Too Much of a Good Thing

In its attempts to please Brussels with judicial reform the Bulgarian government has ended up interfering with the judiciary. A political quid-pro-quo has undermined the system's highest rung –  the judiciary's self-governing body.

On the backdrop of anti-democratic decisions made in Hungary, Slovakia and Romania, Bulgaria’s long and arduous judicial reform has received what is at best a mixed evaluation by the European Union’s Cooperation and Verification Mechanism (CVM). “The overall impression is of a failure to respect the separation of powers of the state which has direct consequences for public confidence in the judiciary,” says the latest CVM report.

In an interview for a leading newspaper Prime Minister Boyko Borissov complained that, “on the one hand the European Commission tells the government to reform the judiciary, on the other hand it says there must be no interference with the other institutions. What can we do?” On the ground what the prime minister describes as a Catch-22 looks more like a personal vendetta between reformers and status-quo supporters in both the executive and judiciary.

A council and a minister

Six days before the CVM report came out on July 18th 2012, the Bulgarian judiciary’s governing body, the Supreme Judicial Council (SJC), reached a decision to dismiss a judge in the Sofia City Court for delays in submitting the motivations for her verdicts. The dismissed judge was also the head of the Union of Judges in Bulgaria, the largest professional body of magistrates in the country, and an outspoken critic of both the government and the SJC. In June last year, two members of the SJC resigned because of disagreement with its appointment policies. Shortly thereafter, the Union of Judges in Bulgaria requested the resignation of the whole body.

In its letter the Union recalled a series of controversies in the SJC’s work, which in their opinion “discredit the justice system.” These included a lack of transparency in senior appointments to court administrations, irregularities in SJC sanctioning procedures, trade in influence, and a property scandal on the Black Sea coast which involved judges. In addition, some experts attribute the pro-government slant in the SJC’s decisions to an informal agreement, whereby the government agreed to amend the law to advance the careers of SJC members after their mandate ends and the SJC (elected by the previous government) accepted mandatory security checks by the executive. Reportedly, at least three SJC members had files with the investigative services that could serve as an instrument of control.

The crisis within the justice system coincided with international outcry at the conduct of Interior Minister Tsvetan Tsvetanov towards the judiciary. In May last year, experts from the European Association of Judges (EAJ) and the UN Special Rapporteur on Independence of Judges and Lawyers conducted independent visits to Bulgaria and were alarmed at the accusations of incompetence levelled at the courts by the interior minister on the backdrop of low-quality police investigations and highly mediatised arrests, for which the minister refused to tolerate criticism. In July 2011 the police foiled a bank robbery in the centre of Sofia and arrested ten men, some of whom were re-offenders previously released from arrest on bail or on parole. The operation was called “The Protected”, because as Tsvetanov clarified for the press, “most of the offenders are known and have had encounters with the police, but every time they were arrested they were released by the court, which means they are protected by the court.”

Tsvetanov gave the example of a burglar who was released after the court refused to accept as sufficient evidence a torch containing his DNA found at the crime scene. An inquiry made by Dnenvnik (a Bulgarian daily), however, showed that it wasn't the court that had closed the case, but the prosecution. In late January 2012, Tsvetanov launched RALITSA, a police operation against a racketeering ring. The stint was named after judge of the Sofia City Court, Ralitsa Manolova, who had placed one of the perpetrators under house confinement rather than under arrest for health reasons, while he was on trial for a previous crime. Allegedly, this freed his hands to commit more crimes. When the Union of Judges pointed out that the prosecution had not challenged Manolova’s decision and that it was in fact the police’s responsibility to manage house arrests, the Interior Ministry presented the title as an abbreviation of the character of the crime.

What really needs reform

The fact that Bulgaria has lost 30 cases of police violence in the European Court of Human Rights might mean that reform of the Interior Ministry is as pressing as that of the judiciary. In January 2012 three brutal demonstrations of police violence drew everyone’s attention to Interior Minister Tsvetanov. The first one was the case of a 17-year-old girl, who was killed an hour after she was kidnapped in November last year, although her body was only found two months after she went missing. The police assumed the girl had escaped from home, ignoring existing evidence and motives for kidnapping.

In the second case a special police squad of 40 beat a man before his family and damaged his property while searching his house on a false tip-off. Two senior policemen received symbolic punishments and a third one was demoted. The third case, again in a small village, involved a 17-year-old boy who had been tortured with an electric truncheon to make a confession about neo-nationalist graffiti. Tsvetanov denied the boy’s claims, but it later turned out that the abuse had been verified in front of 12 medical students. Ivanka Ivanova of the Open Society Foundation, who authored a report on police violence last year, said that “the highest leadership echelon in the Interior Ministry evidently does not acknowledge the problem, although it exists and is of great political weight.”

In 2010, at a round table on the creation of a specialised court for organised crime, Ivanova drew attention to another problem with police investigations: “the reason why there are no convictions [for organised crime] is due to the specifics of the constitution – the prosecution is not held liable for undermining proceedings and there is no citizen control over what goes on in the Interior Ministry.” For this reason many flashy police operations end with acquittals. In a case dubbed “The Impudent” two defendants were set free due to lack of evidence or testimonies obtained under duress.

