February 11, 2003
Mr. Vladislav Slavov, Chair, Supreme
Administrative Court
Honorable Ministers, Your Excellencies, Members of
Parliament, colleagues and guests! Coalition 2000 is an
initiative of Bulgarian non-governmental organizations launched in
the spring of 1997 to limit corruption in Bulgarian society through
partnership between state institutions, non-governmental
organizations, and private individuals. Your presence here today
comes to confirm the importance of this cooperation and interaction
between the public and private sectors aimed at countering
corruption.
The work of Coalition 2000 is a successful
model of such collaboration involving analysis of the corruption
situation in this country, monitoring of corrupt practices,
initiation of specific measures and elaboration of proposals aimed
at limiting corruption in both the short and long term. Let me say
at once that in this respect the capacity of non-governmental
organizations is not used adequately. In the sphere of law alone
there are at least a dozen such organizations whose potential could
indeed be used far more. But in this respect the initiative needs
to come from state institutions, too, because their activity more
or less depends on funding and these organizations generally remain
inoperative unless they receive aid from international
sponsors.
You have before you the latest Coalition 2000
report and in my opinion it deserves a favorable evaluation. I
suppose most of you haven't had the time to acquaint yourselves
with it; it is quite detailed, thorough, building on solid facts
and extensive information. I would specifically like to note the
sections on creating a legal and institutional environment
discouraging corruption and on the anti-corruption dimensions of
the judicial reform. The individual sections of the report present
relatively exhaustively the most sensitive spheres susceptible to
corruption - public administration and administrative services,
unregulated lobbying and the financing of political parties, the
different structural units of the judiciary, the court
administration, law enforcement, privatization and
post-privatization control, public procurement, customs and fiscal
control, etc.
Based on analyses, surveys, and studies of these
individual spheres the report features interesting and feasible
proposals that are sure to stimulate further discussion.
I would like to note the fact that the report for
the first time highlights the need to enhance the legislative
process as a whole, the need for capacity-building efforts in this
sphere. All too often the poor quality of the legislation, the
non-compliance of by-laws and regulations with the provisions of
the very laws that necessitate their adoption, as well as the use
of the tacit rejection principle, leave more room for subjective
judgment, which in turn is conducive to corruption.
As a representative of the judiciary I would like to consider more
closely the section that specifically concerns the operation of the
judiciary.
First of all, let me stress something that was noted
by Ms. Yordanova as well, the fact that the lack of a comprehensive
conception of the reform and of consensus between the separate
branches of power and among the various divisions of the judiciary
itself on the long-term priorities of the reform lead to
fragmentation of the changes, inconsistent implementation, and even
obstruction, of the reforms. It is on these grounds that the
Regular Report of the European Commission for 2002 states that
"despite the progress of the reforms, the judicial system remains
ineffective, with hardly any tangible changes in its operation".
Let me share an idea at this point, something that came up in a
conversation with a colleague just before the conference started
today - in connection with the numerous suggestions and comments on
possible changes in the judicial system that have been advanced in
the past few months, it seems to me that we should consider whether
an NGO, or possibly several NGOs, could perhaps sum up these
proposals and put forth at a round table the basic problems that
need to be discussed. This would facilitate the work of both the
National Assembly and the executive in terms of our common concern
at the present time - seeking some effective change in the field of
the judiciary.
Among the chief criticisms advanced in the report
regarding the operation of the judiciary, and I would extend that
to include the executive, is the lack of a good statistical system
to help keep track of the performance of each of the bodies of the
judiciary and the executive alike, in the fight against corruption,
for example. This is a most important issue since it has immediate
implications for the corruption-related problems.
In this context, perhaps we should yet again
consider the fact that we have been talking about a uniform
record-keeping methodology concerning crime ever since 1990 but
such a methodology still hasn't been adopted. That is why we keep
reading in the press about various closed or pending cases, related
to the work of various agencies or bodies, going back and forth
between the judiciary and the Ministry of Internal Affairs. And it
seems to me that it is very important to assign a priority to the
elaboration and adoption of such an integrated information system
to help fight crime. Since the beginning of the current year it is
the Ministry of Justice that has taken on this commitment. In fact,
this system, as required by law, should have been elaborated as
early as 1996. It has been six years, the seventh year now
actually, yet hardly anything has as yet been done. With such a
system it would take the ordinary police officer 5 minutes to check
on the person they have apprehended and see whether they need to
take further action in his regard. As it is, the police and the
prosecution don't find out who that person is until the third day,
when they've already let him go and so a new search has to be
launched.
