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Bulgaria: Legal and Judicial Reform

Judicial Assessment

March 1999

Legal Department

Europe and Central Asia Region

 

 

CURRENCY EQUIVALENTS

(as of [March], 1998)

Currency Unit = Lev (plural Leva)

US.00 = 1,834 Leva

 

WEIGHTS AND MEASURES

Metric System

 

ABBREVIATIONS AND ACRONYMS

ADR --Alternative Dispute Resolution

BJA --Bulgarian Judges’ Association

EU --European Union

GOB --Government of Bulgaria

JTC --Judicial Training Center

MOE --Ministry of Education, Science and Technology

MOF --Ministry of Finance

MOI --Ministry of Interior

MOJ --Ministry of Justice and European Integration

NGO --Non-Governmental Organization

NIS --National Investigative Service

SJC --Supreme Judicial Council

            • USAID --United States Agency for International Development

 

BULGARIA - FISCAL YEAR

January 1 - December 31

 

 

Vice President, ECA = Johannes Linn

Sector Director, ECSPE = Pradeep Mitra

Country Director, ECC03 = Andrew N. Vorkink

Sector Leader, ECSPE = Sanjay Pradhan

Task Team Leader, LEGEC = Alex Iorio/Galina Mikhlin

 

TABLE OF CONTENTS

I. INTRODUCTION 1

  • II. LEGAL FRAMEWORK FOR THE FUNCTIONING 3

OF BULGARIA’S JUDICIAL SYSTEM

A. The Constitutional Framework 4

B. Judicial System 5

C. Oversight and Financing of Court System 6

Financing of the Judicial Branch 8

Planning and Statistics 8

Personnel Issues

Appointments 9

Remuneration 10

Staffing 11

Promotions 11

Ethics and Disciplinary Procedures 12

D. Possible Strengthening Measures 13

  • III. FACTORS CONTRIBUTING TO THE INEFFICIENCY 15

    OF THE COURT SYSTEM

A. Case-load Management 15

B. Inadequate Court Resources 19

C. Registration Functions 20

D. Lack of Use of Alternative Dispute Resolution Mechanisms 21

E. Inadequate Training of Judicial Personnel 23

F. Poor Quality of Legislative Drafting 27

 

IV. ENFORCEMENT OF CIVIL JUDGEMENTS 30

V. ACCESS TO JUSTICE AND PUBLIC PERCEPTION 33

OF THE JUDICIARY

VI. CONCLUSION 37

ANNEXES

I. Structure of the Courts 40

II. Registration Functions 45

III. Legislative Drafting 48

IV. Court Administration – extract from USAID report 50

V. Summary of Government’s Reform Program 61

VI. 1997 Statistics on Enforcement of Judgments 70

 

 

This report was written by Alex Iorio (Counsel, LEGEC) and Galina Mikhlin (Counsel, LEGEC) based on findings of a mission that visited Bulgaria in October 1998. Ms. Nancy Worthington (Consultant) participated in the mission and substantially contributed to this report.

 

BULGARIA: JUDICIAL ASSESSMENT

I. Introduction

Although the reform effort in Bulgaria is almost a decade old, until recently it was marked by fluctuating level of commitment of rapidly succeeding governments. As a result, despite isolated achievements (such as the passage of the new market-supportive Constitution in 1991, enactment of numerous market-friendly laws, price, trade and foreign exchange liberalization, restitution of property and de-monopolization of the large enterprise sector), the Government’s failure to contain fiscal deficit and address structural problems in the state enterprise and banking sectors in a sustainable manner culminated in a fiscal crisis at the end of 1996. The economic crisis precipitated political protests that brought down the Government and resulted in dissolution of the Parliament in December 1996. Following the brief tenure of an interim Government, the current majority party, the UDF, was elected in April 1997 with a reform platform that included promises to combat corruption and organized crime.

The current Government has made a strong, emphatic commitment to a variety of reforms throughout the public and private sectors, as evidenced by the adoption of a program entitled “Bulgaria 2001,” which defines the principal guidelines for the development of the country until the year 2001. “Bulgaria 2001” reflects the Government’s commitment to fulfilling its reform platform and achieving four interrelated objectives: (i) preparing Bulgaria for membership in the European Union (EU) by bringing Bulgaria’s laws and institutions in compliance with EU standards; (ii) facilitating sustainable development and growth of the private sector; (iii) realigning government and strengthening public institutions, including the courts, in line with the needs of a market economy; and (iv) developing appropriate mechanisms for combating and eliminating opportunities for corruption and crime. The Government recognizes that its success in achieving these objectives will depend, in large measure, on its ability to develop legitimate and well-functioning public and legal institutions that would develop, implement and enforce Bulgaria’s laws and provide effective mechanisms for addressing corruption. Indeed, one of the most important functions of the state is to provide an institutional infrastructure that assures property rights and enforcement of contractual claims, law and order, mechanisms for resolution of disputes, and rules that encourage efficient long-term investment. If the private sector does not trust the state to enforce rules governing business activities, investment and development of the private sector will suffer. If high levels of corruption are present, most reforms will be subverted or not implemented.

