In 1999, the Law Program of CSD focused on promoting
judicial reform in Bulgaria and on contributing to legislative
reform. The achievements on these main priorities of the Law
Program in 1999 could be summarized as follows:
• A Judicial Reform Initiative, aimed at developing
a Program for Judicial Reform (PJR) in Bulgaria, started in 1999.
CSD’s Law Program became its Secretariat and driving force from the
very beginning. The PJR is based on a set of political and
legislative measures, assisting the legal and institutional
infrastructure of the judiciary and providing assistance to its
implementation.
• A Law on People’s Defender was drafted by an
expert task force set up by the Program. The draft law aims at
encouraging democratic institutions, and setting effective
procedures for administration and protection of human rights. A
concept paper on the subject and the draft Law were
broadly discussed with Bulgarian and foreign experts
and politicians.
• A new subject field was added to the Program’s
agenda – electronic commerce. The Program researched the legal
aspects of e-commerce and started drafting new legislation
recognizing the legal validity of the electronic documents and
signatures in order to provide for security and trust in open
networks, to ensure that commerce is conducted electronically.
• A two-year project on “General and Financial
Management of NGOs” aimed at introducing best European NGOs
management practices, was completed successfully.
• A series of pioneering public hearings with the
National Assembly were organized by the Program in the framework of
the project “Citizen Participation, Public Hearings and the
Development of Improved Public Policy in Bulgaria”. The project
aimed at improving the legislative process and promoting the
dialogue between the public and private sector.
Throughout the year the Program contributed to
further development of cooperation between the non-governmental and
governmental sectors. The Program team was able to strengthen
interaction within a highly qualified group of non-resident experts
and consultants committed to supporting the judicial and
legislative reform process. Two research volumes– “E-commerce and
Digital Signature: Legal Aspects” and “Ombudsman Institution:
Concept Paper, Draft Law and Foreign Legislation“ - the development
of which started in 1999, will assist legislators, politicians and
experts.
I. Judicial Reform
Judicial Reform Initiative: an example of
practical assistance to reforms
The Judicial Reform Initiative for Bulgaria
(JRI) was launched in February and officially announced in
March 1999. It consolidated the efforts of leading not-for-profit
organizations, representatives of government institutions and
experts on the model of Coalition 2000, for developing a
Program for Judicial Reform in Bulgaria. The initiating
organizations of the JRI were the Association of
Judges in Bulgaria, the Center for the Study of Democracy, the
Chamber of Investigators in Bulgaria, the European Network of Women
in Police – Bulgaria, the Legal Initiative for Training and
Development (PIOR), the Legal Interaction Alliance, the Modern
Criminal Justice Foundation, and Union of Bulgarian Jurists.
Particular attention was paid to the involvement of representatives
of the judiciary in the PJR development phase.
The PJR drafting process
The major objective of this process was to draft a
consensus document based on a set of political and legislative
measures to assist the legal and institutional infrastructure of
the judicial system and its long-term implementation. The process
was designed also to achieve the following:
• Identify areas in which there is a need to improve
procedural legislation and legislation applicable to the
establishment of a modern court administration, as well as
acceleration of legal proceedings.
• Initiate a broad public debate on the issues of
judicial reform, its nature and objectives, and set out conditions
for its greater openness and transparency.
• Set out the conditions under which the judiciary
could better absorb assistance from the European Union, as well as
from other international organizations and donors.
• Provide the policy and legislative framework for
the introduction of internal control mechanisms to combat
corruption and abuse of power.
• Work out a mechanism for enhancing the
professional skills of those working in the court
administration.
In a number of workshops, interactive discussions
and open consultations, the stakeholders of the Judicial Reform
Process unanimously identified the two main priorities of the
judicial reform:
• Improving the legal education and training of
magistrates, and
• Streamlining court administration.
In this respect, the structure of this program
has evolved with due consideration of the priorities set for the
development of the legal foundation of the reform process.
