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I. The Judicial Branch. The third, and independent, branch of the government is the judicial branch. It is charged with safeguarding the rights and legitimate interests of all citizens, legal entities and the State. In the carrying out of their functions, all judges, court assessors, prosecutors and investigating magistrates are subservient only to the law. The judicial branch has a separate budget.
Organization of the judicial branch was to come into force upon passage of new structural and procedural laws by July 13, 1992; this has not yet (July, 1993) been done. Consequently, the incomplete structure and procedure in effect when the Constitution was established continue in effect.
A. Court Structure. Under the Constitution, justice is to be administered by the following courts:
• Supreme Court of Cassation
• Supreme Administrative Court
• courts of appeals
• district courts
• courts martial
• regional courts
• such specialized courts as are established by law.
The existence and operation of the first three courts (Supreme Court of Cassation, Supreme Administrative Court and Courts of Appeals) await enactment of enabling legislation. Two significant bills currently on the legislative program of the National Assembly are (1) Law on the Structure of the Judicial System and (2) Law on the Activities of the Supreme Administrative Court. Until their enactment, in certain ancillary respects (membership on the Supreme Judicial Council), and, it is believed by many, in all respects, the Supreme Court (under the prior constitution) fills the role of the Supreme Court of Cassation and the Supreme Administrative Court.
Justices are elected, promoted, demoted, reassigned and dismissed by the Supreme Judicial Council. After three years in office, they can be dismissed only upon retirement, resignation, enforcement of a prison sentence for a deliberate crime or lasting disability to perform their functions for more than a year. They have the same immunity as Members of the National Assembly.
B. Supreme Court of Cassation. This is the highest Court exercising supreme judicial oversight on the precise and equal application of the law by all courts. As indicated above, it has not yet been established by enabling legislation.
The Chairman of this Court, appointed for a single, seven-year term and dismissed by the President of the Republic, on motion from the Supreme Judicial Council, is not eligible for a second term.
C. Supreme Administrative Court. This Court, which has not yet been constituted by enabling legislation, exercises supreme judicial oversight on the precise and equal application of the law in administrative justice. It rules on challenges to the legality of acts of either the Council of Ministers or the individual Ministers; it also rules on other acts as established by law.
As with the Supreme Court of Cassation, the Chairman of the Supreme Administrative Court is similarly appointed, dismissed and limited to a single seven-year term.
The Constitutional Court (see Heading V, below) has ruled (7/15/93) that the existing Supreme Court (under the prior constitution), will perform the functions of the Supreme Administrative Court with respect to ruling on the legality of actions by the Council of Ministers or by individual Ministers, until enabling legislation organizing and staffing that Court comes into effect.
Thus, rule of law has been asserted, whether or not one agrees with the merits of the decision, in that the judiciary has concluded that the action of the executive branch in removing persons from office exceeded the authority of the executive branch.
D. Courts of Appeals, District Courts, Courts Martial and Regional Courts. The Courts of Appeals do not yet exist and await enactment of the Law on the Structure of the Judicial System. The District Courts, Courts Martial and the Regional Courts continue to exist from the period prior to the new, current Constitution.
E. Role of the Courts. The courts are charged with responsibility for supervising the legality of the acts and actions of the administrative bodies. They are to ensure equality and mutual "challengeability" of the parties in a trial. The objective is to establish the truth. Hearings are to be public unless the law otherwise provides. Court rulings are to be accompanied by the underlying reasons for them.
Provision is made for court assessors to participate in the trial process in certain cases as provided by law. In practice these are lay-persons who sit (always two at a time) with the trial judge in criminal cases and deliberate with him or her on the merits of the case. Parenthetically, it is understood that jury trials are to be instituted in Russia in the Fall of 1993 in major criminal cases; there apparently is historical precedent for this in Europe in the last century.
Citizens and legal entities are free to contest any administrative act which affects them except for those expressly enumerated to the contrary in the law. Citizens and legal entities have the right to counsel at all stages of a trial.
F. Prosecutor. The Prosecutor’s Office, headed by the Chief Prosecutor, is charged with the responsibility that legality be observed. To that end, such Office is to:
• bring charges against criminal suspects and support such charges in criminal trials
• oversee enforcement of penalties and other measures of compulsion
• act for the rescission of all illegitimate acts
• take part in civil and administrative suits when the law so requires.
The Chief Prosecutor is appointed, dismissed and is limited to a single seven-year term, in a manner similar to that applying to the Chairmen of the Supreme Courts of Cassation and Administration.
The rules applicable to judges (Heading A, above), including immunity, are also applicable to the election, promotion, demotion, reassignment and dismissal of prosecutors, including restrictions on dismissal after three years in office.
G. Investigative Bodies. These bodies operate within the system of the judicial branch. Their responsibility is to conduct the preliminary investigation in criminal cases.
As with judges and prosecutors, the investigating magistrates have the same immunity and are elected, promoted, demoted, reassigned and dismissed by the Supreme Judicial Council. After three years in office, they can be dismissed only upon retirement, resignation, enforcement of prison sentence for a deliberate crime or lasting disability to perform their functions for more than a year.
H. Supreme Judicial Council. The principal function of this Council is to elect, promote, demote, reassign and dismiss justices, prosecutors and investigating magistrates.
The intended independence of this body is demonstrated by the manner of its selection and operation. The 25 persons comprising this Council are selected as follows:
• Chairman of Supreme Court of Cassation - ex officio
• Chairman of Supreme Administrative Court-same
• Chief Prosecutor - same
• 22 practicing lawyers of high professional and moral integrity who have practiced at least 15 years; 11 such persons are elected each by the National Assembly and the bodies of the judicial branch (existing Supreme Court until election of Justices of Supreme Courts of Cassation andAdministration)
Their terms are five years and they cannot be immediately reelected.
