Strasbourg, 16 January 2007

CCJE REP(2007)13
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Bulgaria

questionnaire for 2007 Opinion concerning the Councils for the Judiciary

Introduction

In 2007, the CCJE is called to investigate the institutional roles of Councils for the Judiciary or analogous bodies that have been or are being created – sometimes at a constitutional level – in several European countries with the tasks of protecting judicial independence, taking measures concerning courts’ administration and judges’ careers, and ensuring in general a smooth functioning of the principle of separation of powers, which is a cornerstone of modern democratic States based on the rule of law.1

The composition and functions of such bodies vary from country to country2, as do their relationships with governments (especially with the Ministry of Justice), but the concept is essentially the same.

Responding delegations, whose countries institutional frameworks do not include a Council for the Judiciary as such should not hesitate to reply to the questionnaire making reference to the body or the bodies performing similar functions, in the judiciary or outside of it, in order for the CCJE to obtain as far as possible the clearest description of the situation in these countries. In any case, at the end of the present document, there is a specific part for countries without Council for the judiciary.

For the purpose of this questionnaire, and at this stage of the discussion, the expression “Councils for the Judiciary or other analogous body” (in French “Conseil Supérieur de la Magistrature ou autre organe équivalent”) has been chosen. The work of the CCJE on the Opinion on this subject will be the occasion to justify this choice. In the questions below the terms “Councils for the Judiciary” or “Council” will be used: if it is not the term used in your country, please just indicate it but reply as far as possible to the questionnaire.

Part I - General context concerning the judiciary

1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
Under Article 117 par.2 and par.3 of Bulgarian Constitution the judiciary shall be independent; in the performance of the functions thereof, all judges, jurors, prosecutors and investigating magistrates shall be subservient only to the law; the judiciary shall have an independent budget.
However, there are certain connections between the separated powers, which, as regards the interference of the Parliament (National Assembly), are as follows:
The Parliament elects 11 members of the 25member Supreme Judicial Council (Art.130 par.3 of Bulgarian Constitution, Art.16 par.3 of Judicial System Act)

The Parliament may initiate the removal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Public Prosecutor: in cases of grave breach or systematic dereliction of the official duties, as well as actions, damaging the prestige of the judiciary, they shall be removed by the President of the Republic on a motion by one-fourth of the National Representatives, passed by a majority of two-thirds of the National Representatives; the President may not refuse to declare any such dismissal upon a second motion (Art.129 par.4 of Bulgarian Constitution)

2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)

No

3. Is there possible interference of the executive power concerning judges?

Yes
The Minister of the Justice presides the meetings of the Supreme Judicial Council, but he shall not participate in the voting (Art.130 par.5 of Bulgarian Constitution, Art.26 of Judicial System Act)
The Minister of Justice:
- shall propose a draft judiciary budget and shall lay the said draft before the Supreme Judicial Council for discussion;
- shall administrate the property of the judiciary;
- may propose the appointment, promotion, demotion, transfer and removal from office of judges, prosecutors and investigating magistrates, and may submit opinions on such proposals;
- may propose to the Supreme Judicial Council candidates for President of the Supreme Court of Cassation, President of the Supreme Administrative Court, Chief Public Prosecutor;
- shall participate in the arrangements for upgrading the qualifications of judges, prosecutors and investigating magistrates;
- shall examine the arrangements regarding the institution, progress and closing of cases (Art.130a of Bulgarian Constitution, Art.28 par.2 and Art.30 par.4 Judicial System Act).

4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)

Yes
- The Minister of Justice can submit opinions on proposals on number of judges and for appointment, promotion in rank and dismissal of judges before the Proposals and Performance Appraisal Commission of the Supreme Judicial Council, and can make proposals for appointment, promotion, demotion, transfer and dismissal of judges (Art.130 of Bulgarian Constitution, Art.30 par.4 Judicial System Act). He, together with the Supreme Judicial Council, co-ordinates measures to improve the qualification of judge.

§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)

Yes
The Minister of Justice can submit (as well as one-fifth of the total number of the members of the Supreme Judicial Council) with the Supreme Judicial Council for secret ballot nominations for election of President of the Supreme Court of Cassation, President of the Supreme Administrative Court and Chief Public Prosecutor (The President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Chief Public Prosecutor shall be appointed and removed by the President of the Republic on a motion by the Supreme Judicial Council for a single term of seven years; the President may not refuse to decree any such appointment or dismissal upon a second motion – Art.129 par.2 Constitution Art.28 par.1-2 Judicial System Act,).

The Minister of Justice can submit opinions on the proposals for the number of chief administrators and their deputies and the appointment and removal thereof (Art.30 par.4 Judicial System Act).