The twin priorities of strengthening the administrative capacity of the law-enforcement and judicial authorities and of taking active measures to combat corruption must form an important part of Bulgaria’s pre-accession strategy, as identified in the 1997 opinion of the European Commission (EC) on Bulgaria’s application for membership. The Opinion noted that in the short term (i.e. 1998) Bulgaria needs to take “concrete steps to combat corruption”. In the medium term, “improved operation of the judicial system”, “reinforcement of justice and home affairs institutions to improve their efficiency and effectiveness and embedding respect for the rule of law”, “implementation of the fight against organized crime and corruption” were identified.

Since coming into office, the Government has taken a number of specific steps in order to address the issues of public administration, the judiciary and corruption. These include preparation of the legal framework for realigning public administration, including the Law on Public Administration, Civil Service Act, Access to Information Law, and revisions to the Law on Normative Acts and Public Procurement Act. The National Assembly is also preparing a Law on Financial Reporting which will apply to all high level officials. Laws that directly impact on the operation and efficiency of court proceedings are also being revised, including the Civil Procedure Code, the Criminal Code and the Criminal Procedure Code. In addition, in July of 1998, the Council of Ministers established The Center for Information Technology, tasked with developing a unified computerized information system, tackling first criminal law enforcement issues and later expanding it to include the civil justice system. Such initiative will be an important tool in improving the administration of justice.

Specific anti-corruption measures are also being undertaken by the National Assembly, the Government and the NGO community. Following the report of the Temporary Anti-Corruption Commission of the National Assembly, on December 12, 1997, the National Assembly issued a Decision which established a permanent legislative commission to combat crime and corruption and obliged the Council of Ministers to create a national strategy to counteract crime. Pursuant to this Decision, on July 16, 1998, the Council of Ministers issued the National Strategy that includes specific plans to combat organized crime, corruption, engender criminal policy and political power reforms, improve civil justice procedures and improve human resources for the justice system, including training. In addition, a group of NGOs, assisted by international donors, including USAID, produced, together with members of Parliament and judges, an anti-corruption action plan set out in a report entitled Coalition 2000.

 

Recognizing the complexities of designing and implementing the challenging transformation of its public sector and the judiciary and tackling corruption, in early 1998 the Government requested the assistance of the Bank and other international bodies. In response, the Bank is reviewing the Government's program and needs in the areas of public administration and judicial reform, taking into account the assistance that can be offered in this area by other donors, including the EU and USAID. As part of this effort, a combined Bank/USAID mission to Bulgaria took place in October 1998 to conduct a diagnostic assessment of Bulgaria's judiciary. As a result of the mission, the USAID design team prepared a report entitled “Judicial Strengthening in Bulgaria”.

The present report sets out the Bank's findings on the main problems faced by Bulgaria's judicial system today. It is divided into four main sections: (1) the legal framework for the functioning of Bulgaria's judiciary (which includes a summary of constitutional provisions governing the judiciary and the structure of the courts and discusses the manner of court oversight and administration); (2) factors contributing to inefficiency in the court system; (3) problems relating to enforcement of civil judgments; and (4) access to justice and public perception of the judiciary. Measures for improvement are suggested in each of these sections as appropriate.

    • II. LEGAL FRAMEWORK FOR THE FUNCTIONING OF BULGARIA’S JUDICIAL SYSTEM

Since 1991, significant reforms have been undertaken to convert Bulgaria’s judiciary from its ineffective role under a totalitarian regime to an essential institution in a market economy. Under the communist regime, the judiciary was little more than an arm of Party direction and control. Judges and prosecutors were hired for their ability to follow orders, and not for their independence of thought or high level of training. Parties to lawsuits knew the expected result of litigation from the start of a case, whether civil or criminal.

After the political turmoil and the adoption of a new Constitution in 1991, the judicial branch was recognized as a separate and independent entity. However, little structural or management reform took place at that time. Legislation was passed in 1991which created a separate Constitutional Court. Since the change in government in early 1997, some structural and substantive legal reforms have occurred, including the establishment of an intermediate Court of Appeals.

The GOB is aware that the judiciary is viewed by the public as an extremely corrupt and inefficient organ. The Bulgarian government has recognized the need for far more substantial reforms in the judicial branch and has taken some action toward effecting changes in the judicial branch. A summary of the Government’s program to date is set out in Annex V to this report.

This section sets out the existing legal and institutional framework for operation of Bulgaria’s courts and identifies key problems in the manner in which the courts are presently administered and supervised.

 

    1. The Constitutional Framework

The 1991 Constitution of the Republic of Bulgaria provides that the country will be governed by the rule of law. The government is divided into three independent branches: the National Assembly is a unicameral legislature; the executive branch includes a Prime Minister and a Council of Ministers; and the judicial branch consists of three parts: the judges of various levels of courts, the Prosecutor’s Office, and the investigating magistrates, who are all governed by the Supreme Judicial Council. The Constitution also established a separate Constitutional Court outside the judiciary.