The meetings are chaired by the Minister of Justice, who does not vote, and the ballot is secret as to major decisions. The Law on the Supreme Judicial Council has been enacted and, as amended, is presently in effect. State Gazette No.74 (9/10/91), amended State Gazette No. 106 (12/20/91). It is expected that the provisions of this Law will be incorporated into the Law on the Structure of the Judicial System, discussed under the next heading below.
I. Enabling Legislation. The organization and activity of the following bodies are to be established by legislation:
• Supreme Judicial Council
• prosecution and investigation
• status of justices, prosecutors and investigating magistrates
• conditions and procedure for appointment and dismissal of justices, court assessors, prosecutors and investigating magistrates and materialization of their liability
The pending Law on the Structure of the Judicial System and draft laws on the amendment of the Civil and Criminal Procedure Codes (not yet enacted) touch all of these bodies and are central to some of them. Thus, they would provide for the following courts (some of which already exist):
1. Regional Court. The basic Court of first instance. It has prosecutors and investigating magistrates assigned to it. Cases are tried by a single-judge panel in civil cases and a panel of one judge and two lay-assessors in criminal cases.
2. District Court. This Court is staffed by three-judge panels. It hears cases, as determined by law, of first instance; it also hears cases on appeal from Regional Courts within the District Court's district. There are 28 geographically-defined Districts.
It hears civil, criminal and administrative cases. There are prosecutors and investigating magistrates associated with the Court. It guides and controls the activity of the Regional Courts within its district.
3. Military Courts. These Courts are specified by law and are on equal footing with the District Courts; they are also divided into geographic districts. They sit in 3-judge panels and have associated with them prosecutors and investigating magistrates. Their jurisdiction extends to prosecution of military and police personnel.
4. Courts of Appeals. These courts, sitting in three-judge panels, would handle appeals from District Courts in their region in civil, criminal and administrative matters. They would also handle appeals from the Military Courts country-wide. Associated with them would be prosecutors and investigating magistrates. The Courts of Appeals would guide and control the activity of District Courts in their regions.
5. Supreme Court of Cassation. This Court has supreme judicial supervision for precise and uniform enforcement of the laws by all courts in civil and criminal cases.
It would either affirm or reverse the decision it is reviewing, but would not itself decide on its merits the case it is reversing, other than by sending it back to the lower court for further action. On appeals it would sit in three-judge panels and for interpretative decisions it would sit en banc.
An interpretative decision does not normally arise from a specific case between parties (although it could), but rather is a general, legal pronouncement of principle binding on the lower courts and future litigants.
6. Supreme Administrative Court. This is the only court which would rule on conformity with the law of acts of the Council of Ministers and the individual Ministers. It would have associated with it prosecutors.
It would sit in three-judge panels on review of cases on appeal; it would sit in five-judge panels in ruling on acts of the Council of Ministers and the Ministers. In addition, it would sit as a general assembly when it interprets decisions on incorrect and contradictory practices of the administrative courts and decisions to refer a case to the Constitutional Court.
Existing judicial regions and seats would be preserved; acting judges, prosecutors and investigating magistrates would continue to perform.
J. The Legal Bar. The Bar is to be free, independent and autonomous. Its organization and manner of activity are established by the Law on the Bar (State Gazette No. 80, 9/27/91). There is pending a Law on Amendments of the Law on the Bar.
The Bar is to assist citizens and legal entities in defense of their rights and legitimate interests.
II. Constitutional Court. Technically not a part of the Judiciary, and hence not included under that heading (The Judiciary) immediately above, is the Constitutional Court.
The Constitutional Court has ruled that the existing Supreme Court (under the prior constitution) will exercise the function of the Supreme Administrative Court on the issue of the legality of actions by the Council of Ministers and the individual Ministers.
A. Organization and Structure. This Court consists of 12 justices, one-third of whom are elected or appointed by each of the following:
• National Assembly
• joint meeting of justices of the two Supreme Courts (existing Supreme Court until election of justices of Supreme Courts of Cassation and Administration)
The Constitutional Court Justices must be lawyers of high professional and moral integrity with at least 15 years of professional experience. Their terms are nine years and they cannot be re-elected or reappointed.
B. Functions. Its duties include:
• providing binding interpretations of Constitution
• ruling on challenges to constitutionality of laws and other acts passed by National Assembly and acts of the President
• ruling on competence suits between the National Assembly, the President and the Council of Ministers, and between bodies of local self-government and the State executive branch of government
• ruling on compatibility between the Constitution and international instruments concluded by the Republic prior to ratification and on compatibility of Domestic Laws with universally recognized norms of International Law and international instruments to which Bulgaria is party
• ruling on challenges to constitutionality of political parties and associations
• ruling on challenges to legality of election of President and Vice President or a Member of the National Assembly
• ruling on impeachments by National Assembly against President or Vice President
C. Operation. The Court may act, following initiative by:
• not less than one-fifth of all Members of the National Assembly
• the President
• Council of Ministers
• Supreme Court of Cassation
• Supreme Administrative Court
• Chief Prosecutor
• Municipal Council when it is involved in a competency suit with some agency of the State executive branch
Rulings require a majority vote of more than half of all the justices. Rulings are to be promulgated in the State Gazette within 15 days of their issuance and become effective three days after their promulgation. An act found to be unconstitutional ceases to apply on the date the Court's ruling comes into force. If only a portion of a law is ruled unconstitutional, any portion not so ruled remains in force.