§ in management of courts? (if yes, please specify which authority from the executive power)
§ No

5. Is the judicial staff working under the authority of:
§ a judge? yes
§ the president of the court? yes
§ the Ministry of Justice? no

6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court? No (gives only an opinion to performance appraisal elaborated by a special commission under criteria establish by law)
§ to distribute the work between judges? yes
§ to act as a disciplinary authority vis-à-vis judges? Yes - The chief administrator may impose disciplinary sanction reprimand and censure. The order for the imposition of these sanctions can be appealed against before a court.
§ to intervene in the career of judges? Yes - in cases of promotion (demotion, disciplinary sanction) proposes it and gives an opinion to performance appraisal elaborated by a special commission under criteria establish by law;
§ other? If yes, please specify? – Yes - organises the judicial administration of the relevant court, ensures proper working environment and development of the qualification of the court clerks, appoints, promotes and dismisses court clerks, issues decisions when evaluations or court administrator’s orders are impugned by them, approves the draft of the court’s budget, lodged with the Supreme Judicial Council, holds a reception to citizens and plaintiffs, signs documents and correspondence, etc.

Part II – General concerning Councils for the Judiciary

7. Is there a Council for the Judiciary in your judicial system?
Yes

8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
Supreme Judicial Council
l
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution? Yes – Bulgarian Constitution
§ the law? Yes – Judicial System Act
§ other? If yes, please specify.

10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

The Supreme Judicial Council was established with the 1991 Bulgarian Constitution and the Supreme Judicial Council Act, both in force as of 13.07.1991. The latter law was revoked by the Judicial System Act (in force as of 25.07.94.), which, after several amendments, is still in force. The creation of this supreme administrative organ of the judiciary with the 1991 Constitution (adopted after the democratic changes in 1989 and replacing the 1971 socialist Constitution) aimed entire implementation of the now explicitly fixed principle of the separation of powers and guarantees the independence of the judiciary. The fist panel of the Supreme Judicial Council was constituted on 27.09.91.

Part III - Composition

11. What is the composition of the Council for the Judiciary:
§ Number of members? 25 (twenty five)
§ Qualification of the members? Eligibility for non-ex officio membership of the Supreme Judicial Council shall be limited to jurists of high professional standing and moral integrity who have practised law for at least 15 years, of which no less of 5 yeas as a judge, prosecutor, investigation magistrate or academic degree holding researcher of law (Art.130 par.2 Bulgarian Constitution, Art.16 par.1 Judicial System Act).

§ For the “judges” members, do they need specific qualifications or experiences? No
§ Can non-judges be members of the Council? Please specify (number, qualification/ specific functions) Yes – other jurists, who have practised law for at least 15 years, of which no less of 5 yeas as a judge, prosecutor, investigation magistrate or academic degree holding researcher of law (see above).

12. Please describe the whole procedure of appointment:

      - Who designates the members (judges or other institutions or authorities – please specify)?
      - What is the appointment system (voting, individual candidates, designation, etc.)?

The Supreme Judicial Council (25 members) consists of ex-officio (3) and non ex-officio (22) members.
The President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Public Prosecutor shall be ex officio members of the said Council.
Eleven (11) of the non ex-officio members shall be elected by the Parliament (National Assembly), and eleven (11) shall be elected by the judicial authorities.

The National Assembly shall elect eleven (11) of the members of the Supreme Judicial Council, not later than a month prior to the expiry of the term of office of elected members. The following shall be ineligible for membership of the Supreme Judicial Council: 1/ National Representatives, mayors or municipal councillors; 2/ members of political parties and organisations, as well as members of trade union organisations outside the judicial system (Art.16 par.3-4 Judicial System Act).

