The possibility of imposing the safeguard clause still continues to threaten Bulgaria’s accession to the European Union (EU) scheduled for January 1 2007. If the clause is invoked, accession will be delayed by a year.

Bulgaria has less than two months before the release of a crucial European Commission report on the country’s readiness to join the EU, and every sign, statement or even gesture by an EU official makes the news in the local media.

The week was full of important events and official visits for Bulgaria but so far the public has not received a clear answer whether the safeguard clause would be imposed and what is the real situation with Bulgaria’s judicial system.  

Expectations were high on April 3, when EU enlargement commissioner Olli Rehn gave the European Parliament’s foreign affairs committee his preliminary assessments on the progress of Bulgaria and Romania in meeting reform targets set under the baseline scenario for joining the EU.

Despite the great expectations, Rehn’s report did not reveal whether the safeguard clause would be imposed against Bulgaria.

“For both Bulgaria and Romania, the 2007 target date is still doable, but it requires a completion of the reforms and their implementation,” Rehn said, after listing key areas of concern for both countries in a closed-door hearing in Strasbourg.

The most recent enlargement of the EU was in 2004 when eight central European former communist states joined the EU together with Cyprus and Malta, leaving Bulgaria and Romania out of that wave of expansion.

Bulgaria signed its accession treaty with the EU in April 2005. The safeguard clause is part of the treaty and if imposed, the country would face a one-year delay. Since then the EU has made it clear several times that Bulgaria’s entry may be delayed until January 1 2008 if the country fails to come up to scratch.

“As you can conclude for yourself, the jury is still out,” Rehn told EU legislators. Rehn is due to give his final assessment next month, and EU leaders are expected to take a final decision at a June summit in Brussels. However, Rehn highlighted several shortcomings for both countries.

“Romania is on track with reforms of the judicial system, provided that the current pace of implementation is maintained,” Rehn said.

Regarding Bulgaria, however, Rehn’s verdict was slightly different. He said that there was “limited” progress in reform of the judiciary.

The judicial system has been the main issue in Bulgaria in regard to EU accession in recent months. The Government, led by Prime Minister Sergei Stanishev, has been at pains to make it clear that reform of the judiciary will be implemented. On March 31, Parliament approved the third and final reading of amendments to the constitution providing for changes to the judicial system.  

With 184 votes in favour, 35 against and one abstention, Parliament approved several amendments to the constitution. The objective of the amendments was to streamline the judicial system and to attempt to satisfy the requirements of the EU.

The amendments, according to the Government, are meant to improve co-ordination and co-operation among state institutions, further developing the principle of division of powers and strengthening the independence of the judiciary.

The changes also aim to provide for accountability in the system of courts and prosecution, a lack of which has been cited frequently by EU officials as one of the reasons for high-level corruption and organised crime.

This is the third package of constitutional amendments approved in the past two years, and is aimed at cutting back the immunity from prosecution of magistrates, lawmakers and other high-ranking state officials, as well as harmonising all clauses of the constitution with the recently-approved new Penal Code, which is to come into force in a few days. The amendments to the statutes were based on recommendations by the EU aimed at stepping up the fight against corruption and crime, and have been crafted to attract favourable comment in the European Commission monitoring report to be issued on May 16.

Speaking in Parliament after the vote, Mihail Mikov, the floor leader of the Bulgarian Socialist Party - the largest bloc in the coalition Government - said: “The changes can be seen as a powerful message to Europe”.

According to one of the amendments, the Prosecutor-General may table a request for the lifting of an MP’s immunity for all crimes. MPs and Constitutional Court judges will no longer have administrative and civil immunity. The amendments provide for procedures for Parliament to receive, and vote on, annual reports by the chairpersons of the Supreme Cassation Court and the Supreme Administrative Court and the Prosecutor-General on the performance of law courts, prosecution offices and investigative services. The purpose of these reports will be to ensure improve transparency in the operation of courts. The amendments also provide for Parliament to elect an Ombudsman who has the task of defending citizens’ rights and freedoms.

The Ombudsman will have the right to petition the Constitutional Court on the constitutionality of laws violating citizens’ rights and freedoms. The President of Bulgaria will be responsible for dismissing chairpersons of the supreme courts and the Prosecutor-General, once a proposal to this effect has been put forward by the Supreme Judicial Council (SJC). In the event of continuous inability to discharge their official duties for more than a year, or serious violation or repeated dereliction of duty, or action damaging the prestige of the judiciary, supreme judges will be suspended at the proposal of at least a quarter of the MPs in Parliament. A decision to dismiss them from office will require the votes of more than two-thirds of MPs.

The President will not have the right to reverse such a decision when the decision follows a second proposal. Another amendment gives the Justice Minister the right to draft the budget of the judiciary and to submit it to the SJC for consideration. The Justice Minister will be in charge of managing the judiciary’s property, making proposals to the SJC concerning the appointment, promotion, demotion and dismissal of judiciary members, organising their special training and overseeing their work concerning the institution, movement and ending of legal cases.

The changes were harshly criticised by members of the opposition, who described them as inadequate and meant only to give the EU the impression that action was being taken. Eleonora Nikolova, an MP for the centre-right Union of Democratic Forces, accused the Government of failing to properly consult the right-of-centre political spectrum, the judiciary and civil society prior to the adoption of the amendments.

Ekaterina Mihailova of the right-wing Democrats for a Strong Bulgaria (DSB), said that the DSB opposed the amendments because they did not envisage division of the court from bodies in charge of pre-trial proceedings.

Pavel Chernev, deputy floor leader of the ultra-nationalist coalition Ataka, said: “The amendments to the constitution are aimed to consolidate further the ruling majority”.
Voting on the amendments took place at the same time as a visit by Geoffrey Van Orden, European Parliament Rapporteur for Bulgaria. After meeting Stanishev, Van Orden expressed optimism about Bulgaria’s accession to the EU as scheduled. Although Van Orden welcomed the approval of the amendments, he said that it was premature to say whether any of the safeguard clauses in the accession treaty would be invoked.

“At present there is a process of change of increasing speed and intensity and the delays of the past are being overcome”, Van Orden  said.

In that sense his comment was no different than the one that Rehn gave several days later. “Activation of safeguard clauses and postponement are different things, and there are a number of safeguard clauses that might be activated, which depends on various factors,” Van Orden said. However Van Orden did not specify what these factors were, leaving the Bulgarian public in a state of suspense.