In the year 2001 the main goal of the Law Program
was promotion of democratic institution building in Bulgaria,
focusing on legislative and judicial reform. As a result of CSD's
efforts in this respect the Law on Electronic Document and
Electronic Signature was adopted by the Parliament and the Draft
Law on Civic Defender and Local Civic Mediators was further
elaborated and prepared for consideration by the legislators.
2001 Highlights
- The expert group with the Law Program related to
information society development in Bulgaria focused on the Draft
Law on Electronic Document and Electronic Signature. The draft Law
developed by its experts was adopted by the National Assembly in
March 2001. The Law regulates electronic document and electronic
signature as well as the conditions and the procedure for providing
certification services. It makes Bulgaria among the first countries
in Europe with modern legislation in this area corresponding to EU
Directives.
- Further efforts of the Law Program in the field of
the electronic document and electronic signature regulation are
focusing on the development of the secondary legislation necessary
to finalize the legal framework for electronic signatures. Law
Program experts actively participated in the State
Telecommunication Commission task force, which elaborated the draft
regulations for the implementation of the Law on Electronic
Document and Electronic Signature, which have been completed in the
end of 2001 and were submitted to the Council of Ministers for
adoption.
- Following the priorities of the Program for
Judicial Reform developed within the framework of the Judicial
Reform Initiative, the Law Program started to work on
introducing modern registration system in Bulgaria. A task force of
experts to elaborate a Concept Paper on the reform of the Bulgarian
registration system was formed in 2001. The Concept Paper is being
developed based on a comprehensive analysis of the possibilities
for reforming the existing system of official registers and
proposals for legislative amendments necessary to facilitate its
introduction. The objective is to introduce an out of court
centralized electronically based registration system providing for
faster and more effective operation.
- The Law Program continued its work on further
developing the Draft Law on the Ombudsman. The improved Draft Law
on Civic Defender and Local Civic Mediators was presented to the
European Ombudsman Mr. Jacob Soederman, to the Chair of the newly
elected Parliament and respective Parliamentary Committees as well
as at several international and domestic events.
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I. Legislative Reform
1. Creation of an Appropriate Legal
Environment for Introduction of Electronic Documents and Electronic
Signatures
Over the last a few years
there have been strong efforts to set up a global regulatory
framework for the use of electronic means of communication,
including both general rules and regulations of specific fields,
such as electronic commerce, digital signatures, electronic
documents, etc. A number of international instruments, for
instance, the Model Law on Electronic Commerce of the United
Nations Commission on International Trade Law, the Guidelines on
Cryptography of the OECD, Directive 1999/93/EC of the European
Parliament and of the Council of December 13, 1999 on a Community
Framework for Electronic Signatures, Directive 2000/31/EC of the
European Parliament and of the Council of 8 June 2000 on Certain
Legal Aspects of Information Society Services, in Particular
Electronic Commerce, in the Internal Market (Directive on
Electronic Commerce, have been adopted or are in the process of
adoption. Nearly all industrialized countries in Europe, America
and Asia have taken steps for drafting and introducing legislation
on the use of electronic means of communication. |
Completion of the Legislative
Procedure
The work on the legal framework for the use of
electronic documents and electronic signature in Bulgaria marked a
significant progress in 2001 with the adoption of the Law on
Electronic Document and Electronic Signature. The drafting process
was initiated by the
Law Program of the CSD in early 1999 -it started with
comprehensive research of the most important foreign and
international instruments already in place or in the process of
preparation. A Task Force was set up to work on a Concept Paper and
a Draft Law on Electronic Document and Electronic Signature; an
Expert Advisory Board consisting of representatives of the major
interested parties (business associations, government regulatory
bodies and ministries, legal and IT experts) was established to
ensure the quality of legislative proposals. In 2000 the Concept
Paper and the Draft Law on Electronic Document and Electronic
Signature were finalized; on September 28, 2000 the Council of
Ministers approved the Draft and submitted it to the National
Assembly. In the Parliament this Draft Law was discussed in the
Committee on Legal Issues and Anticorruption Legislation and in the
Committee on Economic Policy. The Law on Electronic Document and
Electronic Signature was adopted by the National Assembly on March
22, 2001 and promulgated in the State Gazette No. 34 of April 6,
2001; it entered into force on October 7, 2001.
The Law on Electronic
Document and Electronic Signature was drafted after extensive
consultations and discussions held with representatives of the
stakeholders, legal and IT experts;
most of the opinions, suggestions and recommendations made in the
course of these discussions were taken into account. The text is
based on the principles of Directive 1999/93/EC and on a number of
international acts and on successfully implemented national
provisions in other countries.