This August, in a landmark case for abuse of EU agricultural funds, the Sofia Appellate Court acquitted all defendants because of striking procedural irregularities made at the lower instance. In another case for money laundering followed closely by the European Commission the defendants fled the country days before the court handed down a verdict, an insider having allegedly tipped them off.

In search of a scapegoat

In late January 2012 on a nationwide TV channel, Tsvetanov was asked if he thought Judge Miroslava Todorova protected organised crime. Tsvetanov replied “Absolutely. There are approaches to justice applied by such judges that do not serve society or us taxpayers who fund the justice system, but serve organised crime instead.” The evidence for his claim were two criminal trials Todorova presided over (one for drug-trafficking and one for robbery) and which she delayed, in Tsvetanov’s view to the detriment of the victims. After the TV accusations three former chairmen of the Union of Judges called on the Chief Prosecutor to begin an investigation into these charges, but he refused to interfere in what he called the fight between the Interior Minister and the court.

A week later Todorova filed a slander suit against Tsvetanov. In the same month the SJC launched an investigation into Todorova’s work on three cases, including Tsvetanov’s examples, and found that she had delayed two of them beyond reasonable deadlines and another one until the statute of limitations expired. It later became clear that Todorova had sentenced the drug-trafficker Vasil Manikatov to eight years in prison and delayed her motivation until he had finished serving an earlier sentence.

Tsvetanov’s second case was a robbery dating back to 1998, in which the prosecution had omitted to mention that one of the defendants had been a policeman at the time of the crime so the case had to be handed over to a military court. This year the trial ended with acquittals due to insufficient and tampered evidence. In the third case the defendant was in fact acquitted and the appellate court confirmed this verdict.

Nevertheless, on July 12th the SJC decided to dismiss Todorova in a secret vote without giving her a hearing. The decision caused uproar. Two hundred judges came out for an unprecedented protest in front of the SJC’s premises and demanded the body’s resignation. The prime minister called the decision a provocation and the foreign minister deemed it “poorly timed” in view of the imminent report from Brussels. The president condemned it as “unjustified and subjective.” Minister Tsvetanov, however, was adamant stating in parliament that “while on this post, I want to protect the victims of crime, and not those who condone it.”

The SJC was accused of applying double standards. An investigation in 2011 had shown that eight other judges in Todorova’s court had also delayed a significant number of cases, some for corruption, but while four judges were punished with a slight reduction in their salary, two were promoted and none fired. Moreover, Todorova’s workload was much heavier than that of her colleagues.

Asked by Dnevnik about the discrepancies in disciplinary punishments for delays the head of the disciplinary commission in the SJC Bozhidar Sukhnarov said that this didn't excuse judge Todorova’s mistakes. When asked by Kapital to comment on the 40 criminal cases Todorova was presiding over that would have to start anew with a different judge, Sukhnarov answered “we were not concerned with practicality.” Todorova appealed against the decision in vain.

Back to normal

On July 19th, 132 judges from the whole country reiterated the demand for resignation of the SJC, this time addressing it to parliament. This demand, however, came several months before the end of the SJC’s mandate, when the composition of the next one was of more pressing concern. Contrary to advice from Brussels, direct elections of the six SJC members that have to be put forward by Bulgarian judges were not established, allegedly for reasons of feasibility.

Instead, judicial elections for the SJC were preceded by the election of delegates by individual jurisdictions to a central judicial assembly reminiscent of the US Electoral College. Members of the Supreme Administrative Court shared with Kapital their concern that the first round of elections had not been fair. Ballots were counted in secret and court chairmen in provincial jurisdictions influenced votes. Out of the six winners on September 16th (election day), two had not distinguished themselves in their hearings. Rumours of “scripted” voting were ripe. Ten days later Bulgarian MPs cast their votes for SJC members of the parliamentary quota. Under EU pressure the nomination procedure was without precedent in its transparency with biographies made public well before the election and publics hearings in parliament.

However, the hearings were watered down considerably after “personal” questions referring to the candidate’s record and ethics were discouraged. The resulting report did not give MPs any idea of the moral and professional qualities of the candidates, but there is reason to believe that the outcome of the vote had been decided in advance to feature candidates nominated by the different parliamentary factions in proportion to their seats.

It is of little comfort that in an effort to differentiate Bulgaria from Romania, the European Commission scheduled Bulgaria’s next CVM report for the end of 2013, giving the government more time to implement existing legislation. Quoted by Kapital, Bulgarian NGOs lamented that this would remove both the carrot and the stick from Bulgarian politics. Without a truly independent judicial system external monitoring might be the only effective check and balance in the Bulgarian state.

Daniela Ivanova holds a master’s in Political Science from Oxford University and has previously worked for Transitions Online, a Prague-based online journal covering the politics and societies of former Communist Bloc countries.

Photos by Anelia Nikolova and Nadezhda Chipeva, Kapital.