Eleven (11) of the members of the Supreme Judicial Council shall be elected by the judicial authorities, not later than a month prior to the expiry of the term of office of elected members. The judges shall elect six (6) members, the prosecutors three (3) members, and the investigating magistrates two (2) members to the Supreme Judicial Council, each from amongst their number. The elections shall be held at separate delegates' meetings with a rate of representation of one delegate per ten persons, no delegate being elected for a remainder of fewer than five persons (Art.17 Judicial System Act).
The separate meetings of the judges, the prosecutors and the investigating magistrates within the geographical jurisdiction of the relevant district court shall elect delegates. The military judges shall elect delegates at a general meeting of all military courts. The military prosecutors and the military investigating magistrates shall elect delegates at a general meeting of all military prosecutors and military investigating magistrates. The Supreme Court of Cassation, the Supreme Administrative Court, the Prosecutor General, the Supreme Prosecution Office of Cassation, the appellate courts, the appellate prosecution offices and the National Investigation Service shall elect delegates at separate meetings (Art.18 par.1 Judicial System Act).
Separate meetings shall be convoked by the relevant head of judicial authority or upon request of one fifth of its members. The convocation shall specify the date, venue and time of meeting (Art.18 par.2 Judicial System Act).
Where a separate meeting is not convoked by the individuals under Para. 2 within seven days of the occurrence of legal grounds therefore, the Presiding Officer of the Supreme Judicial Council shall specify the date, venue and time of meeting (Art.18 par.3 Judicial System Act).
The meeting shall take place where more than half of the eligible participants are present. In the lack of quorum it shall take place an hour later than specified and shall be considered valid where at least one-third of the eligible participants are present (Art.18 par.4 Judicial System Act).
The delegates shall be elected by simple majority of those present through secret ballot; the decisions on the election of delegates shall forthwith be submitted to the Supreme Judicial Council in order to include delegates in a list of the participants in the general meeting of delegates (Art.18 par.5 Judicial System Act).
The delegates meetings are lawfully held if at least two-thirds of the delegates elected take part in them. Organisational and technical preparations for separate meetings of delegates shall be made by the administration of the Supreme Judicial Council. Expenses for meetings shall be covered from the budget of the Supreme Judicial Council. The decisions on election of members of the Supreme Judicial Council shall require a simple majority of the number of attending delegates voting by secret ballot. Where a member of the relevant quota is not elected in a first round of voting with the required majority, a second round of voting shall take place. Where the second round fails to elect a nominee with the required majority, the nominee(s) who consecutively gathered the largest number of votes shall be considered elected (Art.19 Judicial System Act).
The legal conformity of the election of any Supreme Judicial Council member shall be contestable before the Supreme Judicial Council, provided the complaint has been signed by one-fifth of the delegates to the respective meeting and is lodged within seven days after the day of the election. At its earliest meeting after receipt of a complaint, the Supreme Judicial Council shall elect, from amongst its members, a five-member credentials committee, which shall prepare an opinion on the legality of the contested election within fourteen days. The Supreme Judicial Council shall pronounce within fourteen days after receipt of the opinion of the credentials committee. Until the Supreme Judicial Council pronounces, the person whereof the election is contested shall attend the meetings of the Supreme Judicial Council in a non-voting capacity. Simultaneously with the declaration of the legal non-conformity of an election, the Supreme Judicial Council shall appoint a date for a new election within one month thereafter (Art.20 Judicial System Act).

13. How is appointed the President and/or Vice-President of the Council?

The meetings of the Supreme Judicial Council shall be presided over by the Minister of Justice. The said Minister shall attend in a non-voting capacity. The presiding officer of the Supreme Judicial Council shall organise and moderate proceedings at the meetings (Art.130 par.5 Bulgarian Constitution, Art.26 par.1-2 Judicial System Act).
In the absence of the Minister of Justice, the meetings shall be presided over successively by the members of the Supreme Judicial Council as follows: the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, the Chief Public Prosecutor (in such cases the Minister of Justice shall give the substitute advance notice to organise proceedings at the meeting and a Deputy Minister authorised by the Minister may attend the meeting). In the event all above-mentioned members, beside the Minister of Justice, fail to attend a meeting of the Supreme Judicial Council, it shall be chaired by the most senior member designated in accordance with the rules of Art.146 of Judicial System Act (Art.26 Judicial System Act).

14. What is the term of office for a member of the Council? - 5 (five ) years

15. May a member be removed from office against his/her will and, if so, under what circumstances?

An elective (non ex-officio) member may be removed prior to the expiration of the term of office thereof by a decision of the electing body by reason of: 1. resignation; 2. an effective sentence for a premeditated criminal offence committed thereby; 3. sustained actual inability to discharge the duties for a period exceeding six months; 4. complete or limited judicial disability. The procedure shall be initiated on a motion by the Supreme Judicial Council, on the requisition of one-fifth of the National Assembly - in respect of the quota elected by the National Assembly, or by one-fifth of the complement of the court, the prosecution office or the investigating magistracy, as the case may be - in respect of the members elected from the quota of the judicial system.
The ex officio members of the Supreme Judicial Council may not be removed during their continuance in the offices as President of the Supreme Court of Cassation, President of the Supreme Administrative Court and Chief Public Prosecutor (Art.22 Judicial System Act).
The election of a new Supreme Judicial Council member shall follow the term and the procedure according to which the removed member was elected, and the replacement shall be elected for the remainder of the term of office of the removed member (Art.23 Judicial System Act).

