OPEN LETTER: Judge Todorova's removal is an alarming precedent of arbitrary repression
Sofia, July 17th, 2012
The Council of Europe Commissioner for Human Rights
PACE Committee on Legal Affairs and Human Rights
Special Rapporteur on the Independence of Judges and Lawyers
International Association of Judges
International Commission of Jurists
Human Rights Watch
We are writing to you with concern about the removal from office of Judge Miroslava Todorova, Chairperson of the Bulgarian Judges Association (BJA) and a criminal judge at the Sofia City Court, by the Supreme Judicial Council (SJC) of Bulgaria on 12 July 2012. We see this as an alarming precedent of arbitrary repression against a judge and a reform-minded activist because of her criticism of interferences by the executive branch of government in the work of the judiciary, and of the consistently poor management of Bulgaria’s judiciary.
Disciplinary proceedings against Judge Todorova, which resulted in the imposition of the heaviest possible punishment of a judge under the law, were initiated by a motion of five members of SJC. Thus, SJC acted as both a prosecutor and an adjudicator in these proceedings, which were held behind closed doors. Moreover, Judge Todorova was neither informed nor heard in person; she was in the courtroom, hearing cases at the time. The formal reason for her dismissal was her delay in writing the reasoning for three cases, which she heard seven-eight years ago. In one of the cases, she delivered an acquittal, which was confirmed by the appellate court. According to Judge Todorova, the lack of reasons in the other two cases, though regrettable, had not aggrieved the procedural rights of the defendants.
In its decision to dismiss from office Judge Todorova, SJC did not take into account some of the systemic problems of the Bulgarian judiciary, the failure of which to be resolved is attributable in the first place to SJC, as well as to other governmental institutions. Among others, these include the poor resourcing of the administration of justice and the uneven distribution of cases to different courts and judges across the country. Thus, along with judges who receive very few cases in the course of their work, there are judges who have to deal with an excessively high amount of cases, far beyond their objective personal capacity. The Sofia City Court, where Judge Todorova works, has always been among those with the heaviest workloads. In 2009, she had to deal with 250 criminal cases, over 100 more than the average number of cases falling to one judge in the penal division of this court. In 2010, she received 218 cases and in 2011 she had to deal with 309 cases, again more than any other judge in the penal division of her court. Despite this unbearable case load, Judge Todorova did remarkably well in dispensing with her cases. In her entire career she has only one judgment overturned by the appellate court and her professional expertise had been highly appreciated with her involvement as an instructor at the National Institute of Justice, as well as with her election as Chairperson of BJA, a professional association with close to one thousand members. After the dismissal of Judge Todorova, 51 judges from the Supreme Court of Cassation said in a statement that she is “an undisputed professional.”
SJC tries to justify its repressive measure by pointing the finger at a serious problem of the Bulgarian justice system – the excessive length of criminal and civil proceedings. This structural problem of the system has resulted in numerous condemnations of Bulgaria by the European Court of Human Rights, including the two pilot judgments in the cases of Dimitrov and Hamanov v. Bulgaria and Finger v. Bulgaria of May 2011. SJC has decided to deliberately target just one person, turning a blind eye to the objective aspect of the very important problem with the excessive case load of judges. For more than four years of its mandate, SJC, as well as the Bulgarian government, completely disregarded the execution of the judgments of the European Court of Human Rights, which, along with excessive length, reveal other structural deficiencies in the administration of justice. Since the beginning of its mandate the number of the Court’s judgments pending for execution before the Committee of Ministers has tripled. At present, the Committee of Ministers monitors the execution of 373 judgments of the Court against Bulgaria, some of which were delivered as early as 2000. Disregarding the need for reform of the Bulgarian judiciary, SJC has laid the blame for years on the judges from the courts with the heaviest workloads due to their objective inability to deal with the excessive case load within the formal deadlines. Now the SCJ has gone one step further by selectively using this against Judge Todorova, one of the judiciary’s symbolic representatives, in order to control all of them through the imposition of arbitrary disciplinary measures.
The regulatory practice of SJC reveals a serious functional problem. It does not focus on managerial approaches to support judges in dealing with their case loads and on improving their expertise. Instead, it focuses almost exclusively on uncovering offenses, initiating disciplinary proceedings and punishing the magistrate who was unable to deal with their case load. In the instant case, however, SJC followed this flawed approach selectively. Over the past two years cases of delayed preparation of judicial acts have been reported in many media outlets, yet SJC took no action on those cases. In the above-mentioned statement the judges from the Supreme Court of Cassation state: “Our daily practice confronts us with many cases where procedural deadlines are not respected, yet these are not dealt with through disciplinary punishments.”
