Wikileaks: Българската съдебна система - най-слабото звено на зле работещото правоохраняване

06/16/11 11:27
(http://www.bivol.bg)

Wikileaks: Българската съдебна система - най-слабото звено на зле работещото правоохраняване

temida

На 26 юни 2009 г. американският посланик в София Нанси Макълдауни изпраща във Вашингтон грама озаглавена "Как да ги накараме да се реформират, като не искат". Така е резюмирал ситуацията с българската съдебна система представител на Европейската комисия, който споделил, че Комисията е направила всичко възможно, за да накара българите да направят реформи.

Две години по-късно нежеланието за реформи в съдебната система е олицетворено от упорития отказ на Висшия съдебен съвет да разследва скандалното назначение на съдия Владимира Янева за шеф на СГС.

През март 2009 г. посланик Макълдауни е изложила причините за трагичното състояние на българското правосъдие в подробен аналитичен доклад. Публикуваме го извънредно като принос към инициативата на група граждани, организирани във Facebook, които се събират днес, 16.06.2009 в 20 ч. пред Съдебната палата в София, за да оставят по една свещ и да кажат "Бог да прости българското правосъдие".

Събитието е в подкрепа на всички честни съдии, прокурори, които работят в българската правосъдна система.

date: 3/30/2009 7:28

refid: 09SOFIA133

origin: Embassy Sofia

classification: CONFIDENTIAL

destination:

header:

VZCZCXRO3323

PP RUEHDBU RUEHFL RUEHKW RUEHLA RUEHNP RUEHROV RUEHSR

DE RUEHSF #0133/01 0890728

ZNY CCCCC ZZH

P 300728Z MAR 09

FM AMEMBASSY SOFIA

TO RUEHC/SECSTATE WASHDC PRIORITY 5866

INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY

RUEAHLC/HOMELAND SECURITY CENTER WASHINGTON DC PRIORITY

RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY

RHMCSUU/FBI WASHINGTON DC PRIORITY 0246

C O N F I D E N T I A L SECTION 01 OF 02 SOFIA 000133

SENSITIVE

SIPDIS

EUR/NCE FOR YEAGER

INL FOR CARROLL AND POMEROY

DEPARTMENT PASS TO USAID

DOJ FOR OPDAT, ICITAP, CEOS,AND CRD

E.O. 12958: DECL: 03/27/2020

TAGS: PHUM, KCRM, KWMN, SMIG, KFRD, ASEC, PREF, ELAB, BU

SUBJECT: BULGARIA'S JUDICIARY: WEAKEST LINK IN A POORLY

PERFORMING LEGAL SYSTEM

Classified By: Ambassador Nancy McEldowney for reasons 1.4 (b) and (d).

1. (C) Summary. On paper, Bulgaria's judiciary system

meets most international and EU standards. But in practice,

it is in shambles. Polls show that within the EU, Bulgarians

have the least confidence in public institutions, with the

judicial system at the bottom of the heap. The police and

investigative service have 14 percent approval, prosecutors

13 percent, and, shockingly, judges 12 percent. Key reasons

for distrust: excessively long trials with unpredictable

outcomes, even with the best evidence at hand; and known

criminals flaunting their impunity. A running joke is that

OC figures do not even need a good defense attorney; bribing

(or intimidating) a judge is cheaper. Bulgarians and

international partners continue to demand tangible results,

especially a groundbreaking conviction of an organized crime

figure or corrupt political figures and senior public

officials. But expectations are low. Many critics believe

the judicial system will not change without a purge of the

old guard, which remains beholden to the gray economy and

political interests. End Summary.

Long Road of Reform, with Limited Impact On Delivering Justice

--------------------------------------------- -----------------

2. (C) On paper, the judicial system meets many

international and EU norms. Following communism's collapse,

Bulgaria painfully revamped its judicial and legal systems,

but many old features remained intact. Many reforms

streamlined internal management and other mechanical,

procedural, or training issues. In the five years preceding

EU accession, the Bulgarian government rushed many more

changes, adopting constitutional and legislative amendments

to ensure the independence of the judiciary and improve its

functioning, but some changes were not well thought out.

Among the more notable changes: defining the role of the

Supreme Judicial Council (SJC) and establishing an

inspectorate within the SJC to investigate misconduct

allegations and recommend disciplinary actions. The

government made modest improvements to the Criminal Procedure

Code and adopted a new Civil Procedure Code to reduce

opportunities for continuances in civil cases.

