Preliminary conclusions and observations
Sofia, 16 May 2011
I visited Bulgaria from 9 to 16 May 2011 in my capacity as United Nations Special Rapporteur on the Independence of Judges and Lawyers. My visit was undertaken at the invitation of the Government and included Sofia and Blagoevgrad.
The purpose of my visit was to assess the situation of the independence of judges, prosecutors and lawyers; the organization and functioning of the judiciary and of the legal profession; access to justice; legal aid; the judicial reform process; the capacity of the judicial system to make accountable all judicial actors and the Supreme Judicial Council and to handle specialized or complex crimes, such as organized crime and corruption, among others. I also aimed to examine the respect of fair trial guarantees in the country and the policy and legal framework regulating issues related to my mandate.
I met a wide variety of actors including the Minister of Foreign Affairs, Deputy Prime Minister and Minister of Interior, the Deputy Minister of Justice, and the Deputy Prosecutor General. I met the chairpersons and a number of magistrates of the Supreme Court of Cassation, the Supreme Administrative Court, the Supreme Judicial Council and the Constitutional Court. I visited the Temporary Center of Accommodation in Busmanti as well as the Regional and District Courts in Blagoevgrad and the Regional Court in Sofia and met officials of the General Directorate of the Execution of Penalties of the Ministry of Justice; the recently established Center for Prevention of Organized Crime and Corruption; the National Institute of Justice and the National Bureau for Legal Aid. I also met the Ombusdman of Bulgaria; representatives of lawyers, judges and prosecutors; civil society representatives; researchers; academics; students; detainees and others with a view to obtain the most complete and balanced vision of the situation of the judiciary in the country.
I would like to express my deep appreciation and gratitude to the Government of Bulgaria for having offered me the opportunity to examine the situation of the judiciary. I would also like to express my deep appreciation to all stakeholders and interlocutors for their availability and the information and insights provided. I hope that we can continue engaging in a proactive dialogue and cooperation on issues related to my mandate and would like now to share with you some of my preliminary conclusions and observations. Let me begin by referring to the role of the judiciary, and the importance of its independence in Bulgaria.
The role and independence of the judiciary
During my visit, I have learned about the conceptualization of the institution of the judiciary in Bulgaria, and its development over the past years. The judiciary has transformed its role under the previous regime while working to build public trust in the new regime over the past 22 years. According to the Bulgarian constitution, the judiciary enjoys independence, within the framework of the separation of powers. However, the judiciary has been struggling continuously to articulate its independence over the past years and has recently been facing challenges in the recognition of its crucial role in stabilizing the balance of power within the State.
Allow me to recall that nowadays, it is broadly recognized that an independent and competent judiciary constitutes, in each country, an essential element of successful governance, the fight against crime and anti-corruption strategies. A well-functioning judicial system, in turn, is recognized as a crucial factor for the consolidation of democratic order and the rule of law.
In this order of ideas, the independence of the judiciary is a basic principle of governance, essential for the realization of all human rights for all and for truly upholding the rule of law.
Let me remind that the right of all persons under the jurisdiction of a State to a competent, independent, and impartial tribunal is recognized in article 10 of the Universal Declaration of Human Rights, article 14 of the International Covenant on Civil and Political and article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The important role played by a competent, independent and impartial judiciary in the protection of human rights has also been recognized with the adoption of the Basic Principles on the Independence of the Judiciary, in the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders in 1985.
The independence of the judiciary is, of course, to be upheld together with the basic principles of judicial conduct. In this regard, I also invite the Government and all stakeholders, including the media to raise awareness on the key values of an independent judiciary which include principles on the way judges, lawyers and prosecutors should conduct themselves, as set down, inter alia, in the Bangalore Principles of Judicial Conduct, the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors.
The Principles on the Independence of the Judiciary are organized around the key values of: independence; impartiality; integrity; propriety; equality; competence and diligence. The Principles are clearly written to assist both executive and legislative branch officials, lawyers and the general public to understand and support the judicial system.
I invite the Government, and all stakeholders and the media to raise awareness on these principles in Bulgaria, as information received during my mission showed me that many misconceptions are threatening to cast a shadow on judicial activity and the reform of the judiciary in Bulgaria.
