Continued…
- The topic of the role of experts in a court proceeding is proverbial…
- Yes, you are right to raise an extremely important issue that has been neglected for decades - the qualifications, qualities and methodology and standards by which experts work. The Inspectorate to the Supreme Judicial Council, in its analyses and reports, as well as in Reports of the Commission on the Implementation of Measures for the Organization of Work on Cases of Particular Public Interest in the Judiciary, on the Factors Leading to the Delay of Cases and Proposals for Legislative Amendments and Organizational Measures to Overcome Them, Point to the Quality of the Prepared Expert Reports and the Qualifications of the Experts as the Main Problems.
The main problems are the following:
In some places in the country, there is an acute shortage of competent experts. In addition to being imprecisely prepared, the lists of experts are not updated in a timely manner. There is no differentiated approach to those experts who prepare their conclusions qualitatively and on time and others who unreasonably refuse to undertake expert reports, delay their conclusions or make unfounded objections during the expert report itself. The practice of chaotic issuance of sick leaves and medical referrals by different medical professionals is widespread. In this case, medical documents are issued that often concern the same illness of the same person, but are essentially contradictory. There is no mechanism for verifying medical conclusions regarding the current health condition of the defendant, as well as the legality of the issued medical documentation.
The lack of a clear methodology and standards for the work of experts in Bulgaria is a serious systemic problem, especially in sensitive cases such as medical examinations in cases of death and road accidents.
- What can be done to change this?
- First of all, it is necessary to introduce unified standards in order to avoid the tendency for experts to give completely different conclusions for the same case, but without a mechanism for objective verification. Without a methodology, courts find it difficult to demand correct and accurate expertise, and its absence often leads to postponement or termination of legal proceedings.
Secondly, control and compliance in the assignment of expertise and the possibility of “conflict of interest“. The lack of rules on who can be appointed as an expert opens the door to dependencies – e.g. experts with connections to hospitals or defendants. Last but not least. In the absence of mandatory requirements for qualification, experience or training, unprofessionalism is allowed, which can distort justice.
In this regard, it is necessary:
-- creation of a national standard for medical (and other) expertise – with methodology, time limits and a clear description of how the assessment is made
-- a register of experts with competence checks – as well as a system for removal in case of proven violations or dependencies
-- legislative reform – The Ministry of Justice and Health should regulate the activities of experts through a regulatory act or regulation
-- institutional control. The Executive Agency “Medical Supervision“ should be the body that monitors the quality and objectivity of medical activity.
To introduce the possibility of considering signals to the Ministry of Health in a short time - if there is a suspicion of a systemic problem or lack of supervision. You know, the truth often comes out difficult, especially when it is related to closed institutions, but constant media activity, vigilant civil society and legal stability can change this.
- Is this a judicial tactic at all? From expertise to expertise, from postponed hearing to a new one, to pass the time?
- The prosecutor's office is often compared to a “bat“ and is often pointed to as the tool with which an inconvenient opponent can be neutralized. As long as the accusations are loudly proclaimed, the arrest is also ostentatious. The prosecutor's office, in addition to handing out slaps, can, of course, and does, also hand out indulgences. The very fact that a pre-trial proceeding can sit on hold for a decade and be restarted at any moment is indicative. This situation gives rise to addictions and is an extremely strong lever for influence - both on people and on processes.
Archimedes said: "Give me a fulcrum and a lever and I will lift the Earth." If we accept this as a metaphor and in this case the Earth is a criminal or pre-trial proceeding,
The fulcrum is each dependent prosecutor, and the lever is the one who appointed him. He just has to activate him, press the “button“ and things work out.
