|
Bulgaria: Legal and Judicial
Reform
Judicial
Assessment
March 1999
Legal Department
Europe and Central Asia
Region
CURRENCY EQUIVALENTS
(as of [March], 1998)
Currency Unit = Lev (plural Leva)
US.00 = 1,834 Leva
WEIGHTS AND MEASURES
Metric System
ABBREVIATIONS AND ACRONYMS
ADR --Alternative Dispute Resolution
BJA --Bulgarian Judges’ Association
EU --European Union
GOB --Government of Bulgaria
JTC --Judicial Training Center
MOE --Ministry of Education, Science and
Technology
MOF --Ministry of Finance
MOI --Ministry of Interior
MOJ --Ministry of Justice and European
Integration
NGO --Non-Governmental Organization
NIS --National Investigative Service
SJC --Supreme Judicial Council
BULGARIA - FISCAL YEAR
January 1 - December 31
Vice President, ECA = Johannes Linn
Sector Director, ECSPE = Pradeep Mitra
Country Director, ECC03 = Andrew N. Vorkink
Sector Leader, ECSPE = Sanjay Pradhan
Task Team Leader, LEGEC = Alex Iorio/Galina Mikhlin
TABLE OF CONTENTS
I. INTRODUCTION 1
OF BULGARIA’S JUDICIAL SYSTEM
A. The Constitutional Framework
4
B. Judicial System 5
C. Oversight and Financing of Court System
6
Financing of the Judicial Branch 8
Planning and Statistics 8
Personnel Issues
Appointments 9
Remuneration 10
Staffing 11
Promotions 11
Ethics and Disciplinary Procedures 12
D. Possible Strengthening Measures 13
A. Case-load Management 15
B. Inadequate Court Resources 19
C. Registration Functions 20
D. Lack of Use of Alternative Dispute Resolution Mechanisms
21
E. Inadequate Training of Judicial Personnel 23
F. Poor Quality of Legislative Drafting 27
IV. ENFORCEMENT OF CIVIL JUDGEMENTS 30
V. ACCESS TO JUSTICE AND PUBLIC PERCEPTION 33
OF THE JUDICIARY
VI. CONCLUSION 37
ANNEXES
I. Structure of the Courts 40
II. Registration Functions 45
III. Legislative Drafting 48
IV. Court Administration – extract from USAID report
50
V. Summary of Government’s Reform Program 61
VI. 1997 Statistics on Enforcement of Judgments 70
This report was written by
Alex Iorio (Counsel, LEGEC) and Galina Mikhlin (Counsel, LEGEC)
based on findings of a mission that visited Bulgaria in October
1998. Ms. Nancy Worthington (Consultant) participated in the
mission and substantially contributed to this
report.
BULGARIA: JUDICIAL
ASSESSMENT
I. Introduction
Although the reform effort in
Bulgaria is almost a decade old, until recently it was marked by
fluctuating level of commitment of rapidly succeeding governments.
As a result, despite isolated achievements (such as the passage of
the new market-supportive Constitution in 1991, enactment of
numerous market-friendly laws, price, trade and foreign exchange
liberalization, restitution of property and de-monopolization of
the large enterprise sector), the Government’s failure to contain
fiscal deficit and address structural problems in the state
enterprise and banking sectors in a sustainable manner culminated
in a fiscal crisis at the end of 1996. The economic crisis
precipitated political protests that brought down the Government
and resulted in dissolution of the Parliament in December 1996.
Following the brief tenure of an interim Government, the current
majority party, the UDF, was elected in April 1997 with a reform
platform that included promises to combat corruption and organized
crime.
The current Government has made a
strong, emphatic commitment to a variety of reforms throughout the
public and private sectors, as evidenced by the adoption of a
program entitled “Bulgaria 2001,” which defines the principal
guidelines for the development of the country until the year 2001.
“Bulgaria 2001” reflects the Government’s commitment to fulfilling
its reform platform and achieving four interrelated objectives: (i)
preparing Bulgaria for membership in the European Union (EU) by
bringing Bulgaria’s laws and institutions in compliance with EU
standards; (ii) facilitating sustainable development and growth of
the private sector; (iii) realigning government and strengthening
public institutions, including the courts, in line with the needs
of a market economy; and (iv) developing appropriate mechanisms for
combating and eliminating opportunities for corruption and crime.
The Government recognizes that its success in achieving these
objectives will depend, in large measure, on its ability to develop
legitimate and well-functioning public and legal institutions that
would develop, implement and enforce Bulgaria’s laws and provide
effective mechanisms for addressing corruption. Indeed, one of the
most important functions of the state is to provide an
institutional infrastructure that assures property rights and
enforcement of contractual claims, law and order, mechanisms for
resolution of disputes, and rules that encourage efficient
long-term investment. If the private sector does not trust the
state to enforce rules governing business activities, investment
and development of the private sector will suffer. If high levels
of corruption are present, most reforms will be subverted or not
implemented.
