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PROGRAM FOR JUDICIAL REFORM IN BULGARIA
Sofia 2000
Table of Contents
Introduction
Introduction
This program has been drafted by eminent Bulgarian
lawyers within the framework of the Judicial Reform Initiative
(JRI). The latter benefits from the combined efforts of influential
non-governmental organizations, representatives of State
authorities and experts who offer their expertise in order to
ensure further successful development of judicial reform in the
Republic of Bulgaria. The initiative was launched in March 1999 as
a joint endeavour of the Legal Interaction Alliance; the European
Network of Women in Police -Bulgaria; the Chamber of Investigators
in Bulgaria; the Legal Initiative for Training and Development
(PIOR); the Association of Judges in Bulgaria; the Union of
Bulgarian Jurists; the Modern Criminal Justice Foundation; the
Center for the Study of Democracy; acting also as a Secretariat of
the Initiative, and representatives of the Legislature, the
Executive and the Judiciary.
The first draft of this Program was presented for
discussion to the principal stakeholders of the JRI on a number of
occasions, inter alia at a workshop on July 1, 1999 hosted by the
Center for the Study of Democracy. Since July, the Draft program
has been open for discussion and suggestions from the major
stakeholders in the reform process such as the Ministry of Justice
(MJ); the Supreme Judicial Council (SJC); associations and guilds
of the legal profession; concerned non-governmental organizations;
representatives of the media; independent legal experts and the
Bulgarian citizenry. The amended and revized Program incorporates
the comments, suggestions and notes provided and is representative
for the state of the Bulgarian judiciary and the legislation as to
May 2000.
The judicial reform envisaged by the 1991
Constitution should comprise a consistent set of structural and
functional changes that should result in a new organization of the
Judiciary.
With the adoption of the Law on the Judiciary, the
legislative framework was put in place in order to proceed to
structural changes in the judicial system. Courts of appeal, the
Supreme Court of Cassation and the Supreme Administrative Court
were set up.
In addition, in 1998 important amendments were
enacted to the Code of Criminal Procedure and the Code of Civil
Procedure. By virtue of these amendments, three-instance
proceedings were introduced, namely: first-instance,
appeal-on-the-merits and cassation proceedings. Likewise, the Law
on the Supreme Administrative Court was passed which currently
governs the functioning of this particular institution. In 1999,
the procedural laws were further amended so as to ensure speed and
better efficiency in the administration of justice.
In a broader prospective, the concept of "judicial
reform" is understood to comprise the legislative framework
described above, plus the following key aspects:
warranting the independence of the judiciary;
improving the professional knowledge and skills of
magistrates;
substantially modernizing the organization of
work;
opening the Judiciary towards the society; this
includes the formulation and implementation of an adequate media
policy;
introducing amendments to the legislation in force
(both substantive and procedural) in view of the further
development of the legal foundation of the reform.
The Supreme Judicial Council (SJC), as an
institution determining the composition and carrying out the
organization of the judicial system, must have the capacity to
fulfil its mandate. For that purpose, the SJC would need
fundamental institutional strengthening. This would involve
allocation of additional budgetary resources to enable the SJC to
expand its administrative staff in order to afford appropriate
professional support in finance, planning, statistics and personnel
matters. It would also require technical assistance in designing a
strategic plan to address the needs of the judicial branch,
including the areas outlined below. Moreover, in order to improve
the functioning of the system as a whole, greater co-ordination
would be needed between the SJC and MJ, particularly with reference
to the inspectorate function.
The strengthening of the SJC is suggested in order
to:
·develop its administrative capacity in budgetary
matters and formalize its supervisory and planning functions by
expanding its support so as to include professionals in these
areas;
·develop transparent criteria for appointing,
promoting and applying disciplinary measures in respect 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 magistrates, including an improved
process of lifting criminal immunity where needed;
·to establish a structure with a decision of the SJC
to handle corruption investigations on an on-going basis for all
units of the Judiciary;
The overall objective of the judicial reform is to
match as fully as possible the societal needs for a novel
regulatory framework corresponding to the new social and economic
processes in the country. Thus, legal stability and confidence in
the Judiciary could be achieved and the system could turn into a
modern European judicial system. In order to achieve this goal,
both legislative amendments and organizational changes are
required.
In a number of workshops, interactive discussions
and consultations, and on the basis of consensus among the
stakeholders of JRI, the following main priorities of judicial
reform have been identified:
Training of magistrates;
Reform of court administration.
Likewise, the main areas have been defined where the
legal foundation of the reform should be improved in its
substantive as well as procedural aspects.
The structure of this program is based on the
priorities agreed upon and follows the main areas where the legal
basis for achieving these priorities needs improvement.