The more the proceedings affect larger political or financial interests, the greater the lever must be. Whether the pressure is for faster proceedings or for slowing down an existing one is irrelevant - the pressure is still there. The staffing in our judicial system has been going on for decades, which has crystallized particularly clearly in the last few years. Dependencies in the judiciary give rise to a feeling of injustice, powerlessness and impunity. Unfortunately, there is no separation of powers in Bulgaria. As long as the political class influences the judiciary, justice is unenforceable. It is desirable, but not a fact. Everyone is a potential victim of this situation – guilty until proven guilty.
- To what extent is slow justice and the completion of cases within a reasonable time a problem for our entire society. Is there also a regulatory framework to combat it?
- The topic of “slow justice“ is one of the most comprehensive in terms of fundamental human rights. That is why there are numerous regulatory acts that address it. Through them, the judiciary in a broad sense (investigative bodies, prosecutors, judges) is assigned an obligation to resolve cases brought before them within “reasonable time“. In the event of failure to fulfill this obligation, the state owes appropriate compensation for slow justice.
On the other hand, the judicial system in Bulgaria is often the subject of attacks for violating the obligation to consider cases within a reasonable time. The obligation to consider and resolve cases within a reasonable time is regulated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Civil Procedure Code, the Criminal – Procedure Code and the Administrative Procedure Code.
In turn, the procedure for obtaining compensation for slow justice is regulated in the Judiciary Act and in the Law on the Liability of the State and Municipalities for Damages. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) applies with priority over any Bulgarian law.
Therefore, in the event of a contradiction between the ECHR and a normative act of domestic law, the Convention applies.
Thus, as is evident from the two provisions, the right to consider and resolve a case within a reasonable time has three aspects. First, civil law – prohibition of slow justice in resolving disputes related to civil rights and obligations. Second, criminal law – prohibition of slow justice in the consideration of cases for committed crimes. Third, administrative law – prohibition of slow justice in the infringement of the rights and obligations of citizens by administrative bodies. That is why these three procedural Bulgarian laws also regulate the obligation to consider and resolve cases within a reasonable time.
The topic of “slow justice“ is most dangerous precisely in the consideration and resolution of cases related to committed crimes.
This is so, because the criminal process affects three categories of rights and interests – those of society, the victim and the criminal perpetrator.
According to Art. 22 of the Criminal – Procedural Code:(1) The court shall consider and resolve cases within a reasonable time. (2) The prosecutor and the investigative bodies are obliged to ensure the conduct of pre-trial proceedings within the time limits provided for in this Code. The obligation to resolve the case within a reasonable time also has an impact on the victim/his relatives. Their interest lies in the need for a quick and adequate resolution of the case from the point of view of compensation for the damage caused by the crime and the moral satisfaction of finding and punishing the perpetrator. In addition, the more time passes from the moment the crime was committed, the more the chance of detecting and punishing its perpetrator, as well as of compensating the victim, decreases.
The criminal process also protects the public interest as a whole. And it, in turn, requires the timely detection and punishment of the perpetrator in order to implement general prevention. This is the deterrent effect of the punishment imposed on one member of society in relation to all. The presence of slow justice in this sense weakens the functions of punishment in relation to general prevention.
As you can see, numerous normative acts impose the obligation to consider and resolve cases within a reasonable time, but there is no legal definition of this concept anywhere. This fact, however, is not due to a void in the law, nor to a lack of desire on the part of the legislator to regulate such a definition. It is due to the fact that it is not possible to determine a single “reasonable time“ for all types of cases. That is why which time is “reasonable“ is determined for each specific case.
The lack of a legal definition of the concept does not mean the absence of criteria for deriving its parameters. On the contrary, such criteria are provided by the practice of the European Court of Human Rights (ECHR). In one of its landmark cases against Bulgaria, the ECHR ruled that:
When assessing the reasonableness of the relevant period, the court applies three criteria: the factual and legal complexity of the case, the conduct of the competent authorities and the conduct of the right holder himself
According to the ECHR, the requirement for a reasonable time for the case is violated only by delays for which the state authorities are responsible. The guarantee of a “reasonable time“ under Art. 6, par. 1 aims to guarantee public confidence in the administration of justice. The other purpose of the guarantee is to protect all parties to the legal proceedings from excessive procedural delays.