Program for Judicial Reform
Stage one: Building the JRI
infrastructure
A Steering Committee for managing and coordinating
the activities of the Initiative, formed by representatives of the
JRI initiating organizations and other major stakeholders,
legislative, executive and judiciary, NGOs and lawyers was set up.
Task forces were also convened in the main areas of reform - Civil
Law (incl. Commercial Law) and Procedure, Penal Law and Procedure,
Administrative Law and Procedure, Court Administration, Education
and Training of Magistrates, Opening of the Judiciary to Society.
For the purpose of providing an ongoing support to the Steering
Committee, the CSD Law Program acted as JRI Secretariat. The
Secretariat provided the day-to-day operational management and
assistance, logistical support to the JRI Steering Committee, the
task forces and all those involved in the activities.
Stage two: Development of a
background document
In the period April–May intensive work in the task
forces was accomplished. A number of workshops with the
participation of task force leaders and members of the Steering
Committee were held. Specific sections of the PJR were discussed
and summarized in a first draft PJR. It was discussed at a joint
workshop of the Steering Committee and the task forces on May 25 at
CSD. Representatives of state institutions, non-profit and
international organizations, professional unions, and the media
attended the workshop and made their proposals and
recommendations.
In June, the first draft was distributed to all
organizations concerned to present their opinions and suggestions,
and the latter were collected at the Secretariat of the Initiative.
Additional talks and consultations with experts from non-profit
organizations and state institutions, as well as with practicing
jurists, were conducted. The opinions, suggestions,
recommendations, and remarks collected were duly considered and
integrated in a revised version of the Program with specific goals
and detailed steps for the completion of the judicial reform.
(From left to right): Mr.
Vassilis Maragos, Economic Advisor to the Delegation of the
European Commission in Bulgaria, Ms. Ekaterina Mihailova, Deputy
Chair of the Parliamentary Committee against Crime and Corruption
and Dr. Ognian Shentov, CSD President at the policy
workshop
Stage three: The Public
debate
A broad discussion on the draft PJR was held at CSD
on July 1. Over 40 participants attended the Policy Workshop:
experts, and representatives of Bulgarian, foreign and
international institutions. The importance of the mechanisms for
cooperation between the JRI as a non-governmental initiative, and
governmental institutions was highlighted by Ms. Ekaterina
Mihailova, Deputy Chair of the Parlia-ment’s Anti-Corruption
Committee. The discussion focused on training of magistrates,
enhancing the efficiency of the court administration, and improving
of the legal framework of reform. Mr. Claes Eklundh, Chief
Parliamentary Ombudsman of Sweden was a special guest at the Policy
Workshop. Mr. Eklundh presented the role of the Ombudsman in
controlling public administration and in protecting civil rights
and freedoms, and focused on its potential to exercise out-of-court
control in the new democracies.
The draft PJR was then published in 1000 copies and
distributed to professional associations, state institutions, the
media, experts with the aim of soliciting their opinion and
specific proposals for amendments. Copies were also sent to the
representatives of foreign agencies and international organizations
in Bulgaria.
A web page of the Judicial Reform Initiative
(www.csd.bg/jri) was developed by the LP which also includes links
to information about the Initiative’s founding organizations.
Stage four: Towards a final version
of the PJR
Two reform priorities emerged as a result of the
discussions: training of magistrates and court administration
reform. The text of the PJR was accordingly revised, in particular
with the assistance of World Bank experts, which set the Initiative
on the road of preparing its first Policy Forum. JRI started
preparation for the Forum at which the Program for Judicial Reform
in Bulgaria will be presented for endorsement. The Forum is
scheduled for the first half of 2000. Following its endorsement,
the PJR will be widely distributed as a basis for future concrete
steps along its action lines.
International support and contacts
• The Delegation of the European Commission in
Bulgaria was instrumental in launching the Judicial Reform
Initiative. It provided support for a number of its activities and
advice on the PJR drafting.
