B.SECOND ACTION LINE: REFORMING THE JUDICIAL SYSTEM

In recent years the judicial system has invariably been among the most unpopular institutions in this country. It receives a low measure of trust both from the public at large and from other state institutions. It is popularly believed to be slow, inefficient, and corrupt. The need to reform the system is acknowledged by a large number of the magistrates.

The reform is expected to achieve a number of specific objectives: to provide conditions for greater openness and transparency and speedier administration of justice; to create internal control mechanisms to prevent abuse of power; and to establish a system for raising the professional skills of those working in the judicial system.

B.1. Legislative reform

B.1.1. Background

Legislation, both in the field of penal law and in the field of civil and administrative law, is all too contradictory and part of it is obsolete and inadequate. The shortcomings of the existing legislation are particularly well exploited by those involved in corrupt practices. The changes in legislation are expected to lead to clear-cut rules in commercial, civil, and administrative legal relations and, in turn, to faster, more efficient and more transparent administration of justice.

B.1.2. Objectives

In order to minimize the conditions favorable to corruption and to devise mechanisms of control over corrupt practices, it is necessary to undertake a comprehensive reexamination of the existing legislation and envision the appropriate legislative changes. These changes should be implemented in a consistent manner and as part of an overall strategy for curbing the subversive phenomenon of corruption.

B.1.3. Actions

B.1.3.1. In the field of criminal law

A comprehensive program must be elaborated for a new penal policy and modern crime control strategies. It should serve as the basis for a new Penal Code, new Penal Procedure Code, and a new Law on the Execution of Punishments.

The current system for criminal prosecution is slow, cumbersome, and inefficient. The crimes and punishments provided for in the Penal Code and the Penal Procedure Code do not adequately reflect present conditions of market economy and rampant crime. In the past years there have been many legislative changes aimed at updating the Penal Code and procedure, but rather than being guided by a comprehensive new vision, they have been implemented piecemeal. Now, the overarching goal should be to bring the legislation up to date; that is, in line with European requirements for human rights observation while ensuring expeditious administration of justice.

B.1.3.2. Changes in the Penal Code

The new Penal Code should be adjusted to better suit changed social relations and to meet the requirements for countering corruption, both in terms of the types of crimes addressed, and the system of punishments. The following specific changes are recommended:

Criminalization of the "new" forms of crime, especially in the sphere of the economy (for instance, using legal entities for criminal activities, establishment of unlawful monopoly, profiting through exploitation of consumers, etc.);

More adequate provisions concerning crimes against creditors, crimes commissioned by an organization or group, drug-related crimes, and embezzlement;

Decriminalization of soliciting acceptance of a bribe when such solicitation is intended to expose corrupt magistrates and other officials;

Legal provision for the confiscation of property acquired as a result of corruption, including those cases where the property has been transferred to third parties in order to be preserved;

Refined categorization of illegal acts in terms of differentiation between crimes and misdemeanors;

On the basis of the above distinction, provision for more stringent sentences for grave crimes and alleviated sanctions for misdemeanors;

Introduction of new penalties which do not involve imprisonment and new provisions concerning fines;

Introduction of provisions for probation - a punishment involving community service under administrative supervision but without separation from the family and the usual environment. Failure to abide by the conditions of probation could result in imprisonment;

Further incentives for lawful conduct of offenders: allowing more lenient sentences in cases of cooperation with the investigation, confession, or payment of damages.

B.1.3.3. Changes in the Penal Procedure Code

It is recommended that the new Penal Procedure Code create conditions for openness and transparency in penal proceedings by shifting the center of the process towards the court. Stricter court control over the work of authorities engaged in investigative proceedings is also recommended.

The new Penal Procedure Code should provide for more efficient and flexible proceedings with more possibilities for faster and more cost-effective punishment of the numerous minor offenses. This would actually speed up high crime proceedings because the number of cases awaiting trial would be reduced. The following steps can be recommended in this context:

Simplifying investigative proceedings concerning offenses which do not pose a serious threat to public welfare and order;

Providing the option of court-sanctioned settlement as an alternative to criminal prosecution in a broad category of cases, excluding high crimes. Such a policy should certainly be applied with regard to theft, the most widespread offense;

Replacing criminal prosecution with civil action procedures in certain cases (for instance, with regard to public insult and libel disseminated through the media);

Strengthening measures for control over police officers, supervisory bodies and magistrates working on criminal cases;

Setting practicable tightened deadlines for initiating proceedings and pronouncing sentences.

B.1.4. In the field of civil law and proceedings

B.1.4.1. Background

The existing legal framework of civil relations leaves opportunities for corruption.

B.1.4.2. Objectives

The task of civil law is the equitable regulation of relations among individual citizens as well as between citizens and the state. This branch of legislation does not have an immediate bearing on corruption. Because of its inherent shortcomings, however, it creates conditions favoring the occurrence and unrestrained proliferation of corruption. The objective is to reduce the opportunities for corrupt practices by amending the laws regulating business, contractual and other civil relations.

B.1.4.3. Actions

B.1.4.4. Changes in the field of material civil law and administrative law

Simplifying the procedures related to the acquisition of property, business transactions, privatization contracts, the granting of concessions, and other activities where private interests are intertwined with the prerogatives of state authorities. These interactions should be facilitated by greatly restricting possibilities for administrative intervention.

Introducing a more liberal regime for real estate transactions, and simplified administrative procedures for company registration - on the basis of a legally established set of requirements beyond which the registration authorities cannot set any further conditions.

Speeding up procedures for declaring insolvency.