- What is the state's responsibility for slow justice and how can it be implemented?
- It is precisely these criteria that I indicated in the previous question that are set out in the Law on the Liability of the State and Municipalities for Damages – Art. 2b, para. 2. According to the aforementioned provision, when assessing the existence of an unjustified delay in the consideration and resolution of the case, the court takes into account the total duration and subject matter of the proceedings, its factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the process and the competent authorities, as well as other facts that are important for the proper resolution of the dispute.
Bulgarian legislation provides for two options for claiming compensation for slow justice.
The first is administrative – submitting an application through the Inspectorate of the Supreme Judicial Council to the Minister of Justice. The second is civil law and is carried out in accordance with the Law on the Liability of the State and Municipalities for Damages.
Compensation for slow justice under administrative law is enshrined in the Law on the Judiciary, namely Art. 60a et seq. Those entitled to submit such an application are: parties to concluded civil, administrative and criminal proceedings; defendants, victims or injured legal entities in terminated pre-trial proceedings. The application is submitted through the Inspectorate of the Supreme Judicial Council to the Minister of Justice. Samples of the application and accompanying documents are published on the website of the Inspectorate of the Supreme Judicial Council.
Compensation for damages resulting from slow justice in court is carried out in accordance with the provisions of the Law on the Liability of the State and Municipalities for Damages (ZODOV) and the Civil Procedure Code.
When seeking the liability of the state according to the procedure regulated in the cited laws, there is no maximum value of the compensation that can be claimed. The value of the claimed damages, however, must be proven.
And last but not least, cases against the state before the ECHR. In this regard, the Republic of Bulgaria has paid tens of millions for delayed, suspended or terminated proceedings.
- What measures should be taken to combat slow justice and does the state really not see this as a problem?
- The fight against slow justice in Bulgaria is a long-term and multi-layered process that requires action from both institutions and civil society. Here are a few key steps that, in my opinion, would improve the work of the institutions:
First of all, reforms are needed in the judicial system to shorten unnecessary procedural deadlines.
The legislation can be revised to avoid endless postponements and appeals of proceedings. Clear deadlines for considering cases must be introduced. It is necessary to create a mechanism for controlling delays by judges and prosecutors. Evaluation and accountability of judges and their acts. Introduction of real mechanisms for assessing the workload and efficiency of magistrates. E-justice. Not a little has been done in this direction, but the introduction of a fully digitalized system for filing and examining cases will shorten the terms of proceedings and lead to greater efficiency in the process. It is important to note that increasing the capacity of the system does not involve staffing in the judiciary, but through clear and transparent competitions. Appointment of more judges where necessary. Control over the appointments of judicial assistants, but with clear rules and norms.
Continuing training and specialization in order to work more effectively on complex or specific cases.
Last but not least, I would like to note that pressure from civil society and the media is also necessary. Because citizens are the best corrective to the authorities and they themselves are the ones who instruct the authorities to protect their interests. There needs to be monitoring and public reporting of cases of unjustified delay and the creation of civil platforms for monitoring trials of high public interest.
And here it is important to note that all of the above will only be of a wishful nature if we do not have a clear political will and commitment from the government. Reducing political influence on the judiciary and the independence of judges and the prosecutor's office will ensure transparency, fairness and legality of acts in the judicial system.
- And if we have to summarize the topic of slow justice…
- The right to power or the power of law? This is a question to which each person can give a different answer. For some, the power of law is unlimited and immeasurable. In this regard, Blaise Pascal said: “Unable to give force to law, people have given right to force”. Law, in my opinion, has always been on the side of the stronger, although it arose so that they would not have privileges and everyone would be equal, if not in everyday life, then at least in law. In this regard, in a country where law and justice are deficient, lawlessness is the norm!