Judicial Reform Initiative for Bulgaria

The Judicial Reform Initiative for Bulgaria (JRI) is a coalition of leading not-for-profit organisations, representatives of government institutions and experts for developing a program for assistance and successful implementation of the judicial reform in Bulgaria.

EXECUTIVE SUMMARY

• BACKGROUND

• OBJECTIVES

• ACTIVITIES

• THE PROCESS

• INSTITUTIONAL STRUCTURE

BACKGROUND

There is a distinct body of opinion among the general public in Bulgaria that the judicial system is slow and ineffective. It receives a low measure of trust both from the public at large and from other state institutions. This is to a great extent warranted. The process of dispensing justice in Bulgaria is still marked by serious shortcomings: courts are overburdened with work and take a long time to deliver their judgments; a shortage of qualified judges , the complexity of legal procedures and a plethora of new rules to be applied all contribute to this situation. It is particularly serious where penalties and sentencing are concerned, as a number of procedures are not fully completed.

One of the main reasons behind this is the yet incomplete reform process in the judiciary. The need to reform the system is now acknowledged by a large number of the magistrates.

Among the multitude of reasons for making judicial reform a priority and, in particular, for launching the Judicial Reform Initiative the following stand out:

1.1. Inadequate legal framework

The existing legal framework for the judiciary, despite all positive changes, is still too contradictory and partly obsolete and inadequate. Its shortcomings of the existing legislation are particularly well exploited by those involved in corrupt practices. Changes are needed in order to establish clear-cut rules in penal, commercial, civil, and administrative legal relations and, in turn, to faster, more efficient and more transparent administration of justice.

The current system for criminal prosecution is slow, cumbersome, and inefficient. The crimes and punishments provided for in the Penal Code and the Penal Procedure Code do not adequately reflect present conditions of market economy and rampant crime, including economic crime. In the past years there have been many legislative changes aimed at updating the Penal Code and procedure, but rather than being guided by a comprehensive new vision, they have been implemented in a piecemeal approach.

The existing legal framework of civil relations opens opportunities for corruption. The task of civil law is the equitable regulation of relations among individual citizens as well as between citizens and the state. This branch of legislation does not have an immediate bearing on corruption but because of its many shortcomings it creates conditions favoring the its unrestrained proliferation.

1.2. Imperfections of the legislative process

In addition to the lack of an adequate legal framework its functioning, the judiciary is burdened by the existing imperfections of the legislative process and of approximation of legislation in Bulgaria. The issues concerning policy making (legislative priorities setting) with respect to law drafting is one of the weak points in the Bulgarian regulation of this process. These issues are not covered explicitly by existing legislation and most often law-drafters have to rely upon their own understanding of the policy objectives.

There is no established law-drafting procedure ensuring the quality of the proposed legislation. Specifically, the main bottle-necks in the legislative process and approximation of legislation mechanism are:

• The Government has no formal rights to comment on legislation introduced by Members of Parliament. Therefore all the "verification" and checks, performed by the executive power, are not applicable in this case, including the verification for conformity with EU legislation. The Parliament relies on its own Legal Department, which is understaffed to perform such functions, and staff lawyers or, when necessary, documents or testimony form Government officials.
• There is no ownership of the law-drafting process. The responsibility of the law-drafters ends with the submission of the draft to the Council of Ministers, accompanied by a Certificate of compliance with EU law (issued by the drafting ministry). Once the draft is forwarded to the Parliament it is out of the hands of the law-drafters.
• The judiciary are not part of a transparent feedback and monitoring mechanism of the implementation of the legislation which is a crucial element ensuring the quality of new legislation.
• Lack of sufficient number of well-trained people in the various phases of the legislative process. The NGO expert potential could be very helpful in the initial phase of the preparation of draft legislation as well as by the debates on the draft-acts in the parliamentary committees. The existing experience of such cooperation shows the advantages of this participation model.
• In most of cases, Bulgarian legislation is drafted by using foreign models, with EU legislation as the leading model for areas to which it applies. However, there is no explicit procedure as to the mechanism, timing and manner of incorporation of foreign, in particular EU, expertise into the drafted texts.
• There is no administrative body , which controls and supervises the whole process.