The judicial branch is specifically recognized to be independent of the other branches of government, including a separate budget. Pursuant to Article 117 (2), “[t]he judicial branch shall be independent. In the performance of their functions, all judges, court assessors [jurors], prosecutors and investigating magistrates shall be subservient only to the law” and (3) [T]he judicial branch of government shall have an independent budget”. According to Article 129 of the Constitution, “[j]ustices, prosecutors, and investigating magistrates shall be elected, promoted, demoted, reassigned and dismissed by the Supreme Judicial Council.” This independence is further recognized pursuant to Article 129, Section 3, “[j]ustices, prosecutors, and investigating magistrates shall become unsubstitutable upon completing a third year in the respective office. They shall be dismissed only upon retirement, resignation, upon enforcement of a prison sentence for a deliberate crime, or upon lasting actual disability to perform their functions over more than one year.”

An even more unusual clause provides that “[j]ustices, prosecutors, and investigating magistrates shall enjoy the same immunity as the Members of the National Assembly”. This immunity is described as follows: “A Member of the National Assembly shall be immune from detention or criminal prosecution except for the perpetration of a grave crime, when a warrant from the National Assembly or, in between its sessions, from the Chairman of the National Assembly, shall be required. No warrant shall be required when a Member is detained in the course of committing a grave crime; the National Assembly or, in between its session, the Chairman of the National Assembly, shall be notified forthwith.” In addition, “[t]he immunity of a judge, prosecutor, or investigating magistrate shall be lifted by the Supreme Judicial Council only in the circumstances established by law”.

 

        • B. The Judicial System

Prior to 1998, the court system was divided into Regional courts of first instance; District courts (of first instance for more serious civil and criminal cases, otherwise an appellate court) and two Supreme Courts, the Supreme Court of Cassation and the Supreme Administrative Court. In order to bring itself in line with EU requirements, Bulgaria created a new appellate level of courts in early 1998 to ensure that, in all cases, there was a three-tier system. The current structure of the Bulgarian court system is represented diagramatically below. A detailed description of the court system is set out at Annex 1 to this report.

 

 

    • C. Oversight and Financing of the Court System

All three parts of the judicial branch (judges, prosecutors and investigative magistrates) are governed by the Supreme Judicial Council (SJC). The Supreme Judicial Council is made up of 25 members, eleven elected by the National Assembly, eleven elected by the bodies of the judicial branch, the two Chairmen of the Supreme Courts of Cassation and Administration, and the Chief Prosecutor. The SJC is chaired by a non-voting member, the Minister of Justice. The main functions of the SJC are: (i) preparation and submission to the National Assembly for approval of the annual budget for the judicial branch; and (ii) appointment, election, promotion, demotion, reassignment and dismissal of judges, prosecutors and investigative magistrates. The members of the Supreme Judicial Council who are judges each have their own caseload and administrative responsibilities within their own judicial branch offices. They have only a handful of clerical staff to assist them in their SJC responsibilities. While the SJC plans on being fully computerized by the end of 1998, it does not have a coordinated record-keeping system for its responsibilities at this time.

While the MOJ has no direct supervisory or administrative authority over the judicial branch it plays a related role in the administration of justice. The Minister of Justice chairs the SJC meetings and can, therefore, exercise control over the SJC agenda. The MOJ is also responsible for three important aspects of the functioning of the courts. First, the MOJ is responsible for the upkeep and repair of court facilities. Second, MOJ is responsible for training of judges and court personnel. Third, the MOJ, through its Inspectorate department, conducts semi-annual inspections of the courts, designed to track civil and criminal cases through the lower courts and to ensure that all mandated standards regulating the progression of a case through the courts have been met.

An analysis of the manner in which the SJC and MOJ perform their respective functions in connection with court oversight and administration reveals serious deficiencies that undermine the efficiency of the judicial branch. Specifically, while the SJC has a broad-based administrative mandate, it lacks the resources and capacity to execute its functions. The MOJ, on the other hand, appears to have resources, but does not at present utilize those resources for the optimal functioning of the system. The following analysis of court financing, ethics, personnel matters and disciplinary procedures illustrates the urgent need to strengthen and to allocate appropriate resources to the body, constitutionally charged with the oversight and administration of the court system, namely the SJC.

 

 

The Ministry of Justice’s Inspection Function

The MOJ’s Inspectorate Department conducts six month reviews on each set of courts below the Supreme Court level. The basic mandate of the Inspectorate Department is to review the administration of civil and criminal cases. In the process of these regular on-site inspections, statistical data is collected to ensure that all legal requirements are met.

There are three major drawbacks to the current inspection system:

  • the data is manually collected

Because there is no central computer database for the court system, information is maintained in a variety of fashions, often in duplicative logbooks, and the data maintained is not very reliable. Nor is the data coordinated with that maintained by other parties to the justice system, such as police, prosecutors, and investigators.

