Cause and Effect in European Politics and Law

The CVM assesses Bulgaria and is not a reason for interinstitutional competition

Ralitsa Kovacheva, February 28, 2011

In contrast to previous occasions, the latest interim report of the European Commission under the Cooperation and Verification Mechanism (CVM) did not give rise to many governmental comments. Therefore euinside talked to Mr Rossen Kozhuharov, Director of the CVM Directorate in the Ministry of Justice, which is directly involved in the preparation of the CVM reports.

euinside: In your opinion, which is the most important that we have to read in the latest interim report?

Rossen Kozhuharov: The most important thing is the continued tendency: this is the third report [the third for the current GERB government] which recognises the positive momentum in almost all fields covered by the Mechanism. Our ambition is to achieve stability of the judiciary, thus there is no better achievement than to set up a tendency in the reports and this is the third positive review of the country. In addition, in this report for the first time results are reported on court cases which was never before to be found in the Commission’s reports.

euinside: Yes, but the report notes that key court cases ended up with acquittals.

Rossen Kozhuharov: We are perfectly aware with this but the CVM has existed for 4 years already and I can testify that the situation now is completely different. We do not make efforts in order to respond to Commission’s criticism or to get recognition in the next report. These would be doomed efforts. If you work only for the sake of the next report you loose sight of the whole picture and you cannot achieve your goals. Our goal is the reform of the judiciary and we're following the Strategy adopted last year. We are aware that the achievement, which we and the society expect, is to have a working judicial system. If we achieve that we do not think that the European Commission would continue to criticise just for the sake of criticising.

euinside: Do you think that this report sends back the ball to the executive power? Last year the official interpretation of the annual report from July 2010 was that the criticism was mostly toward the judiciary.

Rossen Kozhuharov: There has never been such a balance between the authorities. I do not think that as the previous so the latest report focused mostly on any of the powers – judicial, executive or legislative. The shortcomings are not limited to specific spheres.

euinside: The report now points out that the judicial reform has to go hand in hand with the reform of the police. Does this mean that the Commission reminds us not to neglect one field at the expense of another?

Rossen Kozhuharov: No, on the contrary. I believe that our efforts in the past year and a half have brought serious reforms in all spheres. I cannot say which consecutive report I have in my hands but I do not see a shift of focus. Absolutely always the focus of the CVM reports is on the need for reforms in all spheres. The positive thing in this report is that there is not one single sphere without recognition of some progress. All parties in this process have made a step in the right direction – the customs, the National Revenue Agency, their joint teams, the inspectorates, the legislative and the structural reforms in the Ministry of the Interior, the Supreme Judicial Council and its Inspectorate – there is not a single institution that is not moving forward. And this is the most important thing, because it is an assessment for Bulgaria.

Often, through all these years, the question whether we can fulfill one benchmark and stop working on it was posed. The European Commission has always insisted that despite being structured around 6 benchmarks the CVM is an integral mechanism. There is no way to move forward with one part of it and lag behind with another. To achieve the final goal we have to move forward on all benchmarks together. The report gives an assessment to the state and the processes in the state. No one can win if someone is prized and other is criticised. We cannot use the CVM as a ground for interinstitutional competition. If everything in the Ministry of Justice is fine but other processes are criticised we would not be happy because the important thing is all processes to develop in the same direction.

euinside: Don’t you think that Bulgarian authorities and the European Commission continue to misunderstand each other regarding the meaning of "specialisation"? For instance, the creation of the specialised court?

Rossen Kozhuharov: There is no misunderstanding. The specialisation for Europe and for us is a functional, not a structural issue. It is linked to the improvement of professional competences and hence of the judicial practice. There is no contradiction. It is very important – in parallel to the structural establishment of this specialised court – to build up the opportunities for functional specialisation of the people who will work in it. In addition – this is essential – this specialisation has to happen also outside of the specialised court and the prosecution.

euinside: I still remain unconvinced that the European Commission agrees with the decision of Bulgaria to create a specialised court.