1.3. Failing administration of justice

It is well known that legal proceedings under both civil (including commercial and administrative) and criminal cases are slow and harbor opportunities for involved parties to intentionally drag out the process in bad faith. In order to speed up the process of administration of justice, it is not enough simply to change procedural regulations.

The judicial system operates in an outdated, overly-bureaucratized, and slow manner. Its current poor organization is a source of corruption and frustration not only for ordinary citizens but also for those working within the system.

1.4. Lack of reliable staff recruitment procedures and professional training

Presently there are many professionals working in the judicial system, yet a significant number of magistrates are young people with good theoretical background but little professional and life experience. In the everyday exercise of their duties they constantly face various difficulties, and the shortcomings in their performance are largely due to this lack of preparation for the specific nature of the work. On the other hand, experienced magistrates face problems arising from constant changes in legislation and therefore need further training. But programs for basic training and continuing education of magistrates are yet to be developed. To a great extent, it is in fact the lack of experience and skills that account for negative results in the operation of the judicial system even though the general public tends to attribute them to corrupt practices.

There are no special programs in Bulgaria designed to promote a certain kind of professional and personal conduct for magistrates in line with the social significance of their profession.

A system of evaluation of magistrates is lacking.

The professional skills of the supporting staff of the judicial system are highly inadequate. Their duties are most demanding and the conditions of work primitive. No professional training has been provided for them and their performance is sometimes so poor as to thwart the efforts of the magistrates.

1.5. Inadequate technical infrastructure

Most courts, prosecution and investigation offices in the country use out-dated technical equipment. There is a lack of coordination between the separate units of the system.

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OBJECTIVES

The overall objective of this initiative is to assist the reform of the Bulgarian judiciary in order to allow it to meet the challenges of democracy, the rule of law, market economy and EU membership.

In particular it will aim:

• To identify areas in which there is a need to improve procedural legislation and legislation applicable to the establishment and administration of the judiciary;
• To initiate a broad public debate on the issues of judicial reform, raise the awareness and build consensus among all stakeholders as to the content and objectives of the reform and to analyze and set out conditions for greater openness and transparency as means for confidence building with respect to the judiciary, as well as conditions for speedier administration of justice;
• To set out the conditions under which the judiciary could better absorb assistance from the European Union, as well as from other international cooperation actors;
• To make proposals for introduction of internal control mechanisms to prevent corruption and abuse of power;
• To establish a system for enhancing the professional skills of those working in the judicial system and allow them to be better acquainted with the legislation of the European Union..

These objectives will be achieved through the development of a Program for Judicial Reform in Bulgaria( PJR). This program is being developed through a number of working groups covering the key areas of reform. The main advantage of this approach is to give the opportunity to the persons involved in the sector to develop their program (which would be then proposed to decisions makers for endorsement) and to build consensus among all sides.

Its implementation will require the cooperation of the Council of Europe, the European Union, including TAIEX, as well as of other foreign bilateral and multilateral assistance institutions (the International Development Law Institute, Rome, the Center for Democracy, Washington, DC, ABA/CEELI, the World Bank, USAID).

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ACTIVITIES

The several kinds of activities are designed to:

