In 1998, the Law Program focused on the expansion
of legislative reform in Bulgaria, on the training of legal
specialists, and on the education of NGO professionals. The main
achievements of the Law Program in 1998 were:
Successful completion of a project aimed at
designing and promoting a full set of modern principles and
specific mechanisms for NGO taxation;
Commencement of a distance learning project entitled
“General and Financial Management of NGOs,” aimed at introducing
best European NGO management practices;
Commencement of the project "Citizen Participation,
Public Hearings and the Development of Improved Public Policy in
Bulgaria" aimed at promoting the dialogue between the public and
the private sector and contributing to the institutional
reform;
Implementation of a series of training and
awareness-raising programs targeted at representatives of the
judiciary, public administration, legal counsel, financial and
accounting professionals, commercial companies and NGOs;
Producing an extensive analysis of the third sector
in Bulgaria focusing on two major topical areas: “Not-for-Profit
Organizations in Bulgaria: Legal Aspects” and “Economic Analysis of
the Activities of NGOs in Bulgaria”
Analysis and review of the European experience of
the Ombudsman institution, focused on the Ombudsman’s role as a
mechanism for administration and effective protection of human
rights;
Continued institution- and team-building:
strengthening and deepening the integration and interaction within
a diversified, highly qualified group of external legal, financial
and accounting experts committed to implementing law reform
projects;
Successful completion of an assistance project with
the Central Pledges Registry with the Ministry of Justice and Legal
Eurointegration, which resulted in the commencement of operations
on a centralized, computerized, nation-wide Secured Transactions
Registry.
A.Legislative Reform
In 1998, Law Program continued its efforts to
facilitate the legislative reform in Bulgaria and the process of
approximation of Bulgarian legislation to European Union law.
1.Reforming the Legal Framework for NGOs in
Bulgaria
Background: a Continued Process of Leadership and
Growth
In 1992 the Law Program began a long-term project
targeted at the creation of a modern and comprehensive legal
framework for NGOs. A major landmark in this process was the
creation of a modern Draft Law on Non-Profit Organizations. It was
followed by the creation of the legislative motives supporting the
expected enactment of the Draft Law. Alongside work on the
legislative motives, the Law Program created a body of commentaries
explaining the philosophy and proper interpretation of the Draft
Law’s provisions, thus, in a systematic, comprehensive and
pragmatic manner, also presenting the results of the research
efforts which accompanied the drafting process. Finally, the
completion of the Draft Law was followed by a project for defining
a modern set of taxation principles for NGOs.
Over the course of the six years preceding 1998, the
Law Program was able to attract, consolidate and develop a strong
team of legal, tax and accounting experts who implemented the NGO
law reform project. The team worked intensively with professionals
from the judiciary, the tax administration, the Government, the bar
and the NGO sector, with a view to identifying the concerns and
purposes which would have to be met by the new NGO legal framework.
In parallel, the team undertook an awareness raising and
promotional effort, with a view to educating these target groups
about the desirable modern principles which would have to be
embodied in the future legal framework. In the course of the
project effort, numerous publications, concept papers and other
written materials were released. The Law Program also carried out
multiple public hearings and training seminars on topics related to
modern NGO legislation.
The work of the Law Program was carried out in close
cooperation with, and with the support of, reputable international
institutions, such as the International Center for Not-For-Profit
Law (Washington, D.C.), the EU Phare Democracy Program, the
Max-Plank Institute for Comparative and International Private Law
(Hamburg), as well as other organizations active in the field of
NGO law. That brought a strong international perspective to the Law
Program’s efforts and contributed to importing the leading
international experience in the newly developed legal framework, as
well as to spreading internationally the results of the Law Program
team’s work. The accomplishments of the Law Program team received
strong recognition internationally, with a number of East European,
Middle East and African countries enacting NGO laws based on, or
largely using, the concepts developed by the Law Program.
A Policy Impact: Proposed Amendments to Tax
Laws
In the course of 1998, teams of experts drew on the
results of the research and analytic work done by the Law Program
in the field of NGO taxation. The modern tax principles formulated
in the course of the Law Program’s work were embodied in a number
of proposed amendments to tax laws, with a view to causing a
positive development in the taxation law framework for NGOs. The
proposed amendments were reviewed in a session of the Law Program’s
Expert Council and received various suggestions targeted at
improving the language and concept of the proposals.
