|
1.
INTRODUCTION
1.1. Introductory
remarks
Further to the
“Mission Report on the Identification of Projects in the Field of
Justice and Home Affairs to be implemented under the
PHARE-Programme for Bulgaria”, which was drawn up after the JHA
Expert Mission to Bulgaria of 11 to 15 May 1998, I was asked by the
European Commission to work out the therein incorporated final
conclusions on the Justice chapter (chapters 3.4. to 3.4.4.) into
(advises on) concrete project proposals. These advises are to be
regarded and considered by the European Commission in order to
determine action programmes that could be implemented under the
European Commission’s PHARE programme in Bulgaria.
The scope of the
Mission Report of the Expert Mission of May 1998 was broader than
the proposals that are included in the present report. The reason
therefor is twofold. The conclusion of the experts in the first
mission was that a lot of diverse problems in the field of Justice
and Home Affairs are currently being faced by Bulgaria. The number
of possible areas for special attention is considerable, so that a
priority ranking of them had to be made. The report is thus limited
to the handling of only a certain number of points of particular
interest. Moreover, the conclusion of the experts was that the
short duration of the first expert-mission made any in-depth
analysis of the Bulgarian system and of faced problems in the field
of Justice and Home Affairs very difficult. Therefore mention was
made of the fact that the report could only reflect a partial view
of the situation in Bulgaria. This counts both for the complete
report as for the different chapters, so also for the chapter on
Justice. With this remark in mind, chapter 4 of the expert mission
report indicates a set of four main focussing points in the field
of Justice and Home Affairs, which should be regarded, in the
opinion of the reporting expert, as fields of priority to be worked
out for implementation under the PHARE programme for Bulgaria. The
European Commission has taken over this conclusion and has stressed
the four fields as the fields of prime interest. These fields are
the Strengthening of the (independence of) the Judiciary, the
Reform of the Court Administration, the Creation of a new Concept
of Criminal Procedures and the Improvement of Legal Aid. The choice
for these four items does not mean that other items mentioned in
the field of Justice and Home Affairs are of less or other
importance. Other important subjects within the ongoing reform of
teh Judiciary are for example the legal framework of the civil
process, the Law on the enforcement of punishments, etc. Further
one can think about the transparency of teh judicial system and its
work. Yet, attention will first be paid to these four items,
because of their prime importance for the establishment of the rule
of law, for the indication of the presence of a democratic society
and for the creation of conditions for both the judiciary itself,
for the bench and for the person seeking justice for the good
functioning of the concept of trias politica.
top of page
1.2. The Present Report
Since the present
report is meant to be a further and more detailed elaboration of
the PHARE project proposals of chapter 4 of the mission report in
order to come to concrete project proposals under the PHARE
programme, this report focuses on the above mentioned four
subjects. This is not only important to mention to indicate the
(limits of the) scope of the present report, but the more because
of the great amount of (materialistic) desires and proposals that
are handed out by the Ministry of Justice and European Legal
Integration (MJELI) on several occasions. These desires and
proposals are taken into consideration for as much as they could be
integrated in the scope of the assignment that forms the basis of
the present report. Yet, the main target groups of the current
proposals are the Judiciary and the Bar, whilst the MJELI and its
particular wants and needs are taken into consideration as derived
wants and needs. On the further path they should be regarded as of
importance for creating and maintaining the balance between the
Judiciary, the Bar and the executive.
With the above
mentioned concrete and limited assignment in mind, a second expert
mission was undertaken to Bulgaria. Both the outcome of this second
mission, the information gathered during this and earlier missions
and the information received by the author after the mission
through the various discussion partners have formed the basis for
this report. Mention should be made of the fact that some promised
information has not been received by the author, especially more
detailed plans and summaries of actual wants and needs of the Bar
and the General Public Prosecutors Department. This has limited the
possibilities for a further and more detailed elaboration to a
certain extent. It has to be considered what might be the effects
of this lack of providing information and how this could be handled
on the further path of the implementation of the PHARE programme
for Bulgaria. Nevertheless, the information that was gathered and
received during this and the earlier mission gives a more complete
view of the actual needs and wants and the problems that are faced
by the various legal actors. For that reason, this report can be
considered to be a firm basis for actual implementation of concrete
project proposals.
top of page
1.3. Problems Encountered
and Mentioned
During especially
the second mission it was made quite clear by almost all of the
various
discussion partners
that one of the most serious problems that are momentarily faced in
the process of change and progress in the reforms that take place
or should take place within the Judiciary and the administration of
justice is the relationship between legal practitioners and the
MJELI. This relation was characterised as bad, both with regard to
communication as to actual co-operation and support in the process
of change. The actual wording that was used in this respect was
that there is a lack of trust or even distrust with the legal
actors spoken to towards the MJELI. This reproach is to be taken
seriously, especially when is considered that these critics were
uttered in one way or the other by all discussion partners.