The twin priorities of
strengthening the administrative capacity of the law-enforcement
and judicial authorities and of taking active measures to combat
corruption must form an important part of Bulgaria’s pre-accession
strategy, as identified in the 1997 opinion of the European
Commission (EC) on Bulgaria’s application for membership. The
Opinion noted that in the short term (i.e. 1998) Bulgaria needs to
take “concrete steps to combat corruption”. In the medium term,
“improved operation of the judicial system”, “reinforcement of
justice and home affairs institutions to improve their efficiency
and effectiveness and embedding respect for the rule of law”,
“implementation of the fight against organized crime and
corruption” were identified.
Since coming into office, the
Government has taken a number of specific steps in order to address
the issues of public administration, the judiciary and
corruption. These include preparation of the legal framework
for realigning public administration, including the Law on Public
Administration, Civil Service Act, Access to Information Law, and
revisions to the Law on Normative Acts and Public Procurement Act.
The National Assembly is also preparing a Law on Financial
Reporting which will apply to all high level officials. Laws that
directly impact on the operation and efficiency of court
proceedings are also being revised, including the Civil Procedure
Code, the Criminal Code and the Criminal Procedure Code. In
addition, in July of 1998, the Council of Ministers established The
Center for Information Technology, tasked with developing a unified
computerized information system, tackling first criminal law
enforcement issues and later expanding it to include the civil
justice system. Such initiative will be an important tool in
improving the administration of justice.
Specific anti-corruption measures are also being
undertaken by the National Assembly, the Government and the NGO
community. Following the report of the Temporary Anti-Corruption
Commission of the National Assembly, on December 12, 1997, the
National Assembly issued a Decision which established a permanent
legislative commission to combat crime and corruption and obliged
the Council of Ministers to create a national strategy to
counteract crime. Pursuant to this Decision, on July 16, 1998, the
Council of Ministers issued the National Strategy that includes
specific plans to combat organized crime, corruption, engender
criminal policy and political power reforms, improve civil justice
procedures and improve human resources for the justice system,
including training. In addition, a group of NGOs, assisted by
international donors, including USAID, produced, together with
members of Parliament and judges, an anti-corruption action plan
set out in a report entitled Coalition 2000.
Recognizing the complexities of designing and
implementing the challenging transformation of its public sector
and the judiciary and tackling corruption, in early 1998 the
Government requested the assistance of the Bank and other
international bodies. In response, the Bank is reviewing the
Government's program and needs in the areas of public
administration and judicial reform, taking into account the
assistance that can be offered in this area by other donors,
including the EU and USAID. As part of this effort, a combined
Bank/USAID mission to Bulgaria took place in October 1998 to
conduct a diagnostic assessment of Bulgaria's judiciary. As a
result of the mission, the USAID design team prepared a report
entitled “Judicial Strengthening in Bulgaria”.
The present report sets out the Bank's findings
on the main problems faced by Bulgaria's judicial system today. It
is divided into four main sections: (1) the legal framework for the
functioning of Bulgaria's judiciary (which includes a summary of
constitutional provisions governing the judiciary and the structure
of the courts and discusses the manner of court oversight and
administration); (2) factors contributing to inefficiency in the
court system; (3) problems relating to enforcement of civil
judgments; and (4) access to justice and public perception of the
judiciary. Measures for improvement are suggested in each of these
sections as appropriate.
Since 1991, significant reforms
have been undertaken to convert Bulgaria’s judiciary from its
ineffective role under a totalitarian regime to an essential
institution in a market economy. Under the communist regime, the
judiciary was little more than an arm of Party direction and
control. Judges and prosecutors were hired for their ability to
follow orders, and not for their independence of thought or high
level of training. Parties to lawsuits knew the expected result of
litigation from the start of a case, whether civil or
criminal.
After the political turmoil and
the adoption of a new Constitution in 1991, the judicial branch was
recognized as a separate and independent entity. However, little
structural or management reform took place at that time.
Legislation was passed in 1991which created a separate
Constitutional Court. Since the change in government in early 1997,
some structural and substantive legal reforms have occurred,
including the establishment of an intermediate Court of
Appeals.
The GOB is aware that the
judiciary is viewed by the public as an extremely corrupt and
inefficient organ. The Bulgarian government has recognized the need
for far more substantial reforms in the judicial branch and has
taken some action toward effecting changes in the judicial branch.
A summary of the Government’s program to date is set out in Annex V
to this report.
This section sets out the
existing legal and institutional framework for operation of
Bulgaria’s courts and identifies key problems in the manner in
which the courts are presently administered and
supervised.
-
- The Constitutional Framework
The 1991 Constitution of the
Republic of Bulgaria provides that the country will be governed by
the rule of law. The government is divided into three independent
branches: the National Assembly is a unicameral legislature; the
executive branch includes a Prime Minister and a Council of
Ministers; and the judicial branch consists of three parts: the
judges of various levels of courts, the Prosecutor’s Office, and
the investigating magistrates, who are all governed by the Supreme
Judicial Council. The Constitution also established a separate
Constitutional Court outside the judiciary.