1. Status of Magistrates: Independence
and Liability
1.1. Governing Principles
The Constitution of 1991 and the Law on the
Judiciary proclaimed the principles of independence, autonomy and
de-politicising of the Judiciary. The independence of the Judiciary
is a major democratic achievement. It should not be regarded as a
privilege of the magistrates working in the Judiciary but as a
guarantee for establishing order and the rule of law in the State
and for a fully-fledged protection of citizens' rights. The rule of
law is unthinkable without an independent and stable Judiciary.
In order for the Judiciary to be genuinely
independent, the following elements are considered essential:
·accurate selection of magistrates: they should
possess good professional qualities and high moral integrity;
·modern organization of work;
·adequate funding.
Typically, every judicial system is conservative and
closed. Unlike the Legislature or the Executive, changes in the
Judiciary only become noticeable after a longer period of law
enforcement. The civil law systems - the Bulgarian one being one of
them - are familiar with the notion of "career magistrates". In
other words, professional promotion is linked to the length of
service within the system.
On the one hand, the dynamic social and legislative
changes have had a tangible effect on the functioning of the
judicial system. Many young people, lacking the required knowledge
of life or professional experience, were absorbed in the magistrate
profession. Even the experienced magistrates encounter difficulties
in applying a constantly changing and at times inconsistent
legislation. There is no system for professional training of
magistrates.
On the other hand, the huge financial interests and
the lack of efficient supervision of the work of magistrates are
conducive to corruptive practices. Hence, if magistrates do not
possess moral integrity, their irremovability results in
impunity.
The judicial system does not enjoy public
confidence. Besides the objective reasons for the current state of
affairs, this low reputation could be largely attributed to the
system's closed character and lack of media policy. The general
public is totally unaware of the specificity of judicial
activities, of the problems in the administration of justice and of
the ongoing reform efforts.
1.2. Identified Priorities
The reform in the administration of justice is
mainly aimed at establishing a strong, professional and independent
Judiciary.
The administration of justice should:
·be based on clear rules;
·be well organized;
·ensure rapid and efficient resolution of civil
disputes and efficiently functioning criminal justice system.
The work of the Judiciary should be organized at a
level matching the social need to have the rule of law deeply
rooted in practice.
The legislative reform required for the development
of the Judiciary is a priority for both the Government and the
Parliament. Numerous proposals for legislative amendments are on
the Government's political agenda, "Bulgaria 2001". Some of those
amendments have been enacted already, others are still discussed in
Parliament or are being drafted by the Ministry of Justice.
The reform could not take place on the basis of
legislative amendments alone. In order for the magistrates to enjoy
their well-deserved place in society, they should demonstrate legal
competence, personal integrity and responsibility. However, their
development as professionals requires that criteria be set for
their selection and that conditions be created for the improvement
of their knowledge and skills.
1.3. Suggested Measures
In order to achieve the objectives listed above, the
following priority measures should be considered:
1.3.1. Improving the Access to the
Magistrate Profession
Sections 27 and 30 of the Law on the Judiciary
provide that judges, public prosecutors and investigators shall be
appointed, promoted, demoted and removed from office by the Supreme
Judicial Council on a proposal from competent administrative
superiors. However, the Supreme Judicial Council is actually unable
to judge on the professional qualities of all newly-appointed and
promoted magistrates. Thus it relies mainly on the assessment made
by the proposing officials. Due to the lack of candidates for some
units in the judicial system, sometimes the persons appointed meet
only the formal requirements for a given position.
A more accurate selection of magistrates (especially
on their first appointment in the system) could be ensured through
the following measures:
introducing a minimum score required upon completion
of the legal studies (for example not lower than "B", i.e.
"good");
introducing requirements for an adequate legal
experience (excluding the training as a court candidates);
widely publicising all vacancies in the system;
introducing contests to fill the vacancies (on the
basis of documents and through examination);
ensuring a minimum standard of living for the
members of the Judiciary in less popular regions (e.g. housing,
transport facilities, etc.);
In addition, before a magistrate becomes irremovable
or before any promotion in position or rank takes place an accurate
assessment of his or her work on the basis of clearly defined and
written criteria should be made by his direct superior, by a
representative of the higher instance and by the Inspectorate at
the Ministry of Justice.
1.3.2. Education and Training of
Magistrates
1.3.2.1. Education at Faculties of
Law
The requirement that all magistrates should have a
law degree obtained at a higher education institution is an
important achievement of the Bulgarian State. This tradition dates
back to the end of last century and is indicative of the particular
importance the society attaches to the high professional
qualifications of the persons vested with the administration of
justice.
At present, ten faculties at different higher
education institutions in the country offer higher education in law
and issue diplomas for the qualification of a "lawyer". There is a
State standard for legal education. The standard is laid down in
the Ordinance on Single State Requirements for Obtaining Higher
Education in Law in the Speciality of "Law" and the Professional
Qualification of "Lawyer".