  • the data is very limited in nature

For example, information is strictly maintained as to whether criminal cases are filed within the three day statutory period once a person is incarcerated, and whether the case is resolved either before or after three months (based on another statutory requirement). But no data is kept on how long cases are kept in the system after the three month period, nor on the reasons for any such delay.

  • little follow-through on reports

Information is collected by the MOJ and reported to the SJC, but since these bodies are separate, there is little follow-through on the reports. Within the judicial branch, the original disciplinary responsibility devolves to the President (chief judge) of the particular regional, district, or appellate court. This individual may choose to further investigate a matter and to impose some administrative sanction, or may do nothing, depending on their personal choice. There is no regular reporting mechanism back to either the SJC or to the MOJ to determine whether any additional disciplinary or other corrective measures were taken at the lower level.

The first of the problems identified above was brought into stark focus last year when a scandal erupted in the national press regarding the referral, handling, and disposition of criminal cases. Statistics maintained by the Ministry of Interior (MOI) showed that of all police referrals on criminal matters, only one and one-half percent of cases were brought to the disposition stage in court. The MOJ’s statistics were only marginally better, showing that eight percent of all criminal matters reached the disposition stage in court. Whilst neither set of statistics reflected well on the functioning of the judicial system, the discrepancy in the statistics could not be properly reconciled because the parties’ systems (MOI’s and MOJ’s) were not coordinated.

 

 

    • 1. Financing of the Judicial Branch

The Constitution clearly states that the judicial branch will have an independent budget. The SJC submits an annual budget request to the National Assembly. The SJC conducts this annual obligation without any staff expertise, and based on the information and requests sent to them by the individual presiding judges of each of the individual courts in the court system.

The general budget for the courts is awarded by the National Assembly to the SJC, which then divides the money between the judges, the prosecutors, and the National Investigative Service. Currently, the Chief Prosecutor and the Director of the NIS then decide how the money will be used for their independent groups. The money for the courts is divided by the SJC between the presidents of each court system, who each make independent decisions on the use of funds (aside from fixed expenses such as salaries). There is therefore no centralized control over the funds once they are disbursed within a particular budget year, and no system by which the individual courts report back on their expenditures. Several regions have managed to squeeze a few computers and software out of regular budget funds, but the decision to do so, and as to what to buy and how to use it, are made independently by each court.

An expert budgetary staff is urgently needed by the SJC, to deal with properly funding regular judicial branch expenses, to assist in special projects, and to permit centralized planning for the branch in order to respond to new national priorities. Very few, if any, of the members of the SJC possess this kind of expertise, and they each have a myriad of other obligations to fulfil. Without the development of an expert staff, the SJC cannot be expected to do a competent job at budgetary development.

    • 2. Planning and Statistics

As part of its mandate, the MOJ Inspectorate Department collects statistics of various sorts on each of the court system. The data collected by the MOJ does not however assist in providing an overall picture of the functioning of the courts that could be useful to SJC in fulfilling its own mandate.

There is no collated information on the numbers of computers in each of the courts, or whether, and how particular courts use computers for record-keeping. One reason for this particular lack of information is that courts are permitted to accept “gifts” or “loans” of computer equipment and software from private sources. Some courts have accepted computers from banks and law firms who appear regularly in cases before those courts, thereby raising conflict of interest and corruption issues, while other presiding judges have squeezed money for computers out of budgetary items slated for building repairs. In addition, different regional courts have developed different software packages for court administration, and then sometimes try to “sell” this package to other court systems.

Statistical information on court costs, including operating expenses and salaries, is collected by the MOJ Inspectorate Department. The MOJ also collects information on court facilities and equipment, and it is the MOJ which is responsible for the upkeep and repair of court facilities (although the presiding judges handle the daily details of arranging repairs and other maintenance and each court pays a small percentage of its budget into a “buildings fund”). Information is not collected on how many computers there are in the various courts nor what various kinds of software are used for either case management or for legal research.

The lack of computerization and standardized administrative and case maintenance software within the court system, and the lack of a manual substitute creates a bureaucratic nightmare. Information is not reasonably certain on numbers of cases assigned, the kind of cases, the length of cases, and their disposition. Without this information, the individual professionals in the judicial branch cannot be reasonably supervised, either for competence or corruption. Nor can reviews of these issues be done on a system-wide basis, since neither the SJC nor the MOJ collect sufficient information.

There is also little or no coordination for future planning for any of the three parts of the judiciary. The SJC has the responsibility for the budget, but has no staff with budgetary expertise. The MOJ has staff with inspectorate and budget expertise, but does not have authority to make related budget or staffing decisions except for buildings and training. Nor are the MOJ and SJC sufficiently coordinated in these activities to make the best use of their collective information.

    • 3. Personnel Issues

      a. Appointments

All judges in Bulgaria are appointed by the Supreme Judicial Council. For the Regional courts, a judge must have at least two years of experience in the legal profession; for the District courts, five years. Judges will typically serve their first two years as "junior judges" in the District courts. This is a two-year term during which the junior judge will hear cases together with two fully-fledged District court judges on the bench. The Presidents of each of the courts are also appointed by the SJC.

