amendments as cosmetic and
pointless, urging more radical structural changes and the
abolition of all immunities.

7. (U) While the EU has not taken a formal position on the
amendments, it has stood behind a report prepared by its
resident Spanish/EU PHARE consultant that is critical of
proposed increases in the MOJ's authority. The SJC endorsed
this report and forwarded it to the National Assembly.


8. (SBU) COMMENT: The current set of amendments is a step in
the right direction, but does little to address the Chief
Prosecutor's near-total autonomy and the overall lack of
judicial accountability. Such much-needed fundamental
changes in the division of power would likely require a
Grand National Assembly - essentially a constitutional
convention - which is more than the political traffic can
currently bear. We are also concerned by some of the
possible implications of the amendments as currently
proposed - particularly those that impact the independence
of the judiciary. We have raised these concerns in private
meetings with our political and judicial contacts, including
the President, Speaker of the National Assembly, and
Minister of Justice. USAID, in coordination with Bulgarian
partner organizations, has organized two constitutional
forums to discuss the amendments, giving high level judicial
branch officials, opposition MPs, NGOs, and legal
professional associations an opportunity to voice their
concerns. END COMMENT.



BEYRLE