The law faculties currently existing in Bulgaria do
not offer specialized training for magistrates. Students are
trained to work in all areas of law enforcement. In order for them
to be able to specify the profile of their future occupation yet
during their studies, the following measures are suggested:
making full use of the possibilities offered by all
optional and elective subjects in order to ensure
specialization;
developing the link between theory and practice in
the process of teaching, especially by involving outstanding
practising magistrates in that process;
improving the efficiency of the internship schemes
during the studies and the link between the law faculties and the
authorities hosting trainee students;
putting in place a working system for post-graduate
specialization at higher schools which should be accessible to
practising magistrates;
improving the form of the final exams which
constitute the final stage of education.
developing joint curricula between the MTC and
Institutions of Higher Education.
1.3.2.2. Training of Court
Candidates
The practical training during the studies is
basically confined to, and the professional orientation of law
graduates depends on, the compulsory one-year period of practical
internship after graduation. However, the unanimous opinion is that
the internship is rather formal, inefficient and fails to achieve
its intended objectives. The patron judges are overloaded and lack
the time necessary for the practical training of court candidates
who, in turn, are unevenly seconded to the various district courts.
The interns themselves are not sufficiently interested in the
internship. The theoretical and practical exam held at the end of
that one-year period is both formal and useless. One of the
proposals under discussion is the training of court canditates to
be obligatory only for those intending to work in the judicial
system.
In order to increase the value of the practical
internship, the following amendments to Ordinance No. 30 on the
Preparation and Procedure for Attesting Court Candidates and
Interns at the Bar are suggested:
designing special programs for the training and
examination of court candidates which should be oriented towards
working in the Judiciary;
limiting the number of court candidates at the
district courts and their seconding to courts throughout the
country;
introducing a system of emoluments for the patron
judges;
revising the exam on the basis of which the
qualification of a lawyer is recognised by laying a stronger
emphasis on its practical aspects.
1.3.2.3. Continuous Training of
Magistrates
The efficient work of judges, public prosecutors and
investigators necessitates initial training upon taking office and
continuous training throughout the period of service. Over the past
several years, training for magistrates has been offered in a
rather sporadic and uncoordinated fashion by the Ministry of
Justice and by a number of NGOs (e.g. the Legal Initiative for
Training and Development (PIOR), the American Bar Association
(ABA-CEELI), etc.). Though the topics discussed at such training
sessions are generally interesting for the participants, the events
themselves are not accessible to all magistrates.
As regards the training of magistrates, the
following main problems could be identified:
insufficient funding earmarked for training in the
budget of the Ministry of Justice and the budget of the
Judiciary;
the extreme workload of the magistrates which
reduces their ability for self-education and participation in
organized training;
the lack of a system bridging the level of attained
qualification with promotion.
In April 1999 an NGO was formed, namely the
Magistrate Training Center. Its governing body is composed of
senior magistrates, representatives of the Ministry of Justice, the
Association of Judges in Bulgaria, the Legal Interaction
Alliance.
Curricula were drafted for the first academic year
of the Center (October 1999 – July 2000). Throughout that period,
only two forms of training are being used, viz. seminars for
newly-appointed judges and conferences on selected recent
legislative amendments (e.g. amendments to the Code of Civil
Procedure, the Code of Criminal Procedure, the Code of
Administrative Procedure, Commercial law, etc.) and other topics
like Court administration, Professional ethics, etc.
The curricula for the next 3 years is in the process
of preparing.
The drafting of permanent curricula in the following
areas is also forthcoming:
initial training of all newly-appointed judges
before they take office or immediately after that;
compulsory training of the newly-appointed judges
during the first three years of their service, including inter
alia:
—courses on the administration of the corresponding
judicial activity;
—drafting of court judgements and rulings;
—relations with the other bodies of the judicial
system and with institutions connected thereto;
—professional ethics, etc.
continuous training of the judges at different
levels in the following areas:
—current legal and professional problems;
—EC law;
—language and computer training;
—psychology, sociology, public relations, etc.
training upon the transition of judges from one
instance to another and from one unit to another within the
judicial system;
training of the chairs of different units in the
judicial system in administration and planning;
training of bailiffs and of judges in charge of
court registration;
training of police officers in criminal law,
administrative law and procedure, and in the fields of police
ethics, crime prevention, combating corruption, juvenile
delinquency, drug trafficking, illegal traffic of people, etc.
The next steps for improving the quality of the
administration of justice should consist in:
developing a system that links the professional
promotion of magistrates to the corresponding qualification
obtained during the training process;
laying down rules on the compulsory character of,
and general access to, training during the first three years of
service (by amending the Law on the Judiciary).
The professional training of judges is one of the
indisputable priorities in the judicial reform. Even the most
flawless legislation is of no avail, unless it is enforced by
people enjoying high moral integrity and professional competence.
Legislation is equally binding on all nationals of a State but
whenever a legislative instrument is infringed, the judicial system
steps in as a key actor.
If the Judiciary is to fulfil the tasks in the
process of establishing the rule of law, many efforts should be
made to raise the professional qualification of the judges, the
public prosecutors and the investigators working within the system.