As described in more detail in the USAID report, law graduates are required to serve an "apprenticeship year", structured according to which branch of the legal profession a candidate wishes to pursue. For those pursuing a judicial career, the apprenticeship year is split between the District and Regional courts. At the end of this year, all trainee lawyers and judicial candidates come together for a state examination organized by the Ministry of Justice. The findings of the USAID report suggest that the content of this examination appears to be open to question in terms of rigor and relevance to ultimate job performance.

In addition to these examination criteria, all judicial candidates must: (1) be Bulgarian citizens; (2) have no criminal record; and (iii) possess the "required moral and professional qualities". At the present time, no systematic background checks on judicial branch candidates and on the clerical staff for the judicial system are performed. There is also no systematic determination made as to the character of people who apply for judgeships. When this is coupled with the lack of job descriptions and lack of regular supervision, it is clear that this is one reason that there are serious problems within the judiciary as to incompetence and corruption.

        • b. Remuneration

Despite the fact that all Judicial Branch professionals obtain blanket job security after a three year probationary period, and also receive both civil and criminal immunity at that point, a large percentage of people leave these positions for private practice or other positions after a few years. These jobs are very poorly paid, with salary ranges of approximately 0 to 0 in U.S. dollars. The best-paid private lawyers receive between and 0 per hour, and it is fairly common for private lawyers to receive about this amount per day. Almost any lawyer can make more money than judges, prosecutors, or investigators. Newly-published statistics show that the average wage for all workers in Bulgaria is about 2 per month.*

The average judge’s and prosecutor’s salary is barely enough to meet the usual housing/rent costs in Sofia. All other basic expenses and any “extras” must be paid from a non-salary source. While some prosecutors and judges rely on spouses or professorships to meet these expenses, it is quite common for judicial branch personnel to accept bribes in order to feed their families.

The consequence of the extremely low pay, when added to the deep lack of respect for the Judicial Branch employees and the poor working conditions, are many-fold. First, few highly competent lawyers are attracted to this work. Second, many of the competent Judicial Branch professionals spend a few years learning everything they can about the judicial system, and then leave the judiciary for higher paid jobs. Third, according to strong anecdotal information, those who stay often resort to corruption in order to meet their basic living expenses. There remains a very small cadre of extremely dedicated and competent professionals who are strong supporters of change in the Judicial Branch. The large balance of remaining Judicial Branch employees are often not motivated to move their caseloads along, are not well-trained or otherwise informed about the law, or are directly susceptible to bribery.

This problem is equally great for the supporting clerical and administrative staff. Without exception, all of the judges interviewed strongly complained about the lack of competent and honest staff. The support staff is not properly trained in its functions, is not motivated to serve as part of a system which resolves disputes, is paid extremely low salaries, and does not have a proper civil service program in place to resolve disciplinary issues. It is commonly known that clerks are paid small sums to hide files or to move files up on a judge’s calendar, and that larger sums are paid for a file to be completely lost. No efforts are made to retain or reward competent staff. Their working conditions are poor, especially in the busier court systems. Nor are the judges able to terminate incompetent workers without facing myriad civil and administrative claims, since there are no civil service standards yet in place.

The proposed amendment to the Judicial Powers Act also contains provisions as to the minimum salary for judges. The minimum salary for an entry level judge would be fixed at twice the national average public sector salary, plus a clothing and housing allowance. Whilst this is a move in the right direction in an environment of tight budget constraints, it would do little to bring the judicial career the esteem and the caliber of personnel it deserves.

        • c. Staffing

Determinations of staffing levels within the judiciary are ultimately made by the Supreme Judicial Council, after input and requests by presiding judges, the Chief Prosecutor, and the Director of the National Investigative Service. Staffing and related budgetary issues are addressed by the SJC in an annual budget request to the National Assembly, with assistance from the Ministry of Justice on buildings and training issues. The SJC does not have any expert staff to assist in these determinations or other administrative planning, and the budget and staffing requests depend on the tenacity or connections of the presiding judge or other supervisor rather than a systematic assessment of the needs of the particular offices or courts.

        • d. Promotions

There appears to be no set policy for promotion of judges, prosecutors, or investigators. A decision has just been made to require job categorization, systemic enforcement of qualifications for employment, and regular standards for promotion and discipline of government personnel under the new Civil Service Law. No one could state with certainty that the civil service reforms would be applied to Judicial Branch personnel (although it was stated that it would apply to court clerical and other support staff). Notwithstanding the doubt surrounding its applicability, it is anticipated that the SJC will adopt similar principles for promotion and discipline for judges, prosecutors and investigators within a reasonable period of time. At this point, promotions are granted in a haphazard fashion, and are as often based on political and family connections as they are on levels of knowledge and experience.

 

            • e. Ethics and Disciplinary Procedures

The SJC has the clear constitutional responsibility and right to supervise and discipline all judicial branch employees. However, there is no regular bureaucratic system through which disciplinary matters are reported and investigated, nor is there a clear set of guidelines for the conduct of employees. Additionally, the SJC does not have staff experts or personnel whose responsibility would be to deal with disciplinary cases.