Part IV - Resources

16. Where does the Council receive its financial resources?

The Supreme Judicial Council is a legal entity with its own budget. The latter is part of the autonomous budget of the judiciary.

17. Does the Council have its own staff? Yes

18. If not, is the personnel provided by:
the Ministry of Justice?
the Supreme Court?
other institution? Please specify

19. What is the staff number? 76

20. What are the qualifications of the staff?
The education degree needed is set in the terms of office for each position. For most of the positions university master’s degree is needed; for some of them the qualification required is “lawyer”.

21. Must the staff be composed, albeit only in part, by judges? No

22. What are the tasks of the staff of the Council:
preparing materials for the Council members? yes
providing them with analysis and evaluation of the courts’ practice? yes
other? Please specify.
The administration of the Supreme Judicial Council is organised in 7 departments: 1/ Organisation and administration, 2/ Finance and budget, 3/ Legal, 4/ Investment policy and court buildings, 5/ Internal Audit, 6/ International legal co-operation and European integration, 7/ Public relations and press centre, which ensure the proper functioning of the relevant activity in accordance with the Staff Regulations of the Supreme Judicial Council’s officials.

Part V - Tasks

23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

· in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

The Supreme Judicial Council shall perform the following functions:
1. propose the President of the Republic the appointment and the removal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Public Prosecutor. In case the proposal has been repeated, the President of the Republic may not refuse the appointment or the removing from office;
2. appoint and remove from office with judicial bodies the chief administrators and their deputies, with the exception of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Public Prosecutor;
3. set the number of chief administrators and their deputies in the respective bodies of the judiciary
4. determine the number, the geographical jurisdiction, and the seats of the district courts, the regional courts, the military courts and the appellate courts, on a motion by the Minister of Justice;
3. determine the number of the judges, prosecutors, investigating magistrates, enforcement judges, recording magistrates and judicial officers in all courts, prosecution offices and Investigation Services;
4. appoint, promote, demote, transfer and remove the judges, prosecutors, and investigating magistrates;
5. adopt decisions for the accession of judges, prosecutors and investigating magistrates to tenure of office (irremovability);
6. fix the remuneration of the judges, prosecutors, and investigating magistrates;
7. give authorisation to indict judges, prosecutors and investigating magistrates in the hypotheses of Art. 134, para 1 or for the detention of judges, prosecutors and investigating magistrates in the hypotheses of Art. 134, para 3, sentence one of Bulgarian Constitution, as well as for their provisional removal from office in the hypotheses of Art. 140.

· in area of initial and/or continuous training for judges and/or courts’ staff3?

The Supreme Judicial Council shall co-ordinate measures to improve the qualifications of judges, prosecutors and investigating magistrates in conjunction with the Minister of Justice. (Art.27 par.1 item 17 Judicial System Act).
Training and improvement of qualification for junior judges, junior prosecutors, junior investigating magistrates, judges, prosecutors, investigating magistrates, public enforcement agents, recording magistrates, judicial officers, inspectors and other employees of the Ministry of Justice, shall be carried out by a National Institute of Justice.
The National Institute of Justice shall be a legal entity with a seat in Sofia and it shall be a secondary spender of budgetary appropriations under the Supreme Judicial Council. The Institute shall be financed from the budget of the Judiciary, from international and other programmes and projects, from donations and funds of its own. The financial resources required for delivery of the mandatory training of junior judges, junior prosecutors and junior investigating magistrates and of the training and improvement of qualification for junior judges, junior prosecutors, junior investigating magistrates, judges, prosecutors, investigating magistrates, public enforcement agents, recording magistrates, judicial officers, inspectors and other employees of the Ministry of Justice shall be provided from the budget account of the National Instituet of Justice. The National Institute of Justice shall be managed by a Managing Board, which shall be composed of four representatives of the Supreme Judicial Council and three representatives of the Ministry of Justice (Art.35e Judicial System Act).

· in area of courts’ performance in general (assessment of quality of court performance4, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

    The Supreme Judicial Council shall require and summarise information from the courts, prosecution offices and the Investigation Services once in every six months, as well as the Annual Reports on their operations (Art.27 par.1 item 9 Judicial System Act).

· in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements5)?