We have every reason to feel proud of the fact that
the Supreme Administrative Court elaborated and adopted a legal
information system that is unique in Europe. I only wish our
representatives of the executive in the European Union would
promote it more, because it hasn't been mentioned in the report.
This unique legal information system, operating at the Supreme
Administrative Court for the fifth year already, is widely
accessible through the Internet so each case can be followed from
the very filing of the complaint to the final ruling. It is the
kind of transparency we would welcome in the operation of all
bodies and authorities. It is a precondition for truly
counteracting corruption.
In this connection I would like to say that the
absence of such a working integrated information system to fight
crime might be related to the reluctance of certain bodies to
become part of this system. It does in fact encompass bodies of all
three branches of power and its main purpose is to fight crime and
corruption. And I don't think it will be put in place this year
either because, at least as far as I know, no such funds are
provided for in the budget of the Ministry of Justice. At this
point we should probably mention that the amendments to the Law on
the Judiciary that were adopted and partly declared
unconstitutional by the Constitutional Court include many positive
elements, the adoption of which would be most welcome - these are
the integrated information system, the court police, the national
institute for professional training of magistrates, the creation of
new structures within the system or new positions such as the court
assistants at the supreme courts. In fact, they are hardly likely
to be implemented this year even though the law was passed in July
2002. Neither the judiciary nor the Ministry of Justice has
allocated funds for such new structures. And that's really a
pity!
And finally, I would like to say a few words about
the rather topical problem of judicial control of administrative
acts. As President of the Supreme Administrative Court it is only
normal for me to bring up the subject. There has emerged an
alarming tendency. It began with the Law on Financial Supervision
Commissions, which was adopted regardless of the President's veto.
The latest amendments to the Law on Privatization and
Post-privatization Control also partly exclude judicial control.
And presently a media law is being discussed, which also contains
provisions limiting judicial control. And I ask myself, what is
actually going on? Let me mention jus a few things for your
consideration. Two weeks ago in this very room the activity report
was approved under a program financed by UNDP - and I take the
opportunity to thank them for the funds granted - and the British
Government, which program, by the way, was initiated upon request
of the Bulgarian Government. It concerned the development of
administrative law in Bulgaria and, based on the control and
transparency in the operation of the courts, implied the
corresponding conduct in the field of the administration, and not
just at the top level, but also on the mid-, local, and municipal
levels. Within very short delays this program actually achieved
very good results. In fact it involves codification of
administrative law and the possible establishment of regional
administrative courts as an independent system of administrative
courts in the country similarly to the model found in all countries
from the European Union. So, two weeks ago, in this room, there was
hardly any representation of either the Council of Ministers or the
National Assembly. Nevertheless, the program will carry on its work
and hopefully in the near future, since we already have a project
approved for financing under PHARE, we will develop an
administrative code summing up or incorporating the relevant
legislation. We will also put forth the proposal about the
establishment of administrative courts and I hope that in the mean
time this attitude of the executive to judicial control will
change.
Just for your information, I would like to mention a
conference that took place on October 7th and 8th last year in
Strasbourg under a Council of Europe program. The subject of the
conference was "The Possibility and Scope of the Judicial Control
of Administrative Decisions" and 44 countries from the Council of
Europe were represented (out of a total of 45 member countries at
the present time). This conference of the presidents of the supreme
administrative courts adopted conclusions formulated in 13
articles. Let me quote the first two: 1. Judicial review of
administrative action is an essential element of the rule of law
and human rights, which are concepts that are central to the legal
orders of Council of Europe member States. 2. All administrative
acts should be subject to judicial review. This review applies to
the exercise of discretionary power." Please note that this is not
allowed in Bulgaria where judicial control only applies to
conformity with the law.
I suppose these conclusions will soon be introduced
in the Council of Ministers and will probably become mandatory for
Bulgaria. Such is the tendency in administrative or judicial
control of administrative acts and I hope that the MPs present here
today will not allow any further restriction of judicial control
through changes in the legislation which I consider
anti-constitutional.
Thank you for your attention.
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