Tony Dimov, Chairman of the Center for Regulatory Impact Assessment
On 13 June 2017 a Bill amending and supplementing the Criminal Procedure Code, No. 702-01-4, was submitted to the National Assembly. The submitter of the bill is the Council of Ministers.
The amendments and supplements to the Law on Normative Acts (LNA) that entered into force on 04.11.2016 laid the foundations of the reform of the Bulgarian rule-making process. The three pillars of this reform are mandatory impact assessment, mandatory structured public consultation and a preliminary check of the compliance of draft legislation with the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR). The first two are mandatory for all drafters and submitters of normative acts, the last one for the draft laws and codes submitted by the Council of Ministers.
And, surprise!
The website of the National Assembly shows that the bill submitted is accompanied by neither: a report with the results of an ex-ante impact assessment, nor a report on how the opinions received in a public consultation were taken into account, nor a report on the compliance of the bill with the ECHR and the case law of the ECtHR. Yet they are mandatory, and their absence, under the LNA and the current Rules of Organisation and Procedure of the National Assembly, is grounds for not considering the bill and returning it to the submitter to remedy the irregularities. But the bill was assigned to two standing committees – the legal affairs committee as lead committee and the European affairs committee as participating committee – and was adopted by them at first reading on 21.06.2017.
The argument for such “rushing through” of the bill is given in the submitter’s letter, signed by the Prime Minister and addressed to the Speaker of the National Assembly, which states that the bill was drafted and coordinated before the entry into force of the Law amending and supplementing the Law on Normative Acts (SG No. 34 of 2016) and, pursuant to § 9 of its Transitional and Final Provisions, is approved and adopted under the procedure in force until 4 November 2016.
But is this transitional provision applicable at all?
In our view, it is not applicable. The purpose of this provision was to give explicit legal regulation to so-called “pending proceedings”, i.e. so that those draft normative acts whose drafting and coordination had been completed by 4 November 2016 would not be sent back to square one. As regards bills, this means that those that were ready for submission to the then National Assembly (the 43rd) before the entry into force of the LNA could be submitted under the old procedure. If another interpretation were adopted, extending the scope of this provision of the law, it would lead to at least 2 legal absurdities.
The first of them is that bills drafted and coordinated during the terms of all previous National Assemblies from 1989 to the present could turn out to be exempt from the new mandatory institutions of Bulgarian rule-making that guarantee better regulation, such as impact assessment and public consultation. At least 4 draft amendments to the Criminal Procedure Code, of 21.10.2016, 25.08.2016, 03.07.2015 and 14.12.2012, are published on the website of the Ministry of Justice. Such a draft of 21.10.2016 is also published on the Council of Ministers’ public consultation portal, but none of them is identical to the one submitted to the National Assembly on 13 June 2017. How the submitter proves to society as a whole that this bill was drafted and coordinated in the past is not clear – yet this is the basis for it not being subjected to impact assessment, not being the subject of structured public consultation and not being checked for compliance with the European Convention on Human Rights, i.e. for it being pushed through under the old rules as if nothing had changed, as if there were no amendments to the Law on Normative Acts introducing mechanisms established in the EU for objectivity and transparency in regulatory decision-making, as if there were no regulatory reform…
The second absurdity is related to the “legal death”, undisputed in theory and practice, of all bills submitted to a parliament that it has not finally adopted, which occurs on the day it is dissolved. The absurdity lies in the fact that
under such a hypothesis, bills submitted to the National Assembly “die”, i.e. are deemed never to have been submitted, while bills not submitted, such as the Criminal Procedure Code in question, continue to exist beyond the life of the particular government and parliament and can be submitted by the next Council of Ministers to the next National Assembly, and without observing the new rules of our rule-making.
And does such an extensive interpretation of this transitional provision not circumvent the law?
In our view, definitely yes. The proposed amendments to the Criminal Procedure Code are substantial and can even be described as radical in some respects.
They aim to speed up the procedural development of the two phases of criminal proceedings, by proposing:
– the introduction of a preliminary hearing, at which questions concerning procedural violations committed in pre-trial proceedings will be finally decided;
– the possibility of terminating criminal proceedings as a sanction for their unjustified delay is removed, and a procedure for speeding up the proceedings in line with European standards and others is introduced;
– the circle of persons who can request the speeding up of criminal proceedings is widened, with such rights now granted not only to the accused and his defence counsel but also to the victim and to the injured legal entity in pre-trial proceedings, and others.
The draft proposes that, given the competence and greater specialisation of the Specialised Criminal Court, it should decide cases of high legal and factual complexity, providing for it to hear corruption offences for which members of parliament, ministers, heads of state bodies and other persons holding public office have been charged.
The proposed changes exclude review by the court of cassation of appellate judgments in privately prosecuted cases.
A set of legal rules is proposed with the aim of adequately applying the “ne bis in idem” principle where administrative-penal and criminal liability overlap.
The bill introduces the requirements of a number of EU legal acts – directives and framework decisions. For the first time, the procedure for making preliminary references on criminal-law questions is regulated, in a new stand-alone chapter of the code, and so on and so forth.
During the first-reading discussions in the parliamentary committees, it was stated that the bill was prepared by the Ministry of Justice in a working group with representatives of the prosecution service, the courts and the bar, and was discussed at a meeting of the Council for the Implementation of the Updated Strategy for Continuing the Reform of the Judicial System. Opinions on the bill from the Supreme Court of Cassation and the Supreme Bar Council were also presented. Who were the members of this working group? Where are these opinions? What were the results of the discussion held at some point in the past?
And why is there no impact assessment?
Why should there be no public consultation under the new rules of the LNA? What prevents a broad public consultation with all stakeholders for at least 30 days – publicly and transparently online – from being held for such an important bill introducing so many changes, their contributions being collected and taken into account, the government showing society that it legislates the European way, and the proposals then being submitted?
Why is there no check of compliance with the ECHR and the case law of the ECtHR?
Why has the drafter, the Ministry of Justice, not checked compliance with the ECHR and the case law of the ECtHR when the law obliges it to do so? After all, as stated in the explanatory memorandum, this draft Criminal Procedure Code aims to comply with a number of rules
of precisely the ECHR and the requirements of pilot judgments of the ECtHR? It is not clear.
Since all politicians today, especially those in power, talk about the scarcest commodity on the political market – the people’s trust in them – how will they achieve it with such a lack of transparency and legitimacy in the decisions they take…
*The article was written for De Fakto, and Tony Dimov’s title is a nod to Alexander Kashamov, who recently published a critical analysis of another “rushed through” bill, the one on the Administrative Procedure Code, namely A bill rushed through without discussion infringes citizens’ rights