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During 2001 the Law Program experts working on the
Law actively participated at all stages of the legislative process
in the National Assembly; they also took part in the dissemination
activities after the adoption of the Law as lecturers at a number
of seminars and workshops discussing the newly adopted legal
provisions.
The Law includes provisions on electronic document
and electronic signature as well as on the conditions and
procedures for providing certification services. It regulates the
application of electronic signature not only in the area of
contracts and obligations but also in other legal fields. The Law
does not include an obligation for anyone to use electronic
documents and electronic signature but it provides such an
opportunity to everyone which means that without additional state
involvement the area of applicability of this Law will be in fact
limited only to obligations and contracts.
Drafting Secondary
Legislation
The preparation of the regulations on the
implementation of the Law on Electronic Document and Electronic
Signature was assigned to the State Telecommunications Commission
-this process was completed by November 2001 and draft ordinances
were submitted to the Council of Ministers for consideration.
The members of the Law Program Task Force provided
expert assistance and participated in the Working Groups to the
State Telecommunications Commission charged with this task. They
contributed substantially in drafting the regulations on the
implementation of the Law - the Regulation on the Requirements to
the Algorithms for Advanced Electronic Signature, the
Regulation on the Procedure for Registration of the
Certification-Service-Providers and the Regulation on the
Activities of the Certification-Service-Providers, the Procedure
for Termination of their Activities and on the Requirements for
Provision of Certification Services.
Preparing Comments on the Law
Following the adoption of the Law on Electronic
Document and Electronic Signature, the CSD Law Program set up a
Task Force to prepare Comments on the Law including the following
experts: Dr. Maria Yordanova, Head of the CSD Law Program, Dr.
Angel Kalaidzhiev, Associate Professor, Law School of Sofia
University, Dr. Vessela Stancheva, Attorney at Law, Justice
Borislav Belazelkov, Supreme Court of Cassation, Mr. Stephan
Kyutchukov, Partner, Djingov, Gouginski, Kyutchukov & Velichkov law
firm, Mr. Georgi Dimitrov, Partner, O.R.A.C. law firm, and Dr.
Alexander Katzarski, Associate Professor, Law School of Sofia
University. Several meetings of the Task Force were held and a
preliminary draft of the Comments was prepared.
Parallel to the preparation of the Comments
the CSD Law Program started working on the publication of a second
revised edition of a book on the legal aspects of electronic
commerce and the use of electronic signature whose the first
edition had been published in April 2000. Comprehensive research on
recent legislative developments in this field was carried out;
several newly adopted foreign and international acts were collected
and translated into Bulgarian.
2. Introducing the Institution of the Ombudsman
in Bulgaria
Bulgaria is among the
few European countries without an ombudsman institution so far.
Existing mechanisms cannot always guarantee timely, efficient and
easily accessible protection of individuals affected by the actions
of the state. As a result, cases a/maladministration, including
abuse of power, corruption and violation of human rights, are
widespread. That is why a new mechanism, parallel to the existing
institutions, is necessary to complement their work in protecting
human rights. In most European countries tills task is performed by
the ombudsman institution as an out-of-court mechanism
complementary to the more expensive and cumbersome forms of
protection (judicial, administrative and other).
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The launch of an Ombudsman-type institution in
Bulgaria was put on the public agenda by the CSD Law Program in
early 1998. The work started with research and analysis of the
existing legal framework as well as the experience of such
institutions in a number of established and new democracies; later,
a Concept Paper was written on the subject and a Draft Law on the
Ombudsman for Bulgaria was prepared.
In November 2000 the Draft Law on Ombudsman was
presented by a group of members of the Parliament to the National
Assembly in order to open a legislative procedure for its adoption.
Another Draft on People's Defender was also submitted by another
member of the Parliament. The National Assembly, however, could not
adopt the Draft Law on the Ombudsman before the parliamentary
elections in June 2001. In the meantime, the Task Force of the CSD
Law Program continued its work on the text and introduced further
changes. The last version, entitled Draft Law on the Civic Defender
and the Local Civic Mediators, was brought to the attention of the
newly elected National Assembly in August 2001.
As Chief Parliamentary Ombudsman of Sweden I have
cooperated for some years with the Center for the Study of
Democracy to promote its efforts to introduce the Ombudsman
Institution in Bulgaria.