Awareness Raising: Publication of the Book
“Non-Profit Organizations in Bulgaria: Legal Issues”
In 1998 the Law Program experts produced written
essays which were published in the book “Non-Profit Organizations
in Bulgaria: Legal Issues.” The book addresses two main types of
issues: analysis of the current practice of Bulgarian courts on the
legislation which has been in force since 1949, and a promotion of
a set of modern principles which need to come to govern the legal
framework of NGOs in Bulgaria.
The essay on the current court practice has been
produced after intensive work targeted at collecting numerous
unpublished decisions of the Bulgarian Supreme Court, as well as of
two of the leading registration courts: The Sofia City Court and
the Sofia District Court. The essay was also based on all published
relevant decisions of the Supreme Court. The essay provides a
critical analysis of the courts’ interpretation of the existing
legal framework. It reaches the conclusions that in a number of
cases the Bulgarian courts have played a progressive role and have
arrived at liberal interpretation of restrictive legal rules
created during the era of communist rule. On the other hand, the
essay identifies a number of cases where the courts have not been
in a position to interpret the laws in the spirit of modern
democratic times, which suggests that a change in the law is
desirable. Apart from the conclusions intended to promote the idea
for change in the current law, the essay provides NGOs and
practicing lawyers with a valuable synopsis of the practical
requirements which would have to be met, in order for NGO activity
to be carried out in a way compliant with the prevailing and
authoritative interpretation of the laws provided by the
courts.
The second essay is based on a systematic analysis
of the new Constitution of Bulgaria and the Constitutional Court
decisions rendered on the topics of “freedom of assembly” and
non-profit organizations. The essay analyzes the fundaments of the
NGO legal framework, as defined and required by the new
Constitution. It reaches the conclusion that the current laws
governing NGOs diverge from the constitutional principles. The
essay makes an attempt at defining explicitly those principles
which should define the spirit and provisions of the future
framework for NGOs.
Awareness Raising: a Public Discussion on Modern
NGO Principles
During 1998, the Law Program engaged in intensive
activity for the dissemination of the results of its analytical and
law-drafting work. The final products of the drafting activity -
the Draft Law on Non-Profit Organizations and the proposed
amendments to tax laws - were broadly discussed with NGOs,
politicians, law makers and representatives of the executive
branch. Following the publication of the book “Non-Profit
Organizations in Bulgaria: Legal Issues,” the Law Program also
organized a strong dissemination and discussion campaign, targeted
at starting a public discussion on the issues raised in the book.
During these discussions strong support for NGO law reform was
initiated. The Law Program also held a special forum at which the
authors of the book engaged in a discussion with representatives of
government institution and NGOs, regarding the need for NGO law
reform.
Analyzing the Economy of the NGO Sector:
Identifying Economic Factors for Change
Complementing its work on the framework for the
operation of NGOs, the Law Program has also been addressing the
practical needs of NGOs at the microlevel, carrying out a number of training seminars
in the fields of management control, auditing, accounting and the
financial and tax environment of non-profits. In preparing training
activities the Law Program also carried out analytical work. In
1998, it completed a successful project with “Ascana”
Accounting Firm, which resulted in the production of a
comprehensive analytical report entitled “Economic Analysis of NGO
Activity in Bulgaria” covering a wide variety of relevant
aspects.
The analysis of the joint team focused on the
following major issues:
status and trends of development of NGOs, with a view to
identifying the need for legal change; statistical data and tax
information; a poll study based on self-evaluation by NGOs which
were included in the target group for the project.
2.Introducing the Ombudsman Institution in
Bulgaria
Promoting the Ombudsman Concept: a European
Dimension of the Protection of Human Rights
The establishment of effective institutions to
guarantee the protection of human rights is one of the criteria for
membership in the European Union formulated at the meeting of the
European Council in Copenhagen in 1993. Meeting this criterion has
been defined as one of the short-term priorities of the National
Accession Strategy adopted by the Council of Ministers in March
1998. In view of this, CSD initiated research work, discussions and
drafting of a concept paper dedicated to the prospective
establishment of the Ombudsman institution in Bulgaria. The
activities in this field have been coordinated by the Law Program,
in cooperation with the Information Centre on the Council of
Europe, Sofia, and the CSD European Program. As part of the project
activity, a working group of Law Program experts (lawyers, experts
on constitutional law and human rights, judges) has been
composed.
