THE (IM)POSSIBLE JUDICIAL REFORM
THE TWELFTH HOUR FOR BULGARIA'S EU MEMBERSHIP WILL STRIKE ON SEPTEMBER 2The time for speculation and milling the wind regarding the long-suffering judicial reform in our country has almost elapsed. Preoccupied with the negotiations for forming the new Government, politicians failed to notice that the moment has arrived for the consecutive (but not last one) partners' inspection on the part of the European Commission (EC) who will be checking the fulfilment of Bulgaria's commitments under the Justice and Internal Affairs chapter. A year ago we only got away with the shame of the scandalous report about the corruption in the Ministry of Internal Affairs, prepared by Bryan Davis, a British expert contracted by the EC. This time the danger of a failure is much bigger. Between August 30 and September 2, when inspectors from Brussels will be in our country, the new rulers should make a desperate attempt to convince them that the Bulgarian Themis will certainly take the European road. That attempt will predetermine the contents of the monitoring report, to be published by the EC on October 25, which will put an end to the speculations regarding a possible postponement of Bulgaria's EU membership by twelve months. The Minister of European Affairs Meglena Kouneva assures that if the National Assembly votes by the beginning of September the draft, approved by the former cabinet last May, our team of negotiators could convince the EC to wait and note that in the monitoring report. The ex internal minister and incumbent Justice Minister Georgi Petkanov did not commit himself to a specific forecast about the eventual voting of the Criminal Procedure Code (CPC). A reporters' check of the BANKER weekly among the members of the interim parliamentary legal committee has established that the MPs are entirely in the dark as to when discussions of the draft bill for the new CPC will start. The committee's Chairman Alexander Arabadjiev was trying to convince the journalists that the discussions could begin as early as last week, but that did not happen. Moreover, rumours are spread within the parliamentary lobbies that the socialists intend to move in for first reading the draft bill, prepared by NMSII (twice agreed with the EU), and then amend it thoroughly before the second reading on the basis of their own alternative draft bill. The BSP deputy Mladen Chevenyakov denied such intentions, but if that happens anyway, Brussels will hardly be fascinated. Despite the numerous aspersions on the part of prosecutors, investigators, judges and politicians, the bill for a new CPC, drafted by the cabinet of former PM Simeon Saxe-Coburg-Gotha, is in general entirely in compliance with the commitments which our country undertook in the end of 2002 under the Justice and Internal Affairs chapter. If anyone does not like the proposed restrictions to the investigators' rights or the idea of setting up a unified investigation of crimes under the supervision of the prosecutors' office, he should have simply said it louder in the process of negotiations with the EU. With or without flaws, the draft bill is a serious attempt (at least on paper) to achieve at last a transparent investigation of crimes in Bulgaria after the European manner, and to put an end to the well-known buggering of cases between the investigation service, the court, and the prosecutors' office. One of the merits of the new CPC is that it makes a clear distinction between the functions of investigators and of criminal police inspectors. This is something for which the EU has been insisting more than once over the last years. It's another matter if assigning about 98% of the investigation work to the police bodies at the expense of investigators, complies with the presently effective constitution. Article 128 of the country's basic law stipulates that the investigation for criminal trials is carried out by investigators who are part of the independent judicial power. If the draft bill is passed, however, in the future they will be gathering evidence only about crimes against peace and mankind, and in Bulgaria they happen nearly once in a hundred years. According to lawyers, the ban for the prosecutor to transform a criminal police inspection into investigation could be considered a step forward. The biggest arguments among MPs are expected to be caused by the regulations of the prosecutors' rights in the pre-trial phase. The bill proposed by NMSII's team projects that the prosecutors will really become (not in words alone as was the case so far) the sole masters of preliminary procedures. They will not only monitor the work of their investigators and criminal police inspectors, but will be also able to revoke any deed of theirs and give them obligatory instructions. Moreover, the representatives of the state prosecution will have the right to remove the investigating person if the latter has violated the law, and entrust the case to someone else. The provisions, stipulating excessive rights to prosecutors encounter serious resistance on the part of BSP and will be probably amended in the process of voting them in the plenary hall, MPs from the Coalition for Bulgaria parliamentary group admit. And deputies from Democrats for Strong Bulgaria declared they have not given up their proposal to take the prosecutor's office out of the judicial power and transfer it to the executive. Such a change, however, is possible only after an amendment of the constitution. The articles, fixing the terms for carrying out criminal prosecution, are expected to cause much controversy among deputies. The draft bill stipulates that the pre-trial phase of a case may not last longer than two months. By exception (if the case is complicated) the term could be lengthened by one more month. However, it is amazing that by a decree of the Prosecutor General the investigation could be rescheduled by another year and a half. Moreover, these 18 months do not include the time during which the prosecution has been stopped. And if the prosecutor decides to replace the investigating criminal police inspector by another one, all terms are invalidated and the prosecution starts from the very beginning. Among the ideas which doubtlessly deserve the MPs' support are those for limiting the lawyers' opportunities to protract the legal proceedings (by introducing a ceiling for the number of admissible defence-lawyers for one case and of stricter criteria for issuing patient's charts). The hypotheses when the participation of a lawyer is obligatory have been exhaustively listed as well. The EU experts would also like the new methods for collecting evidence, e.g. using agents under cover, controlled deliveries, and trust deals. The bill's drafters also deserve praise for the projected intentions to cut down the terms for the court trial itself. For instance, magistrates will be able to return the case for additional investigation only if the violation, committed during the preliminary prosecution, could be eliminated. And once a case is moved to court, the prosecutor will be able to raise a new accusation only in the presence of facts that have not been known during the pre-trial phase. In fact, the amendments to the CPC are not by far the only reason for which we might not get a positive evaluation by the EC. We have also irreparably delayed the voting of amendments to the Special Intelligence Devices Act, to the Fulfilment of Penalties Act, etc.On the other hand, the interim parliamentary legal committee discussed on first reading last week the draft bill for a new Act on Legal Assistance which was pointed as one of the three laws of priority importance (alongside with the CPC and the bill for the Administrative Procedure Code) in the letter which former justice minister Anton Stankov sent to the National Assembly Chairman Georgi Pirinski in the beginning of August. The law on legal assistance regulates the appointment of official solicitors to people of low incomes, not only for criminal but also for civil lawsuits. Their fees will be paid by the budget of the executive power. The State's financial plan for next year will include almost BGN6MN for that purpose. Under the currently efficient regulations, these remunerations are covered by the budget of the judiciary, which is in contradiction with European practice. A National Bureau for Legal Assistance will be established with the Council of Ministers. It will have a five-member managerial team, its chairman and his deputies will be appointed by the Cabinet, and the remaining members - by the Supreme Bar Council. The bureau will have a register of lawyers, who have agreed to conduct suits as official solicitors. MPs, however, will hardly succeed tp discuss in due time the bill for the Administrative Procedure Code. The big problem here is if money could be found for the establishment of 12 specialized administrative courts throughout the country. The implementation in practice of the norms for mediation and for the protection of witnesses of criminal lawsuits might seem a tiny detail to some people, but the EC experts will certainly want to know the situation in that respect. It is already clear that we'll be criticized also for the still uncompleted modernisation of cross-border check points which are to become frontiers of the European community, for the lack of administrative capacity (and a building as well) of the Commission for Protection of Personal Data, the lack of a guilty verdict for money laundering, etc.