The incessant amendments to the legislation give rise to numerous
problems in the process of law enforcement and often result in
inconsistent case-law.
Amending the legislation in force is indeed within
the competence of the Legislature and of the Executive.
Magistrates, however, are the most active promoters of their own
professional improvement. Lawyers' NGOs play a decisive part in
this respect.
As regards the setting up of a permanently
operational and well organized system of continuous training for
judges, public prosecutors and investigators, much reliance is
placed on the newly-formed Magistrate Training Center. Funding has
been ensured for the initial period of its activities. The training
offered by MTC should be governed by the following objectives:
·assisting the magistrates to become familiar with
their profession, to develop their professional skills and obey a
code of ethics matching the requirements of the profession;
·allowing continuous access to further legal
knowledge for all magistrates;
·encouraging the self-esteem, the sense of
independence and responsibility of magistrates, in line with the
expectations of the general public;
·promoting the establishment of consistent and
efficient practices in the administration of justice.
In the medium run, it is particularly important for
MTC to be stabilized as a permanently operating institution giving
opportunities for continuous professional training for all
magistrates in the country. For this purpose it is also important
that the budget of the Judiciary, concerning the training of the
magistrates, should be increased substantially.
In the long run, the idea could be considered about
transforming MTC into an entity operating under public law and
funded mainly by the State.
1.3.3. Liability of
Magistrates
1.3.3.1. Disciplinary
Liability
The disciplinary liability of magistrates and the
grounds for lifting their criminal immunity are governed by the Law
on the Judiciary. The 1998 amendments to that law empowered the
Minister of Justice, in parallel to the corresponding heads of
units within the Judiciary, to institute disciplinary proceedings
against all magistrates.
Thus, a legislative possibility exists to engage the
disciplinary liability of any magistrate but only a meticulously
prepared measures and thoroughness could transmit this possibility
into practice. In that respect, the Supreme Judicial Council and
the Inspectorate at the Ministry of Justice have a vital role to
play.
1.3.3.2. Role of Professional
Guilds
The existing professional guilds are particularly
important in raising the level of integrity and responsibility.
These are the Association of Judges in Bulgaria, the Association of
Public Prosecutors and the Chamber of Investigators. The
Association of Judges in Bulgaria is one of the MTC founders and
has been the most active player so far. After its formation in
1997, it organized a number of conferences followed by the
adoption, in July 1998, of a Code of Ethics for Judges.
Professional guilds have a special role in inspiring
a feeling of belonging to a certain profession, fellowship and
solidarity, and in ensuring compliance with certain rules of
conduct accepted on a voluntary basis.
In order to raise the reputation of the Judiciary,
it is essential to create among the magistrates an atmosphere of
intolerance to any conduct damaging the reputation of the
profession.
To firmly establish their role, the professional
guilds should:
advertize their work, both among the lawyers and
among the general public;
organize events with the participation of
magistrates from the whole country;
keep in constant touch with their colleagues
throughout the country and voice their opinion on topical debatable
issues;
participate in the drafting of curricula for the
Magistrate Training Center and keep track of the results of
training;
set up local structures to pursue the objectives
laid down in their instruments of incorporation (by-laws);
adopt moral rules of conduct (where these are not in
existence yet) and to set up internal check-up and control
mechanism;
defend the professional interests of their members,
including cases where disciplinary liability proceedings have been
instituted.
It is naive to assume that these targets could be
achieved within a short period of time. Given the workload of the
magistrates, the lack of sufficient funding, the scepticism and
want of confidence among all members of the Judiciary, coupled with
the existing difficulties in communication, it would certainly take
years befor the proffesional guilds are well-established as
prestigious partners of the Supreme Judicial Council and the
Ministry of Justice.
As to the distant future, it could be envisaged that
the violation of the moral rules enshrined in the Codes of Ethics
and taught at MTC could become a ground to engage the disciplinary
liability of the magistrate concerned.
1.3.4. Opening the Judiciary towards
the Society
All public opinion polls in the past years have
invariably revealed the deplorably low rating of the Judiciary.
This public assessment results not only from the occasional lack of
professionalism and integrity among the magistrates but also from
the lacking public awareness of the way the system operates. As a
rule, the judicial system deals with the pathology of social
relations, with the deviations from what is deemed normal social
behaviour. Due to its inherent functions and to the usual outcome
of its activities, the Judiciary seldom enjoys public approval.
This is equally valid for Bulgaria and for societies with
long-standing democratic traditions and well-rooted values.
At the same time, the system itself is very
obstinate in demonstrating its closed character. In turn, the
closed character is sometimes reinforced by incompetent media
coverage.