1. Propose an adequate legal framework of the reform and measures to streamline the legislative process in the field of civil and civil procedure law, of administrative law and procedure, as well as of penal and penal procedure law.
2. Set out conditions for improving the legislative process and facilitate the approximation of law process.
3. Set out conditions for improving the administration of justice. Legislative changes encouraging procedural economy, discipline and expeditious exercise of the rights of the parties involved will be introduced. Comprehensive reform proposals should lead to improvement and modernization of the methods of operation of the courts, prosecution offices, and the investigative services
4. Develop staff recruitment procedures and professional training programs to help provide basic training and continuing education for magistrates. In this respect, the Association of Judges in Bulgaria has designed a project for the establishment of a Center for Training of Judges. If this project is put through and proves viable, the Center could also take up the training of prosecutors and investigative service officers.
5. It would be extremely useful to design a methodology for selecting and evaluating the staff of the judicial system. It should be based on a comprehensive, competent and objective performance appraisal of each magistrate and on the results of the basic training and continuing education courses completed.
6. Propose measures to expose corruption in the judicial system. In order to minimize the conditions favorable to corruption and to introduce control mechanisms of corrupt practices, it is necessary to undertake a comprehensive reexamination of the existing legislation and recommend the appropriate legislative changes.
7. Set out measures providing for an adequate status and mechanism of participation of lawyers in the judicial process, as well as for closer involvement of the Bar in the reform efforts.

Work is organized into two components. The logical sequence and the content of activities under the JRI are designed as preparation (diagnostics), program design/development and follow up action (dissemination and awareness).

The key component - the Program for Judicial Reform - will go through several design and consultation stages crucial among which will be the Policy Workshop and Policy Forum as agenda setting and consensus building fora. Special attention will be devoted to ensure adequate representation and include relevant experts, policy makers, legislators, NGO representatives and independent researchers.

Component #1: Program Development, Policy Workshop and Policy Forum on Judicial Reform

The Program for Judicial Reform (PJR) will be designed to present a consistent set of policy and legislative measures (action agenda) that would help develop the legislative, institutional and logistical infrastructure of judiciary.

The Policy Workshop and the Policy Forum will be the main elements of the process through which JRI will discuss and adopt the PJR. The main objective of the Policy Workshop will be to discuss and review the draft of the Program and incorporate the comments and suggestions of all concerned institutions.

In particular, the PJR will seek to:

• Identify factors that contribute to judiciary inefficiency;
• Identify objectives of policy on judicial reform process;
• Define a feasible and effective action agenda aimed at:
• developing the legal framework and making the legislative process more representative and effective;
• improving the administration of justice;
• proposing adequate staff recruitment procedures and professional training;
• proposing technical infrastructure reform measures.

The process of preparation of the PJR consists of four distinct stages:

Stage 1: Development of draft background document by the expert groups. The objective of this stage is to obtain a comprehensive map of the existing status of the judicial system in the country and to define the main aspects of the judicial reform. The final output of this component will be a fact-finding document outlining the main judiciary problems in the country.

The background document will be prepared by six expert groups put together by the Steering Committee including leading Bulgarian experts in the fields of civil, penal, and administrative law and procedure, judicial administration, and training.

The background document will be sent to all concerned governmental and non-governmental institutions with a request for feedback and comments. It will then be submitted to the Policy Workshop for discussion. The drafting is envisaged to take 10-12 weeks.

Stage 2: Holding a Policy Workshop on July 1, 1999 which will bring together approximately 40 participants. At the workshop, the representatives of concerned governmental and non-governmental institutions will discuss the amendments and/or revisions to the draft document.

Stage 3: Following the Policy Workshop discussions, the JRI task forces will prepare the final PJR containing the consensus on the actions needed for encouraging the development and creating a favorable legal framework and substantial prerequisites for the judicial reform. Next, the document will be circulated to the concerned institutions at the policy level with the objective of reinforcing the consensus among the stakeholders.

Stage 4: Holding a Policy Forum in November 1999. At this meeting, the document, revised as a result of the Policy Workshop and subsequent discussions, will be presented for public endorsement. Approximately 150 representatives of public and private institutions as well as of foreign and international organizations will be invited to participate in the Forum.

In advance of the Policy Forum the PJR will be published in 1,000 copies in Bulgarian and 500 copies in English to be distributed among government agencies, the National Assembly, business associations, NGOs and think tanks, and other concerned institutions.

The timeframe will be as follows:

Component #2: Dissemination and Advocacy

The basic objectives of activities under this component are to inform the public and the relevant target audiences about the activities under the project and in this way to enlist support and cooperation.

