Strasbourg, 1 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Bulgaria
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
The law only prescribes obligatory elements of a judgement (date and place of delivering; court; names of judges, secretary, prosecutor /when participating/, parties; number of case; motives; the decision of the court on the subject matter of the dispute and on the costs; directions whether the judgement could be appealed against and if so the appellate court and the time-limit for lodging appeal; signature(s) of the judge(s), who had delivered it).
Can each individual judge choose his own style of drafting his decision?
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
The decisions are taken by majority. No one can abstain from voting. Those who do not agree can sign with a dissenting opinion, which shall be applied to the text of the judgement.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
The panels always consist of odd number members. No one can abstain from voting or have a second or casting vote.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
A synthetic and concise approach is sufficient. The court is not obliged to give a detailed answer to every argument. However, the judge(s) shall discuss all relevant and essential arguments, raised by the parties.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
The first-instance judgement contains (in successive order):
- the parties’ claims and objections
- the relevant facts – accepted by the court as established - taking into account the burden of proof, the evidence collected, the parties’ submissions and their behaviour (e.g. obstructing collection of evidence) – i.e. the factual background and the evaluation of the evidence
- the legal conclusions of the court based on the applicable law and the legal principles;
- the decision on the essence of the subject matter of the dispute and on the costs.
2/ operational part
3/ directions whether the judgement could be appealed against and if so the appellate instance and the time limit for lodging appeal.
In case of default judgement (introduced by the new Code of Civil Procedure, in force as of 1.03.2008) no motives on the essence are needed. The mere indication that the judgement is based on the fact that the requirements for holding it are met suffices.
· How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
At present the appellate court in respect of civil and penal cases is a second “first instance“. The parties can claim collection of new evidence without any limitation, the case is always examined in an open hearing (for which the parties shall be duly summoned), the court can rehear witnesses or experts if finds it appropriate.
According to the new Code of Civil Procedure (in force as of 1.03.2008) before the appellate court the parties could not refer to new circumstances and introduce evidence which could have been pointed or collected in the first instance proceedings. New circumstances and evidence shall be referred to and collected by the appellate court only if the parties couldn’t have known or introduced them before the lodging of the appeal/the answer to it, or if they had appeared after the latter. However, the court can rehear witnesses or experts if finds it appropriate. The case is always examined in an open hearing for which the parties shall be duly summoned.
The appellate court judgement follows the first instance judgement structure abovementioned. The specific points are two:
1/ it contains review of the validity (ex officio) and the admissibility (in the part appealed against) of the first-instance judgement; as regards the rest the court is limited by the complaints raised in the appeal (i.e. in addition there is in the motives information about the first-instance judgement, the complaints raised by the appellant and the answer of the other parties, the findings of the appellate court on the latter and on the validity and the admissibility of the judgement appealed against);
2/ if the first-instance judgement is valid and admissible, the second-instance court decides on the essence of the case upholding or quashing it; in the first case it can either give its own reasoning or (in civil cases, according to the new Code of Civil Procedure) can endorse the findings of the lower court.
The cassation court judgement contains the parties’ allegations in the appeal and the answer, the court’s assessment of the validity and the admissibility of the lower instance judgement, its findings in respect of the complaints raised in the appeal /which limit the scope of review) and obligatory directions in case of remittal.
In civil cases, when the appellate judgement concerns issues in respect of which contradictory judgements had been delivered, the cassation court:
1/ points out by way of motivated judgment which practice finds appropriate; in this case it holds a decision in conformity with it;
2/ points out by way of motivated judgment why finds the practice in the judgments inappropriate or inapplicable; in this case it holds a decision interpreting the law in the light of the circumstances of the case (Art.291 Code of Civil Procedure).
In case of contradictory practice of the Supreme Court of Cassation itself, the panel, to which a cassation appeal had been referred to, may propose to the plenary meeting of the Supreme Court of Cassation to hold an interpreting judgement, suspending the proceedings meanwhile (Art.292 Code of Civil Procedure).