• A number of international institutions expressed
their support to the Initiative: the International Development Law
Institute (IDLI), Rome; the World Bank; court experts and
magistrates from the Asser Instituut in the Netherlands; the
Spanish Institution of People’s Defender; the Chief Parliamentary
Ombudsman of Sweden; the American Bar Association (ABA/CEELI), the
British Association for Central and Eastern Europe (BACEE), among
others.
II. Legislative Reform
The CSD Law Program has long been successfully
involved in drafting key pieces of legislation (NGOs draft Law,
Registered Pledges Act, draft Law on People’s Defender, etc.). In
1999 the efforts of the Law Program focused on improving the
quality of the legislative process and legislation in general, and
on developing some draft laws in particular.
1. Improving the Quality of New
Legislation
In 1999 the CSD Law Program continued its work on
the project “Citizen Participation, Public Hearings and
Development of Improved Public Policy in Bulgaria” launched at
the end of 1998 in order to improve the quality of legislation and
to make the legislative process more transparent through the
incorporation of public hearings as a component of the legislative
process.
The model hearings and series of seminars on topical
issues of the legislative agenda were organized jointly with the
National Assembly, the judiciary and government agencies. The
participants - key legislators and legislative staff, academics and
representatives of Bulgarian NGOs - discussed proposed changes to
the legislation and were acquainted with the democratic mechanisms
in the modern legislative process.
• An introductory seminar in January outlined public
hearings as a parliamentary practice and the importance of various
practices implemented in the advanced democracies. British
parliamentary experience in involving NGOs and citizens in the
legislative process was presented by Mr. Robert Dunn, former Member
of the House of Commons and former Minister of Education of UK. He
stressed the openness of the legislative committees to the public,
the consultations with different social groups prior to submitting
a new draft bill and regulated lobbying that limits corruption
opportunities.
Mr. Enrico Munos, Senator in the Senate of the
Spanish Parliament, presented the information phase in the
legislative process for assessing public attitudes while preparing
new legislation or amendments, existing in Spain. He pointed out
the opportunity for public legislative initiative set forth in a
special law, and on the established special institution - Public
Defender - that provides for a link between citizens and
administration.
Government officials, representatives of the
judiciary, of NGOs, Bulgarian and foreign experts attended the
seminar.
• A discussion on introducing the ombudsman
institution to Bulgaria, organized jointly with Coalition 2000,
took place at CSD on April 20. Special guests were Mr. Antonio
Rovira, First Deputy to the People’s Defender of Spain and Mr.
Pasquale Ferraro, Deputy Director of the International Development
Law Institute in Rome.
The work of experts in determining the powers and
the functions of the ombudsman institution in Bulgaria was
presented. Mr. Rovira outlined the functions of the People’s
Defender in Spain and underlined that in order to function
successfully the institution of the Ombudsman should be guaranteed
political and financial independence. The participants emphasized
on the need for a further and more detailed study of Spanish and
other countries’ successful legislative decisions and practices in
the field of human and citizens’ rights.
• Draft amendments to the Commercial Code were
discussed at a public hearing co-organized with the Ministry of
Justice in May. Representatives of the executive and the judiciary,
as well as notaries, lawyers, journalists, university professors
and distinguished commercial law experts attended the discussion.
The main ideas of the proposed amendments were presented by Ms.
Maria Serkedjieva, Deputy Minister of Justice. The discussion
focused on the harmonization of Bulgarian legislation with EU Law
as well as on the practical needs of Bulgarian companies and on the
requirements for improving publicity and transparency in their
activity that will guarantee third parties’ interest. Dr. Christa
Jessel-Holst of the Max-Plank Institut for Comparative and
International Law in Germany and Dr. Hans-Joachim Vollrath, manager
of the Local Notary Chamber of Bavaria took part in the
seminar.
