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
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:
- 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.
- Set out conditions for improving the legislative process and
facilitate the approximation of law process.
- 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
- 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.
- 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.
- 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.
- 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:
Activity
|
Deadline
|
Formation of task forces and tasks
allocation - each task force will present its work. |
April 1999 |
Background document |
June 1999 |
Consultations on the draft Program
with the concerned institutions |
June – July 1999 |
Policy Workshop to discuss the draft
Program |
July 1, 1999 |
Revised version of the Program for
Judicial Reform |
September 1999 |
Policy Forum to endorse the PJR |
November 1999 |
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
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