Last week the Sofia City Prosecutor’s Office reached new legal heights after indicting prosecutor Konstantin Sulev for an offense concerning their professional conduct because last year he accused Peter Petrov, nicknamed “The Euro”, without evidence.

If one day Mr. Sulev decides to seek justice for his violated rights and if our state fails to guarantee him effective domestic remedies, he will probably have grounds to do so before the European Court of Human Rights (ECtHR). If that happens, it will be far from the first judgment against Bulgaria. Many citizens have been harmed as a result of action or inaction by the judiciary. And this has always been at the expense of the taxpayer.

In addition, some judges and prosecutors who became the cause of the judgments against Bulgaria in Strasbourg not only bear no responsibility but on the contrary, enjoy enviable career advancement¹, which creates a strong sense of injustice among the citizens who bear the financial burden for all this. While the idea of holding officials personally liable for damages for laws they had violated is not a taboo subject, but a desirable outcome, the possibility of the state seeking recourse action against a magistrate who has caused harm due to their act sounds heretical.

This is because, unlike representatives of the executive branch, those of the judiciary are not criminally and civilly liable for their official acts and rulings unless they are intentional offenses. Otherwise, the independence of the judge and the autonomy of the prosecutor would be jeopardized. Thus, the functional immunity of magistrates guarantees their independence in the performance of their duties but does not make them untouchable, since they are liable for acts outside their work like anyone else.

However, would this proposal be so heretical if the harm caused by a magistrate was due to malice/bad faith or gross professional negligence? According to the Advocate General at the Court of Justice of the European Union (CJEU), Michal Bobek, and the Court itself², EU law is compatible with the possibility that

“for the State subsequently to bring a recovery action for civil liability against the judge concerned in cases of bad faith or gross negligence on the part of that judge, provided that those procedures offer sufficient guarantees to ensure that members of the judiciary are not subjected to direct or indirect pressure liable to affect their decisions”³.

The European Charter on the Statute for Judges also provides that, although compensation for damages is provided by the State, the State can apply “within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties ” (§5.2). The Venice Commission, in Opinion No. 847/2016, CDL-AD (2016)015, Amicus Curiae Brief for the Constitutional Court on the Right of Recourse of the State against Judges (Republic of Moldova), also notes that judges should not be held individually liable in the performance of their official functions, except in cases of malice or at least gross negligence (§18).

Recommendation CM/Rec(2010)12 of the Committee of Ministers on Judges: independence, effectiveness, and accountability state that

“[t]he interpretation of the law, assessment of the facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence” (§66).

In Opinion No. 18, the Consultative Council of European Judges (CCJE) quotes the Recommendation adding except “in cases of malice, wilful default or, arguably, gross negligence” (§ 37), supplementing its Opinion No. 3, according to which the only exception is wilful default. According to the Advocate General’s conclusion, the European Commission considers that, if there is bad faith or gross negligence and the necessary procedural safeguards are in place in seeking it, such liability is not an issue. Although the focus here is on judges, what has been said applies with equal and even greater force to prosecutors, since they are not concerned with independence, but autonomy.

This issue is particularly sensitive as it is on the borderline between judicial independence and judicial accountability and depending on the national context may give rise to risks of abuse and undue pressure on judges. Precisely in order to strike a balance between the requirement for greater judicial accountability and the fundamental principle of judicial independence, the above-mentioned international bodies have generally been willing to accept the possibility of limited personal liability of judges, as long as there are respective specific safeguards such as:

• Only exceptionally and only if there is malice/bad faith or gross professional negligence, i.e. the existence of an ECtHR judgment (or settlement) cannot in itself be a basis for seeking civil liability unless intent or gross negligence is proven. Or as the CJEU has held, “only in exceptional cases, in which serious individual culpability on their part has been established”;
• Only the State, by way of recourse action, can hold a magistrate civilly liable after it has paid compensation, i.e. there must be an involvement of a competent national court;
• The referral to the competent judicial authority must be made in prior consultation with the relevant judicial council or other corresponding authority. It is possible that the judicial council (instead of an executive authority) could be the body competent to bring the recourse action;
• Recourse action may not be an obligation of the public body seeking recovery, but only an option;
• In the case of Romania, the Venice Commission, in Opinion No 924/2018, CDL-AD(2018)017, concerning legislative amendments related to the judiciary in Romania, recommends that recourse action should be sought only after disciplinary proceedings have been concluded. According to the EC, recourse may be limited to cases of both disciplinary and criminal liability (established by a final conviction).

As we have already had to comment⁴, if the violations are not grave, this should be reflected in the judicial evaluation of judges and prosecutors, respectively in their career development.

How the balance between accountability and independence of the judiciary is achieved depends on the legal reality and traditions of the particular country. As Bobek himself notes, different jurisdictions have different approaches and some apply the “general regime of recovery from civil servants to judges,” others have additional conditions such as a prior conviction or disciplinary decision, limitation of the maximum amount of compensation payable by the judge, partial reimbursement of damages paid by the State in the context of the criminal, or disciplinary proceedings themselves.

Therefore, as the CJEU stated in its judgment, it is crucial that personal liability for miscarriage of justice in the context of a recourse action

“should be limited to exceptional cases and be governed by objective and verifiable criteria, arising from requirements relating to the sound administration of justice, and also by guarantees designed to avoid any risk of external pressure on the content of judicial decisions and thus to dispel, in the minds of individuals, any reasonable doubt.”

The question we pose cannot be exhausted within the confines of a short article such as this. Our main goal is to attract attention and spark debate on a controversial topic. As is evident, the ability of the state to impose limited civil liability on a magistrate may not exclude the principle of judicial independence, provided this is done in well-defined cases, under clear rules and there are pre-established safeguards to ensure that this mechanism is not used arbitrarily to create a chilling effect on magistrates. Such a balance between accountability and independence – and only in flagrant cases where there is a real abuse of power or gross negligence – could, in addition to having a disciplinary effect, play a role in improving citizens’ confidence in the judiciary.

References

1 Denitsa Valkova – although she became the cause of an ECtHR conviction (because of the case against journalists Katya Kasabova and Bozhidar Bozhkov), the judge later became deputy Minister of Justice, and later a judge in the SCC; Sotir Tsatsarov – also became the reason for the conviction of the country by the ECtHR, but this did not prevent him from becoming Prosecutor General, and later the head of the KPKONPI: https://www.segabg.com/hot/category-bulgaria/strasburg-osudi-bulgariya-zaradi-sudebno-reshenie-na-cacarov, Ivan Geshev (Banevi v. Bulgaria) – from prosecutor in the Specialized Prosecutor’s Office became Prosecutor General – https://www.svobodnaevropa.bg/a/31505300.html, Kalin Bliznakov (Popovi v. Bulgaria) – from the SRP to the Specialized Prosecutor’s Office, and now to the SGO, and other judges and prosecutors.

2 DECISION OF THE COURT (Grand Chamber), 18 May 2021.

3 Opinion of the Advocate General M. Bobek in Case C-397/19 ‘AX’ v Statul Român – Ministerul Finanţelor Publice (Reference for a preliminary ruling from the Tribunalul Bucureşti (Bucharest Regional Court, Romania))

4 Attest to this: https://ime.bg/articles/atestirai-tova/

Written by Ekaterina Baksanova

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