The Bulgarian Judges Association has produced a set of guidelines for judges, but these rules are voluntary and would apply only to the members of the BJA. A corresponding prosecutor’s association has not produced ethical standards, nor are there written standards of conduct for investigators. Since these judicial employees are so poorly paid that they are commonly recent law school graduates with little practical experience, and since they receive little training (and no training on ethics), the usual result is that a variety of ethical breaches (by Western standards) are quite common. There is also very substantial anecdotal information that case decisions are commonly resolved through bribery of the judges, court administrative personnel, prosecutors, and investigators. In fact, one judge jokingly mentioned that judges are less corrupt than the other groups, simply because they are at the end of the time line for case procedure, after bribes have already been paid to dismiss cases or “lose” files.

The president of each court is responsible for reporting disciplinary matters to the SJC, where the president has determined that specific disciplinary measures are warranted, but without standards or administrative support for this function, this step is very rarely taken. There is a common saying in Bulgaria, “A crow does not pick out the eye of another crow.” This sentiment demonstrates one of the reasons for the lack of referrals to the SJC. Another strong reason for the lack of disciplinary measures is that few judges desire to expose the corruption or inefficiency of their colleagues for fear that attention will be turned to their own conduct. Without an administrative structure and standardized rules of conduct, there is little impetus or pressure to refer judges or other judicial branch personnel for serious discipline.

As described above, while an inspectorate function is carried out by the Ministry of Justice, this function is not directly connected to the review of disciplinary matters. Neither the Judicial Branch nor the Ministry of Justice carries out an internal affairs function, resulting in a complete lack of review for internal corruption matters. This situation has partly contributed to the public view of an unmanaged and corrupt Judicial Branch.

A serious block to dealing with criminal activity by judicial branch personnel is the criminal immunity provided for them under the Constitution. Serious criminal matters would have to be referred for criminal investigation and prosecution, yet no charges may be brought against any judicial branch professional unless the crime involved is a “grave” one (only the most serious felonies, of which bribery is not one), and unless the SJC gives permission to lift the immunity. This has virtually never happened.

According to members of the National Assembly, this “protection” was put into place because of some glaring instances of political maneuvering through criminal charges against various public officials. In their view, the judicial system is so weak that it cannot provide the normal kinds of protections against false claims or accusations. Additionally, without the public administration reforms, including the civil service legislative reforms and proposed changes in the substantive criminal law in place, those who abuse the system to bring specious charges against public officials cannot be punished, even administratively. While legislators, executive branch personnel, and some members of the judiciary generally agree that these immunities cause very serious problems, as a group they are not willing to take steps to remove these criminal immunities until other protective reforms are in place.

 

Opportunities for Corruption

The lack of sufficient national record-keeping and administrative follow-up also contributes to corruption. The SJC doesn’t have staff to handle either statistical information or administrative supervision, and the MOJ does not collect data which would permit reviews of job performance or actions/delays in specific cases, nor does it have supervisory authority over the judicial branch. The presiding judges of the court systems have a variety of administrative duties, as well as their own caseload, and also have no administrative staff to support a thorough review of the caseloads of the other judges. Nor is there any modern docketing system for case files. The result is a lack of systemic administrative support or supervision of the judicial branch.

One consequence of this situation is that judges, prosecutors and investigators who decide to resolve cases corruptly can do so with the high probability that their actions will be neither reviewed nor questioned. According to strong anecdotal information, this kind of corruption is more common than the resolution of cases on the basis of the facts and applicable law.

 

D. POSSIBLE STRENGTHENING MEASURES

The SJC, as overseer of the judicial branch, must have the capacity to fulfil its mandate. As a first priority in a judicial reform program, the SJC requires fundamental institutional strengthening. This will involve allocation of additional budgetary resources to allow SJC to expand its staff to include appropriate professional support staff in finance, planning, statistics and personnel matters. SJC would also require additional material resources to fulfil its function appropriately (office space and equipment). The SJC will also require technical assistance in designing a strategic plan to address the needs of the judicial branch, including in some of the areas outlined below. In addition, in order to improve the functioning of the system as a whole, greater coordination will be required between the SJC and MOJ, particularly with reference to the inspectorate function.

 

1. Strengthening the SJC in order to:

  • develop its administrative capacity in budgetary matters and formalizing its supervisory and planning functions by expanding its support to include professionals in these areas;
  • develop transparent criteria for the hiring, promotion, and disciplinary system of judges, prosecutors, and investigators;
  • obtain expert staff to determine adequate physical needs for each of the courts and other offices (encompassing buildings and computers), and seek sufficient budgetary funds to meet these needs.
  • develop a regularized disciplinary system and standards of conduct for all judiciary branch personnel, including a process to lift criminal immunity where proper; it should also develop an expert staff to deal with disciplinary matters on a regular and standardized basis. This staff should conduct its own inspections of the offices and courts within the Judicial Branch, which would coordinate with or replace the Ministry of Justice inspection function.
  • establish an internal affairs structure to handle internal corruption investigations on an on-going basis for all parts of the judiciary.