Mr. Claes Ekiund,
Chief Parliamentary Ombudsman of Sweden
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Recent Developments
The submitted Draft Laws are now being discussed in
the committees of the 39th National Assembly. In October and
November 2001 the Parliamentary Committee on Human Rights and
Religions and the Parliamentary Committee on Civil Society Issues
organized discussions of the presented drafts - a number of
representatives of the policy making community and other
stakeholders participated in these discussions focusing on the
necessity of an Ombudsman-type institution for Bulgaria. Experts of
the CSD Law Program took an active part - they presented the
accomplishments of the CSD in this field and shared their
experience in the course of the work on the Draft Law. The CSD Law
Program provided the Chair of the Parliament and respective
Committees with the last version of the Draft Law on Civic Defender
and Local Civic Mediators prepared by its Task Force.
Introducing Public Mediator/or Sofia
Municipality
Parallel to the work on the Draft Law the CSD Law
Program continued its efforts to introduce ombudsman-type
mechanisms at the local level. In year 2001 the successful
implementation of a number of projects launched within the
framework of Coalition 2000 led to the establishment of civic
observers in several Bulgarian municipalities. The new chapter,
concerning local civic mediators, was included to the Draft Law on
the basis of their experience and accomplishments.
An important step in the process of introducing local ombudsman
institutions was the launch of such an institution in Sofia. On May
23, 2001 the Sofia Municipal Council decided that a Public Mediator
Institution be established for the Sofia Municipality; it also
adopted the Rules on the Organization and Activities of the Sofia
Municipality Public Mediator. Presentation of the local ombudsman
institution and its role in the democratic society was organized in
June by Sofia municipality and the CSD.
Until the adoption of the relevant legislation the
Sofia Public Mediator office will operate on an experimental basis.
Elections for a mediator will be held by the Sofia Municipal
Council every two years; incumbency in office will be limited up to
two consecutive mandates. The Public Mediator has the authority to
carry out investigation, mediation between the parties involved,
bringing abuse of office to the attention of the local authorities
and making public statements. The Public Mediator will report to
the Mayor of Sofia and to the Sofia Municipal Council; he / she
will be held accountable to them for violations of the law he/she
committed.
3. International Events
On September 12-16, 2001 an international
seminar ,,Ombudsmanship: Prospects and Challenges for the Twenty
First Century" was held in Nicosia to celebrate the tenth
anniversary of the Office of the Commissioner for Administration
(Ombudsman) of Cyprus. CSD was represented at this event by the
Head of the Law Program Dr. Maria Yordanova and the Executive
Secretary of Coalition 2000 Ms. Valeria Bouhlarska. A
discussion of such issues as recent developments, current trends
and future challenges for the Ombudsman as well as its role in the
XXI century took place.
The seminar focused on a number of specific problems
faced by the institution of the Ombudsman in different countries.
The major topics included:
- Ombudsmanship: Prospects and Challenges in the XXI
Century;
- The Effectiveness of the Ombudsman in the Oversight
of Administrative Conduct of Public Bodies;
- Democracy, Accountability and the Office of the
Ombudsman;
- Moving from Adversarial to Non-adversarial
Approaches: A Contemporary Approach in Ombudsman-ship;
- The Proactive, Preventive and Educational Role of
the Ombudsman;
- The Role of the Ombudsman in Balancing the Exercise
of Authority by the Governmental and Government
Accountability.
A number of distinguished speakers addressed
the seminar, including Mr. Jacob Soederman of the European
Ombudsman; Ms. Eliana Nicolaou, Commissioner for Administration of
Cyprus; the UK Parliamentary Commissioner for Administration Mr.
Michael Buckley, Mr. Pierre-Yves Monette, Federal Ombudsman of
Belgium; Dr. Peter Kostelka, Member of the Austrian Ombudsman
Board; Finland's Parliamentary Ombudsman Mr. Lauri Lehtimaja, Ms.
Kerstin Andre, Parliamentary Ombudsman of Sweden, Prof. Oleg
Mironov, Commissioner of Human Rights in the Russian Federation,
the Greek Ombudsman Prof. Nikiforos Diamandouros; Ms. Nana
Devdariani, Public Defender of Georgia, etc. The participants
encouraged the efforts of the CSD for introduction of the
institution of the Ombudsman in Bulgaria noting its importance for
the consolidation of civil society and expressed their willingness
to further cooperate in the future.
For some years now in my academic capacity, I
have collaborated with the Center for the Study of Democracy to
promote the initiatives and activities related to democratization
in Bulgaria. More recently in my capacity of National Ombudsman of
Greece I have been in even closer cooperation with CSD in the
process of introducing the Ombudsman institution in the Bulgarian
civic environment.
Professor Nikifofos Diamandouros,
National Ombudsman Of Greece
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II. Judicial Reform Initiative
The Judicial Reform Initiative (JRI) was launched
in March 1999 by CSD as a joint initiative of eight leading
Bulgarian non-governmental organizations and representatives of the
Legislature, the Executive and the Judiciary. Within its framework
a Program for Judicial Reform was drafted on the basis of joined
efforts of influential NGOs, policy makers and experts in this
field.
