Bulgaria: Judicial Reform For Economic And Social Prosperity

Last Updated: 4 January 2018
Article by Penkov, Markov & Partners

The need of a judicial reform in Bulgaria has been indeed widely discussed for more than 20 years, but even now there is an overwhelming perception that the state has not yet put forward this issue as its primary priority, and a most important means of establishing quick and fair justice.

Justice that is impervious to any political, economic or administrative influence and raises no suspicions of corruption.

The above-mentioned external influences nip in the bud the hope that an independent judiciary can successfully stand up to the other powers, acting in operational independence, submitting only to the rule of law. Only then would the court, through its decisions, really create a balance and generate confidence in the society that there is fairness in the administration of justice.

The judicial reform in Bulgaria is directly related to the need to implement the principle of the separation of powers, a fundamental principle of the constitutional state. This principle is directly linked to the rule of law and to ensuring the operational independence, within the powers granted to them, not only of the executive and legislative branches, but also of the judiciary.

There seems to be no place in the world where Montesquieu's principle of separation of powers is implemented. In the constitutional states, however, the necessary organisational and other conditions are in place for each individual power to be autonomous in its activities and to be governed by the rule of law, and no external influence, whatsoever, on the judiciary is permitted.

In different European states, the judiciary is structured differently.

In most countries the court and prosecution are completely separated, but in others the prosecution function is part of the judiciary. As in Bulgaria the prosecution is traditionally part of the judiciary, this is not the right time to change this tradition, but at least the full operative independence not only of the judiciary as a whole, but also the full autonomy of the court, should be guaranteed through the judicial reform.

Therefore there should be guarantees that the college of judges is independent from the other college, and even without the plenum it can resolve all matters relating to the organisation of the court, appointment, training and promotion of magistrates, their workload, and can nominate and elect supreme court chairs, as this is done for the lower instance courts.

This is a particularly sensitive matter, as the public at large has doubts not only about the progress of the judicial reform, but in general if there are in place the conditions for it.

There is no consensus and political culture in the society, parties, government, parliament and NGOs, that it is one of the most important priorities of the state. There is also disagreement on the particular measure for a successful judicial reform.

A successful judicial reform also involves creating appropriate conditions, environment and attitude of all stakeholders in the process, for continuously improving the qualifications of judges. The latter often have insufficient qualification and experience on important issues, mainly related to the implementation of economic legislation, such as the Commerce Act, Commercial Register Act, etc. They disregard the spirit of the law and the sense of justice, applying the letter rather than the spirit of the law, even where one norm is in conflict with another norm. This is particularly true for issues related to company and bankruptcy law, but also for more sophisticated commercial transactions. A direct consequence of the above are the unnecessary delays in court rulings, but what is even more important, the absolute unpredictability of the outcome of a dispute, and often the surprisingly inadequate and unfair rulings. What is meant is the unpredictability of the timeframes and content of a ruling, which are quite often contradictory.

Discussing and determining in advance the necessary court ruling or verdict by the media and the general public on individual high-profile cases, often exacerbated by the ill-judged statements of MPs, representatives of nongovernmental organisations and citizens, exert unallowable pressure and influence on the court.

Therefore, a change in the political culture is also needed, otherwise the confidence in judges and in the judiciary as a whole will be constantly undermined, no matter what legislative amendments are made and how many good experts of faultless morals we have.

This is exactly why such internal changes are needed, as well as changes in the environment, which would guarantee the independence of the judges.

A condition for this is the existence of political will in combination with a public consensus.

Indeed, we should not underrate what has been done so far, the constitutional amendments and the amendments and supplements to the Judicial System Act (JSA) passed in April this year.