3. (SBU) Over the past decade, the government also took key

personnel steps: increasing salaries to an average of around

1,200 leva (more than twice the 2008 average salary of 524

leva and sufficient to attract qualified personnel);

establishing competitive hiring and promotions; and limiting

immunity for magistrates. With support from USAID, the

government developed the National Institute of Justice to

train magistrates (judges, prosecutors, and investigators)

and thirty-two model courts adopted improved court

procedures. The courts also implemented random case

assignment, which reduced the opportunities for manipulation

of the system. Major undertakings also included the

introduction of: separate administrative courts to address

appeals of government decisions, a separate business registry

system outside the courts, and private bailiffs to improve

enforcement of court decisions. Along the way, the

Bulgarians received over $7.5 million in EU pre-accession

funds (PHARE), with the biggest donors being Austria, the

United Kingdom, and Spain, for code reform and judges,

training. The United States provided approximately $22

million to the judiciary to support reforms.

Key Challenges

--------------

4. (C) The most basic problem in the judiciary system is the

hardest to tackle: lack of political will to make tough

decisions. Police, prosecutors and judges routinely play a

finger-pointing, blame-laying game. Ordinary Bulgarians see

judges as the biggest stumbling block to convictions in high

profile cases. Beyond political will is structure and

process. The judicial system is highly formalistic; it has

confusing and at times contradictory precepts and procedures.

Courts are often idiosyncratic and ego-driven. Management

of each court is largely based on the personality and

leadership style of the court chair, appointed by the Supreme

Judicial Council (SJC) for five years. In a court system

governed by seniority, younger and more reform-minded court

chairs are hard to find. It is extremely difficult to purge

the system of the old guard, who after five years of service

SOFIA 00000133 002 OF 002

as judges are tenured and cannot be removed until they

resign, retire at the age of 65, or are dismissed for

criminal activity, inability to perform their duties, or

conduct damaging the prestige of the judiciary.

5. (SBU) From 2000 to 2008, the number of judges increased

15 percent, reaching levels comparable to other newer EU

members, but often judges had inadequate training, seasoning,

or background. Appointments sometimes depended more on

personal and political connections rather than professional

qualifications. Despite the increase in judges, case

completion rates stayed static, exacerbated by the shortage

of courtrooms and the uneven distribution of cases. During

that time, investments in the judicial sector increased from

0.2 percent in 2001 to 0.8 percent. The court system now

consists of 2,370 judges in 182 courts, including regional

courts, district courts, appellate courts, the Supreme Court

of Cassation and the Supreme Administrative Court. In the

biggest court in the country, Sofia Regional court, 100

judges are housed in a building once planned for a prison,

far exceeding its capacity. In 2008, a civil judge in that

court reviewed on average 700 civil cases and a criminal

judge reviewed 430 cases.

6. (C) An overly formalistic Criminal Procedure Code means

any defendant with a reasonably competent defense attorney

can avoid sentencing. All too often, judges accede to

defense requests to delay hearings. The case of the

notorious OC figures the Margini brothers, arrested in

October 2005 on the eve of EU accession for contract killings

and money laundering, is an example. With 18 continuances,

mostly for purported illnesses, the Margini brothers continue

to enjoy their lives while on bail. Throughout the system,

the most common excuses for continuances are: unavailability

of the defense attorney, irregularities in the summoning, and

multiple requests for expert opinions. A new cottage

industry has sprung up: closely watching court proceedings

and counting the continuances in the document fraud and EU

agricultural funds abuse case against Mario Nikolov, whose

company is rumored to have bankrolled the Bulgarian Socialist

party.

7. (C) Problems are also prevalent in lower profile fields.

Bulgarian administrative judges have sway over key public

sector and public integrity decisions important to business

-- they rule on appeals of public procurements,

government-awarded contracts for mining, use of dams, beaches

and other natural goods. Some judges are on personal terms

with key gray economy figures, who have increasingly moved

into legitimate businesses. Ample anecdotal evidence

substantiates cases of flagrant abuses and conflicts of

interests: participating in known illegal schemes; deciding

on cases involving their family members; and deciding cases

involving their business associates. Privately, judges

routinely acknowledge that some of their colleagues accept

bribes, but in a culture where colleagues are hesitant to

punish colleagues, they refuse to name names.

8. (C) The SJC, which has the power to appoint, discipline

and dismiss judges, has been slow to establish discipline in

the system. Many question the SJC's structure and argue that

political appointments within the SJC allow for political

interference. After a highly politicized process to select

members of the SJC and some initial false starts, the SJC

reviewed 102 requests for disciplinary sanctions in 2008,

including 16 initiated by the Inspectorate. Between 2008 and

early 2009, the SJC dismissed four judges, two for drunk

driving, including a vehicular death; one on charges of

conspiracy to defraud the state revenue; and one for abuse of

position. Given the scale of observable problems, this

amounted to a rather thin record of oversight and

accountability. This year the SJC faces another critical

challenge as the mandates of 162 magistrates in management

positions throughout the system (108 judges, 32 prosecutors,

and 22 investigators) expire between April and December 2009

and the SJC appoints their replacements.

10. (C) Comment. With national elections on the horizon,

the prospect for immediate legislative action to correct and

reform the judicial system is dim. Realistically,

substantive change will be the province of a new government.

End Comment.

McEldowney

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