2. THE FOUR MAIN ITEMS

2.1. Strengthening the Judiciary

2.1.1. General Remarks

Strengthening of the Judiciary in Bulgaria is of primary importance. It is one of the basic conditions for the Judiciary to meet the obligations for adherence to the European Union. To make it possible to integrate the acquis communautaire into the Bulgarian judicial system, its laws and procedures, the Judiciary should be given the right possibilities and means, so these can create the right circumstances to implement the acquis. This asks for a great effort of all concerned, which should be made in joint co-operation. Besides possibilities and means, adaptation of the acquis, changing and fine-tuning of the existing system(s) takes time. It is therefor necessary that for the implementation of the PHARE-programme and the execution of the activities to be taken in that respect a realistic and well-considered timetable is drawn up.

Of the utmost importance to reach a situation in which the conditions are present to meet the acquis communautaire is to strengthen the position of the Judiciary, the organisation and structure of it and the conditions under which the Judiciary has to work. Both the materialistic and, even more importantly, the immaterialistic facilities (status, knowledge, power) should be (created or) strengthened for the Judiciary to perform its duties in a democratic society. This is the minimum condition for a stable Judiciary.

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2.1.2. The Amelioration of the Status of the Judiciary

In order to increase the impact and authority of the Judiciary within society, it is imperative to ameliorate the status of the Judiciary. To reach this goal, it is in the first place necessary to set up a recruitment and selection procedure for a position within the Judiciary. Without a consistent and equivocal system for entering the Judiciary, it is merely impossible to regulate the impute of personnel into the Judiciary. Especially since the quality of the basic university education is of a doubtful level, as mentioned above, it is all the more important to select the best people for the Judiciary. Subsequently, a balanced and well-structured training and schooling programme for the thus selected persons should be offered. Because the university legal education only focuses on imparting basic legal knowledge, skill oriented training should be provided in the form of both initial and permanent training. By training and schooling the Judiciary can meet the high standards needed to perform their duties, also with regard to international standards.

Secondly, attention should be paid to give more ‘backbone’ to the Judiciary as a whole vis-a-vis the executive and legal state powers, in order to strengthen its position. Also in this respect training and schooling play an important role. Furthermore, competitive salaries and availability of the latest professional information add to the position of the Judiciary, characterised by independence and none liability to undemocratic features as bribery and nepotism. After all, the Judiciary is the third state power and should be recognised as such!

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2.1.2.1. Recruitment and Selection Procedure / Training and Schooling

The first goal can be reached by facilitating and ameliorating the methods for recruitment and selection or even create such methods, as far as they do not exist yet. Use should be made of the already existing methods for selection. They should be expanded, ameliorated and adapted to standards for selection and recruitment of professionals. Furthermore, training programmes for the Judiciary have to be developed and implemented in a structure of training and schooling. Attention should be focussed firstly on the training and schooling of judges and public prosecutors. Training and schooling of the investigators could best be combined with training and schooling provided for the police, taken in consideration their deviant position, function and powers in the judicial procedure. Training of legal staff (legal secretaries) and the administrative staff is only to be taken up on a later stage.

Concrete actions to be taken in this respect are:

To compose a working group that will consider the setting up of a recruitment and selection system to enter the Judiciary. This working group will have to map the existing methods of recruitment and selection of members of the Judiciary, evaluate them and discuss adaptations to them or the setting up of new possible ways of selection and recruitment, the responsible organisation for it, the contents of the procedure and the conditions that should be set to enter the Judiciary and to be able to take part in the selection procedure. The working group must consist of all professional groups involved in the Judiciary. The Supreme Judicial Council could be involved. Recruitment and selection procedures existing in other countries can be used as example. The working group must propose concrete plans for a uniform recruitment and selection procedure for the Judiciary, an implementation plan and a timetable for execution.

