EU-Report Accession Bulgaria

The judicial system

Despite good recent progress on reforms, the judicial system remains weak and there has been little concrete change in its functioning. During the work on reform, co-operation between the Ministry of Justice and the Supreme Judicial Council (SJC) has developed considerably. Also, there is now wider and more public discussion of issues related to judicial reform, which is in itself a positive development. The SJC was active in helping the Ministry of Justice to prepare the strategy and was consulted on the preparation of the Action Plan and draft amendments to the law. The SJC raised concerns where it considered reforms did not fully respect judicial independence (e.g. introduction of timelimited mandates for some appointments and establishment of the National Institute of Justice under the Minister of Justice, expressing concern that this may not be fully independent).

However, one area not yet addressed by the reforms is the structure of the Bulgarian judiciary, which consists of judges, prosecutors and investigators, as set out in the Constitution. As mentioned in previous reports, the fact that criminal investigators with the functions they exercise in Bulgaria (some of which are exercised by police elsewhere) are members of the judiciary is unusual, and reforms will be needed as regards the place where, and the responsibility under which, investigations are carried out. A second area which is not addressed by the ongoing reforms is that the Constitution and the Law on the Judicial System also give members of the judiciary (judges, prosecutors, and investigators) immunity from prosecution for all but serious crimes that carry over five years in prison. Immunity for the judiciary is being increasingly widely discussed, but there are as yet no concrete proposals for change.

Surveys indicate that the public perceives there to be a high level of corruption in the judiciary and legal professions, a claim disputed by the judiciary. The problem with the current system of immunity and ineffective disciplinary procedures is that it is also difficult to demonstrate that corruption does not exist.

According to Bulgarian law, the judiciary should have its own budget. The budget for the judiciary remains very low. As in previous years, the basis for discussion in Parliament was not the draft prepared by the SJC, but the draft prepared by the executive, the justification being the budgetary restrictions imposed by the currency board arrangement and poor absorption capacity of the judiciary. After consultations between the SJC and the Ministry of Finance with the mediation of the Minister of Justice in the presence of the Prime Minister, the budget for the judiciary was increased (by comparison with the first proposal from the Ministry of Finance). The budget adopted by Parliament for 2002 was BGN 121.8 million (approx. EUR 61 million), about half what the SJC proposed and around 0.3% of GDP. In EU Member States it is often around 2 to 4% of GDP. Around 73% of the budget goes on staff salaries and social contributions, with most of what remains going on day-to-day running costs, leaving little for equipment.

The SJC represents judges, prosecutors, and investigators, and its members comprise representatives of all three groups, as well as a number of members elected by Parliament. The three groups have different roles in the judicial system, and hence different interests and management structures. This makes it difficult for the SJC to play a fully effective role in the professional management of judges and of the court system. The SJC administration needs to be reinforced to ensure its effective functioning.

As required by the Bulgarian Constitution, the Bulgarian court system consists of three instances: first instance, second instance and cassation. There is also a Constitutional Court, a Supreme Administrative Court and a system of military courts.

There is little concrete change to report on court administration since the last report, and the assessment given then remains largely valid. Court administration remains weak. Court Presidents do not yet receive systematic training to carry out their administrative role. Insufficient attention is paid to the selection and training of court support personnel who could take on administrative tasks. However, with the amendments to the Law on the Judicial System in July 2002, the position of ``Court Administrator'' has been introduced to take on administrative tasks including financial issues. Administrative support for judges, prosecutors and investigators remains poor, so they are obliged to spend a lot of time on administrative and clerical matters. The number of magistrates is still considered insufficient, and lack of appropriate support is a contributory factor. Case management continues to lack transparent standards for assignment. The SJC has decided that a case distribution system based on objective criteria should be used throughout the court system, but this still has to be put into practice. As mentioned in previous reports, the conditions in the majority of the courts, prosecution offices and investigation services remain very poor. An issue which still needs to be addressed is the clear demarcation of the roles of the SJC and the Ministry of Justice in the management of the judicial system, again whilst respecting the independence of the judiciary.

The length of judicial proceedings still gives cause for concern. No comprehensive statistical data on the average length of civil or criminal cases is available, but there are reports of civil cases routinely taking 5-8 years and of labour disputes suffering 3-4 year delays. The problems identified include the time it takes for a case to move between different instances and the high proportion of cases returned because the quality of an investigation is considered unsatisfactory. These problems are the result of structural and administrative weaknesses in the judicial system. As mentioned last year, a high proportion of cases is still returned from courts to the public prosecutor, and there is a lack of transparent conditions for return.

Whilst the legal framework for access to justice and legal aid is essentially adequate, there are significant problems in practice in ensuring defendants have access to a lawyer at all stages of judicial proceedings (see section on civil and political rights).

Uniform methods or criteria are not yet in use for the competitive selection of judges or for monitoring performance before granting tenure or promotion.

In the prosecution service, selection, appointment and promotion policies are also not transparent. The prosecution service needs to modernise management methods in order to improve the transparency and efficiency of case handling.

The Magistrates Training Centre has continued to develop its important role over the last year, providing training for newly appointed judges, and general and specialised continuing training for members of the judiciary, covering inter alia EC law. The Centre remains very heavily dependent on donor funding. The Law on the Judicial System establishes a National Institute for the Judiciary, which will be a public institution, which is a positive step. It will be important to ensure that it builds on the experience of the Centre and that priority is given to adequate state funding, so that it can further develop training for the judiciary.

Significant amendments to the Law on the Judicial System were adopted in July 2002. These include the establishment of a system of accountability of courts, prosecution offices and investigation services to the SJC; various anti-corruption measures for the judiciary, such as property and income declarations; adoption by the SJC of codes of ethics for magistrates and administrative staff of the judiciary; a competitive recruitment system for magistrates, and promotion according to objective criteria; and the creation of a public institution - the National Institute of Justice - to train members of the judiciary and administrative staff. The structure and status of the administrative services of the judiciary are brought in line with the Law on Administration and the Law on Civil Service. The procedure for adoption of the budget of the judiciary is also amended: the Council of Ministers will no longer be entitled to amend the budget, but only to express an opinion on it when it comes before Parliament. The amendments also put in place a structure to provide better security for the premises of the judiciary and, where necessary, for certain magistrates. If fully implemented, most of these amendments will address many of the weaknesses in the current judicial system identified in this and previous Regular Reports. It is important to ensure that these changes are implemented in a way which fully respects the independence of judges.

The progress on reform of the judiciary since the last Regular Report is a positive development. As these reforms only started recently, it is not yet possible to assess their contribution to ensuring that Bulgaria's judicial system will be able to guarantee full respect for the rule of law and human rights and play its role in the further development of the economy and future enforcement of the acquis. The planned changes do not yet tackle the overall structure of the judicial system, nor the high level of immunity, for which constitutional changes will be required.

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