BULGARIA'S JUDICIARY: WEAKEST LINK IN A POORLY

C O N F I D E N T I A L SECTION 01 OF 02 SOFIA 000132

SENSITIVE
SIPDIS

EUR/NCE FOR YEAGER
INL FOR CARROLL AND POMEROY
DEPARTMENT PASS TO USAID
DOJ FOR OPDAT, ICITAP, CEOS,AND CRD

E.O. 12958: DECL: 03/27/2020
TAGS: PHUM KCRM KWMN SMIG KFRD ASEC PREF ELAB BU
SUBJECT: BULGARIA'S JUDICIARY: WEAKEST LINK IN A POORLY
PERFORMING LEGAL SYSTEM

Classified By: Ambassador Nancy McEldowney for reasons 1.4 (b) and (d).


1. (C) Summary. On paper, Bulgaria's judiciary system
meets most international and EU standards. But in practice,
it is in shambles. Polls show that within the EU, Bulgarians
have the least confidence in public institutions, with the
judicial system at the bottom of the heap. The police and
investigative service have 14 percent approval, prosecutors
13 percent, and, shockingly, judges 12 percent. Key reasons
for distrust: excessively long trials with unpredictable
outcomes, even with the best evidence at hand; and known
criminals flaunting their impunity. A running joke is that
OC figures do not even need a good defense attorney; bribing
(or intimidating) a judge is cheaper. Bulgarians and
international partners continue to demand tangible results,
especially a groundbreaking conviction of an organized crime
figure or corrupt political figures and senior public
officials. But expectations are low. Many critics believe
the judicial system will not change without a purge of the
old guard, which remains beholden to the gray economy and
political interests. End Summary.

Long Road of Reform, with Limited Impact On Delivering Justice
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2. (C) On paper, the judicial system meets many
international and EU norms. Following communism's collapse,
Bulgaria painfully revamped its judicial and legal systems,
but many old features remained intact. Many reforms
streamlined internal management and other mechanical,
procedural, or training issues. In the five years preceding
EU accession, the Bulgarian government rushed many more
changes, adopting constitutional and legislative amendments
to ensure the independence of the judiciary and improve its
functioning, but some changes were not well thought out.
Among the more notable changes: defining the role of the
Supreme Judicial Council (SJC) and establishing an
inspectorate within the SJC to investigate misconduct
allegations and recommend disciplinary actions. The
government made modest improvements to the Criminal Procedure
Code and adopted a new Civil Procedure Code to reduce
opportunities for continuances in civil cases.


3. (SBU) Over the past decade, the government also took key
personnel steps: increasing salaries to an average of around
1,200 leva (more than twice the 2008 average salary of 524
leva and sufficient to attract qualified personnel);
establishing competitive hiring and promotions; and limiting
immunity for magistrates. With support from USAID, the
government developed the National Institute of Justice to
train magistrates (judges, prosecutors, and investigators)
and thirty-two model courts adopted improved court
procedures. The courts also implemented random case
assignment, which reduced the opportunities for manipulation
of the system. Major undertakings also included the
introduction of: separate administrative courts to address
appeals of government decisions, a separate business registry
system outside the courts, and private bailiffs to improve
enforcement of court decisions. Along the way, the
Bulgarians received over $7.5 million in EU pre-accession
funds (PHARE),with the biggest donors being Austria, the
United Kingdom, and Spain, for code reform and judges,
training. The United States provided approximately $22
million to the judiciary to support reforms.

