Opinion of the European
Commission 1997
The Judiciary: Structure
The independence of the Bulgarian
judiciary is guaranteed in a number of ways. Judges are confirmed in their
posts after serving a three-year probationary period. Thereafter, they
can be dismissed only if they have committed a crime or become incapable
of carrying out their duties. Their work is overseen by the Supreme Council
of the Judiciary, an independent body consisting of 25 members (11 elected
by the National Assembly; 11 designated by the judiciary; the President
of the Supreme Court of Cassation; the President of the Supreme Court of
Administration; the Procurator General) which also has responsibility for
managing the judiciary’s budget. Similarly, the presidents of the Supreme
Court of Cassation and the Supreme Court of Administration are appointed
for a seven-year term, which may not be renewed, by the President of the
Republic acting on a proposal from the Supreme Council of the Judiciary.
Judges may not be members of political parties and they enjoy the same
immunities as members of Parliament.
The Supreme Council of the
Judiciary plays the same role in respect of the procurators as it does
vis-à-vis the judges. The Procurator General is appointed for a
seven-year term, which may not be renewed, by the President of the Republic
acting on a proposal from the Supreme Council of the Judiciary. The Procurator
General is the guardian of legality and gives "procedural guidelines" to
the procurators as a whole (Article 126 of the Constitution).
The monitoring and review
of administrative measures is the task of the ordinary courts, whose decisions
may be challenged before the Supreme Court of Administration which has
just been set up.
Bulgaria has no Ombudsman.
The Constitutional Court
comprises 12 judges appointed for a nine-year term which may not be renewed.
The National Assembly, the President of the Republic and the Supreme Court
each appoint four members of the Constitutional Court. It verifies the
constitutionality of laws and treaties, judges presidential and parliamentary
elections, settles conflicts which may arise between the various public
authorities regarding their respective spheres of responsibility, and can
give legally binding interpretations of the Constitution. Matters may be
referred to it by one-fifth of the members of the National Assembly, the
President of the Republic, the Government, the Supreme Court of Administration,
the Supreme Court of Cassation, the Procurator General and, under certain
circumstances, by town councils. There is no procedure whereby citizens
can refer matters directly to the Constitutional Court. This is possible
only where a dispute has already been brought before the Supreme Court,
and then only at the latter’s initiative (Article 150 of the Constitution).
Functioning of the Judiciary
The process of dispensing
justice in Bulgaria is still marked by serious shortcomings. The courts
are overburdened with work and take a long time to deliver their judgments,
though Bulgaria has recently introduced an accelerated penal procedure
for certain crimes. A shortage of qualified judges, low salaries, the complexity
of legal procedures and a plethora of new rules to be applied all contribute
to this situation. It is particularly serious where penalties and sentencing
are concerned, as a number of procedures are not fully completed. The new
government has included in its programme for 1997 - 2001 a section on reforming
the judiciary.
Moreover, Bulgaria has still
not set up the Supreme Court of Cassation provided for in the Constitution.
In the meantime, the functions of this institution are being performed
by the Supreme Court. Bulgaria should take the necessary steps to set up
these institutions as soon as possible, so as to avoid prolonging an unsatisfactory
state of affairs.
In recent years, the Constitutional
Court has played a constructive role in ensuring that the Constitution
is complied with and that the various institutions keep to their respective
spheres of responsibility. Since 1990, the Court has given about 100 rulings.
Regular Report 1999
The Judiciary
The reform of the judicial
system has continued. Developments since the last report focused on the
structures of the judicial system and can be described as follows:
In October 1998, the Law
on the Judiciary was amended to improve the efficiency of magistrates and
increase their professional responsibilities, assert the supremacy of the
court in the process of administering justice, change the composition of
the Supreme Judicial Council.
On 1 October 1998, the reform
of the notary system was completed. From that date, all notaries in Bulgaria
have been operating as independent and self-supporting entities.
The Criminal Procedure Code
has been amended with a view to improving guarantees for basic rights and
freedoms. The Civil Procedure Code is in the process of being amended.
With the introduction these
reforms, an important part of the judicial reform process relating
to the structures of the judicial system will be completed, in line with
the requirements of the Constitution.
Despite these positive steps,
judicial reform will have to continue. This would be more effective with
an overall strategy including measures to increase the effectiveness and
transparency of the judicial system, and its capacity to enforce the acquis
communautaire. Elements which need to be taken into account include assuring
the full independence of the judiciary, further legislative amendments
in particular to streamline or clarify procedures for the administration
of justice, for example improving access to justice, the material conditions
in courts, division of tasks between administrative staff and judges, and
the execution of rulings. The career structure and training of judges
and magistrates needs to be aligned with European standards. Long pre-trial
detention is an issue of concern and there are currently delays in the
handling of cases but statistics available do not allow for
a full assessment of the extent or development of the backlog. Creating
public confidence in the judicial system remains an important element to
address in reforms.