In order to ensure transparency of the judicial
activities and open the system towards the society, the following
measures should be undertaken:
setting up a work group composed of magistrates,
journalists, representatives of professional guilds and
organizations, the Supreme Judicial Council and the Ministry of
Justice which should draft media policy concept for the bodies of
the Judiciary;
carrying out a series of joint training events for
journalists and magistrates (the Legal Initiative for Training and
Development - PIOR - could impart useful experience in that
respect);
designing action plans and mechanisms for mutual
acquaintance and communication between magistrates and the
media;
training of spokespersons (for the various
professional guilds, courts, public prosecution offices and
investigation services) who should clarify topical issues in a
language understandable to the public;
setting up press services at the larger courts;
organizing training events for court reporters by
involving both journalists and magistrates as lecturers;
introducing a system of accreditation for some court
instances as a bar to irresponsible or slanderous statements by the
media;
popularizing the results of the pilot projects
implemented by the Legal Initiative for Training and Development
(Varna Regional Court and Appellate Public Prosecution Office in
Plovdiv);
setting up a public media council composed of
magistrates, attorneys, representatives of the Ministry of Justice
to present to the public various aspects of the judicial
reform.
2. Court Administration
2.1. Governing Principles
The professional competence of magistrates is an
essential, though insufficient, prerequisite for the efficient
operation of the Judiciary. Equally important is the good
organization of their work, generally denoted as "court
administration". Court administration is currently based on
hopelessly obsolete principles. There are no coherent rules of
secondary legislation on the work of the investigation services,
the public prosecution offices and the courts. Numerous registries
are kept - mainly by hand - causing great difficulties to citizens
and attorneys alike when they make inquiries. The administrative
staff within the system work in a primitive environment and no one
takes care of their preliminary or continuous training. At the same
time the magistrates, especially those in managerial positions, are
burdened with many time-consuming administrative and financial
duties which prevent them from focusing on their main functions,
i.e. the administration of justice. The latest amendments to the
Law on the Judiciary (1998) granted the district investigation
services the status of legal persons. Unlike the courts, which have
accumulated long experience as independent structures with their
own staff, budget and organization, the investigations services
encounter enormous difficulties in terms of organization and
administration. The court administration has been unduly neglected
in the context of the overall judicial reform. The existing
Ordinance No. 28 of 1995 fails to reflect the need for
modernization and streamlining of court administration. Currently,
the Ministry of Justice is conducting work on the improvement of a
regulatory framework.
2.2. Identified Priorities
The court system faces the problem of building up a
principle vision of its self-government. In following the
objectives of the reform process, it is imperative to pursue:
improvement of the professional qualification of the
administrative staff;
modernization of working environment and the
conditions of work.
2.3. Measures
In order to build up a modern management structure
for court administration, the following measures are deemed
necessary:
2.3.1. Conceptual Framework for a
Fundamentally New Organization of Work
A work group should be set up, composed of
representatives of the courts, the public prosecution offices and
the investigation services (magistrates and administrative staff),
which should develop, under the guidance of the Minister of
Justice, a common view on the principles of organization of work
within the Judiciary.
The following fundamental principles are
suggested:
building up a fundamentally new structure of court
administration while implementing an automated information
system;
bringing the types of court registries and books,
and the manner of keeping them, in line with that structure;
determining the numbers and categories of
administrative staff, depending on the new structure as well as
introduction of detailed job descriptions;
providing for new mechanisms to manage and control
the administrative staff;
drafting curricula and designing mechanisms for the
training of administrative staff.
building up administrative offices at larger courts
which should be in charge of the upkeep of court buildings, finance
and the budget, the auxiliary personnel and long-term assets.
2.3.2. Legislative Framework and
Organizational Changes in the Work of the Judiciary
2.3.2.1. Amendments to Existing
Legislation
regulatory framework should be developed with
legislative acts, like the Law on Civil Servants and respective
changes in other acts (such as the Law on the Ministry of Internal
Affairs, the Law on the Bar) in view of creating the necessary
assisting units;
on the basis of the approved coherent conceptual
framework, instruments of secondary legislation should be drafted
to regulate the work of the investigation services, the public
prosecution offices, and the courts;
on the basis of coherent principles of organization
of work a new court statistics program should be developed which
should use consistent terminology and approaches;
2.3.2.2. Organizational
Changes
Along with the amendments to the regulatory
framework, the following organizational changes might also be made
in order to ensure a proper and easier access of citizens and
attorneys to the judicial institutions, combined with a
fully-fledged respect for their rights:
setting up a new mechanism to answer inquiries from
citizens and attorneys by designating work places intended solely
for that purpose and linked to the implemented automation system.
That would also ensure the needed quietness for the other employees
so that they could perform their official duties;
providing publicly accessible information in an
electronic form by the units of the Judiciary to outside services
and institutions, as well as to attorneys and notaries public; this
should be done in return for a fee, while duly protecting the
product of information;
the office of "court administrator" should be
introduced; at larger courts that employee could take over some
functions currently fulfilled by the president of the court, e.g.
drafting the budget, organizing tenders and entering into
contracts, upkeep of the court buildings, selection and control of
the employees. It is recommended that the court administrator
should have a degree in law or economics.