Analyzing the European Experience: Research and
Analysis of the Ombudsman Institution in the European
Countries
The work started with a review and comparison of the
experience of the European countries in the field of Ombudsman. The
purpose of this approach is to help formulate the respective
conclusions, recommendations and views for the creation, status and
role of a similar institution in Bulgaria. The Law Program experts
produced a comparative study on the Ombudsman institution in
Scandinavian and other west European countries, as well as in such
Central and East European countries and former Soviet Republics
where the Ombudsman institution has been established and is
functioning. The study also reviewed the international (European)
dimension of the Ombudsman institution, and namely the link between
the national Ombudsman and the European institutions, the
cooperation among the Ombudsman institutions of all member states,
and the status and role of the European Ombudsman. It contains a
large bibliography and will assist legislators, politicians and
expert teams in their efforts to establish an Ombudsman institution
in Bulgaria.
Causing a Practical Impact: Drafting the Concept
Paper ”Possibilities for the Creation of the Ombudsman Institution
in the Republic of Bulgaria”
The concept paper summarized and analyzed the
European and other foreign experience with the Ombudsman
institution and other similar institutions. It also outlined the
fundamental principles and provisions of a possible future legal
framework for such an institution in Bulgaria, with a view to
current needs, public attitudes, and political and constitutional
realities.
The proposed concept has the following features:
The establishment of one national Ombudsman with
general competencies (such as to review petitions from private
persons, to make proposals and recommendations to public
authorities, to request information), combining the characteristics
of the classical Scandinavian Ombudsman model with some of the new
features of its modern versions existing in the European countries,
and with some adjustments according to conditions in Bulgaria;
The establishment of the institution on the basis of
a special statute (instead of by way of amending the Constitution)
and possible further incorporation in the Constitution;
The establishment of the Ombudsman institution as a
new type of a guarantee for the rights and freedoms of the private
persons, adding to the traditional mechanisms for protection, such
as the classical parliamentary mechanisms, the constitutional
justice, the judicial and administrative control, the media and
non-governmental organizations;
The establishment of the Ombudsman institution
designed for monitoring the work of the public authorities and any
other exercise of public activity;
The establishment of the Ombudsman institution as an
individual elected directly by the Parliament and reporting to the
Parliament, disposing of autonomy, independence and immunity;
The establishment of the Ombudsman institution
acting with a high level of publicity and transparency of its
activities and the results thereof.
The concept paper regarding the possibilities for
the creation of the Ombudsman institution in Bulgaria is aimed at
encouraging a broader and more comprehensive discussion, which will
ultimately result in finding the most effective and appropriate
solution for the specific Bulgarian conditions.
A Public Outreach: Discussions, Workshops,
Presentations and Publications
The first version of the concept paper was discussed
during a workshop, organized by the Information Centre on the
Council of Europe in May 1998. Representatives of the Ombudsman
offices in Denmark and Hungary made presentations of the work of
their institutions. The workshop was attended by a large audience
of lawyers, Members of Parliament, experts from the Ministry of
Justice and Legal Eurointegration, experts form the Ministry of
Foreign Affairs, and representatives of national and international
NGOs. The discussants made a number of useful recommendations for
the process of drafting a concept paper which benefited the
subsequent work of the CSD expert team.
The first version of the concept paper was also
presented at the National Conference on Human Rights held on June 1
- 2, 1998, organized by the United Nations in cooperation with the
Human Rights Committee of the National Assembly, the Information
Centre on the Council of Europe, Sofia and the Friedrich Ebert
Foundation. The output of the conference was a collection of
papers, “Human rights in Bulgaria 1998 - All human rights for all,”
which included the CSD concept paper on establishing an Ombudsman
in Bulgaria.
The CSD activities targeted at the creation of the
Ombudsman institution were presented at an international seminar,
“Mediation and the Rule of Law,” organized by the Legal Directorate
of the Francophone Agency in cooperation with the Ministry of
Justice and the Ministry of Foreign Affairs and hosted by the
Center for the Study of Democracy at the end of September. The
seminar was attended by representatives of Belgium, Bulgaria,
Burkina Faso, Canada (Quebec), France, Moldova, and Romania.
The main points of the CSD concept paper on
establishing the institution of the Ombudsman in Bulgaria were
included as recommendations under the section on monitoring and
controlling institutions in the Coalition 2000 document,
“Clean Future - Anti-Corruption Action Plan for Bulgaria,” with the
full text of the paper added as an appendix.