To set up a training programme for the initial training of magistrates, again a working group, composed of at least magistrates and experts in didactical and training matters, should be established. The activities of the working group should focus on items such as determining the responsible organisation for initial training and education, structuring the education, curriculum building and terms to be met at the end of the training period. Also in this respect a comparative study of initial training programmes abroad can be undertaken. Expertise from a training institute or person responsible for initial training of members of the Judiciary out of a Western country could be integrated, for example in the form of bilateral co-operation.

To develop training programmes for the permanent training of magistrates. For all three groups within the Judiciary special programmes, preferable functionally oriented, must be developed. Functional training means that every functionary within the judiciary has to meet requirements with respect to the execution of his function and that training should in the first place be aimed at imparting the necessary knowledge and skills to perform the duties. It should be considered, depending on the actual needs and the knowledge already present, whether the focus should be put on training in general judicial skills (ethics, independence, communication, writing verdicts, presentation etc.), rather than on training in the substance of law, or not. The activities of the working group should focus on items such as determining the responsible organisation for initial training and education, structuring the education, curriculum building and terms to be met at the end of the training period.

Regardless of the necessity of the development of a general training programme as mentioned above, direct emphasis should be put on the adaptation of the national legislation to the European acquis, on the development of special courses on the impacts of these changes on the work of the magistrates, on the role and position of a magistrate in a democratic society, on European Community law and on the European Convention on Human Rights. This also counts for the Criminal Procedure Code, on which item special courses have to be developed on the short term (see also below, under 3.2.). Both items are of direct importance for the well functioning of the Judiciary and should be dealt with priority.

To organise meetings or seminars on the ‘ins and outs’ of the relation between the judges, public prosecutors, investigators and lawyers. Attention can also be paid to the relation between the Judiciary and the Ministry of Justice. Likewise information should be spread about the (recent changes in and the consequences of ) the Judiciary Act, to the attention of all those concerned. It has to be seen in which form this information best can be spread; either in the form of seminars or by way of a newsletter in a written form. This depends on the vastness of the changes and the impacts of these changes for the division of powers and competencies.

To organise training on the international conventions that are or will soon be signed by Bulgaria. Attention should be paid to the contents of these conventions, the impact of the adoption on the applicable national law and the practical consequences for the Judiciary.

All above mentioned training and schooling activities can possible be organised by a good functioning school of magistrates (see below) or for example other NGK’s like PIER. It all depends from the actual situation around the school of magistrates, when the programmes have to start.

All training should be provided in the form of the train the trainers model, in order to create responsibility with the national authorities and to build in prospects for the future organisation of training and education. Where appropriate and possible, one should strive for joint organisation of training programmes, for all magistrates together. If joint organisation or development of programmes is not wanted or for the time being appears to be not possible, then the programmes to be developed for a limited and specific target group should at least envisage an expansion of the training activities to all other participants in the administration of justice, as well as lawyers, in the near future, to create a balance in the system.

For educational reasons the attendance of lawyers in courses could be considered. The parties concerned should decide on the institute that should provide the training and bears responsibility for it. For as far as funding of the activities is only promised for the time being, the MJELI should guarantee to take this over in due time, when the necessity appears.

Although the training and education of the legal clerks and the administrative support at the courts and public prosecutors offices is of importance for the administration of justice as well, emphasis should nevertheless on the first hand be put on the training of the magistrates as the prime players in the field. Perhaps a minor start with regard to training and education for staff members could be considered. Yet, as is indicated below, attention should first be put on the structure and organisation of the supporting staff in the courts and public prosecutors department, before investing in the amelioration of the skills and knowledge.

School of Magistrates

To realise above-mentioned training and schooling activities for judges and public prosecutors as well initial as permanent training, it is important to create an independent school for the training of magistrates (judges and public prosecutors). This is extra important in Bulgaria, a country in transition. The implementation of the judicial reform is a very important element in the process of democratisation of the society. This reform comprises not only elaboration and adoption of new legislation, but especially formation of new ways of thinking and professional skills. In fact the judiciary has to be prepared on their role and position in a democratic society. This requires the necessary care and attention. Especially in an country in which there are various opinions about the responsibility of training and schooling of the Judiciary, it is important to organise this in an independent institute to prevent undesirable impact.