Bulgaria is a young democracy which has been undertaking important legal reform initiatives over the past years. Such initiatives are at the core of good governance, the respect for the rule of law and the protection of human rights. Indeed, several efforts undertaken by the Government show Bulgaria's commitment to strengthen democracy and the rule of law. However, misconceptions on the judiciary may overshadow efforts to achieve the major goals of the legal reform. Those goals are judicial reform, fighting corruption and countering organized crime.
All judicial actors, namely judges, court assessors, prosecutors and investigating magistrates are essential to achieve the major goals of the current legal reform. The first major step is to include the prosecution service in this reform and ensure it upholds the highest standards of efficiency, independence and accountability. Furthermore, joint governance of the courts and the prosecution service appears to hamper a well-functioning system of accountability, and therefore, limits the effective prosecution of those involved in organized crime and corruption.
Joint efforts at all levels are required to address a number of pressing concerns within the framework of my mandate: judges and prosecutors should not be seen to be as one and the same; access to justice should be guaranteed to all in Bulgaria; legal aid should be effectively ensured to all those who need it to resort to courts; law enforcement officials, lawyers, prosecutors, court administrators, judges and the Supreme Judicial Council should be made accountable for their actions; and the courts should be adequately resourced so that they are able to function properly and uphold the principles of independence, impartiality, integrity, propriety, equality, competence and diligence.
The Supreme Judicial Council is a key actor in the administration of justice. However, a number of challenges remain for its proper functioning. These start with its composition, as the selection and appointment of judges is yet to be underpinned by transparency, equal opportunities for all candidates and objective criteria. Moreover, the adoption of new legislation should not be used as a means to avoid the completion of the term of the Supreme Judicial Council membership. Some of the measures that could be adopted to ensure that the Supreme Judicial Council fulfills its important role include: identifying ways and means to eliminate political and/or external undue influence on the Council; ensuring access to the judicial career through periodic competitive examinations; introducing competitive examinations for secondment and promotion of judges; adopting measures to eliminate the use of secondment as a substitute of promotion; introducing objective criteria for the assessment of judges; identifying and sharing good practices among the courts at all levels and in all regions, including publicizing case-law.
Bulgaria should redouble its efforts to focus on these structural factors, which undermine the rule of law and the democratic system.
Access to justice
The adequate provision of legal aid is one of the key measures that Bulgaria has taken to ensure access to justice. In this regard, the establishment of the National Bureau of Legal Aid is a very welcome step. Despite this positive development, the conditions to ensure the adequate operation of this entity are yet to be ensured, as it appears to be under-staffed and under-resourced. I would like to recall that adequate legal aid and counsel impact positively on other fair trial rights, as the unequal economic or social status of the litigants is usually translated into the unequal possibility of defence in trial.
During my visit, I also received information on other obstacles to the access to justice by Bulgarians and those under the jurisdiction of the Bulgarian State. I received information on challenges to ensuring access to justice to those who already face several challenges for the protection of their rights. Besides the poorest of the poor, these groups include minorities and certain categories of foreigners, such as asylum seekers and irregular migrants.
I would like to recall that access to justice is a right in itself and it is also the means of restoring the exercise of rights that have been disregarded or violated. As such, access to justice is an indispensable component of specific rights such as the right to liberty and to personal safety. It is also closely linked to the right to effective judicial protection, which includes fair trial or due process, the right to an effective remedy and the right to equality and the prohibition of discrimination.
Bulgaria is obliged not to obstruct the right of access to judicial and other remedies against violations of human rights, and to remove all obstacles (be they legal, social, cultural, economic or other) that prevent or hinder the possibility of access to justice.
Fair trial guarantees
Fair trial guarantees, are essential conditions for both civil and criminal proceedings. Every person has the right to a fair trial in both civil and criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial courts of law, which can and will, administer justice fairly.
Ensuring fair trial guarantees also involves lawyers and prosecutors, both instrumental in making the right to a fair trial a reality, so as to ensure that free and democratic societies uphold the rule of law.
The principle of equality before the courts means in the first place that, regardless of one's race, origin, nationality, financial status, gender, disability or age, every person appearing before the courts should enjoy the right not to be discriminated against either in the course of the proceedings, or in the way the law is applied. Furthermore, and more important, if an individual is suspected of a minor offence or a serious crime, the rights have to be equally secured to everyone.