3.Improving the Quality of New Legislation and
Public Policy in Bulgaria
A New Effort at Improving the Work of Democratic
Institutions
In October 1998, the Law Program launched a project
entitled “Citizen Participation, Public Hearings and Development of
Improved Public Policy in Bulgaria.” The purpose of the project is
to develop a model of public hearings, in order to improve the
quality of legislation and to make the legislative process more
transparent and participatory, through the incorporation of public
hearings as a normal component of the legislative process.
Supported by the EU Phare Democracy Program, the
project is implemented in cooperation with the Santander Group - a
network of 43 of the best known and most prestigious universities
in Europe. Bulgarian NGOs , universities, key legislators and
legislative staff will also take an active role in the project.
Through the Santander Group Secretariat, based at the University of
Murcia in Spain, the project benefits from the expertise and
contacts of the Department of Politics and the Graduate Programme
in Public Administration at the University of Exeter, the
Department of Political Science (especially, the Working Group for
Local and Regional Policy) at the Justus-Liebig-University,
Giessen, and the many other leading schools of public
administration, centers for public policy and faculties of law.
The objectives of the project will be pursued by
conducting a series of public hearings. The model hearings will be
held by CSD and the Santander Group with the participation of other
Bulgarian NGOs, universities, and key legislators and legislative
staff.
The first orientation session of the project
included a visit by a Bulgarian delegation including the Chair of
the Human Rights Parliamentary Committee, the Secretary General of
the National Assembly and other senior parliament staff together
with representatives of major NGOs to the parliaments of Belgium
and the Netherlands, as well as the European Parliament. The
Bulgarian delegation met with their counterparts to exchange
experience on the mechanisms for promoting citizen participation in
the legislative process.
4.A Continued Effort in Modernizing Commercial
Law
Providing Continued Assistance to Institutions: Work
with the Central Pledges Registry (CPR) to Put into Operation a
Computerized Registry System
After an intense effort during 1997, when Law
Program experts played a key role in drafting the Regulation on the
Structure and the Activity of the CPR, the Law Program experts
continued their close cooperation with the CPR throughout 1998. Law
Program experts participated in numerous discussions with CPR
management and staff on issues arising in the course of
implementing the Registered Pledges Act. Law Program experts
provided on-going assistance to the CPR in resolving practical
problems in instances of complicated and unusual cases of secured
transactions registrations.
The past year was also marked by a strong transition
effort on the part of the CPR. While it had to start its operations
in 1997 with a paper-based registry system, the major task for the
CPR was to close 1998 with an operating computer-based registry
system. Law Program experts liaised between the administrators of
the CPR and the development team of software experts, with a view
to ensuring that the full scope of registration activities
envisaged by the Registered Pledges Act would be adequately
reflected in the computer-based registry system. As a result of the
joint effort, the CPR was able to commence the process of
up-loading its backlog of paper-based files onto the new
computerized registry system. Expectations are that, as of the
beginning of 1999, the CPR will start entering new files on the
computer platform only. Thus, the first computerized, centralized
and public registry in the history of Bulgaria will start normal
operation.
Improving the Law on Registered Pledges: Monitoring
and Work in the Ministry of Justice and Legal Eurointegration
Drafting Team
Almost two years after it came into effect, the
Registered Pledges Act had revealed a number of technical flaws
which were inhibiting economic agents’ use of the modern secured
transactions concepts it introduced. The Law Program team of
experts worked closely with the CPR on identifying omissions and
problems with the Registered Pledges Act which would have to be
corrected with a first round of revisions. Law Program experts also
liaised with commercial banks and other financing parties in
identifying how the Law might be improved. This effort enabled the
CPR to identify a comprehensive list of proposed revisions which,
if carried out, would result in the Registered Pledges Act meeting
to a high degree the expectations related to its
implementation.
Law Program experts were made part of a drafting
committee constituted by the Ministry of Justice and Legal
Eurointegration, with a view to creating a draft law, to implement
the necessary revisions to the Law on Registered Pledges. The
drafting team included representatives of the CPR, the Council of
Ministers, the Bulgarian National Bank, the Association of
Commercial Banks and the Law Program. The team had a series of
working meetings which resulted in the production in mid-December
of an amending draft law with the legislative motives necessary for
its enactment. The draft law has been introduced into Parliament,
with a view to being enacted in the first quarter of 1999.
