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Author: Kapka Georgieva-Atanasanova,   Angel Tinchev, 

Institution: Center for Development and Policy

Date: July 20, 2022

             

LEGISLATION AND LAW

 

ASSESSMENT, PRIORITIES, AND DEVELOPMENT PERSPECTIVES

   
The foundation of any democratic state is law, seen as a system of rules and their application. The Bulgarian state is faced with the challenge of creating a sense of the rule of law among its citizens. The principle of the rule of law is proclaimed in Art. 4 of the Constitution of the Republic of Bulgaria, as according to its para. 1 „The Republic of Bulgaria is a state governed by the rule of law. It is governed according to the Constitution and the laws of the country.“ The purpose of this presentation is to show the deficiencies in the individual manifestations of the principle, as well as the mechanisms for overcoming them.
 

Deficits in the field of legislation

  Ineffective legislative process  
  • The legislative and operational program of the Council of Ministers is not respected. This, in turn, leads to the lack of predictability on the part of interested citizens and legal entities, who will have to conform their behavior to the normative rules of conduct.
  • Often (especially in the field of by-laws of the executive power) the deadlines for public discussion provided for in Art. 26, para. 4 of the Law on Normative Acts are not observed, thereby preventing the possibility of civil society to participate in the process of formulating the normative acts.
  • In the legislative process, the vicious practice of amending and supplementing some laws by making changes to others is used much too often. There are cases when by amending and supplementing one law, changes are achieved in many (sometimes more than 10) other laws; changes which are substantial in volume, serious in significance and largely unrelated to the main act. This makes changes in the regulatory framework difficult to track.
  • Lobbying in the legislative process, about which there has been a negative feeling in society for many years, is not an object of legislative interest and there are no legal norms to regulate this specific matter.
  • Frequent changes in the regulatory framework, which leads to instability of the legal environment and creates the feeling of unpredictability among legal entities.
 

Bad quality of the regulatory framework

 
  • Lack of systematization in the regulatory framework. At the moment, the laws in force in Bulgaria exceed 300, and the by-laws of the central government bodies are over 3,000. If the by-laws of the municipal councils are added to them, the total number will exceed 5,000. In many of them, there is duplication of the regulated matter, which also makes their application difficult. Part of the problem is that these regulations are amended and supplemented „in pieces“, according to the specific need. This in turn leads to contradictions between the various acts and makes our domestic law system non-harmonized.
  • Denoting the same concepts with different terms (for example, equality is established between „defense“ and „protection“, „challenge“ and „appeal“, „legal entities“ and „organizations“, etc.). This leads to different interpretations and is a prerequisite for contradictory application of the acts and contradictory judicial practice.
  • When transposing directives from the law of the European Union into domestic law, their simple and literal translation into Bulgarian is too often resorted to, which takes the form of a legislative act. The problem is that this practice takes into account neither the specifics of the Bulgarian law (including the Bulgarian legal language), nor the social, cultural and economic features of the Bulgarian society. This makes the implemented norms extremely difficult to apply in practice.
  • The drafts of normative acts are often prepared by an extremely limited group of narrow specialists in only one field of law, which leads to a poor quality of regulation, since the impact of the new act on other branches of law is not taken into account.
  Deficits in the field of justice  
  • Insufficient independence of the judiciary, including the Supreme Judicial Council.
  • „Lack of justice“, or more precisely „refusal of justice“, which is mostly due to delayed justice. The long-standing practice of the European Court of Human Rights in Strasbourg equates the delayed judgment of the court with a final act of denial of justice. The fact is that excessively long proceedings are not a characteristic feature of criminal justice. In the field of civil justice, there are also quite a few cases where the decision (after the conclusion of court proceedings) takes years.
  • Access to justice has not yet been identified as the most important priority in the judicial system.
  • Lack of control over the Prosecutor General. This is the most discussed figure in the justice system, as the position is not subjected to real and effective means of control.
  • Possibility to „exclude“ certain acts from judicial supervision. The Constitution in its Art. 120 gives the possibility to exclude from judicial supervision certain categories of acts (individual, general and normative). The code that specifies the norm of the Basic Law is the Administrative Procedure Code (APC). According to Art. 128, para. 3 of it, „administrative acts that directly implement the foreign policy, defense and security of the country are not subject to judicial appeal, unless otherwise provided by law“. In this way, the assessment of when the foreign policy, defense or security of the country is carried out with one act is left entirely in the hands of the specific judicial panel that is referred to consider the dispute. In itself, this is a corrupt premise that should not exist in the legal world.
  • There is a lack of real countermeasures against corruption, especially at the highest levels of power.
  • Low legal culture and legal awareness among citizens.
  • Existing problems related to the independence of judges in the decision-making process have not been resolved.
  Measures to be taken to overcome the indicated deficits  