The judicial branch is
specifically recognized to be independent of the other branches of
government, including a separate budget. Pursuant to Article 117
(2), “[t]he judicial branch shall be independent. In the
performance of their functions, all judges, court assessors
[jurors], prosecutors and investigating magistrates shall be
subservient only to the law” and (3) [T]he judicial branch of
government shall have an independent budget”. According to Article
129 of the Constitution, “[j]ustices, prosecutors, and
investigating magistrates shall be elected, promoted, demoted,
reassigned and dismissed by the Supreme Judicial Council.” This
independence is further recognized pursuant to Article 129, Section
3, “[j]ustices, prosecutors, and investigating magistrates shall
become unsubstitutable upon completing a third year in the
respective office. They shall be dismissed only upon retirement,
resignation, upon enforcement of a prison sentence for a deliberate
crime, or upon lasting actual disability to perform their functions
over more than one year.”
An even more unusual clause
provides that “[j]ustices, prosecutors, and investigating
magistrates shall enjoy the same immunity as the Members of the
National Assembly”. This immunity is described as follows: “A
Member of the National Assembly shall be immune from detention or
criminal prosecution except for the perpetration of a grave crime,
when a warrant from the National Assembly or, in between its
sessions, from the Chairman of the National Assembly, shall be
required. No warrant shall be required when a Member is detained in
the course of committing a grave crime; the National Assembly or,
in between its session, the Chairman of the National Assembly,
shall be notified forthwith.” In addition, “[t]he immunity of a
judge, prosecutor, or investigating magistrate shall be lifted by
the Supreme Judicial Council only in the circumstances established
by law”.
Prior to 1998, the court system was divided
into Regional courts of first instance; District courts (of first
instance for more serious civil and criminal cases, otherwise an
appellate court) and two Supreme Courts, the Supreme Court of
Cassation and the Supreme Administrative Court. In order to bring
itself in line with EU requirements, Bulgaria created a new
appellate level of courts in early 1998 to ensure that, in all
cases, there was a three-tier system. The current structure of the
Bulgarian court system is represented diagramatically below. A
detailed description of the court system is set out at Annex 1 to
this report.
All three parts of the judicial
branch (judges, prosecutors and investigative magistrates) are
governed by the Supreme Judicial Council (SJC). The Supreme
Judicial Council is made up of 25 members, eleven elected by the
National Assembly, eleven elected by the bodies of the judicial
branch, the two Chairmen of the Supreme Courts of Cassation and
Administration, and the Chief Prosecutor. The SJC is chaired by a
non-voting member, the Minister of Justice. The main functions of
the SJC are: (i) preparation and submission to the National
Assembly for approval of the annual budget for the judicial branch;
and (ii) appointment, election, promotion, demotion, reassignment
and dismissal of judges, prosecutors and investigative magistrates.
The members of the Supreme Judicial Council who are judges each
have their own caseload and administrative responsibilities within
their own judicial branch offices. They have only a handful of
clerical staff to assist them in their SJC responsibilities. While
the SJC plans on being fully computerized by the end of 1998, it
does not have a coordinated record-keeping system for its
responsibilities at this time.
While the MOJ has no direct
supervisory or administrative authority over the judicial branch it
plays a related role in the administration of justice. The Minister
of Justice chairs the SJC meetings and can, therefore, exercise
control over the SJC agenda. The MOJ is also responsible for three
important aspects of the functioning of the courts. First, the MOJ
is responsible for the upkeep and repair of court facilities.
Second, MOJ is responsible for training of judges and court
personnel. Third, the MOJ, through its Inspectorate department,
conducts semi-annual inspections of the courts, designed to track
civil and criminal cases through the lower courts and to ensure
that all mandated standards regulating the progression of a case
through the courts have been met.
An analysis of the manner in
which the SJC and MOJ perform their respective functions in
connection with court oversight and administration reveals serious
deficiencies that undermine the efficiency of the judicial branch.
Specifically, while the SJC has a broad-based administrative
mandate, it lacks the resources and capacity to execute its
functions. The MOJ, on the other hand, appears to have resources,
but does not at present utilize those resources for the optimal
functioning of the system. The following analysis of court
financing, ethics, personnel matters and disciplinary procedures
illustrates the urgent need to strengthen and to allocate
appropriate resources to the body, constitutionally charged with
the oversight and administration of the court system, namely the
SJC.
The Ministry of Justice’s
Inspection Function
The MOJ’s Inspectorate Department conducts
six month reviews on each set of courts below the Supreme Court
level. The basic mandate of the Inspectorate Department is to
review the administration of civil and criminal cases. In the
process of these regular on-site inspections, statistical data is
collected to ensure that all legal requirements are met.
There are three major drawbacks to the
current inspection system:
- the data is manually collected
Because there is no central computer database
for the court system, information is maintained in a variety of
fashions, often in duplicative logbooks, and the data maintained is
not very reliable. Nor is the data coordinated with that maintained
by other parties to the justice system, such as police,
prosecutors, and investigators.
- the data is very limited in nature
For example, information is strictly maintained
as to whether criminal cases are filed within the three day
statutory period once a person is incarcerated, and whether the
case is resolved either before or after three months (based on
another statutory requirement). But no data is kept on how long
cases are kept in the system after the three month period, nor on
the reasons for any such delay.