2.3.3. Automating of Administrative
Functions within the Judiciary
It is well known that the various units of the
Judiciary are automated to different degrees. Even in courts at the
same level different software solutions are used. The situation is
worst at the investigation services where almost no computerization
has taken place.
Here again, a work group should be formed under the
leadership of the Supreme Judicial Council and the Ministry of
Justice that should bring together magistrates and software experts
and come up with a concept for a uniform information system of the
Judiciary. Here are some of the fundamental measures that should
underlie that concept:
developing a uniform and compatible software to
process the papers received at the various units of the system; the
software should be adjustable to the specific conditions prevailing
in each unit, including transferring the activities and the
available information from paper to electronic media and keeping
them in an electronic form;
developing a uniform information system for criminal
cases with a strictly regulated access of various users to the
different levels of information. The system should network:
—the police,
—the investigation services,
—the public prosecution offices,
—the courts, and
—the Directorate-General “Central Prison
Administration”;
implementing a uniform software for the retrieval of
statistical data at all levels of the system.
linking the information systems of the different
courts with each other and with the systems of other institutions
to ensure the exchange and use of information (e.g. the
registration services could be linked to the tax authorities and
the cadastre services; the system of the Supreme Administrative
Court could be linked to the Council of Ministers, etc.);
securing access to the Internet to obtain
information on any issues relating to the administration of justice
(EC law, case-law of the European Court of Human Rights and the
European Court of Justice, etc.).
The automation of activities in the Judiciary should
be based on a step-by-step approach. The process should start with
computerizing certain activities and gradually result in linking
the various units of the judicial system in a nation-wide
network.
In this respect, the following priorities have been
identified:
Firstly (in the shortest term), a survey and
analysis should be made of the state of affairs at the courts and
other units of the Judiciary, in particular by specifying the
positive experience gained and the "good practices" in different
courts.
Second (medium term), software should be developed
to automate the administration of justice in civil and criminal
cases.
As regards administration of justice in civil cases
in October 1999 an Expert Council was set up with the SJC with the
task of designing a Uniform Operational Program for the Courts in
Civil and Administrative Cases. The implementation should be
accelerated of an uniform information system linking all units in
charge of criminal investigation. The National Statistical
Institute is responsible for this task but the system should be
developed jointly by MoJ, the Ministry of Interior and SJC.
Third (long term), a uniform information system of
Judiciary should be put in place.
2.3.4. Status and Training of
Administrative Staff
The want of qualified administrative staff
deteriorates the quality of the administration of justice and the
public assessment of the work of the Judiciary. Any improvement of
the work of that staff would certainly benefit the operation of the
whole system.
2.3.4.1. Status of Administrative
Staff
The administrative employees at the units of the
Judiciary do not enjoy the status of civil servants within the
meaning of the Law on Civil Servants. In view of the specific
nature of their work, and their responsibility for the overall
quality of the administration of justice, the status of these
employees should be regulated by future amendments to the Law on
the Judiciary or in a separate act.
The functions and the duties of administrative
employees and the requirements towards their professional
qualifications should be specified in an instrument of secondary
legislation which, while duly conforming to the applicable primary
laws, should take account of the specificity of their work.
2.3.4.2. Training of Administrative
Staff
Given the lack of both initial and continuous
training for administrative staff, that has been referred to, the
following steps should be taken:
the Ministry of Justice, jointly with the Ministry
of Education and Science, should develop a curriculum for the
training of administrative staff (to be taught at the specialized
secondary schools);
upon filling vacancies, preference should be given
to applicants who have successfully undergone specialized
training;
the Ministry of Justice, jointly with the Magistrate
Training Center, should draft curricula and offer continuous
training to the persons already employed in the Judiciary;
the training should end with an exam and the result
therefrom should be linked to remuneration and promotion.
The reorganization of work in the Judiciary and its
gradual automation form the second important priority in the
judicial reform. Its successful realisation mainly depends on the
efforts of the people working in the system and their close
cooperation with the Ministry of Justice and SJC.
Besides, we should not forget that the training of
magistrates has started already, while the reform of court
administration is still to be discussed. Its implementation would
need at least five years and during that period the measures
suggested in 2.3. above could be implemented.
3. Improving the Legal Basis of the
Reform
3.1. Governing Principals
Over the past ten years, numerous reforms have been
implemented in the Judiciary and in the whole Bulgarian society.
The social and political changes are mirrored by regular
legislative amendments. The operation of the Judiciary is affected
not only by the legislative instruments directly targeted at the
administration of justice but also by any other legislative
amendments which the bodies of the Judiciary must enforce. The
imperfections of the existing legislation are most clearly detected
in the process of law enforcement. A comprehensive review of the
existing legislation is needed in order to track and repeal all
obsolete or contraversial legal provisions. On the basis of that
review, a modern and harmonious legal framework is to be approved
which should be increasingly compatible with EC law, while paying
due respect to the Bulgarian legal tradition. 3.1.1.