• The draft of a new Family Code was the topic of a
public hearing organized jointly with the Ministry of Justice in
June. Ms. Zlatka Rouseva, Deputy Minister of Justice, presented a
general overview of the draft. Experts who had worked on the draft
presented in detail the key issues – new patrimonial relations
between the spouses (proposed regulation of separate property and
property based on ante-nuptial contracts), child adoption and child
protection. MPs, academics, judges, lawyers, family law experts,
representatives of NGOs took part in the discussion. Two Spanish
experts shared their opinion and experience - Dr. Francisco Welmo,
Law professor at the University of Valladolid, and Dr. Maria Tereza
Crespo, Professor of psychology at the same University - underlined
the necessity to establish the institution of an intermediary for
settling the relations between the spouses and discussed the
psychological aspects of divorce and separation of the spouses.
• A public hearing on “The People’s Defender of
Civil Rights and Freedoms and the Creation of Efficient Local and
Central Government Administration” was held in Pleven in
October.
Participants included MPs, representatives of local
administration and non-governmental organizations, and lawyers. Dr.
Silvy Chernev, expert with the CSD task force on the People’s
Defender (Ombudsman) draft law, presented the draft.
The discussion emphasized on the creation of new
means for protection of civil rights and freedoms, and specifically
the Ombudsman institution as a local intermediary between the
citizens and the municipal administration. Mr. Naiden Zelenogorski,
MP, stressed the need for establishing a People’s Defender
institution at the local level, and particularly in the
municipality of Pleven as it could shorten the distance between
public administration and citizens.
• A public hearing at the National Assembly was
organized by the CSD and Parliamentary Committee on Human Rights,
Religion and Citizens’ Claims and Petitions. The draft Law on the
People’s Defender in Bulgaria was discussed and evaluated
positively. Recommendations and remarks were made by the
participants – members of Parliament and its Committees on Legal
Issues and Legislation against Corruption, Human Rights, Religion
and Citizens’ Complains and Petitions, and Public Health, Youth,
and Sport. The foreign guests – Mr. Rovira, First Deputy of the
People’s Defender in Spain and Canadian experts Mr. Robardet, Mr.
Boyer and Mr. Dubrow - shared opinions based on their experience in
establishing the Ombudsman institution. The members of the task
force drafting the law explained some of the legislative
proposals.
• In May, CSD’s Law Program organized a visit for
Bulgarian MPs and experts to Spain within the public hearings
project. This visit reinforced the results of the first project
visit November 1998. The program of the visit allowed a small group
of MPs (Ms. Ekaterina Michailova and Mr. Dimitar Abadzhiev), and
law experts to meet with EU politicians and legislative staff, and
to get acquainted with various possibilities of citizen
participation in the legislative process. The visit included
meetings with MPs at the Senate of the General Cortes, meetings at
the office of the People’s Defender, Mr. Alvarez de Miranda, and
his First Deputy Mr. Rovira, as well as a meeting at the Center for
Political and Constitutional Studies.
As a result of the project, public hearings have
been accepted by the key stakeholders as a regular parliamentary
practice and a useful method for promotion of new ideas and
democratic practices in legislation.
Mr. Antonio Rovira, First
Deputy of the People’s Defender in Spain (second from the right)
speaking at the public hearing in the National
Assembly
2. E-commerce and Digital Signature: Shaping the
Regulatory Framework
“One of the basic goals for transition to
Information Society is the creation of a legal and regulatory
framework for the provision of services, for living and working in
the new information environment, harmonized with that of the
European Union”.
Strategy for Information Society
The Law Program’s work on e-commerce and digital
signature started with orientation meetings and consultations in
early 1999 with representatives of the main stakeholders interested
in the legal regulation of the subject – business associations,
government regulatory bodies and ministries. In parallel, the Law
Program researched the most important international instruments
already adopted or in a process of preparation, which envisage the
use of alternatives to paper-based methods of communications. The
study also reviewed the international and European acts and
proposals, as well as materials on foreign legal regulations - USA,
EC countries and Latin America Acts, draft acts and
investigations.