- little follow-through on reports
Information is collected by the MOJ and reported
to the SJC, but since these bodies are separate, there is little
follow-through on the reports. Within the judicial branch, the
original disciplinary responsibility devolves to the President
(chief judge) of the particular regional, district, or appellate
court. This individual may choose to further investigate a matter
and to impose some administrative sanction, or may do nothing,
depending on their personal choice. There is no regular reporting
mechanism back to either the SJC or to the MOJ to determine whether
any additional disciplinary or other corrective measures were taken
at the lower level.
The first of the problems identified above was
brought into stark focus last year when a scandal erupted in the
national press regarding the referral, handling, and disposition of
criminal cases. Statistics maintained by the Ministry of Interior
(MOI) showed that of all police referrals on criminal matters, only
one and one-half percent of cases were brought to the
disposition stage in court. The MOJ’s statistics were only
marginally better, showing that eight percent of all
criminal matters reached the disposition stage in court. Whilst
neither set of statistics reflected well on the functioning of the
judicial system, the discrepancy in the statistics could not be
properly reconciled because the parties’ systems (MOI’s and MOJ’s)
were not coordinated.
The Constitution clearly states
that the judicial branch will have an independent budget. The SJC
submits an annual budget request to the National Assembly. The SJC
conducts this annual obligation without any staff expertise, and
based on the information and requests sent to them by the
individual presiding judges of each of the individual courts in the
court system.
The general budget for the courts
is awarded by the National Assembly to the SJC, which then divides
the money between the judges, the prosecutors, and the National
Investigative Service. Currently, the Chief Prosecutor and the
Director of the NIS then decide how the money will be used for
their independent groups. The money for the courts is divided by
the SJC between the presidents of each court system, who each make
independent decisions on the use of funds (aside from fixed
expenses such as salaries). There is therefore no centralized
control over the funds once they are disbursed within a particular
budget year, and no system by which the individual courts report
back on their expenditures. Several regions have managed to squeeze
a few computers and software out of regular budget funds, but the
decision to do so, and as to what to buy and how to use it, are
made independently by each court.
An expert budgetary staff is
urgently needed by the SJC, to deal with properly funding regular
judicial branch expenses, to assist in special projects, and to
permit centralized planning for the branch in order to respond to
new national priorities. Very few, if any, of the members of the
SJC possess this kind of expertise, and they each have a myriad of
other obligations to fulfil. Without the development of an expert
staff, the SJC cannot be expected to do a competent job at
budgetary development.
As part of its mandate, the MOJ
Inspectorate Department collects statistics of various sorts on
each of the court system. The data collected by the MOJ does not
however assist in providing an overall picture of the functioning
of the courts that could be useful to SJC in fulfilling its own
mandate.
There is no collated information
on the numbers of computers in each of the courts, or whether, and
how particular courts use computers for record-keeping. One reason
for this particular lack of information is that courts are
permitted to accept “gifts” or “loans” of computer equipment and
software from private sources. Some courts have accepted computers
from banks and law firms who appear regularly in cases before those
courts, thereby raising conflict of interest and corruption issues,
while other presiding judges have squeezed money for computers out
of budgetary items slated for building repairs. In addition,
different regional courts have developed different software
packages for court administration, and then sometimes try to “sell”
this package to other court systems.
Statistical information on court
costs, including operating expenses and salaries, is collected by
the MOJ Inspectorate Department. The MOJ also collects information
on court facilities and equipment, and it is the MOJ which is
responsible for the upkeep and repair of court facilities (although
the presiding judges handle the daily details of arranging repairs
and other maintenance and each court pays a small percentage of its
budget into a “buildings fund”). Information is not
collected on how many computers there are in the various courts nor
what various kinds of software are used for either case management
or for legal research.
The lack of computerization and
standardized administrative and case maintenance software within
the court system, and the lack of a manual substitute creates a
bureaucratic nightmare. Information is not reasonably certain on
numbers of cases assigned, the kind of cases, the length of cases,
and their disposition. Without this information, the individual
professionals in the judicial branch cannot be reasonably
supervised, either for competence or corruption. Nor can reviews of
these issues be done on a system-wide basis, since neither the SJC
nor the MOJ collect sufficient information.
There is also little or no
coordination for future planning for any of the three parts of the
judiciary. The SJC has the responsibility for the budget, but has
no staff with budgetary expertise. The MOJ has staff with
inspectorate and budget expertise, but does not have authority to
make related budget or staffing decisions except for buildings and
training. Nor are the MOJ and SJC sufficiently coordinated in these
activities to make the best use of their collective
information.
-
-
3. Personnel Issues
a. Appointments
All judges in Bulgaria are
appointed by the Supreme Judicial Council. For the Regional courts,
a judge must have at least two years of experience in the legal
profession; for the District courts, five years. Judges will
typically serve their first two years as "junior judges" in the
District courts. This is a two-year term during which the junior
judge will hear cases together with two fully-fledged District
court judges on the bench. The Presidents of each of the courts are
also appointed by the SJC.