        Proposals for the promotion and removal from office of judges, prosecutors or investigating magistrates and for the appointment and removal of chief administrators or their deputies, with the exception of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, the Chief Public Prosecutor and the Director of the National Investigation Service, shall be made to the Proposals and Performance Appraisal Commission at the Supreme Judicial Council (by the chief administrators of the relevant courts, by one-fifth of the total number of the Supreme Judicial Council members, by the minister of justice (in certain cases)-Art.30 Judicial System Act).
        The Proposals and Performance Appraisal Commission shall be a standing commission at the Supreme Judicial Council, which assists its operations. It shall be composed of 7 of the Supreme Judicial Council members. The composition of the Commission shall be renewed on a regular basis, following a procedure laid out in a Regulation setting out the organisation of operations within the Proposals and Performance Appraisal Commission.
        The Supreme Judicial Council has adopted a Regulation on the Performance Appraisal of judges, prosecutors and investigating magistrates which is setting up evaluation proceedings and criteria. Such criteria are: quantity of the work done – number of pending cases (up to 3 months, up to 6months-1year, over 1 year), judgements delivered within the time-limit, proscribed by law (up to 1month, 3 to 6 months, over 1 year), quality of judgements – taking into account the relation between acts appealed against and acts, which could be appealed against, the number of confirmed, quashed or amended acts and the grounds for such an outcome of the final proceedings, the number of granted appeals for delay.

· in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?

The Supreme Judicial Council shall adopt decisions in disciplinary proceedings against judges, prosecutors and investigating magistrates, as well as against chief administrators and their deputies (Art. 27 par.1 item 7 Judicial System Act).
A proposal on institution of disciplinary proceedings against judges, prosecutors, investigating magistrates, chief administrators and the deputies thereof may originate from no less than one-fifth of the members of the Supreme Judicial Council, from the relevant chief administrator of a court and from the Minister of Justice – in cases of serious breach of or systemic failure to discharge official duties, as well as action detrimental to the prestige of the judiciary.

    Disciplinary sanctions applicable to judges, prosecutors and investigating magistrates shall be as follows:

      1. reprimand;
      2. censure;
      3. demotion in rank or position, for a term between 6 months and three years;
      4. dismissal.

    Disciplinary sanctions applicable to chief administrators and their deputies, shall be as follows:

      1. reprimand;
      2. censure;
      3. removal from a managerial position Art.170 par 1-2 Judicial System act).

    The disciplinary proceedings are set in compliance with the provisions of Article 6 of the ECHR (right to a fair trial).

      Disciplinary proceedings in respect of a proposal for the imposition of disciplinary sanctions demolition in rank or position and dismissal of judges and removal from managing position for administrators and their deputies shall be conducted by a three member disciplinary panel of the Supreme Judicial Council selected by a draw of lots.
      Disciplinary panel members shall elect a chair from among themselves. The chair shall institute disciplinary proceedings, appoint a reporter and schedule a hearing within 14 days from institution of the disciplinary proceedings.
      Copies of the proposals for imposition of a disciplinary sanction and for institution of disciplinary proceedings shall be notified in pursuance of Art. 41 - 52 Civil Procedure Code to the individual who is made subject of disciplinary liability, who shall have 14 days from the date of notification to raise objections in writing and adduce evidence (Art.176 Judicial System Act).
      The author of the proposal and the individual made subject to disciplinary liability shall be notified of the hearing of the disciplinary panel. Until the hearing the author may withdraw his or her proposal with consent of the individual made subject to disciplinary liability, whereupon disciplinary proceedings shall terminate (Art.77 Judicial System Act).
      The disciplinary panel shall establish the facts and circumstances surrounding the offence, hearing the proposal for imposition of a disciplinary sanction made by the author or an authorised representative thereof, as well as the individual made subject to disciplinary liability. The latter shall be entitled to defence by a lawyer (Art.178 Judicial System Act).
      The disciplinary panel may gather oral, written, and material evidence (also acting through a delegated member thereof), as well as hear experts (Art.179 Judicial System Act). It shall adopt a decision, containing an opinion on the existence or absence of grounds for the imposition of a disciplinary sanction and shall propose the type of sanction (Art.180 Judicial System Act)
      Within 7 days of the submission of a report or the adoption of a decision, the reporter or the disciplinary panel shall present these to the presiding officer of the Supreme Judicial Council together with the case file, which then shall have to be submitted to the Supreme Judicial Council, at its first subsequent meeting.
      A disciplinary sanction shall be imposed by a reasoned decision of the Supreme Judicial Council adopted by a majority of more than half of all its members. In its decision the Supreme Judicial Council may refute the proposed imposition of a disciplinary sanction or impose one of the disciplinary sanctions envisaged under Art. 170, pares 1 or 2.
      The decision shall be notified to the individual made subject to disciplinary liability and to the author of the proposal. (Art.181 Judicial System Act). It could be appealed against by the parties concerned before the Supreme Administrative Court within 14 days of their notification. The appeal shall be heard by a 5-member panel of the Supreme Administrative Court, within one month of its submission thereto. The judgement shall be final (Art.184 Judicial System Act).