Happily I have identified during my visits to Bulgaria that the Bulgarian actors have also recognised the importance of having such an independent institute. In January 1999 it was the aim to establish a foundation for the creation of the school. In the board of this foundation seem to participate the association of judges, the ministry of justice and the Alliance for Lega Interaction. One still considers to involve also the public prosecutors in this initiative, if they are interested. It seems to be important to support this school in the form of organising seminars, developing curricula, etc. It is especially of great importance to co-operate with other (foreign) NGO’s, who are active in this field like Soros, the Worldbank, USAID and ABA/Ceeli . They are all involved in the establishment of the school of magistrates. Depending of the input of these various NGO’s, under the PHARE-programme one can look for the tie-up between the various projects and programmes.

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2.1.2.2. Association of Magistrates

The second goal can be achieved by improving professional association(s) of magistrates. A working group composed of representatives of the Judiciary should be established to do the necessary research on the possibilities and the form in which the Judiciary can associate. The position of the Supreme Judicial Council has to be taken into account in this respect. The existence of an association in itself already strengthens the Judiciary because of the binding force of union. When within the association or between the several associations Cupertino on a regular basis is strived at, the association will function as a spokesperson towards the MJELI on behalf of all those united in it. For possible models and expertise in the field of associating, foreign experts could be asked to take part in the working group.

Concrete actions to be taken in this respect are:

Strengthening the already existing national Association of Judges by establishing contacts between the national association of judges and (a) Western association(s) of judges. The contacts and expertise should focus on items as exchanging information, communication (both to its members as to other associations or third parties of interest) and on the relation of the association with the MJELI. Besides, training and information sessions should be provided for all those active within the association on the mentioned items. The association should become a spokesman for the Judiciary and their prime negotiator for terms of employment. The same counts for the also existing Association of Public Prosecutors. The possibilities to strengthen the existing, but none functioning association of investigators, should be considered by the working group.

Making the existence and activities of the Bulgarian Association of Judges, Public Prosecutors and Investigators more known to their members as well as to the other members of the Judiciary. The feasibility of a (common) newsletter or information bulletin must be studied. Such a magazine can provide the Judiciary with all the necessary information for their functioning, as well as on general items of interest to them (case law, working conditions, laws in the making, news from the international organisations, from the MJELI. etc.). In this respect mention is made of the fact that there already exist two information magazines: the General Information Bulletin of the MJELI, which is only sent to courts, and the Bulletin on European Integration. The latter was funded by PHARE, but this funding stopped in January 1999. It has to be regarded whether there is room and interest in continuing this publication, especially when this can be used for the objectives as mentioned above.

Reconsidering the role and position of the investigators and revising the system of executing judges. The information obtained during the expert mission on the tasks and duties of both the investigators and the executing judges (i.e. the persons responsible for (monitoring) the execution of verdicts) was not uniform. Yet, the position of the investigators seems to be made in conformity with European law after a discussion of the European Commission of Human Rights in Strasbourg. The role of the executing judges was called unworkable and should for that reason be reconsidered. Both questions could be dealt with by a working group that will focus more in general on the consequences for the adherence to the European Union for the Judiciary.

During the mission the wish was expressed by the public prosecutors department to start legal co-operation in the form of a twinning between the Bulgarian public prosecutors department and public prosecutors departments abroad, on items as extradition, international crimes, execution of punishments etc. Regardless of the unquestioned and undoubted need for such co-operation, it remains to be seen whether on this moment emphasis should be put on these items. It seems better to first focus on the internal problems and deficiencies of the judicial system, rather than on items that for a successful execution are dependent on a good functioning and well structured internal (read: national) system. Nevertheless it could be considered to bring the Bulgarian Public Prosecutors Department in contact with a Western European Public Prosecutors Department to exchange ideas and views about the position of the Public Prosecutor in a democratic society (see above under 3.2.).

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