As described in more detail in
the USAID report, law graduates are required to serve an
"apprenticeship year", structured according to which branch of the
legal profession a candidate wishes to pursue. For those pursuing a
judicial career, the apprenticeship year is split between the
District and Regional courts. At the end of this year, all trainee
lawyers and judicial candidates come together for a state
examination organized by the Ministry of Justice. The findings of
the USAID report suggest that the content of this examination
appears to be open to question in terms of rigor and relevance to
ultimate job performance.
In addition to these examination
criteria, all judicial candidates must: (1) be Bulgarian citizens;
(2) have no criminal record; and (iii) possess the "required moral
and professional qualities". At the present time, no systematic
background checks on judicial branch candidates and on the clerical
staff for the judicial system are performed. There is also no
systematic determination made as to the character of people who
apply for judgeships. When this is coupled with the lack of job
descriptions and lack of regular supervision, it is clear that this
is one reason that there are serious problems within the judiciary
as to incompetence and corruption.
Despite the fact that all
Judicial Branch professionals obtain blanket job security after a
three year probationary period, and also receive both civil and
criminal immunity at that point, a large percentage of people leave
these positions for private practice or other positions after a few
years. These jobs are very poorly paid, with salary ranges of
approximately 0 to 0 in U.S. dollars. The best-paid private
lawyers receive between and 0 per hour, and it is fairly
common for private lawyers to receive about this amount per day.
Almost any lawyer can make more money than judges, prosecutors, or
investigators. Newly-published statistics show that the average
wage for all workers in Bulgaria is about 2 per month.*
The average judge’s and
prosecutor’s salary is barely enough to meet the usual housing/rent
costs in Sofia. All other basic expenses and any “extras” must be
paid from a non-salary source. While some prosecutors and judges
rely on spouses or professorships to meet these expenses, it is
quite common for judicial branch personnel to accept bribes in
order to feed their families.
The consequence of the extremely
low pay, when added to the deep lack of respect for the Judicial
Branch employees and the poor working conditions, are many-fold.
First, few highly competent lawyers are attracted to this work.
Second, many of the competent Judicial Branch professionals spend a
few years learning everything they can about the judicial system,
and then leave the judiciary for higher paid jobs. Third, according
to strong anecdotal information, those who stay often resort to
corruption in order to meet their basic living expenses. There
remains a very small cadre of extremely dedicated and competent
professionals who are strong supporters of change in the Judicial
Branch. The large balance of remaining Judicial Branch employees
are often not motivated to move their caseloads along, are not
well-trained or otherwise informed about the law, or are directly
susceptible to bribery.
This problem is equally great for
the supporting clerical and administrative staff. Without
exception, all of the judges interviewed strongly complained about
the lack of competent and honest staff. The support staff is not
properly trained in its functions, is not motivated to serve as
part of a system which resolves disputes, is paid extremely low
salaries, and does not have a proper civil service program in place
to resolve disciplinary issues. It is commonly known that clerks
are paid small sums to hide files or to move files up on a judge’s
calendar, and that larger sums are paid for a file to be completely
lost. No efforts are made to retain or reward competent staff.
Their working conditions are poor, especially in the busier court
systems. Nor are the judges able to terminate incompetent workers
without facing myriad civil and administrative claims, since there
are no civil service standards yet in place.
The proposed amendment to the
Judicial Powers Act also contains provisions as to the minimum
salary for judges. The minimum salary for an entry level judge
would be fixed at twice the national average public sector salary,
plus a clothing and housing allowance. Whilst this is a move in the
right direction in an environment of tight budget constraints, it
would do little to bring the judicial career the esteem and the
caliber of personnel it deserves.
Determinations of staffing levels
within the judiciary are ultimately made by the Supreme Judicial
Council, after input and requests by presiding judges, the Chief
Prosecutor, and the Director of the National Investigative Service.
Staffing and related budgetary issues are addressed by the SJC in
an annual budget request to the National Assembly, with assistance
from the Ministry of Justice on buildings and training issues. The
SJC does not have any expert staff to assist in these
determinations or other administrative planning, and the budget and
staffing requests depend on the tenacity or connections of the
presiding judge or other supervisor rather than a systematic
assessment of the needs of the particular offices or
courts.
There appears to be no set policy
for promotion of judges, prosecutors, or investigators. A decision
has just been made to require job categorization, systemic
enforcement of qualifications for employment, and regular standards
for promotion and discipline of government personnel under the new
Civil Service Law. No one could state with certainty that the civil
service reforms would be applied to Judicial Branch personnel
(although it was stated that it would apply to court clerical and
other support staff). Notwithstanding the doubt surrounding its
applicability, it is anticipated that the SJC will adopt similar
principles for promotion and discipline for judges, prosecutors and
investigators within a reasonable period of time. At this point,
promotions are granted in a haphazard fashion, and are as often
based on political and family connections as they are on levels of
knowledge and experience.
The SJC has the clear
constitutional responsibility and right to supervise and discipline
all judicial branch employees. However, there is no regular
bureaucratic system through which disciplinary matters are reported
and investigated, nor is there a clear set of guidelines for the
conduct of employees. Additionally, the SJC does not have staff
experts or personnel whose responsibility would be to deal with
disciplinary cases.