· in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

The Minister of Justice shall propose a draft judiciary budget and shall lay the said draft before the Supreme Judicial Council for discussion (Art.130a of Bulgarian Constitution).
The Supreme Judicial Council shall discuss and adopt the draft judiciary budget, submit it to the Council of Ministers and control the implementation thereof (Art.27 par.1 item 8 Judicial System Act). However, the Parliament adopts the State budget, part of which is the autonomous judiciary budget, granting or not the sums set in it. The Supreme Judicial Council has the competence to make subdivision of the financial resources allocated to courts.

· in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

The Supreme Judicial Council shall:
- adopt Rules of Operation of the Council and the administration thereof;
- elect and remove from office the Director of the National Investigation Service, by secret ballot with a majority of more than one half of the total number of all members of the Supreme Judicial Council
- approve rules of professional ethics, adopted by the relevant professional organisations of judges, prosecutors and investigating magistrates;
- approve rules of professional ethics, adopted by the relevant professional organisations of judicial officers;
- set up and keep, in the electronic format as well, a public register where all of its Resolutions together with supportive reasoning shall be entered;
- maintain and store official files of judges, prosecutors and investigating magistrates;
- approve automated information systems servicing the activities in judicial power (Art.27,par.1 items 11, 12, 13, 14, 15, 16, 21 Judicial System Act).
The Supreme Judicial Council’s standing Legal Policy Commission submits opinions in respect of law drafts and participates in the Parliament’s commissions discussions on drafts.
The National Assembly (Parliament) shall hear and adopt the annual reports of the President of the Supreme Court of Cassation, of the President of the Supreme Administrative Court and of the Chief Public Prosecutor (who are ex-officio members of the Supreme Judicial Council) on the application of the law and on the operation of the courts, the prosecuting magistracy and the investigating authorities (Art.84 item 16 of Bulgarian Constitution).

24. Does the Council have investigation powers? If yes, please specify

Yes
The Supreme Judicial Council has a standing (permanent) Anticorruption commission. It carries out inquiries upon signals and appeals, analyses the information on corruption practices, prepares and proposes to the Supreme Judicial Council measure in respect of prevention and fight against corruption in the judiciary. Anticorruption commission’s decisions containing conclusions in respect of magistrates’ or court staff’s corruptive behaviour are reported to the Supreme Judicial Council and the organs, competent to impose disciplinary sanctions, in order to undertake immediate measures within disciplinary proceedings. Exercising its powers, the Anticorruption commission co-operates with the relevant services from the Ministry of justice, Ministry of Interior, Ministry of Finance, National Audit Office, other governmental or non-governmental organisations.

25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe

The Supreme Judicial Council shall require and summarise information from the courts, prosecution offices and the Investigation Services once in every six months, as well as the Annual Reports on their operations (Art.27 par.1 Item 9 Judicial System Act). However, the Secretary General of the Supreme Judicial Council may require from the judiciary organs on regular basis information and materials necessary for the exercise of the Council’s competence (Art.6 Staff regulation on the officials of the Supreme Judicial Council).

26. What are the types of norms that the Council can issue:
opinions on the functioning of the judiciary? Yes
recommendations? Yes
instructions to the courts? Yes
decisions? Yes
PLUS secondary legislation in cases of law delegation - Regulations, Ordinances.

27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.

Yes – Bulgarian Constitution (adopted in 1991), Judicial System Act (adopted in 1994)

28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

The formulation is concrete and specific.

29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

There is a Code of Ethics for judges, adopted by the Judges’ Association. Under Article 27 par.1 item 13 of the Judicial System Act, the Supreme Judicial Council shall approve rules of professional ethics, adopted by the relevant professional organisations of judges (as is the case), but is not entitled to adopt itself such. However, as far as judges shall incur disciplinary liability in the event of breach of professional ethics, by taking decisions within the disciplinary proceedings the Supreme Judicial Council de facto guarantees the observance of the code.