A Task Force for the preparation of the draft law
and an Expert Council including representatives from the
stakeholders, legal and IT experts were formed. Following the
initial expert effort, the preparatory work and first draft of a
law on electronic commerce and digital signature were presented at
a workshop at CSD in September by the drafters. The logic and
proper interpretation of the draft law provisions were presented in
a comprehensive and pragmatic manner. Expert Council members,
representatives of the USAID – Washington, as well as legal and IT
experts took part in the discussion. The participants made a number
of useful suggestions and recommendations related to the process of
drafting, the presented materials, and the general framework of
digital signature and e-commerce which benefited the subsequent
work of the CSD expert team. All agreed that future work should be
aimed at coordinating the efforts of the institutions and experts
involved.
A seminar on the issues of electronic commerce and
digital signature was held in Velingrad in November. Participants -
members of the Expert Council and of the Task Force, and IT
specialists – discussed the two draft laws on e-commerce and on
digital signature. The prevalent opinion in the discussions was to
combine both drafts in one. The team decided to develop the texts
further and combine it in a single draft Law on Electronic Document
and Digital Signature.
Article 3
(1) Electronic document is an electronic
statement, recorded on magnetic, optical or other carrier that
allows its reproduction.
(2) The written form of the document is
considered observed provided that an electronic document has been
produced.
__.
Article 15
(1) The digital signature is a transformed
electronic statement included,
added or logically related to the original
electronic statement.
(2) The digital signature has the effect of a
legally valid signature.
The Law Program started developing a publication on
“E-commerce and Digital Signature: Legal Aspects” which includes
the concept paper and the draft law for Bulgaria, as well as
international documents and foreign laws translated in
Bulgarian.
3. Introducing the Ombudsman Institution
Drafting the Law on the People’s Defender in
Bulgaria
In early 1998, the Law Program of CSD began
exploring the possibility of introducing an Ombudsman-type
institution at a national level to act as a complementary mechanism
for monitoring and control over the public administration and an
out-of-court means of respecting and restoring the rights of
citizens violated by the state. The establishment in Bulgaria of
such an institution restricting corruption and the abuse of power
also became one of the key priorities of Coalition 2000.
Within the framework of Coalition 2000, an expert group of
the CSD Law Program continued its research and analysis of the
existing legal framework and the functioning of this institution in
a number of established and new democracies. The laws on the
Ombudsman institution of Austria, Denmark, Macedonia, Lithuania,
Poland, Hungary, Spain, United Kingdom, Romania, Sweden, Argentina
and Costa Rica were translated in Bulgarian. A concept paper
developed on the basis of this analysis, however, takes into
account the existing needs and public attitudes, and political,
legal and constitutional realities in Bulgaria. It formulated a set
of recommendations for the future introduction of the Ombudsman,
its status and role in the country’s political and legal system,
and outlines the basic elements of its future legal regulation. In
April 1999, the Law Program experts completed the first draft law
on the People’s Defender.
It would be very useful for every state,
pretending to be a democratic and constitutional one, to create an
ombudsman institution. The mission of this institution is to
guarantee the rule of law and the individuals’ rights and
freedoms.
Claes Eklundh
It is clear that the contributions of an
ombudsman to the development of a democratic society is manifold.
In a nutshell, he does so by promoting accountability,
transparency, respect for the rule of law, objectivity and
impartiality in decision making, quality of service delivery, and
democratic values in public administration.
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Dr. Patrick Robardet Director of Legal Affairs and
Research,
Office of the Public Protector (Ombudsman), Quebec, Canada
(Comments on the Bulgarian Draft Law, November 1999, Sofia)
Claes Eklundh, Chief Parliamentary Ombudsman of
Sweden
Awareness Raising: Public discussions of the draft
Law
Meetings, public discussions and consultations were
held at different stages of this process with Bulgarian and foreign
experts, politicians, citizens, representatives of NGOs, and the
parliamentary Committee on Human Rights, among others. The more
important ones included:
• Meetings with Ambassador Michael Sahlin, leader of
a Swedish government delegation, which visited Bulgaria in
January.