Moreover, during the meeting with the Deputy Minister of MJELI, the
above mentioned critics were confirmed out of own experience and a
general impression of putting pressure and of demanding behaviour
was left. Nevertheless, mention should be made of the fact that in
further discussions with staff members of the MJELI the attitude
was co-operative and positive. The MJELI is, amongst others,
reproached to not communicate with the actors in ‘the field’, to
claim all funds / sponsors for specific programmes and initiatives
of the legal practitioners for themselves, to hinder the
Prosecutors Department in executing ideas and activities (without
specifying them) and to be a not reliable and trustworthy party in
the developments and activities with regard to the current changes
and possible programmes for aid and assistance.
Besides these
relational problems, mention was made by several discussion
partners of the fact that the existence of the investigators causes
difficulties within the functioning of the Judiciary, especially
for the Public Prosecutors, with regard to the division of powers
and competencies._ Furthermore, it was indicated that the existence
of the Inspectorate for the Judiciary, as a fully executive body,
and its powers and advisory competencies_ in case of
none compliance with the regulations and rules for the financial
administration and the administration in figures of the court
activities towards the responsible magistrate are considered to be
in breach with the judicial independence. It seems to be a
nevertheless powerful but strange institute within the judicial
framework. A change of the system in this respect should be
considered.
Different
information was received about the founding of a school for
magistrates. Yet, it was made clear that there has not been a
decision on the legal status of this school. The NGO-form does not
meet approval from all sides. This has for consequence that the
developments in the foundation of the school are hampered. The lack
of a legal status of the school causes difficulties in deciding on
the structure and composition of the board of the school (a
NGO-form is considered), the nomination of the director, the
staffing of the institute etc. At the basis of these difficulties
could be the more general observation that also the relation
between the Bench, the Public Prosecutors Department and the
Investigators suffers from certain difficulties. This difficulties
in the relations seem to have impact on the foundation of the
school of magistrates. It is not easy to get a good understanding
of the reasons for the difficulties in the relations between the
magistrates. On the one hand this laborious relation could be
explained out of historical reasons, on the other hand, one should
not deny the existence of a certain feeling of jealousy between the
various judicial actors. On first sight there is the impression
that the Bench is a bit ahead of the other magistrates in the
developments, because they have already reached some things on
their own (without perhaps having understanding of the difficulties
that had to be overcome to get that far). This might give rise to a
certain feeling of misunderstanding. Although there are certain
difficulties in the professional relations, in the informal
relations between the magistrates there is no sign of difficulties.
Possibly, out of that the conclusion could be drawn that
co-operation is very well possible when important issues are at
stake. Beforehand, there is at least no reason whatsoever to
consider such a co-operation not possible. What is also important
to remark in this respect is the general feeling that, although the
funding of the start of a school of magistrates seems to be no
problem, the sustainability of it is. It is generally stated that
the MJELI should take over the funding of the school in time.
Guarantees therefor should be created..
A more general
problem that was mentioned during the discussions is the quality of
the basic university legal education. At the beginning of the
nineties there has been a flood of newly founded universities. The
quality of the education they provide is very different. This has
for effect that young lawyers of very different quality in legal
education apply for a position as magistrate or advocate. Having
this in mind, this asks for a very good and well-balanced system of
recruitment and selection for these legal practitioners. Strong and
heavy entrance exams could be considered. Yet, although this being
out of the scope of the present assignment, attention should be
paid to the criteria that are to be put to the foundation of
universities, as well as to the quality of the education they
deliver. A system of control to guarantee a minimum of quality
should be developed, in order to maintain a balance between the
different providers of basic legal education at university
level.
Finally, the
importance of a strong Bar has to be underlined. As a mayor
participant in the administration of justice, the Bar is of direct
influence on the quality of the judicial procedure and therefor on
the outcome of the work of the Judiciary. Besides that, a strong
Bar forces the Judiciary to take the necessary measures and
initiate activities to - at least - keep up with the level of the
advocacy. It will create an impetus on the Judiciary to continually
train and school their members. Furthermore, in a democratic
society a balance between all parties involved in the
administration of justice is of great importance; they check and
balance each other mutually. It is therefor necessary to involve
the advocacy in the planning of the activities under the
PHARE-programme. The current report will therefor include
propositions for the strengthening of the Bar.
top of page
1.4. The Set-Up of the
Report
This report will
focus on the four above-mentioned items of the research in order of
prime importance. Although the four items are treated separately,
it should be taken in mind that they interrelate and are
interdependent. The recommendations should therefor be regarded in
their mutual context, as far as not indicated per item. After the
explanation of the four items, a general chapter is added, in which
additional information and overall recommendations are mentioned.
The report is closed with a concluding chapter. Annexed is chapter
4 of the report of the expert mission on needs assessment, in which
the conclusions of that mission on the specific item of the
Judiciary are enumerated. This chapter forms the basis of the
assignment that led to the current report.
top of page
|