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
Could you describe precisely how the decision is transmitted to the parties?
The parties receive a notification that a judgment has been delivered. It contains information on the outcome of the proceedings - whether the claim / appeal had been granted or dismissed, and instructions in respect of possible appeal, the appellate court and the time limit for lodging appeal. A copy of the judgment (full text)/ motives to a verdict delivered is applied to the summons by some courts, but there is no such obligation under the procedural codes. However, the parties can always receive a copy under their request. The operational part of the judgment is entered into special register which is available in the courts and open to public.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
The judgment is binding for the parties to the proceedings and their successors, for the court, which had delivered it and for all other courts, state institutions and municipalities (Art.297-298 Code of Civil Procedure). It is also binding for the party in favour of which had been delivered, when the proceedings had been instituted under public prosecutor’s request (Art.301 Code of Civil Procedure).
The judgment, delivered on civil status actions (concerning origin and adoption) and matrimonial actions (when claiming divorce, nullifying marriage, declaring the existence or non-existence of a marriage), is binding for everybody.
The judgment, delivered within criminal proceedings, is binding for the civil court, handling with the civil consequences of the deed, regarding the fact whether the deed had been done, its unlawfulness and the guilt of the perpetrator (Article 300 Code of Civil Procedure).
The judgment, delivered within administrative proceedings, declaring an administrative act null and void, amending or quashing it, is binding for everybody (art.177, Art.183 Code of Administrative Procedure)
The judgment, delivered within administrative proceedings, declaring a regulation null and void, amending or quashing it, is binding for everybody (Art.193 Code of Administrative Procedure)
The judgment may also affect the public in general when delivered under the Law on Consumers’ Protection or the Law on Protection against Discrimination. The third parties to such proceedings can also profit from a court’s ruling obliging defendants to stop offending.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Enforcement of judgements is within the competence of enforcement judges. They are state and private and it is up to the claimant to choose whom to address.
Enforcement proceedings are instituted upon a creditor’s request and an execution writ. Having received the latter, the enforcement judge notifies the debtor of the proceedings and of the injunctions issued, inviting them to execute voluntarily within 14 days time limit. If they fail to do so, the procedures prescribed by law and chosen by the creditor (e.g. sale of real estate or chattels, attachment upon bank accounts and salary, putting into possession, etc.) are started in order to enforce the judgment. When the debtor is obliged to do something for which they could be substituted, the creditor may claim to be authorised to do it on their account. When the debtor is obliged to do something intuitu personae (in which they could not be substituted by the creditor or someone else), they are forced to do it by way of permanent imposition of fines until execution.
Criminal proceedings can be instituted against anyone who obstructs or frustrates in anyway whatsoever the enforcement of a court’s decision. Failure to execute a court’s judgment regarding parental rights or personal contacts with a child is also a crime (Art.182, Art.296 Code of Criminal Procedure).
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Judgments shall be announced during the last hearing of the case or the court may reserve judgment and deliver it within one month (two weeks in “quick proceedings”) time-limit. The principle is that the court hearings are public and therefore open to journalists too. As an exception to the rule the court may decide to examine the case excluding the public if the public interest or the protection of private life of the parties, of the family or of the ward so require, if the case is connected with trade, industrial, inventive or tax secret, the announcement of which could have infringed legitimate interests, if there are other legitimate reasons (Art.136 Code of Civil Procedure)/ if the morals, the state secret or the protection of witnesses so require (Art. 263 Code of Penal Procedure). However, in these cases the operational part of the judgment / the verdict is either announced in an open hearing or available to the public (entered in the register above-mentioned).
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
The judgments contain the names of the parties and (at least) the plaintiff’s identification number. However, the latter is not entered into the public registers. The courts’ practice available in the legal information programmes (CIELA, APIS) does not contain any names and identification numbers but only initials.