The Bulgarian Judges Association
has produced a set of guidelines for judges, but these rules are
voluntary and would apply only to the members of the BJA. A
corresponding prosecutor’s association has not produced ethical
standards, nor are there written standards of conduct for
investigators. Since these judicial employees are so poorly paid
that they are commonly recent law school graduates with little
practical experience, and since they receive little training (and
no training on ethics), the usual result is that a variety of
ethical breaches (by Western standards) are quite common. There is
also very substantial anecdotal information that case decisions are
commonly resolved through bribery of the judges, court
administrative personnel, prosecutors, and investigators. In fact,
one judge jokingly mentioned that judges are less corrupt than the
other groups, simply because they are at the end of the time line
for case procedure, after bribes have already been paid to dismiss
cases or “lose” files.
The president of each court is
responsible for reporting disciplinary matters to the SJC, where
the president has determined that specific disciplinary measures
are warranted, but without standards or administrative support for
this function, this step is very rarely taken. There is a common
saying in Bulgaria, “A crow does not pick out the eye of another
crow.” This sentiment demonstrates one of the reasons for the lack
of referrals to the SJC. Another strong reason for the lack of
disciplinary measures is that few judges desire to expose the
corruption or inefficiency of their colleagues for fear that
attention will be turned to their own conduct. Without an
administrative structure and standardized rules of conduct, there
is little impetus or pressure to refer judges or other judicial
branch personnel for serious discipline.
As described above, while an
inspectorate function is carried out by the Ministry of Justice,
this function is not directly connected to the review of
disciplinary matters. Neither the Judicial Branch nor the Ministry
of Justice carries out an internal affairs function, resulting in a
complete lack of review for internal corruption matters. This
situation has partly contributed to the public view of an unmanaged
and corrupt Judicial Branch.
A serious block to dealing with
criminal activity by judicial branch personnel is the criminal
immunity provided for them under the Constitution. Serious criminal
matters would have to be referred for criminal investigation and
prosecution, yet no charges may be brought against any judicial
branch professional unless the crime involved is a “grave” one
(only the most serious felonies, of which bribery is not one), and
unless the SJC gives permission to lift the immunity. This has
virtually never happened.
According to members of the
National Assembly, this “protection” was put into place because of
some glaring instances of political maneuvering through criminal
charges against various public officials. In their view, the
judicial system is so weak that it cannot provide the normal kinds
of protections against false claims or accusations. Additionally,
without the public administration reforms, including the civil
service legislative reforms and proposed changes in the substantive
criminal law in place, those who abuse the system to bring specious
charges against public officials cannot be punished, even
administratively. While legislators, executive branch personnel,
and some members of the judiciary generally agree that these
immunities cause very serious problems, as a group they are not
willing to take steps to remove these criminal immunities until
other protective reforms are in place.
Opportunities for
Corruption
The lack of sufficient national
record-keeping and administrative follow-up also contributes to
corruption. The SJC doesn’t have staff to handle either statistical
information or administrative supervision, and the MOJ does not
collect data which would permit reviews of job performance or
actions/delays in specific cases, nor does it have supervisory
authority over the judicial branch. The presiding judges of the
court systems have a variety of administrative duties, as well as
their own caseload, and also have no administrative staff to
support a thorough review of the caseloads of the other judges. Nor
is there any modern docketing system for case files. The result is
a lack of systemic administrative support or supervision of the
judicial branch.
One consequence of this situation
is that judges, prosecutors and investigators who decide to resolve
cases corruptly can do so with the high probability that their
actions will be neither reviewed nor questioned. According to
strong anecdotal information, this kind of corruption is more
common than the resolution of cases on the basis of the facts and
applicable law.
D. POSSIBLE STRENGTHENING
MEASURES
The SJC, as overseer of the
judicial branch, must have the capacity to fulfil its mandate. As a
first priority in a judicial reform program, the SJC requires
fundamental institutional strengthening. This will involve
allocation of additional budgetary resources to allow SJC to expand
its staff to include appropriate professional support staff in
finance, planning, statistics and personnel matters. SJC would also
require additional material resources to fulfil its function
appropriately (office space and equipment). The SJC will also
require technical assistance in designing a strategic plan to
address the needs of the judicial branch, including in some of the
areas outlined below. In addition, in order to improve the
functioning of the system as a whole, greater coordination will be
required between the SJC and MOJ, particularly with reference to
the inspectorate function.
1. Strengthening the SJC in order to:
- develop its administrative capacity in budgetary
matters and formalizing its supervisory and planning functions by
expanding its support to include professionals in these
areas;
- develop transparent criteria for the hiring,
promotion, and disciplinary system of judges, prosecutors, and
investigators;
- obtain expert staff to determine adequate
physical needs for each of the courts and other offices
(encompassing buildings and computers), and seek sufficient
budgetary funds to meet these needs.
- develop a regularized disciplinary system and
standards of conduct for all judiciary branch personnel, including
a process to lift criminal immunity where proper; it should also
develop an expert staff to deal with disciplinary matters on a
regular and standardized basis. This staff should conduct its own
inspections of the offices and courts within the Judicial Branch,
which would coordinate with or replace the Ministry of Justice
inspection function.