2. A study be carried out to determine how criminal and civil immunity issues are dealt with in other countries, in order to decide if additional steps can be taken to deal with the existence of these barriers to dealing with misconduct/crimes.

3. In order to ensure greater coordination between MOJ and SJC, a systemic review be carried out of the data required to be collected by the courts and then monitored through MOJ’s Inspectorate Department. SJC should review the type of data that should be collected and maintained by the courts in order to show the working and efficiency of the court system and to monitor personnel issues such as disciplinary measures. Given the sensitivity of some of this information, consideration should be given to how this information should be monitored by SJC, as clearly some of these issues rightly fall outside the mandate of the MOJ Inspection function.

4. A study be carried out in order to determine a satisfactory pay scale for all Judicial Branch employees The Bank Team would recommend an approach of linking judicial salaries to those of legislators, and raising all other judicial branch salaries accordingly. This approach was recently adopted by the Georgian government in it’s judicial reform efforts.

    • III. FACTORS CONTRIBUTING TO INEFFICIENCY OF THE COURT SYSTEM

A. Case Load Management

The US AID report addresses very well the administration, management, and planning issues facing the judicial branch The table below contains a summary of the weaknesses identified by USAID on court administration. The full text of the USAID report is set out at Annex III to this report.

 

Summary of reasons for Case Delays

  • Administrative and clerical burdens of all judges
  • Administrative burdens of Chairman of Courts
  • Lack of legal research assistance and legal information software
  • Poor performance by court support staff
  • Lack of training of judges
  • Lack of work ethic among judges
  • Inability to quickly access information in criminal and civil codes
  • Complex summonsing process
  • Intentional delays by attorneys
  • Prolonged period for collection of evidence
  • Failure by witnesses to appear
  • Failure by judicial experts to appear
  • Workload associated with enterprise registration
  • Workload associated with high level of appeals
  • Absence of alternative dispute resolution mechanisms

Based on USAID report

 

 

As described in greater detail in the USAID report, problems exist on all levels. On an individual level, each judge has a variety of simple clerical duties to carry out; they must answer their own phones, accept visitors scheduled and unscheduled, hand-write or type their own correspondence and opinions (often on manual typewriters), conduct 100% of their own legal research, and handle most of the docket scheduling issues, as well as bearing the responsibility for the appearance of parties and witnesses for court hearings. This same situation is generally true for the prosecutors and the investigators. It is estimated that approximately 20% of an individual’s time is spent on clerical matters.

The presiding judges must handle all of these matters for their own caseloads, and must additionally control and disburse the annual budget, contract for building maintenance and repairs, assign cases, and handle any disciplinary matters, in addition to the general supervision of the judges and court support personnel. It is estimated that 50 - 80% of a presiding judge’s time is spent on administrative matters, depending on the particular court system.

Many of the members of the Supreme Judicial Council are also Chairmen or Deputy Chairmen of individual courts. As such each have their own caseload and administrative responsibilities within their own judicial branch offices. But the SJC is also responsible for handling the preparation of the annual judicial branch budget request and the discipline of employees. They have only a handful of clerical staff members to assist in these responsibilities. The SJC plans on being fully computerized by the end of this year, but does not have a coordinated record-keeping system for its responsibilities at this time.

One of the other reasons identified in the USAID report involves the conduct before the courts of lawyers in private practice. Whilst the USAID report rightly recommends the need for the courts to be able to impose sanctions for deliberate delaying tactics employed by lawyers, the role of the Bulgarian Bar Association in developing a strong legal profession is examined in the box below.

 

 

Intentional Delays by Lawyers

The USAID report identifies intentional delays by lawyers as one of the obstacles that can delay court proceedings. Under the current system, a judge cannot impose any sanctions on lawyers who abuse procedural rights. While the Law on Advocates sets rough guidelines for the conduct of lawyers in private practice (e.g. not employ procrastinating techniques in court, ban on trade advertising, limited conflict of interest rules). These standards are generally viewed as being weak when measured against comparable international standards (for example, the conflict of interest rules only apply to court representation and do not extend to representing conflicting parties in the same business deal or even taking a personal stake in business deals which should be negotiated solely for the client). The Law on Advocates also establishes disciplinary procedures against lawyers.

Each lawyer in private practice must be registered with a regional Bar Association (corresponding to the regional courts) and the national Bar Association. These are self-financing independent bodies, however, given the low level of fees charged, the Bar Associations may not be able to fully fulfil all their stated functions. Each Bar Association has its own Disciplinary Court before which an aggrieved party can bring an action against a lawyer. The Disciplinary Court can impose fines and/or temporary or indefinite suspension. To date, most of the cases before the Disciplinary Courts have been brought by the Bar Associations for failure to pay membership fees, with only some cases brought for negligence. Virtually all sanctions imposed have been for failure to pay Bar Association fees.