In this regard, I would like to recall the right of everyone to be presumed innocent until proved guilty. This is a basic principle of the conditions of treatment to which an accused person has the right throughout the period of criminal investigations and trial proceedings, up to the end of the final appeal. This right is recognized in article 11.1 of the Universal Declaration of Human Rights, article 14.2. of the International Covenant on Civil and Political Rights as well as in article 6.2 of the European Convention on Human Rights and fundamental freedoms.
Recalling the importance of this right is of particular importance in Bulgaria, as I have had access to information diffused by the media, in which officials publicly expressed their opinion on the guilty of persons who have not yet been tried and put undue pressure to the judiciary, to disregard the presumption of innocence. I would like to recall the General Comment no.13 of the Human Rights Committee which clearly states that it is a duty for "all public authorities to refrain from prejudging the outcome of a trial".
The question of interception of telephone conversations for the purpose of judicial investigation into crime is a very delicate activity that should be analyzed in light of fair trial guarantees recognized at the international and European levels. In this regard, I would like to recall that in several cases, the European Court of Human Rights has held that such telephone tapping amounts to "an interference by a public authority" with the right to respect for correspondence and private life as guaranteed by article 8 of the European Convention. According to the European Court, in order to be justified, wire tapping should be in accordance with national law, "be necessary in a democratic society" for one or more of the legitimate aims referred to, in article 8.2 of the European Convention on Human Rights, which are: national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others.
I would like to ask you if you would consider necessary this measure, taking into consideration that less than 2% of the information gathered through wire tapping is effectively used as evidence in court proceedings. Furthermore, in some instances, the only evidence used to prove guilty a person is the recording of his or her conversations. It should be highlighted that evidence collected through wire tapping should be complementary to other evidence gathered to substantiate civil or criminal responsibility.
A fair and effective criminal justice system, an integral part of which is crime investigation, builds public confidence and encourages respect for law and order. Crime investigation is the process by which the perpetrator of a crime, or intended crime, is identified through the gathering of facts and/or evidence. Investigation can be reactive, for example when it is applied to crimes that have already taken place, or proactive, when it targets a particular criminal or forestalling a criminal activity planned for the future.
In Bulgaria, investigation is conducted by police investigators and investigating magistrates. They identify who committed the criminal act and gather sufficient evidence to ensure a conviction. The police is usually responsible for the pre-investigation (which seeks to identify whether an offence has actually been committed and to gather basic information) and then the prosecutor will assume control.
Information received during my visit indicates many delays in criminal investigation, which is not within the scope of courts. However, courts have faced the detrimental consequences of these delays as the public, unduly informed, tend to blame judges for pre-trial delays. In a democratic and free society, no institution should be used as a scapegoat to hide structural problems that require urgent action.
The creation of specialized courts for corruption and organized crime
Serious concerns have been raised regarding the actual need of the creation of specialized courts for corruption and organized crime in Bulgaria, particularly in light of their possible effectiveness. Many stakeholders consider that these courts are conceived as a mere replication of existing criminal courts; they also consider that the financial expenses of their establishment could be better used to create specialized units on organized crime and corruption within the existing courts and strengthen the pre-trial investigations capacity, while ensuring respect for the principle of the natural judge, and avoiding politicization.
In this regard, I would like to highlight that according to international standards, particularly, those contained in the UN Basic principles on the Independence of the Judiciary, the judiciary must decide matters impartially on the basis of facts and the application of law, without any restrictions, improper influences, inducements, pressures, threats or interferences. The courts themselves shall decide whether they have jurisdiction to hear a matter. There must be no unwarranted interference with the judicial process, including the assignment of judges, by the other branches of the power of the State (legislative and executive).
The National Institute of Justice
I believe that the development of international human rights law education programmes for judges, prosecutors, public defenders and lawyers is crucial to ensure a solid foundation for democracy and the rule of law. I commend Bulgaria for the priority it has given to strengthening the judicial system, particularly through continuous education for judicial actors. I visited the National Institute of Justice and learned about the several initiatives it has and which make of it a very promising initiative. In this regard, I invite the National Institute of Justice to adopt a comprehensive approach in its trainings and consider providing specific training on international human rights law standards to prosecutors, judges and magistrates.
The role of the media
Let me conclude by inviting the media to uphold its social function and help to bridge tolerance, dialogue and understanding among the three branches of the power of the State: executive; legislative and judiciary. Public opinion plays a key role in governance affairs in Bulgaria and should contribute to building public trust in the administration of justice and all Government institutions in Bulgaria.