- establish an internal affairs structure to
handle internal corruption investigations on an on-going basis for
all parts of the judiciary.
2. A study be carried out to
determine how criminal and civil immunity issues are dealt with in
other countries, in order to decide if additional steps can be
taken to deal with the existence of these barriers to dealing with
misconduct/crimes.
3. In order to ensure greater
coordination between MOJ and SJC, a systemic review be carried out
of the data required to be collected by the courts and then
monitored through MOJ’s Inspectorate Department. SJC should review
the type of data that should be collected and maintained by the
courts in order to show the working and efficiency of the court
system and to monitor personnel issues such as disciplinary
measures. Given the sensitivity of some of this information,
consideration should be given to how this information should be
monitored by SJC, as clearly some of these issues rightly fall
outside the mandate of the MOJ Inspection function.
4. A study be carried out in
order to determine a satisfactory pay scale for all Judicial Branch
employees The Bank Team would recommend an approach of linking
judicial salaries to those of legislators, and raising all other
judicial branch salaries accordingly. This approach was recently
adopted by the Georgian government in it’s judicial reform
efforts.
A. Case Load Management
The US AID report addresses very
well the administration, management, and planning issues facing the
judicial branch The table below contains a summary of the
weaknesses identified by USAID on court administration. The full
text of the USAID report is set out at Annex III to this
report.
Summary of reasons for Case
Delays
- Administrative and clerical burdens of all
judges
- Administrative burdens of Chairman of
Courts
- Lack of legal research assistance and legal
information software
- Poor performance by court support
staff
- Lack of training of judges
- Lack of work ethic among judges
- Inability to quickly access information in
criminal and civil codes
- Complex summonsing process
- Intentional delays by attorneys
- Prolonged period for collection of
evidence
- Failure by witnesses to appear
- Failure by judicial experts to
appear
- Workload associated with enterprise
registration
- Workload associated with high level of
appeals
- Absence of alternative dispute resolution
mechanisms
Based on USAID report
As described in greater detail in
the USAID report, problems exist on all levels. On an individual
level, each judge has a variety of simple clerical duties to carry
out; they must answer their own phones, accept visitors scheduled
and unscheduled, hand-write or type their own correspondence and
opinions (often on manual typewriters), conduct 100% of their own
legal research, and handle most of the docket scheduling issues, as
well as bearing the responsibility for the appearance of parties
and witnesses for court hearings. This same situation is generally
true for the prosecutors and the investigators. It is estimated
that approximately 20% of an individual’s time is spent on clerical
matters.
The presiding judges must handle
all of these matters for their own caseloads, and must additionally
control and disburse the annual budget, contract for building
maintenance and repairs, assign cases, and handle any disciplinary
matters, in addition to the general supervision of the judges and
court support personnel. It is estimated that 50 - 80% of a
presiding judge’s time is spent on administrative matters,
depending on the particular court system.
Many of the members of the
Supreme Judicial Council are also Chairmen or Deputy Chairmen of
individual courts. As such each have their own caseload and
administrative responsibilities within their own judicial branch
offices. But the SJC is also responsible for handling the
preparation of the annual judicial branch budget request and the
discipline of employees. They have only a handful of clerical staff
members to assist in these responsibilities. The SJC plans on being
fully computerized by the end of this year, but does not have a
coordinated record-keeping system for its responsibilities at this
time.
One of the other reasons
identified in the USAID report involves the conduct before the
courts of lawyers in private practice. Whilst the USAID report
rightly recommends the need for the courts to be able to impose
sanctions for deliberate delaying tactics employed by lawyers, the
role of the Bulgarian Bar Association in developing a strong legal
profession is examined in the box below.
Intentional Delays by
Lawyers
The USAID report identifies
intentional delays by lawyers as one of the obstacles that can
delay court proceedings. Under the current system, a judge cannot
impose any sanctions on lawyers who abuse procedural rights. While
the Law on Advocates sets rough guidelines for the conduct of
lawyers in private practice (e.g. not employ procrastinating
techniques in court, ban on trade advertising, limited conflict of
interest rules). These standards are generally viewed as being weak
when measured against comparable international standards (for
example, the conflict of interest rules only apply to court
representation and do not extend to representing conflicting
parties in the same business deal or even taking a personal stake
in business deals which should be negotiated solely for the
client). The Law on Advocates also establishes disciplinary
procedures against lawyers.
Each lawyer in private practice
must be registered with a regional Bar Association (corresponding
to the regional courts) and the national Bar Association. These are
self-financing independent bodies, however, given the low level of
fees charged, the Bar Associations may not be able to fully fulfil
all their stated functions. Each Bar Association has its own
Disciplinary Court before which an aggrieved party can bring an
action against a lawyer. The Disciplinary Court can impose fines
and/or temporary or indefinite suspension. To date, most of the
cases before the Disciplinary Courts have been brought by the Bar
Associations for failure to pay membership fees, with only some
cases brought for negligence. Virtually all sanctions imposed have
been for failure to pay Bar Association fees.