In addition to dissemination and advocacy activities listed in the other components of the project this component will:

• Publish a special section in the quarterly CSD Monitor, published in both Bulgarian and English, adding to the content the issues of judicial reform. The publication will be widely distributed among the government institutions and NGO’s according to a revised mailing list.
• Publish a series of articles presenting the main results of the project in specialized daily and weekly newspapers with national distribution. A specific arrangement will be made with the legal journals.

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THE PROCESS

JRI History

The idea to consolidate the efforts of leading not-for-profit organisations, representatives of government institutions and experts for developing a program for assistance and successful implementation of the judicial reform in Bulgaria was first presented at a meeting on February 10, 1999 at the Center for the Study of Democracy with NGOs, representatives of the judiciary, Parliament, the executive agencies of government as well as representatives of the European Commission Delegation, the United States Agency for International Development and the World Bank Mission in Sofia.

The participants expressed their support to the idea. They stressed the necessity of reform not only in the legislation area, but in the judiciary administration. The importance of training for judges, prosecutors, investigators, policemen and the role of the non-governmental organizations in this process was also pointed out. The participants emphasized that the non-governmental initiatives for judicial reform should rely on the assistance of government institutions, as well as on the support of the European and other international institutions. As a preliminary step they defined the initiation of a process of consultations.

The following major areas where efforts should be directed were outlined:

First, development of a legal framework - stimulation of the legislative process in the field of the Civil Procedure Law, drafting of a new Penal Code, a new Law on Penalties Execution, etc.

Second, education and training of the employees at all levels and fields of the judiciary and of people working closely with them.

Third, financial, organizational and logistical support to the judiciary reform in general, that requires co-ordination between the different units of the system, involvement of experts for development of unified information system, etc.

Fourth, opening of the judiciary to society; presenting the reform effort to the public, explaining its aims and character.

Launch of the Judicial Reform Initiative

The Judicial Reform Initiative was officially announced at a meeting at the Center for the Study of Democracy on March 18, 1999. It was established as a coalition of the following non-governmental Bulgarian organizations: Association of Judges in Bulgaria, Center for the Study of Democracy, Chamber of the Investigators, European Network of Women in Police - Bulgaria, Legal Initiative for Training and Development (PIOR), the Legal Interaction Alliance, Modern Criminal Justice Foundation, and Union of Bulgarian Jurists. Their representatives discussed the aims, structure, and stages of the judiciary reform process with Members of the Bulgarian Parliament, representatives of executive government agencies (Council of Ministers, Ministry of Justice and Legal Euro-Integration), the judiciary (Supreme Judicial Council, Supreme Court of Cassation, Supreme Administrative Court, Appellate Court, Sofia City and Sofia District Court, Prosecutors and Investigators) and Barristers colleges.

The first step in the process of development of a Program for Judicial Reform was the establishment of expert task forces in the main areas of reform as follows:

• Civil Law (incl. Commercial Law) and Civil Procedure Law
• Administrative Law and Administrative Procedure Law
• Penal Law and Penal Procedure Law
• Education and Training of Magistrates
• Judicial System Administration
• Awareness and Confidence Building Measures

Leaders for each task force and an overall expert groups coordinator were identified. The heads of task forces, together with the task force and project coordinator will meet on a regular basis to determine priorities which apply across the above areas.

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INSTITUTIONAL STRUCTURE

The central element of the institutional set-up of JRI is the Policy Forum. Its basic role is the process of building a consensus around the policy agenda aimed at promoting judicial reform in Bulgaria. The main elements of the institutional structure are:

• Policy Forum of leading public and private institutions and prominent personalities;
• Steering Committee as the means of JRI coordination;
• Secretariat to provide operational management of the JRI.