Substantive Laws Substantive laws are aimed at providing an
overall regulatory framework for social relations. Not only are
they applied by the bodies administering justice but they are
binding on all natural persons and entities subject to a given
jurisdiction. Bringing the legislation in line with the
requirements of the new social and economic relations and with
European standards does not form part of the judicial reform per
se: it rather constitutes an essential element of the entire legal
reform in the country. However, if a piece of legislation is
infringed the resulting disputes are resolved in court. Thus the
activities of the courts bring into focus all drawbacks and
contradictions inherent in the legislation in force. The quality of
substantive laws affects indirectly the quality of the
administration of justice, thereby shaping the public confidence in
the system. Having taken this perspective, JRI suggests certain
legislative amendments to the existing substantive laws. 3.1.2. Procedural Laws Procedural laws lay down the rules
on how the system of administration of justice actually operates.
Before the recent amendments to these laws prompted by the
Constitutional requirement to introduce three-instance proceedings,
the judicial reform existed on paper alone. The genuine reform only
started after the passing of the procedural rules on three-instance
proceedings (1998). The dynamics of social relations and the logic
of the reform itself, however, require that the administration of
justice be further reformed in future. The political changes in
1989 propelled a radical legal reform in the field of criminal
procedure. The Code of Criminal Procedure was among the first
instruments amended as early as the beginning of 1990. Later on,
numerous new amendments were made in order to better guarantee
respect for human rights. Taken as a whole, however, the amendments
during that period were sporadic and often contradictory. There was
no coherent view on the general lines along which the reform of
criminal procedure should be carried out, nor was there any lasting
philosophy to underpin the system of criminal procedure in the
years ahead. The fundamental amendments to the Code of Penal
Procedure, in force since January 1, 2000 are an important step
towards harmonizing Bulgarian criminal procedure legislation in
line with the European standarts. With the 1998 amendments to the
Code of Civil Procedure, the adversarial principle in civil
procedure was reinforced and an articulate emphasis was laid on the
role of the court as an impartial arbiter. The very core of
second-instance proceedings was modified: from mere review and
reversal of the first instance judgements the proceedings at second
instance turned into examination on the merits. The parties to all
civil disputes thus have better opportunities to invoke any
necessary evidence. As the courts of second instance already decide
each case on the merits, rather then remit it for re-examination by
the first instance, the cases can be finalized more quickly. The
Supreme Court of Cassation is the only instance of cassation. It
pronounces on the legal aspects of the cases alone, i.e. it only
verifies the lawfulness of the judgement from a substantive and
procedural point of view, and does not deal with points of fact.
Despite the fundamental changes in the field of civil procedure, if
maximum speed and efficiency in civil cases are to be achieved
further improvements of civil procedure are needed and alternative
methods of dispute resolution should be used. The existing
Constitution also laid down the grounds to reform the
administrative procedure. The Supreme Administrative Court
(originally set up in 1912 and closed down in 1948) was restored
and a Law on the Supreme Administrative Court was passed.
3.2. Identified Priorities
In order for the Judiciary to establish itself as
the "third power" in a State governed by the rule of law and to
uphold legal certainty and stability in the society, further
decisive amendments to the substantive and procedural laws are
needed. These amendments should be introduced in a coordinated
manner, while paying tribute to the legal traditions existing in
the country, to the needs of the contemporary society and to the
process of approximation of Bulgarian legislation to EC law.
The principles of equality of the parties to civil
relations should be affirmed and certainty should be guaranteed in
these relations;
The amendments to the legislation should be based on
respect for human rights and fundamental freedoms in the field of
criminal law and criminal procedure;
It is imperative to create conditions for providing
efficient legal aid to the citizens;
Within the legal system, the principle of equality
between citizens and authorities must be fully enshrined and
observed by enacting clear rules on appeals against administrative
decisions;
In order for the disputes to be resolved more
efficiently and rapidly, rules on alternative dispute resolution
methods should be passed;
The improvement of the reform's legal foundation
should be aimed at eradicating all conditions conducive to
corruption within the Judiciary.
3.3. Suggested Measures
The National Assembly is the sole authority of the
Legislature in Bulgaria. On the grounds of the laws passed by the
National Assembly, the bodies of the Executive issue instruments of
secondary legislation. In order to improve the legal foundation of
the judicial reform, amendments should be envisaged in some
specific areas of law.
3.3.1. Civil Law and Procedure
3.3.1.1. Civil Law
During the past ten years the civil law of the
country has been fundamentally modified, in line with the need to
regulate the civil relationships in harmony with the transition
from planned to a market economy and to bring Bulgarian legislation
closer to European standards. The exuberant amendments to the
existing legislation are not always well coordinated, the frequent
result being inconsistent law enforcement.
On the whole, the following measures could be
recommended in the area of civil law:
harmonizing the terminology used in legislative
instruments;
harmonizing the rules governing analogous or similar
situations;
constantly observing the requirement to introduce
European standards.