Intentional Delays by
Lawyers
In addition to the recommendation
made by USAID to change the Civil Procedure Code to provide for
sanctions to be imposed by the courts on private lawyers, the
Bulgarian Bar Association could be provided assistance and training
to develop a set of standards of conduct for attorneys; the BBA
could be provided training in the exercise of it’s disciplinary
function and a review undertaken of the financing needs for the
proper exercise of these functions.
The lack of coordination within
the judicial system and the lack of any information link between
the users of the court system and government agencies are both
highlighted as problems in the USAID report. It is not currently
possible to follow a case from the police complaint to the
conclusion of a court case, nor to follow a convicted defendant
through a prison term or alternative punishment. Nor is there a
civil docketing system which permits a reasonable review of the
civil justice system. This situation will be exacerbated by the
expected creation of the financial police within the MOF, which has
its own computer and software systems.
Even within the court system,
there is no coordinated system for case management or for court
administration. While the maintenance of certain ledger books is
mandated by law, there is no centralized set of records through
which case numbers, types, disposition, and length of case are
maintained or reviewed.
The computerized case tracking
system is a stated goal of the GOB; the Council of Ministers’
National Strategy to Counteract Crime has as one of its goals the
creation of a computer system which would track criminal (and later
civil) cases from initiation by the police through disposition of
the case in court and any following imposition of sentence. The
court records would be one module of this broad unified system,
which would also standardize the statistical record keeping across
all of the governmental parties involved in the justice system.
This system should include both a court record and file management
system, and should specifically include a docketing
system.
Suggested
Measures:
1. The judicial branch should set
as a high priority the creation of the Uniform Information System,
which would initially be established for the criminal caseload, and
would later be expanded to the civil caseload. It should cooperate
with the Council of Ministers in general, and specifically with the
MOJ, the MOI, and the Center for Information Technology to agree on
the bases for such a program, and to determine the hardware and
software needs to support the development of the system. Part of
the development of this system would include a common statistical
system with the National Statistics Institute, to assist in
pinpointing problems and delays in the judicial system, and as a
planning and supervision tool to develop responses to those
issues.
2. Following on from the pilot
activities recommended by USAID in certain courts, the SJC should
develop a computerized case-tracking, file management, and
docketing system which will capture complete information on length
of cases and manner of disposition at each stage of a
case.
3. The SJC and MOJ should conduct
a complete review of each part of the judicial branch to determine
the computer assets owned in the courts and to evaluate the
software systems available to manage individual caseloads, to
provide supervisory data, and to provide system-wide data for
administrative, management, and disciplinary decisions; in
addition, this review should be combined with an analysis of any
physical modifications required to the court buildings in order to
provide the appropriate wiring for increased
computerization.
4. As stated in the USAID report,
the SJC should undertake a review of the needs of individual judges
for clerical assistance, and should prepare a plan to fulfill these
needs. The adoption of a computerized Uniform Information System
will free up a large number of clerks who currently maintain
various ledger books. A training center could also be utilized to
retrain these support personnel to handle new administrative
responsibilities. This review should include all judicial branch
offices and officers, not just the judges and courts.
5. The SJC should review the need to provide
professional court administrator staff to presiding judges (to be
tested in a set of pilot courts), as recommended in the USAID
report.
It is apparent that space
constraints are a severe problem in Sofia where judges frequently
share an office with one or two other judges. This, clearly,
prevents judges from performing to the best of their abilities. For
many of the courts outside of Sofia, although the space allocated
appears adequate, the court buildings may require some modification
in order to be wired for a greater degree of computerization. An
inventory of the space available to the judiciary is required, so
as to determine whether the problem of physical space in Sofia is a
prevalent problem throughout Bulgaria. Currently no statistics are
maintained on the number of occupants per office in the court
buildings. The courts visited by the Bank team outside of Sofia
seemed spacious and no complaints were voiced as to working
conditions.
In Sofia, the Bank team learned
that the sections of the old Palace of Justice, currently used by
the National Museum, would be reclaimed in 1999. Given the needs
for physical space in Sofia and the need to increase the esteem in
which the judiciary is held, the Government would be urged to
provide adequate space to allow the judges to efficiently discharge
their duties.
The Constitutional Court is
housed in a section of the government building assigned to the
Council of Ministers. This physical proximity does not assist in a
public perception of a clear separation of powers. Ideally, the
Constitutional Court should be located in it’s own
building.
With the large volume of legislation enacted
in recent years in Bulgaria, it is critical that the judiciary have
access to up-to-date legal information comprising laws, normative
acts, decisions of the Supreme Courts and other legal data. A lack
of availability of current legal information has not been
identified as a problem for judges (or other legal practitioners)
in Bulgaria, nor was the prompt publication of laws and normative
acts. There have been numerous complaints about the access to
translated laws (for foreigners) and the quality of translations.
The Ministry of Justice has plans to develop an “official” English
translation of statutes and regulations to assist in attracting
foreign business. The MOJ is seeking financial assistance in this
endeavor.
A variety of sources of legal information is
available to lawyers and judges, both in hard copy and in software
packages carrying varying price-tags. It is the decision of each
individual Court chairm | 