Key Challenges
--------------


4. (C) The most basic problem in the judiciary system is the
hardest to tackle: lack of political will to make tough
decisions. Police, prosecutors and judges routinely play a
finger-pointing, blame-laying game. Ordinary Bulgarians see
judges as the biggest stumbling block to convictions in high
profile cases. Beyond political will is structure and
process. The judicial system is highly formalistic; it has
confusing and at times contradictory precepts and procedures.
Courts are often idiosyncratic and ego-driven. Management
of each court is largely based on the personality and
leadership style of the court chair, appointed by the Supreme
Judicial Council (SJC) for five years. In a court system
governed by seniority, younger and more reform-minded court
chairs are hard to find. It is extremely difficult to purge
the system of the old guard, who after five years of service
as judges are tenured and cannot be removed until they
resign, retire at the age of 65, or are dismissed for
criminal activity, inability to perform their duties, or
conduct damaging the prestige of the judiciary.


5. (SBU) From 2000 to 2008, the number of judges increased
15 percent, reaching levels comparable to other newer EU
members, but often judges had inadequate training, seasoning,
or background. Appointments sometimes depended more on
personal and political connections rather than professional
qualifications. Despite the increase in judges, case
completion rates stayed static, exacerbated by the shortage
of courtrooms and the uneven distribution of cases. During
that time, investments in the judicial sector increased from
0.2 percent in 2001 to 0.8 percent. The court system now
consists of 2,370 judges in 182 courts, including regional
courts, district courts, appellate courts, the Supreme Court
of Cassation and the Supreme Administrative Court. In the
biggest court in the country, Sofia Regional court, 100
judges are housed in a building once planned for a prison,
far exceeding its capacity. In 2008, a civil judge in that
court reviewed on average 700 civil cases and a criminal
judge reviewed 430 cases.


6. (C) An overly formalistic Criminal Procedure Code means
any defendant with a reasonably competent defense attorney
can avoid sentencing. All too often, judges accede to
defense requests to delay hearings. The case of the
notorious OC figures the Margini brothers, arrested in
October 2005 on the eve of EU accession for contract killings
and money laundering, is an example. With 18 continuances,
mostly for purported illnesses, the Margini brothers continue
to enjoy their lives while on bail. Throughout the system,
the most common excuses for continuances are: unavailability
of the defense attorney, irregularities in the summoning, and
multiple requests for expert opinions. A new cottage
industry has sprung up: closely watching court proceedings
and counting the continuances in the document fraud and EU
agricultural funds abuse case against Mario Nikolov, whose
company is rumored to have bankrolled the Bulgarian Socialist
party.


7. (C) Problems are also prevalent in lower profile fields.
Bulgarian administrative judges have sway over key public
sector and public integrity decisions important to business
-- they rule on appeals of public procurements,
government-awarded contracts for mining, use of dams, beaches
and other natural goods. Some judges are on personal terms
with key gray economy figures, who have increasingly moved
into legitimate businesses. Ample anecdotal evidence
substantiates cases of flagrant abuses and conflicts of
interests: participating in known illegal schemes; deciding
on cases involving their family members; and deciding cases
involving their business associates. Privately, judges
routinely acknowledge that some of their colleagues accept
bribes, but in a culture where colleagues are hesitant to
punish colleagues, they refuse to name names.


8. (C) The SJC, which has the power to appoint, discipline
and dismiss judges, has been slow to establish discipline in
the system. Many question the SJC's structure and argue that
political appointments within the SJC allow for political
interference. After a highly politicized process to select
members of the SJC and some initial false starts, the SJC
reviewed 102 requests for disciplinary sanctions in 2008,
including 16 initiated by the Inspectorate. Between 2008 and
early 2009, the SJC dismissed four judges, two for drunk
driving, including a vehicular death; one on charges of
conspiracy to defraud the state revenue; and one for abuse of
position. Given the scale of observable problems, this
amounted to a rather thin record of oversight and
accountability. This year the SJC faces another critical
challenge as the mandates of 162 magistrates in management
positions throughout the system (108 judges, 32 prosecutors,
and 22 investigators) expire between April and December 2009
and the SJC appoints their replacements.


10. (C) Comment. With national elections on the horizon,
the prospect for immediate legislative action to correct and
reform the judicial system is dim. Realistically,
substantive change will be the province of a new government.
End Comment.
McEldowney