Cause and Effect in European Politics and Law

Nelly Koutskova: The judicial reform requires constitutional changes too

Ralitsa Kovacheva, July 27, 2011

Like we did last year, we have again asked Ms Nelly Koutskova to comment on the annual report of the European Commission under the Cooperation and Verification Mechanism. Ms Koutskova is a judge at the Sofia Court of Appeals and a spokesperson of the Union of Judges in Bulgaria. Here's how she answered the questions of euinside:

R. Kovacheva: My reading of the report leads me to the conclusion that the criticism to the judiciary is mostly related to the work of the Supreme Judicial Council in terms of a leadership, which needs to ensure normal functioning of the system - such as distribution of workload, appointments, rules and procedures, inspections and sanctions, including the big issue of morality and integrity of those who in the system, that seems to be underestimated here in Bulgaria.

N. Koutskova: Your reading is quite adequate. But I find it very strange that not only some primitive-minded politicians, but also some journalists reduced it mainly to a critique to the court. Many people in our country think that the judicial system means only “the court”. I think this is an illustration of the need for constitutional changes. It is normal, because under the Constitution the judicial system combines court, prosecution and investigation (although the latter has almost disappeared), which are to be managed by the 25-member Supreme Judicial Council, the criticisms to be focused on the general managing body. Not to mention that its activities came under public criticism long before the Commission’s report.

Both the report and the technical update point that some work has started in terms of workload, but it is said that there is no evidence of results. I just want to add that the excessive workload is not limited to Sofia only - it is a problem in other big cities in the country too. The Union of Judges has been proposing for years the SJC to establish criteria for workload, as well as standards for normal deadlines to complete various types of lawsuits. This is a very serious matter and will take a long time. Countries with established democratic traditions and stable justice have been working for years on these problems - what about a country in transition, with constantly changing legislation? But if Bulgaria had begun to work on these issues a long time ago, now the problems would have been at least partially resolved.

R. Kovacheva: Do you share the recommendation that reforms of the Supreme Judicial Council are needed, the Supreme Cassation Prosecution Office and the Prosecution in general? On what should these reforms be focused?

N. Koutskova: The recommendation, though delicately formulated, is very important and categorical. A group of young colleagues from the Union of Judges, together with NGOs, have been working for some time on specific proposals for legislative changes in this direction - including constitutional changes. The idea is to provoke public debate that will not fade until the next report, but to become a basis for a real structural reform.

R. Kovacheva: There is a conclusion in the section “Fight against corruption” of the report that “court practice is permissive and excessively cautious, overly attentive to procedures at the expense of delivering justice”. How would you comment on that?

N. Koutskova: It is true. In our justice (especially the criminal one) strict adherence to procedure is essential. After the changes in 1989, the first striving of Bulgaria for accession to the European democratic community was its membership in the Council of Europe. Smart people had said that “democracy is a procedure”. Then we were very heavily criticised that our criminal trial does not provide any right of protection to the defendants. At that time we were visited by delegations of European experts who evaluated our Criminal Procedure Code as a reactionary, totalitarian, and not being in accordance with the European Convention on Human Rights (ECHR). Then Bulgarian legislature worked hard to bring our procedural law in accordance with established European standards for a fair trial. Now it appears that the effect of the pendulum has been achieved and now we are being criticised for paying too much attention to the right of defense of the defendants and not to the rights of the victims.

This year two Dutch judges, who we are working with us on a joint project, wished to attend the reading of a sentence in our court. It was a conviction for an organised crime group. Under our procedural law, the judge is obliged to read all the names of the defendants, all texts of the criminal law under which the sentence is ruled, all the dates on which the crimes were committed, all the names of the victims. The Dutch colleagues were amazed that the court was obliged to read all these details. We, they said, read only the most important things - who is found guilty, of what crime and what is the sentence. The details are described in the motives. They could not believe that if our court reads the verdict according to their model, this would be a serious procedural violation and may result in cancellation of the judicial act. In their system all these detailed formalities, ensuring the right of protection, are done at a preliminary stage and not by the judge, but by a qualified court assistant.

But I do not believe that the trial formalism is the only reason for insufficient justice. Many of the criminal judges argue that the training, the competence of people who apply the law, as well as better organisation of work, have much greater importance to effective justice. This is a problem of the judiciary and not of the legislature.

R. Kovacheva: After the latest appointments to the SJC the judges are now minority - how will this affect the work of the Council and of the judiciary in general? Does the Union of Judges have any concerns in this respect?

N. Koutskova: The Union of Judges has no official position on that. But we have been proposing for years the creation of separate councils for the judges and for the prosecutors. We have proposed that to the previous Parliament too, when the amendments in the Constitution have been made. It was not adopted, but we are still proposing it. In fact, given the current structure of the SJC, the qualities of people are much more important than if they are judges or prosecutors.

I felt very sad when I read in the technical update that it had been expected the filling of the two vacancies in the SJC from the parliamentary quota to be carried out respecting the requirements of high professional and moral qualities of the candidates. We all saw how the Parliament, with full indifference and total lack of debate, elected as new members of the SJC people, seriously criticised by an NGO - the Bulgarian Institute for Legal Initiatives. This decision of parliament once again showed that our colleagues in five major Bulgarian courts, including the Supreme Court of Cassation, made the right decision refusing to elect delegates to fill the quota of judges in this completely discredited authority.

R. Kovacheva: As a journalist I have the impression that there is an obvious resistance by the SJC against the CVM and in general - against any attempts by the civil society to know what is happening in the judicial system and have a say. Does the judiciary have resources to reform itself? Is there enough pressure from within, to provoke the necessary changes?

N. Koutskova: The fact is that the SJC is hostile to the demands for more accountability and transparency. The pressure from within is increasing and this is seen both by the Bulgarian society and the European institutions. A sign of this pressure were the resignations of two colleagues from the judges quota in the SJC who resigned to protest against the Council’s unprincipled policy, as well as the refusal of 450 judges to nominate delegates to fill their quota in the council. The legislative and structural changes proposed by the Union of Judges and other NGOs will also exert pressure. But any legal system can reform itself. What is needed is genuine, intelligent and reformist political will and not will of the type “We don't like this court, so we will make a specialised one.”

R. Kovacheva: The report clearly recognizes the role of professional organisations in the judiciary and of the civil society. I think it is a very clear signal to the leadership of both the executive and the judiciary that the professional organisations and the civil society must have a greater role, their position must be taken into account in the decision making.

N. Koutskova: For the first time the Commission's report pays so much attention to the civic and professional organisations. In fact, the Union of Judges is the most active professional organisation. As stated in the report, this civic activity is “laudable”. For the first time our activity meets such support by the Commission. This gives us even greater impetus to try to contribute to improving the justice from within and from below, because we are most aware of the problems and see the weaknesses in our work.