30. Does the Council handle external relationships of the courts:
has it a public relations department? Yes
how does it ensure the transparency of its functioning and organisation?
The sessions of the Supreme Judicial Council shall be public, except in cases, where giving authorisation for indictment or detention of judges, prosecutors or investigating magistrates as well as their provisional removal of office is at stake, and where adoption of decisions in disciplinary proceedings against judges, prosecutors and investigating magistrates, as well as against chief administrators and their deputies are discussed. The agenda and the minutes of the sessions, including all decisions taken, are available on the internet site of the Supreme Judicial Council, which is currently updated and accessible to everyone. The web site also contains information on the activities of the council and its commissions, reports, regulations, useful information about the courts, links.
The Supreme Judicial Council has adopted a Media Strategy of the judiciary which contains detailed description of the principles of the Council’s media policy, the structure and functions of its Public relations department, the main methods of communication with media, the participation of the magistrates in creation of media image of the judiciary. The Supreme Judicial Council has Authorised Speaker (Public relations officer) who shall attend all meetings of the council, inform the media about the decisions taken in briefings held after each meeting, give interviews and participate (after authorisation) in discussions representing the Supreme Judicial Council, ensure accession of journalists to Supreme Judicial Council members for interviews; the speaker may initiate meetings with journalists and non Supreme Judicial Council’s members magistrates and require information connected to media representation of the judiciary from all its organs. Most of the biggest courts have their own press-attaches, who mediate between the judiciary and the public (in respect of the institution they represent) keeping in the touch with the Supreme Judicial Council’s speaker. The main methods of communication with media are press-conferences, press releases, interviews and participation in TV and radio programmes, phone conversations with journalists, internet site.

31. Are decisions of the Council published and available to all? The decisions are published and available to all on the internet site of the Supreme Judicial Council.

Part VI – Assessment of the self-governance and the independence of the judiciary

32. To what extent is the work of the Council influenced by:
the executive power?
As far as the council is presided by the Minister of Justice, who (although not having right to vote) organises and moderates proceedings at the meetings (being a presiding officer), is entitled to give opinions to all matters the council is competent to decide upon, can make proposals for appointment, promotion, demotion, transfer and dismissal of judges, he influences the work of the Council to a certain extent.
the legislative power?
As far as the council is a mixed body and 11 of its 25 members are elected by the Parliament, they are a number, which could influence the decisions taken.

33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect? Yes

34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

The administrative services of the Supreme Judicial Council shall be provided by the Ministry of Justice (Art.25 Judicial System Act).

35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
The Supreme Judicial Council is a Supreme administrative organ of the Judiciary.
The Supreme Court of Cassation and the Supreme Administrative Courts are the highest instances in the hierarchy of the judicial system.
The Presidents of the courts are the chief administrators of the relevant courts.

36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
The Supreme Court of Cassation and the Supreme Administrative Court (which are the highest courts) are also subject to the exercise of the Supreme Judicial Council; there are no special rules in that respect.

37. Who decides which the priorities of actions of the Council are?
The members of the Supreme Judicial Council together with the Minister of Justice.

38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

The persons concerned can appeal against a Supreme Judicial Council’s decision before the Supreme Administrative Court.

39. Which instruments or practices are used by the Council:
to guard the independence of judges?
to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
to intervene in case of attacks against its own interests6?
to improve the working methods of judges?

The Supreme Judicial Council participates actively in the process of elaboration of the draft budget of the judiciary – takes part in the discussions, submits opinions. In cases of attacks against the interests of the judiciary the Council makes declarations which are disseminated through the media. The communication with the media and the protection from undue interference or attach coming from the public, the media or other State power, is carried out by the Supreme Judicial Council’s speaker and the courts press-attaches who undertake appropriate measures, provide the information necessary and give explanations needed.