Judge Todorova and the Bulgarian Judges Association that she leads have acted as vocal critics of the interference of the executive branch into the work of the judiciary and of their bad management of the Bulgarian justice system. Already at the beginning of its mandate in 2009, top representatives of the current government initiated systematic attacks against the judiciary. This has overwhelmingly been the case with the Deputy Prime Minister and Minister of Internal Affairs Tzvetan Tzvetanov, who has on many occasions blamed individual judges and the judiciary as a whole for the mishaps of the police in the fight against organised crime and corruption. Although general in content, many of his statements were made on specific occasions, for example, after a court’s refusal to remand in custody a person arrested by the police. In February 2010, Tzvetanov threatened judges with police files he had in his possession, which would in his words “make teeth fall,” and in July 2011, he declared that he is going to name police operations after specific judges. BJA expressed concerns on several occasions over these statements of the Interior Minister, citing the violation of the presumption of innocence of the defendants, as well as his arbitrary attacks on the judiciary. In July 2010, BJA called on the judges in the country to express concern over the “difficult and hostile conditions” in which they work and over the incessant attacks by representatives of the executive branch against the judiciary.
Over the past two years, several international organisations have expressed concerns over the undermining of the judicial independence in Bulgaria as a result of illegitimate interference by the executive branch. In August 2011, such concerns were expressed by the UN Human Rights Committee in its concluding observations after Bulgaria’s review before that body; in April 2011 by the European Association of Judges; and in May 2011 by the UN Special Rapporteur on the independence of judges and lawyers Ms. Gabriela Knaul.
The statements of BJA and other non-governmental organisations against the undermining of the judicial independence did not, however, deter Minister Tsvetanov. In January this year, he personally accused Judge Todorova of tolerating organised crime. This led her to bring a defamation law suit against him, which is currently pending, and is possibly one of the reasons for the SJC’s vendetta against her.
In the debates over the attacks by the executive branch on the judiciary over the past three years, SJC has never taken the side of the judges and never condemned the actions of the Deputy Prime Minister. On the contrary, with a number of acts SJC displayed servility to the government that went far beyond ethical standards. Already since the beginning of this government’s mandate, it started to appoint judiciary magistrates, who were personally close to Tsvetanov, to leadership positions. In some cases, this took place openly, while in others appointments were brokered through lobbyists. In a letter to SJC from September 2009, BJA expressed concerns about the unprincipled appointments in the judiciary through illegitimate means. The culmination of this process was the appointment by SJC in May 2011 of a family friend of Tsvetanov, Judge Vladimira Yaneva, as Chairperson of the biggest court in Bulgaria – the Sofia City Court. The three other judges, who took part in the competition, were rejected although they had far better credentials in terms of experience and expertise. Two SJC members, respected judges, resigned in protest over that decision. On its part, BJA demanded the resignation of the entire SJC. The response of the latter was an initiation of disciplinary proceedings against the association’s Chairperson, Judge Todorova, which led to her dismissal last week.
The dismissal of Judge Todorova took place during a period in which judges from all over the country were holding assemblies to select delegates who are going to elect the magistrate’s quota for SJC. These assemblies of judges also nominate candidates for the new SJC, which is expected to be constituted in the autumn of this year. Thus, her dismissal demonstrates a clear goal – to threaten judges and force them to select persons who are servile to the government or at least indifferent to its interference.
The unprecedented act of SCJ has provoked a serious outcry in Bulgaria’s judiciary and in the human rights community. It was publicly condemned by a number of non-governmental organisations, as well as by individual judges from all over the country. Protest statements were issued also by the Prosecutor’s Association, the Supreme Bar Council, the Sofia Bar Council and others. On 13 July, more than 200 judges and citizens took part in a public protest in front of the SCJ building in what became the first public protest of judges in Bulgaria’s history.
With this address we want to engender your concern towards this political attack on the independence of the judiciary in Bulgaria. Judge Todorova’s dismissal is an obvious attempt at silencing judges’ critical voice against the attempts to undermine their independence. It is an assault against the rule of law and ultimately against the system of protection of the rights and interests of Bulgarian citizens.
Association for European Integration and Human Rights
Bulgarian Lawyers for Human Rights
Bulgarian Institute for Legal Initiatives
Bulgarian Helsinki Committee
Institute for Public Environment Development
Program for the Development of the Judicial System
Center for the Study of Democracy
Center for Liberal Strategies
Non-Governmental Organizations Center – Razgrad