Policy Forum

The Policy Forum is the supreme body in the JRI structure. About 150 representatives public and private institutions, foreign and international organizations are invited to participate by the JRI Steering Committee. The Forum ensures that the work carried out under the initiative by various institutions reflects a consensus of the main concerned public and private institutions. It also provides visibility to the initiative effort thus enhancing its impact.

Steering Committee

While the Policy Forum is intended to foster the general consensus on the implementation of the policy agenda proposed in the PJR, the Steering Committee provides the coordination of JRI activities and outputs. The Steering Committee meets approximately every four to six weeks and has a major role in the run-up to the Policy Forum meeting. The Committee prepares the meeting agenda through advance consultations with the Forum members. The Steering Committee is formed by the representatives of the JRI founding organizations and other major stakeholders and meets approximately every four to six weeks.

Members of the Steering Committee of JRI are:

 

Allen Weinstein, President and CEO, the Center for Democracy, Washington, DC

Borislav Belazelkov – Judge, Supreme Court of Cassation

Boyko Todorov - Director, Information Centre on the Council of Europe, Sofia

Dimitar Abadzhiev - Member, Parliamentary Committee on Legal Issues and Anti-corruption Legislation, Vice Chairman, Legal Interaction Alliance

Dimitar Batchvarov – Head of Structural Reform Department, Council of Ministers; Member of the Coalition 2000 Steering Committee

Dimitar Tonchev - Deputy Minister of Justice and European Legal Integration

Ekaterina Trendafilova - Associate Professor, Sofia University, Chair of Modern Criminal Justice Foundation

Elena Avdeva – Chair, Blagoevgrad District Court

Eliana Masseva – Head of Legal Department, Council of Ministers; Member, Legal Interaction Alliance

Iveta Anadolska - Deputy Chair, Sofia Court of Appeal

Kapka Kostova – Chair, Sofia Regional Court; Chair, Association of Judges in Bulgaria; Member of the Coalition 2000 Steering Committee; Member, Legal Initiative for Training and Development (PIOR)

Kina Choutourkova - Judge, Supreme Court of Cassation, Member of Supervisory Board, Legal Interaction Alliance

Lulin Matev - District Prosecutor, District Prosecution Office - Russe

Maria Serkedjieva - Deputy Minister of Justice and European Legal Integration

Maria Yordanova - Coordinator, Law Program, Center for the Study of Democracy

Nelly Koutzkova – Chair, Sofia District Court; Member, Supreme Judicial Council; Member of the Coalition 2000 Steering Committee; Member, PIOR

Ognian Shentov - President, Center for the Study of Democracy

Roumen Georgiev - Deputy Director, Specialized Investigation Office; Chair, Chamber of Investigators

Roumen Nenkov – Chairman of the Second Division of the Criminal College of the Supreme Court of Cassation

Silvi Chernev - Attorney-at-Law, Deputy Chair, Court of Arbitration with Bulgarian Chamber of Commerce and Industry

Temenuzhka Zhelyaskova – Lieutenant-Colonel, Chief of Financial Department, Directorate of National Police Office; Chair, European Network of Women in Police - Bulgaria

Traian Markovski – Chair, Sofia Bar Association

Valentin Georgiev - Secretary General , National Assembly; Vice Chairman, Legal Interaction Alliance

Vladislav Slavov – Chair, Supreme Administrative Court; Chair, Public Council, PIOR; Chair, Union of Bulgarian Jurists

William Loris – Deputy Director, International Development Law Institute (IDLI), Rome

JRI Secretariat

For the purpose of providing ongoing support to the work of the Steering Committee, the Law Program of the Center for the Study of Democracy acts as JRI Secretariat. The JRI Secretariat provides the day-to-day operational management, logistical support and reporting for the JRI activities.

The Center for the Study of Democracy works closely with the main international partners of the Judicial Reform Initiative - the International Development Law Institute (IDLI), Rome and the Center for Democracy, Washington, DC.

For more information: Dr. Maria Yordanova, CSD Law Program Coordinator, Tel. (+3592) 971 3000, ext. 343; Fax: (+3592) 971 2233