Part VII – Future trends of Councils for the Judiciary

40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
No
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
Yes
- in respect of the annual reports of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court and the Chief Public Prosecutor: according to the draft for amendment of the Constitution the reports shall be heard and adopted by the the Supreme Judicial Council which submits them to the Parliament (at present the reports are heard and adopted by the Parliament)
- in respect of the inspectorate: according to the draft for amendment of the Constitution an inspectorate to the Supreme Judicial Council shall be created, the members of which have to be elected by the Parliament; the inspectorate shall check the acctivity of all organs of the judiciary – not regarding the jurisprudence, and its members shall be independent and subservient only to the Constitution and the laws; the inspectorate shall operate ex officio, upon signals of citizens, legal entities, state organs, and upon motion of the judges themselves; the inspectorate shall submit signals, proposals and reports to other state organs and to the competent organs of the judiciary and is under the obligation to give information about its activity in public (at present there is an Judicial inspectorate with the Minister of Justice, which shall: 1. examine the arrangements for the administrative operation of courts, prosecution offices and investigation services; 2. examine the arrangements regarding the initiation and progress of court, prosecution and investigative cases, as well as the closing of cases within the established time limits; 3. analyze and consolidate the concluded cases and the acts of judges, prosecutors and investigating magistrates; 4. in the event of wrong or conflicting case law, established upon enforcement of authority referred to in Item 3, prepare drafts of motions of the Minister of Justice to the general meetings of the respective judicial boards of the Supreme Court of Cassation and of the Supreme Administrative Court for rendition of interpretative judgments, as well as drafts of opinions of the Minister of Justice on motions entered for the rendition of interpretative judgments; 5. examine the operations for the initiation, progress and determination of the enforcement cases of public enforcement agents, of private enforcement agents and of recordation cases, and consolidate and analyze the relevant case law; 6. submit information to the Minister of Justice and to the Supreme Judicial Council regarding the findings and evaluation of the arrangements for the initiation and progress of court, prosecution and investigative cases; 7. exercise current control as to the correct arrangements for and conduct of the internship required for attainment of licensed competence to practice law; The chief administrators of the judicial authorities shall be obligated to cooperate with the judicial inspectors in the exercise of the powers thereof and to afford the said inspectors access to the relevant records in abidance by the requirements of the Protection of Classified Information Act; The Minister of Justice, in consultation with the Supreme Judicial Council, shall issue Rules of Organization and Procedure of the Judicial Inspectorate (Art.35b Judicial System Act); The Inspectorate is composed of inspectors, managed by a Chief Inspector, all of whom shall be appointed by the Minister of Justice for a term of three years, after consulting the Supreme Judicial Council; Persons who have practised law for at least 8 years shall be eligible for appointment as inspectors; upon dismissal from office, the inspectors shall be reinstated to the position held thereby prior to the appointment if they worked in the judicial system; by a motion of the Minister of Justice, consulted with the respective administrative superior, the Supreme Judicial Council may also second as inspectors for the time-limit referred to judges and prosecutors from the courts of appeal, judges from the Supreme Court of Cassation and the Supreme Administrative Court, as well as prosecutors from the Supreme Prosecution Office of Cassation and the Supreme Administrative Prosecution Office. For the period of secondment the judges and prosecutors shall retain their position, rank in the judicial systema and the amount of remuneration received; the latter shall have a rank equal or higher than the rank of the judges, prosecutors and investigating magistrates they inspect (Art.35v Judicial System Act).

42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

There is communication between them but not a connection on legally established basis.

43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
concerning the national actions of your Council?
concerning international co-operation?

    In 2004 the Supreme Judicial Council obtained observer status; it is a member of ENCJ as of 1 of January 2007. The membership facilitates the establishment of contacts with the judicial councils of other EU member States, gives opportunities for participation in working groups on the themes set by the ENCJ concerning the improvement of the judicial councils’ activity and the jurisprudence and ensuring independence of the judiciary, and for exchange of opinions and good practices.

43. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Yes
The Supreme Judicial Council is the supreme administrative organ not only in respect of the judiciary, but also of the public prosecutors and of the investigation magistrates who are part of the judicial system under Bulgarian Constitution.

Part VIII – Countries without a Council of the Judiciary

44. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

45. How and by whom are judges appointed and promoted?

46. Does any authority (body) independent7 of the government and the administration take part in the appointment and promotion process:

47. If yes, how is this authority composed? Is a certain share of judges fixed?
48. How are the members selected?
49. what are the detailed competences of the authority with respect to the appointment and promotion of judges?

50. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

51. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

Strasbourg, 14 November 2006

1 Restructuring of the organisation of courts and introduction of modern management techniques, as well as the balance that needs to be guaranteed as for independence of judges, have been discussed by the CCJE in some of its previous Opinions (See references of these Opinions below in footnotes – For the list and the exact titles of the CCJE’s Opinions, please consult the website: www.coe.int/ccje).

2 The Councils or analogous bodies can be roughly divided between a Northern and a Southern European model. In the Northern European (for example Sweden, Denmark, Norway) model the organisation of the administration of the courts dominates. In these countries, the bodies – whose relationship with the Ministries of Justice is quite close - have extensive powers also in determining the budgets and management of the courts. In Southern Europe (in countries such as Italy, France, Spain, Portugal, Greece, Belgium) the Councils – that are separated from the Ministry of Justice - mostly deal with the recruitment of the judges, and their training, evaluation, transfers, promotion and discipline. Additionally, a Russian model is also identifiable, in which the highest courts of the country are vested also with the powers of their courts’ administration. As to Central and Eastern European countries, Lithuania and Hungary approach to the Northern European model, whereas Romania, Bulgaria and Poland are closer to the Southern European model. The common law countries have specific judicial commissions that perform tasks comparable with the one of the Councils.

3 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".

4 Please consider the following statements contained in the CCJE’s Opinion No. 6: - para 34: “The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence”.

- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”

5 Please consider the following statements contained in the CCJE’s Opinion No. 1:

- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”

- and para 34 of CCJE’s Opinion No. 6 (see footnote 4 above).
6 Please consider the following statements contained in the CCJE’s Opinion No. 7:

- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “

7 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



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