B.Education
Entering the Field of Education: Design and
Implementation of a Distance Learning Project
CSD, and the Law Program in particular, have a long
track record as providers of high-quality training programs for
experts in various fields. The Law Program has become well-known
for its continuing legal education programs on topics such as joint
ventures, franchising, sale of an on-going business, arbitration
and ADR, and leasing. Still, the Law Program identified the need
for alternative forms of education, which would provide a method
different from the classic university models. Thus, the Law Program
made its first appearance as an agent in the field of education, in
the form of developing and implementing for the first time in
Bulgaria the pioneering concept of “distance learning.”
The Law Program Distance Learning Project is
entitled “General and Financial Management of Not-for-profit
Organizations.” It is being implemented in cooperation with the
Hellenic Management Association (Athens); Regional Distance
Education Study Center, Sofia University, Business Faculty (Sofia);
and the Law Faculty, Skopje University (Skopje). The Project is
targeted at producing the first systematic training course in NGO
management in Bulgaria. The Project is financed by the Phare
Program, through the European Training Foundation.
Distance Learning: Introducing New Education
Techniques and Technologies
The distance educational method is new for the
Bulgarian educational system. Distance education leads to a
proactive structure of the learning process. The method chosen
comprises mainly the individual work of the students participating.
The teaching materials are made to follow the requirements of this
kind of education. Besides the students’ individual work, weekend
meetings are provided for discussion of the topics of the course
curriculum and assessment of the students’ work.
The course that will result from the project will be
delivered through print materials and an electronic version of the
exercises and the self-evaluation materials related to the
course.
The Distance Learning Project envisages the
development of an educational course designed for last-year
students already holding a Bachelor’s Degree in another field, or
for practitioners working in civic organizations. It represents a
Master’s Program for Business Administration with a concentration
in Not-for-Profit Organizations. The concept and educational tools
designed during the Distance Learning Project will be provided to
the distance education centers in Central and Eastern Europe. Thus,
the product of the Law Program effort will have an international
enabling effect on the NGO sector.
Distance Learning: Reaching the
Benchmarks
The Law Program experts have already created the
Instructional Design Model. The model provides for three teaching
modules related to not-for-profit organizations’ regulation and
activity: Legal Aspects; General Management; and Financial
Management and Control.
The team drafting the course materials includes
university professors and specialists in the fields of law, general
and financial management, accounting, and auditing.
C.Training
Training: a Continued Tradition
The Law Program continued in 1998 the tradition of
providing short and practically oriented training programs. There
were two main lines in the 1998 training program. The first line
focused on developing the training skills of potential trainers in
the implementation phase of the General and Financial Management of
Not-for-profit Organizations educational project. Thus, the Law
Program made a link between the conceptual and practical components
of a comprehensive educational project. The second line continued
the tradition of training NGO practitioners in the fields of
accounting and auditing.
The 1998 Training Seminars
The Law Program’s efforts in the field of training
focused on the following topics during 1998:
Training of Trainers Seminar for Course Developers.
The seminar was attended by the authors of the course materials and
future trainers participating in the Distance Learning Project, and
was held in two sessions – in May and June 1998. The instructors at
the seminar covered the following topics: “Distance Education — the
European Standards and the Bulgarian Environment” and “Distance
Education — Principles, Objectives, Methods and Techniques.” The
seminar ended with a discussion on the draft for the Instructional
Design Model;
Training of Trainers Seminar for Course Developers:
a Follow-up Seminar in Athens. The seminar was hosted by the
Hellenic Management Association in the beginning of September 1998
and was attended by five representatives of Law Program’s Distance
Learning project partners. Representatives of the Hellenic
Management Association demonstrated distance education tools
elaborated by the latter, designed to work on the basis of
multimedia equipment. The participants discussed the overall
structure and design of the course materials for the General and
Financial Management of Not-for-profit Organizations course.
Special focus was placed on the students’ evaluation and the need
for interactive communication.
A training seminar on “Accounting and Audit of NGOs”
was held on November 30, 1998, jointly by the Law Program, the Open
Society Foundation and the International Development Law Institute
(IDLI), Rome. The main instructor was Mr. Pascuale Ferraro, Deputy
Director at IDLI. The seminar was attended by 30 practicing
accountants and auditors active in the field of NGOs. The topics
for discussion included forthcoming changes in tax laws, internal
and external financial control, and financial management of
NGOs.
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