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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