Measures in the field of legislation

 
  • To ensure compliance with the procedures detailed in the Law on Normative Acts, including:
– to ensure compliance with the legislative and operational program of …думата я няма… council; – to ensure compliance with the deadlines for public discussion.
  • Experts from different legal branches, also from other fields of knowledge relevant to the specific act, as well as from non-governmental organizations, should be included in the drafting of normative acts.
  • Changes in the normative acts should not be undertaken without a subsequent impact assessment that clearly shows the need for change and its direction.
  • Drafting and adopting a law on lobbying in the legislative process.
  • Not to allow the existence of material legal norms with reverse effect, as is the practice that exists at the moment.
  • To make a comprehensive review of the legislation in order to unify the terminology and eliminate the existing contradictions in the legislation.
 

Measures related to overcoming deficits in the field of justice

 
  • Through changes in the Judiciary Act, to ensure the independence of the Supreme Judicial Council.
  • Developing a mechanism for control over the activities of the Prosecutor General.
  • Ensuring effective and permanent control over the activities of individual magistrates, as well as to effectively use all legal mechanisms to improve the work of the court (attestations, inspectorate, etc.).
  • Defending the independence of judges.
  • Better, efficient, and timely synchronization of judicial practice.
  • Improvement of administrative service through a more complete and qualitative use of interactive means of communication (the Unified Portal for Electronic Justice – EPEJ, etc.).
  • Making the necessary changes in the field of anti-corruption legislation, including but not limited to the Anti-Corruption and Forfeiture of Illegally Acquired Assets Act.
  • Drafting and adopting changes to procedural laws to ensure that disputes are resolved within a „reasonable time frame“. This means that the court panels should rule quickly, but without this being at the expense of the quality of judicial acts.
  • Full coordination of magistrates in cases where they should provide opinions on the legal framework.
  • Timely clarification to the public of key legal issues related to interests implied in socio-economic life.
  • Making changes in which either there are no administrative acts excluded from the possibility of appeal before a court, or, if there are such acts, they are explicitly and exhaustively indicated.
  • Undertaking the necessary changes in the regulatory framework concerning the work of experts and experts in court proceedings, and these changes to guarantee, on the one hand, their rights, and on the other hand, the presentation of timely and objective conclusions.
  • Increasing the quality of work in the selection processes of magistrates during initial appointment and re-appointment; the leading qualities in decision-making should be high professionalism, integrity, the ability to resist pressure and influence, desire and opportunities to implement judicial reform.
  • Introducing requirements for permanent maintenance and improvement of the qualification of legal practitioners.
  • Taking measures to build legal awareness among individual citizens and increase their legal culture.
In summary, a conclusion can be drawn that at the present moment in the Bulgarian society, the dominant view is that Bulgaria is not a legal state where „everyone is equal before the law“. In order to overcome this, it is necessary to take a complex of measures, which in the long term will lead to: increasing the quality of legislation; providing fast and fair judicial process; eliminating corruption in both the judiciary, the executive, and the legislature; and building a civil society based on citizens’ legal awareness.