The judgments delivered by the Supreme Administrative Court (full text) are available on its internet site. A number of judgments, which are considered important, are available on the Supreme Court of Cassation web site (some of them full text, others containing initials).
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
The judgments (full text) are part of the case files. The latter are accessible to the parties to the proceedings and to the advocates. When a copy is requested by another authority / third party to the proceedings, it shall point out the purpose in respect of which the document is needed. The court grants or dismisses the request, considering personal data protection legislation / examination of the case excluding the public. However, the operational part of the judgment is entered into registers, which are available and open to public.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Not all of the judgments delivered are published / available on the internet. The final judgments of the appellate and the cassation courts are usually published / included in legal information programmes. The judgments, delivered by the Supreme Administrative Court, are available on its internet site after free registration. A number of judgments, which are considered important, are available on the Supreme Court of Cassation web site (free access).
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
The Chair of the Supreme Court of Cassation and the Chair of the Supreme Administrative Court prepare on annual basis reports on the activity of the courts and on the application of the law, which are discussed and adopted by the Supreme Judicial Council and thereafter - by the Parliament (Art.84, Art.130 of the Constitution). The reports are published on the internet site of the courts abovementioned and are available to all. They include information on the staff, the number and the type of the proceedings instituted, the number of the cases competed, the number of the delayed acts appeals, the number of upheld and reversed judgments and court orders, the workload of the judges, the activities undertaken within the courts in order to ensure due examination of cases and uniformity of practice, the problems faced, the conclusions drawn.
These reports are preceded by annual reports of the chairs of all courts. Besides, they also prepare current inquiries and every six months lodge with the Inspectorate of the Supreme Judicial Council and with the Minister of Justice summary reports on the movement and the completion of the cases and on the reversed judgments and decisions
Evaluation of the judicial reform in Bulgaria, of the legal profession reform and of the functioning of the police has been made by non-governmental organizations. They have elaborated detailed publications on the basis of their own inquiries - Judicial Reform Index for Bulgaria – 2002 (American Bar Association’s Central and East European Law Initiative – ABA/CEELI), Judicial Reform Index for Bulgaria – 2004 (ABA/CEELI), Judicial Reform Index for Bulgaria – 2006 (ABA/CEELI), Legal Profession Reform Index for Bulgaria – 2004 (ABA/CEELI), Legal Profession Reform Index for Bulgaria - 2006 (ABA/CEELI), Courts civil monitoring – 2007 (Open Society Institute – OSI), Police civil monitoring – 2006 (OSI), Police Civil monitoring – 2007 (OSI).
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Apart from the instance review, the quality of the judgements is evaluated through the evaluation of the professional ability of the judges.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis: Judicial System Act, Evaluation Methodology
· identification of the agencies that are responsible for the process: Supreme Judicial Council Evaluation and Proposals Commission, assisted by evaluation commissions created ad hoc and through accidental choice electronic system among judges meeting certain requirements
· parameters that are evaluated: number of upheld and reversed judgements and the grounds thereof; understandable and well-grounded reasoning
· methods by which each parameter is evaluated: points within initially fixed maximum
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
As there is no official system of evaluation of the quality of justice, advantages or disadvantages of such cannot be discussed. However, with reference to the 10th plenary meeting of CEPEJ, the Ministry of justice requested CEPEJ to prepare drafts on the judges’ workload evaluation methods, judges’ evaluation criteria, classification of courts criteria and indicators.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
- less workload
- narrow specialization in certain fields
- increased training of judges
- a greater stability in substantive legislation
- simplified proceedings when appropriate
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □ no □
· professional performance of public prosecution services? yes □ no □
· professional performance of lawyers? yes □ no □
· enforcement of judgements? yes □ no □
· efficiency of ministry of justice services in general? yes □ no □
· quality of legislation? yes □ no □
No. There are rules concerning evaluation of personal ability of each single police officer, public prosecutor, lawyer, enforcement judge, state servant at the ministry, but it is connected with other purposes – aiming at decisions influencing their status or career, determination of remuneration, etc.