Below follows a brief list of suggestions for
amendments to individual branches of civil law:
Property law:
creating a new system of registration of estates -
the "owner-based" system of registration should be modernized by
infiltrating elements of the "estate-based" system in order to
achieve certainty in all transactions in real estates.
Law of contracts:
amending the existing rules to take account of the
Rome Convention of 1980 on the law applicable to contractual
obligations.
Banking and commercial law:
the Commercial Code, as lex generalis, and the Law
on Banks, as lex specialis, should be coordinated to eliminate the
inconsistent rules on banking transactions;
modern rules, in line with European standards,
should be introduced on:
—bank guarantees;
—bank credits;
—letters of credit;
—consumer credits.
the stock exchange trading in securities should be
promoted by:
—liberalising the rules on trading in some classes
of shares currently excluded from turnover;
—providing ample opportunities for block trades.
legislative rules should be introduced on electronic
commerce and electronic signatures. The draft law is prepared by
experts at the Center for the Study of Democracy and
representatives of the institutions concerned;
the existing instruments of secondary legislation
should be revized: they often contain "primary" rules that would
better be included in the Commercial Code or in the Law on
Banks.
Family law:
A new Family Code has been drafted which contains
updated rules on:
the system of property relationships between the
spouses;
adoption;
the measures applicable vis-а-vis the children,
etc.
It is necessary to develop a set of legislative and
social measures aimed at:
providing children with a more comprehensive and
efficient protection;
assisting the families whose marriage has drawn to a
crisis or providing help in the event of problemaic relations
between parents and children;
providing for intermediaries in divorce cases and in
parental rights cases ;
including rules on co-habitation without
marriage;
introducing summary proceedings to avoid or
interrupt violence in the family;
providing opportunities to solve the pending
property disputes in line with the new rules.
Labour law:
updating the rules on employment relations, with due
regard to the currently prevailing economic conditions;
introducing protection against unfair clauses in the
contracts of employment imposed by the employer;
improving the rules on fixed-term employment
contracts in order to protect the employees against the practice of
"serial" fixed-term contracts;
improving the legal rules on claims for invalidity
of the employment contracts; it should be possible to bring such
claims under the general rules of civil law and, occasionally, in
the context of another labour dispute;
bringing some categories of judgements in line with
the principles of civil procedure (i.e. judgements in labour
disputes which are currently not subject to judicial review);
expanding and improving the rules on releasing from
office elected servants or employees, especially in cases where the
termination of their employment contracts is not subject to review
by a court;
setting up a Guarantee Fund for the protection of
employees in the event of insolvency of the employer, in accordance
with Directive 80/987/EEC of October 20, 1980;
bringing the legislation in this sector in line with
the European Social Charter.
Consumer protection:
The Law on Consumer Protection and on the Rules of
Trade, passed recently, is the first one to introduce legislative
provisions on this type of relations. Even before the actual
enforcement of this law has started, however, it is possible to
identify some problems that should be addressed urgently:
the law should explicitly and clearly formulate the
new concept of pecuniary damage, in line with the rules on
liability for damages caused by defective products (EC Product
Liability Directive);
the law makes it possible to bring an action for the
collective defence of injured consumers (so-called "class action").
However, the Code of Civil Procedure contains no rules on such
actions and, hence, needs to be amended.
3.3.1.2. Civil Procedure
The 1999 amendments to the Code of Civil Procedure
are aimed at:
reducing unequivocally the possibilities to postpone
the hearings of a case;
differentiating between normal and fast
proceedings;
interim execution of judgements given by the courts
of appeal;
enlarging the powers of the instance of cassation to
give the final judgement on a dispute;
shortening the bankruptcy proceedings and reducing
them to two court instances only (district court and court of
appeal).
Nevertheless, further legislative amendments would
be necessary in the following areas:
providing better procedural guarantees for revealing
the actual (not only formal) truth in the proceedings. The court
should be given the duty to guide the parties appearing without
counsel as to which circumstances are disputed and need
clarification and proof. This opinion is shared by many lawyers who
fear that the reinforced principle of adversarialism tends to
impinge on the fundamental principle of procedural equality;
providing for compulsory participation of counsel in
certain types of proceedings and in the proceedings before the
Supreme Court of Cassation;
introducing an obligation for a preliminary exchange
of papers between the parties, i.e. an exchange preceding the
instituting of civil proceedings;
further specifying the rules on "Fast Proceedings"
which cover adversarial proceedings, non-contentious litigation and
administrative proceedings in court;
introducing the so-called "summary proceedings" for
some types of actions. If the respondent in such cases recognises
the claim or fails to object against it within the statutory
time-limit, a writ of execution is immediately issued against him
as if the execution proceedings were based on an out-of-court
ground for execution. At present such a possibility only exists in
defalcation cases;
improving the rules on "complaints for delay";
adopting legislative rules on the already
established practice of submitting written pleas;
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