The establishment of two separate colleges within the Supreme Judicial Council (SJC) – Judges Chamber and Prosecutors Chamber, which operate separately and independently and cannot (with certain reservations) influence each other, is the first huge positive step. The two colleges constitute the Plenum of the SJC, which principally makes decisions on certain general and organizational issues. What is positive is the introduction of open voting in the decision-making on all issues, with secret voting remaining only in the election of SJC members. I find it highly positive that the powers of both the two colleges and the Plenum are clearly defined. In line with their professional specialization, the colleges appoint, promote, transfer and remove from office; are obliged to make regular appraisals; and impose the envisaged disciplinary sanctions. In addition, they appoint and dismiss heads of bodies of the judiciary and decide on all organizational issues in relation to the activity of the relevant system of bodies.

The Plenum, for its part, adopts the draft budget, terminates the mandates of elected members, organizes the qualification of judges, prosecutors and investigators and decides on general for the judiciary organizational matters. In addition, of course, it hears and approves the annual reports and manages the real estate properties of the judiciary. It has in its competences to make a proposal to the President of the Republic for the appointment of the respective administrative officials.

For the first time the duties of the Inspectorate are so clearly defined. It has to carry out checks on the integrity of judges, prosecutors and investigators, and to examine the property declarations of the same. All this is an important prerequisite for effectively curbing possible malpractices existing so far.

The steps so far taken towards a judicial reform, with their transparency and common criteria for promotion, periodic appraisal encouraging the staff to continually improve their qualification, and last but not least, the clearly defined tasks of the Inspectorate, which has already become an active body, provide, I believe, conditions for resolving large part of the issues brought up by the European Commission. Judges should be appointed and promoted only in line with the clearly defined criteria, without skipping levels in the hierarchy. Thus, internal confidence and motivation are created in the system.

Another issue to be addressed is the much criticized and so far non-functioning random allocation of court cases, since the whole society requires this. Nevertheless, on this issue a system similar to the one operating in Germany can be implemented, which provides for allocation of court cases first to the best experts on specific issues, and then to the free judges, and only then under the principle of random allocation. This seems a better way of providing quick and fair justice, while the lack of public trust in the heads of courts could hamper the successful implementation of the judicial reform itself.

What should be ensured as a next step is that only the college of judges may nominate and elect chairpersons of supreme courts to be appointed by the President of the Republic on a motion by the Plenum. As a general rule, deputy chairs are to be elected only from the staff members of the same court, if there is no objective reason to decide otherwise.

In the future, decentralization of the public prosecution function should take place, providing for the independence of individual prosecutors from higher-level prosecutors, as well as the possibility of periodic inspection and accountability of the Prosecutor General. It is important to make such amendments to the Penal Code that would provide for effectively fighting corruption and organized crime. I believe it is easier to quickly make these amendments to the existing Penal Code, than to draft a new one, which is a rather time and effort consuming process, and in this area quick changes are quite simply imperative.

Outside the provisions of Judicial System Act, the actual operation of the principle of regular workload of judges should be ensured, as well as the continuous improvement of their qualification (which is particularly important in the random allocation of cases). Not less important are the disciplinary procedures, which are not just mentioned, but are really operative in cases of found malpractices, as well as the guaranteed enforcement of court rulings.

The introduction of e-justice is an important means of ensuring speed and transparency, and ultimately – fairness.

To create in investors the perception of security, fairness and equal footing, the relevant amendments should be made to the Commerce Act and the Commercial Register Act, with a view to preventing theft of businesses. It should be provided that within a set term the original documents of a company are to be deposited with and kept by the Register, thus preventing any misuse of documents. Uniformity of implementation of the law and the principle of competition in participation, should also guarantee future amendments to the Public Procurement Act. These precisely are the important prerequisites for predictability, fairness and promptness of justice.

Although each administration in the modern constitutional state should have at its disposal appropriate tools to fight corruption, consideration should indeed be given to the possibility of establishing a single body for fighting corruption, which according to various surveys and reports has spread out on different levels of governance.

The new amendments to the Constitution and the Judicial System Act could be a driver and motivator for the SJC to operate more efficiently through its two independent colleges and the plenum, initiating itself measures and actions, rather than acting on external ideas and outside pressure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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