B.1.4.5. Changes to the court order execution procedure aimed at securing speedy and effective satisfaction of claims and rights established through the courts

The court order execution procedure in the active Civil Procedure Code is outdated and cumbersome, and can sometimes render meaningless even the best of court rulings. Its regulations tend to protect much more the rights of the debtor than those of the creditor. It is possible to deliberately delay the execution of an obligation until it becomes impossible to fulfill. In some countries, the execution officers of the court are not state officials but private individuals acting under strictly established rules but with a vested interest in the speedy and efficient execution of court orders.

B.1.5. General proposals in the field of administration of justice

B.1.5.1. Background

It is well known that legal proceedings under both civil (including commercial and administrative) and criminal cases are slow and harbor opportunities for involved parties to intentionally drag out the process in bad faith. In order to speed up the process of administration of justice, it is not enough simply to change procedural regulations.

B.1.5.2. Objectives

Legislative changes should be considered that would encourage procedural economy, discipline and expeditious exercise of the rights of the parties involved.

B.1.5.3. Actions

To propose changes in the Attorney Act, as well as in the Penal Procedure Code and Civil Procedure Code that would provide for serious sanctions against lawyers who abuse procedural rights to intentionally prolong or delay court proceedings.

To further develop the system of subpoenaing witnesses in order to preclude the possibility for intentional delays of court proceedings.

To consider the possibility of establishing institutions for alternative settlement of disputes (voluntary arbitration, mediation) the acts of which would provide valid grounds for execution.

B.2. Reorganizing the operation of the judicial system

B.2.1. Background

The judicial system operates in an outdated, overly-bureaucratized, and slow manner. Its current poor organization is a source of corruption and frustration not only for ordinary citizens but also for those working within the system.

B.2.1. Objectives

A comprehensive and competent reform of the judicial system should be planned and made subject to a broad debate. It should lead to improvement and modernization of the methods of operation of the courts, prosecution offices, and the investigative services.

B.2.2. Actions

In this respect, it is necessary to do the following:

Develop and implement automated filing systems which should guarantee speed and reliability in processing case files as well as fast and easy access for citizens to the information they need.

Develop a system of case assignment to magistrates based on objective criteria, precluding the possibility of preferentially appointing a specific magistrate to work on a given case.

Implement the practice of rotation for magistrates and staff working in sectors with high risk of corruption;

Introduce group assignment of official tasks involving a high risk of corruption.

B.3. Improving staff recruitment procedures and professional training

B.3.1. Background

Presently there are many professionals working in the judicial system, yet a significant number of magistrates are young people with good theoretical background but little professional and life experience. In the everyday exercise of their duties they constantly come up against various difficulties, and the shortcomings in their performance are largely due to this lack of preparation for the specific nature of the work. On the other hand, experienced magistrates face problems arising from constant changes in legislation and therefore need further training. But programs for basic training and continuing education of magistrates are yet to be developed. To a great extent, it is in fact the lack of experience and skills that account for negative results in the operation of the judicial system even though the general public tends to attribute them to corrupt practices.

There are no special programs in Bulgaria designed to promote a certain kind of professional and personal conduct for magistrates in line with the social significance of their profession.

A system of evaluation of magistrates is lacking.

The professional skills of the supporting staff of the judicial system are highly inadequate. Their duties are most demanding and the conditions of work primitive. No professional training has been provided for them and their performance is sometimes so poor as to thwart the efforts of the magistrates.

B.3.2. Objectives

To help provide basic training and continuing education for magistrates. In this respect, the Association of Judges in Bulgaria has designed a project for the establishment of a Center for Training of Judges. If this project is put through and proves viable, the Center could also take up the training of prosecutors and investigative service officers.

It would be extremely useful to devise a methodology for selecting and evaluating the staff of the judicial system. It should be based on a comprehensive, competent and objective performance appraisal of each magistrate and on the results of the basic training and continuing education courses completed.

B.3.3. Actions

Designing training programs for newly appointed magistrates which should include lectures on corruption.

Designing training programs for experienced magistrates in connection with changes in legislation.

Designing training programs for court staff.

Devising codes of conduct.

Determining objective promotion criteria taking into account the results from the professional training courses completed.

Placing appointments and upper-level promotions within the judicial system on a competitive basis. Conducting the competitions under conditions of transparency and public access to information.

Coordinating appointment and promotion proposals with those working in the respective branch of the judiciary (with expression of opinion through secret ballot).

Developing a system of collective assessment of magistrates before they have completed 3 years in office; i.e., before achieving the status of irreplaceability. None other than the bar is in a better position to properly assess the professional skills and integrity of the magistrates.

Introducing psychological tests as part of the magistrate recruitment procedure.

B.4. Taking measures to expose corruption in the judicial system

B.4.1. Background

Corruption in general, and the crime of bribery in particular, are difficult to prove. Moreover, when a given dispute is brought to court or a criminal investigation is initiated, the vested interests are so intense that the situation is highly conducive to corruption. It would be naive to believe that it is possible to prove and punish all instances of corruption. It is nevertheless necessary to consider practical means of preventing corruption and encouraging intolerance among magistrates with regard to suspicious conduct on the part of their colleagues.

B.4.2. Objectives

It is necessary to create mechanisms which would allow to link the conduct of corrupt magistrates to their conspicuous financial gains.

It is in the interest of the judicial system as a whole to rid itself of corrupt and poorly qualified judges, prosecutors and investigation officers in order for honest professionals to be able to perform their duties in a confident and proper manner.

B.4.3. Actions

Introducing an annually updated public register of magistrates' income and property.

Creating a special commission with a temporary mandate to investigate reported instances of corruption. The commission ought to be appointed by the Supreme Judicial Council but work independently from it.

Enhancing internal control in the judicial system through open discussions about the conduct and problems of individual magistrates within their respective offices.