Rossen Kozhuharov: The Commission has never commented on the structural issue. The Commission will comment on the final results. I am convinced that if the specialised court does even the half of what the society expects, the Commission will come up with a positive assessment.

euinside: Do you mean that despite the Commission's recommendations - which sometimes are rather unambiguous – if Bulgaria chooses to address the issues differently there will be no contradiction with the CVM?

Rossen Kozhuharov: Absolutely. The CVM aims at a functioning judicial system and stable institutions that are able to oppose effectively to the organised crime and corruption. There is no ready solution. No one will come and say: create a court or do not create this court. The establishment of the specialised court does not end with installing a plate. The work moves from there on with issues like selection of staff, ensuring conditions for this staff to build on the best European practices and to continue their specialisation in specific fields. This court will produce results when the structural and the functional approach combine. But the specialised court will bring another positive development: it will remove all objective obstacles before the fast proceeding on key cases of public interest.

euinside: The European Commission frequently comments that the court practice has to improve not only on key cases and in the big cities but also in every single town.

Rossen Kozhuharov: Of course, the key court cases are a specific indicator as they form the public opinion. Because society is much less able to evaluate the work on the “normal” cases.

euinside: I cannot agree with you. A citizen who refers to a court would perceive the problems there much more personally than the news about the sentence of a famous criminal.

Rossen Kozhuharov: Indeed, it is true. But the inability of the state to handle the individuals from the news, forms in a much greater scope the public opinion and also forms the outside assessment of our country.

euinside: In order to prevent the impression that all the efforts are meant for the news, what has been done to improve the judicial practice all the way down to the lowest level?

Rossen Kozhuharov: Speaking about specialisation, the one thing is the specialised court. The other thing that the European Commission points out is the specialisation beyond it. In our Strategy from last year we have attempted to cover all issues – from legal education to the selection of the administrative officials. Regarding practice – there is no such thing as a single thing to do in order to get an improved practice tomorrow. This is a chain of small steps. All amendments to the Judicial Law from last month are leading, for instance, to this goal – a better attestation, competition principle in every step of the career development. In Parliament more amendments to the Judicial Law are tabled, which slightly change the conditions for entering the judicial system. This aims the creation of better legal professionals, assessed in a 9-month training in the National Judicial Institute who will make a better judicial system.

Together with the High Judicial Council we work on a national programme for interdisciplinary education. A major omission in Bulgaria is that the legal professionals are not educated in other disciplines. When they begin to investigate or judge on financial, auditing or tax crimes they are completely dependent on experts because they lack even basic knowledge in the field in question. The interdisciplinary education is also a kind of specialisation. There is no other way to improve the quality of the judicial system but to improve the quality of the people who work in it. There is no single measure to improve the practice – the systemic approach is essential.

euinside: With a view to the recommendations in the report, the latest anti-corruption body BORKOR at the Council of Ministers which one it responds to or which missing link it fills?

Rossen Kozhuharov: This is a project based on a German model. Its purpose is to extract the common features from a variety of cases. The centre will not be a new level of transmission of signals between the authorities. It will study the signals from the point of view of the essential problems, it will not deal with particularities. We will use this special German-patented software which could bring a solution. The centre will be a body with analytical functions that will suggest legislative, organisational or administrative solutions to the executive bodies and the legislators – this is what the Europeans call policy making. It is one thing to check 10 signals to see where there are the breaches, and another thing to deduce the necessary policy out of these 10 or 100 signals.

euinside: As an outsider, my feeling is that there are institutions and entire systems which oppose the CVM. They perceive the Mechanism as a kind of interference from outside and as a source of ungrounded criticism. What do you think about this?

Rossen Kozhuharov: We feel that we are on the right path and we know how to benefit from this Mechanism. It is not good or bad – it is a mirror. If one does not like what he sees in the mirror, breaking it will not help. It is not bad for us to have the CVM – the bad thing is perhaps that there are spheres that need monitoring but this is a cooperation instrument to help us identify the weaknesses. The CVM shows us how we look from outside. Our reports on what we have achieved sound differently when we present them and when presented by the European Commission. When we speak about European trust in Bulgaria the CVM is the most powerful instrument to gain that trust.