Intentional Delays by Lawyers

In addition to the recommendation made by USAID to change the Civil Procedure Code to provide for sanctions to be imposed by the courts on private lawyers, the Bulgarian Bar Association could be provided assistance and training to develop a set of standards of conduct for attorneys; the BBA could be provided training in the exercise of it’s disciplinary function and a review undertaken of the financing needs for the proper exercise of these functions.

 

The lack of coordination within the judicial system and the lack of any information link between the users of the court system and government agencies are both highlighted as problems in the USAID report. It is not currently possible to follow a case from the police complaint to the conclusion of a court case, nor to follow a convicted defendant through a prison term or alternative punishment. Nor is there a civil docketing system which permits a reasonable review of the civil justice system. This situation will be exacerbated by the expected creation of the financial police within the MOF, which has its own computer and software systems.

Even within the court system, there is no coordinated system for case management or for court administration. While the maintenance of certain ledger books is mandated by law, there is no centralized set of records through which case numbers, types, disposition, and length of case are maintained or reviewed.

The computerized case tracking system is a stated goal of the GOB; the Council of Ministers’ National Strategy to Counteract Crime has as one of its goals the creation of a computer system which would track criminal (and later civil) cases from initiation by the police through disposition of the case in court and any following imposition of sentence. The court records would be one module of this broad unified system, which would also standardize the statistical record keeping across all of the governmental parties involved in the justice system. This system should include both a court record and file management system, and should specifically include a docketing system.

 

Suggested Measures:

1. The judicial branch should set as a high priority the creation of the Uniform Information System, which would initially be established for the criminal caseload, and would later be expanded to the civil caseload. It should cooperate with the Council of Ministers in general, and specifically with the MOJ, the MOI, and the Center for Information Technology to agree on the bases for such a program, and to determine the hardware and software needs to support the development of the system. Part of the development of this system would include a common statistical system with the National Statistics Institute, to assist in pinpointing problems and delays in the judicial system, and as a planning and supervision tool to develop responses to those issues.

2. Following on from the pilot activities recommended by USAID in certain courts, the SJC should develop a computerized case-tracking, file management, and docketing system which will capture complete information on length of cases and manner of disposition at each stage of a case.

3. The SJC and MOJ should conduct a complete review of each part of the judicial branch to determine the computer assets owned in the courts and to evaluate the software systems available to manage individual caseloads, to provide supervisory data, and to provide system-wide data for administrative, management, and disciplinary decisions; in addition, this review should be combined with an analysis of any physical modifications required to the court buildings in order to provide the appropriate wiring for increased computerization.

4. As stated in the USAID report, the SJC should undertake a review of the needs of individual judges for clerical assistance, and should prepare a plan to fulfill these needs. The adoption of a computerized Uniform Information System will free up a large number of clerks who currently maintain various ledger books. A training center could also be utilized to retrain these support personnel to handle new administrative responsibilities. This review should include all judicial branch offices and officers, not just the judges and courts.

5. The SJC should review the need to provide professional court administrator staff to presiding judges (to be tested in a set of pilot courts), as recommended in the USAID report.

 

 

It is apparent that space constraints are a severe problem in Sofia where judges frequently share an office with one or two other judges. This, clearly, prevents judges from performing to the best of their abilities. For many of the courts outside of Sofia, although the space allocated appears adequate, the court buildings may require some modification in order to be wired for a greater degree of computerization. An inventory of the space available to the judiciary is required, so as to determine whether the problem of physical space in Sofia is a prevalent problem throughout Bulgaria. Currently no statistics are maintained on the number of occupants per office in the court buildings. The courts visited by the Bank team outside of Sofia seemed spacious and no complaints were voiced as to working conditions.

In Sofia, the Bank team learned that the sections of the old Palace of Justice, currently used by the National Museum, would be reclaimed in 1999. Given the needs for physical space in Sofia and the need to increase the esteem in which the judiciary is held, the Government would be urged to provide adequate space to allow the judges to efficiently discharge their duties.

The Constitutional Court is housed in a section of the government building assigned to the Council of Ministers. This physical proximity does not assist in a public perception of a clear separation of powers. Ideally, the Constitutional Court should be located in it’s own building.

    • 2. Legal Information

With the large volume of legislation enacted in recent years in Bulgaria, it is critical that the judiciary have access to up-to-date legal information comprising laws, normative acts, decisions of the Supreme Courts and other legal data. A lack of availability of current legal information has not been identified as a problem for judges (or other legal practitioners) in Bulgaria, nor was the prompt publication of laws and normative acts. There have been numerous complaints about the access to translated laws (for foreigners) and the quality of translations. The Ministry of Justice has plans to develop an “official” English translation of statutes and regulations to assist in attracting foreign business. The MOJ is seeking financial assistance in this endeavor.

A variety of sources of legal information is available to lawyers and judges, both in hard copy and in software packages carrying varying price-tags. It is the decision of each individual Court chairm

 
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