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In 2001 the Law Program continued to serve as
the JRI Secretariat in the implementation of the Program for
Judicial Reform:
- In the beginning of year 2001 the efforts of the
Law Program focused on increasing the transparency in the initiated
legislative procedure for amending the Criminal Procedure Code and
the Law on the Judiciary. The Law Program collected expert
statements on the proposed amendments by prominent Bulgarian and
foreign legal experts and submitted them to the policy makers in
charge. CSD published these statements on its web site, thus
providing unlimited public access.
- With the assistance of prominent Bulgarian legal
experts within the framework of JR1 the Law Program started working
on a Concept Paper on reforming the court registration system in
Bulgaria and introducing an out-of-court central electronic
registry for NGOs as a first step in creating a Central Electronic
Registry of Persons and Property.
- The web pages of the JRI and its founding
organizations were updated on a regular basis to provide
comprehensive information on the process of judicial reform as well
as on the activities of these organizations.
As a part of the criminal law reform the Law Program
started exploring the needs and opportunities for instituting a
modern legal framework in the field of computer and cyber
crimes.
Taking into consideration the experience
accumulated in the process of implementation the CSD Law Program
already started working on updating the Program.
III. Contributing to Enhanced NGOs
Capacity
Setting up an appropriate regulatory framework
for the non-governmental sector has permanently been a key issue
for the CSD Law Program. That is why for the last ten years it has
focused on drafting new legislation on the legal status and
taxation of NGOs. After the adoption of the Law on Not-for-Profit
Legal Persons, effective since January 1, 2001, its efforts
targeted further improvement of the legal environment for NGO
action. This Law introduced serious regulatory changes, although it
does not provide an adequate distinction between the public or
mutual benefit not-for-prof-it organizations or the public
perception of their effectiveness. In order to further elaborate
and improve the regulatory framework a Task Force of the CSD Law
Program drafted a proposal for amending the Law in the following
aspects:
- setting up a body on special reassures
responsible for the registration of public benefit organizations on
the basis of clear legal criteria;
- guaranteeing transparent activities of the
public benefit organizations and reducing the opportunities for
abuse with public funds on the basis of reasonable responsibilities
for the NGOs and control over their activities;
- the body on special reassures should be
responsible for the control over the not-for-profit activities of
the organizations registered by it while the National Audit Office
should exercise control over their business activities;
- preventing the possibility that legal persons
with not-for-profit status, registered before January 1, 2001,
claim to be mutual benefit organizations if they were donated
property by the State, the municipalities or from other public
funds, or their activities have been supported by voluntary acts or
work of private persons, except for their founders and
members;
- transferring of the registry for
not-for-profit legal persons from the courts to the Ministry of
Justice.
In 2001 the Law Program continued to pay special attention to the
long-term educational program for civic organization managers which
is implemented in co-operation with the School of Economics and
Business Administration at Sofia University within the framework of
a specialized Master Program. A course, based on the Open and
Distance Learning Program-General and Financial Management of
Public and Private Not-for-Profit Legal Entities, was developed by
a consortium coordinated by CSD in partnership with the Greek
Management Association, and the Universities of Sofia (School of
Economics and Business Administration) and Skopje (School of Law).
This activity is in line with the CSD's long-term pro-active policy
to support the professional development of human resources in the
public and private sector, thus creating a better environment for
the work of civic organizations. In year 2001 CSD experts took part
as instructors in the course modules on legal issues and general
and financial management; about 20 students attended the
class.
IV. Other Activities
On March 7th, 2001 the Law Program organized a
discussion on the Court Administration Reform in Bulgaria. This
discussion was launched by the new President of the N2 Diplomatic
Club Mr. Winfried Schlote, Deputy Head of Mission of the Embassy of
Germany. Guest lecturers, such as Mr. Vladislav Slavov, Chair of
the Supreme Administrative Court and of the Union of Jurists in
Bulgaria, and Ms. Kapka Kostova, Chair of Sofia Regional Court and
of Association of Judges in Bulgaria, made presentations on the
ongoing reform of court administration in Bulgaria. Mr. Slavov
briefed the participants on the activities of the Supreme
Administrative Court and the work on reforming its administration
while Ms. Kostova spoke on the projects targeting improved court
administration performance in which the Association of Judges in
Bulgaria was involved. The discussion focused on issues of judicial
control over the administration, proposed changes in criminal
procedures and opportunities for training judges and other judicial
officials.
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