• Visit to Sofia in July by Mr. Claes Eklundh, Chief
Parliamentary Ombudsman of Sweden, and meetings with the
Vice-President of the Republic of Bulgaria Mr. Todor Kavaldjiev,
with the Chair of the National Assembly, Mr. Yordan Sokolov, and
with the Chair of the Supreme Administrative Court, Mr. Vladislav
Slavov.
• Discussions with Spanish parliamentarians and the
People’s Defender of Spain, Mr. Alvares de Miranda, during a visit
by Bulgarian MPs and experts to Spain in May.
• Visits by the First Deputy of the People’s
Defender of Spain, Mr. Antonio Rovira (in April and November), and
by Canadian experts to Sofia in November, and meetings with the
Vice-President of the Republic of Bulgaria Mr. Todor Kavaldjiev,
with the Chair of the National Assembly Mr. Yordan Sokolov and with
the Chair of the Supreme Administrative Court Mr. Vladislav
Slavov.
In addition, a series of meetings, seminars and
discussions on the draft law were organized within the framework of
the public hearings project implemented jointly by CSD and the
Santander Group of European universities.
The Concept Paper and the Draft Law were published
in 500 copies, and were distributed among a wide range of experts,
governmental institutions and non-governmental organizations with a
request for their opinion and recommendations. The publication
provoked further discussions about the possibilities and the
procedure for introducing the People’s Defender institution in
Bulgaria.
The idea of establishing the People’s Defender in
Bulgaria is now supported by the Vice President of the Republic, by
the Chair of the National Assembly, members of Parliament,
representatives of the judiciary and the executive, the local
authorities, and human rights NGOs.
III. Education
Since 1992, the Law Program has become well-known
for its legal training programs on legal reform and NGO management,
accounting, financial control and auditing. The Program identified
the need for alternative forms of education providing a method
different from the classic university models. The tradition of
providing practically oriented programs continued in 1998 with the
implementation of a project on “General and Financial Management of
Not-for-profit Organizations” in cooperation with the Hellenic
Management Associa-tion (Athens), the Sofia University Regional
Distance Education Study Center, and the Skopje University Law
Faculty.
In 1999 the project was successfully completed and
the technique of distance learning was piloted at the Sofia
University Faculty of Business Administration. The pilot course was
targeted at professionals of civic organizations, postgraduate
students in business administration, state officials, and the
general public.
The course quality and structure were praised by the
Sunderland University (UK) experts appointed after a tender among
organizations specialized in evaluation of DL education courses and
CSD was nominated responsible for the course dissemination.
The course is designed to foster student
independence in learning and the case studies are particularly
important in this connection. The rationale for media choice is
convincing; the media are accessible to the target groups; the
specifications are clear. The booklets are clearly laid out and
easy to use. Support for students is carefully designed and offers
students a variety of access routes.
The textbook and a program for a DL course on
General and Financial Management of Public and Private
Not-for-profit Entities were elaborated by university professors,
lawyers and experts on general and financial management, accounting
and auditing. The educational package is available in printed and
electronic formats.
General and Financial Management of Not-for-Profit
Organizations
Course Structure
First Module
Book I Legal Status of Non-Profit
Organizations
Book II Legal Issues of Activity and Taxation
Regime of Not-for-Profit Organizations
Book III Case Studies
Second Module
Book I General Managements of Not-for-Profit
Entities
Book II Human Resource Management
Third Module
Book I Accounting for Revenues and Expenses.
Preparation of the Annual Financial Report
Book II Programming. Strategic Planning and
Budgeting. Pricing Decisions.
Book III Reporting on Activity
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