Supreme Magistrates in Bulgaria

The interviews are part of the information and educational campaign “Court of Law and We” launched by the Journalists against Corruption Club and with the support of “Strengthening the Judiciary” project of the Agency for Public Internal Financial Control

An interview with Mr. Konstantin Penchev, Chairman of the Supreme Administrative Court

Mr. Penchev, could you tell us about the role the Supreme Administrative Court plays within Bulgaria’s judicial system?
The role of the Supreme Administrative Court is defined by the Constitution. It unifies the practices and functions as an instance of cassation in cases of administrative disputes – between citizens or organizations and the administration in all its forms – state and municipality authorities and regulatory commissions, such as the Council for Electronic Media. The role of the Supreme Administrative Court and the entire structure of the administrative jurisdiction will be becoming increasingly important as our society is apt to establish regulatory regimes, which must be under constant court control to make sure that the acts of the administration are legal. But this is still to happen. Every new sphere of production in Europe, every field of economy is regulated by the respective authorities, whose acts affect to a certain extent the interests and rights of the citizens and the organizations. The authorities in question are controlled by the court. So far, according to the Bulgarian Constitution, the Supreme Administrative Court has functioned as an instance of cassation with respect to the existing regional courts of justice, i.e. it has no structure of its own. Now, at the point when Bulgaria is adopting its first Administrative Procedure Code, plans are being made to establish specialized administrative courts, corresponding to the regional courts, i.e. wherever there is a regional court, there will also be a regional administrative court, functioning as a first instance. This will pave the way for better specialization, establishment of a system of administrative jurisdiction, and will doubtlessly improve the work of the court and the entire system, which will in the end serve the interests of the citizens, for the people and the organizations often face administrative obstacles and problems. For instance, very few of the citizens become ‘clients’ of the criminal jurisdiction, while many are involved in civil or trade lawsuits. However, everyone eventually faces the administration and, respectively, feels the need to claim their rights in the courtroom, therefore the importance of the administrative justice system will be growing. That is why I think that we need to give the people an accessible justice system of high quality, so that citizens are able to demand their rights and get justice quickly and inexpensively.

Actually, this is a big step toward the reform of our administrative jurisdiction. Have the political forces in Bulgaria reached an agreement on the need for rapid adoption of the Administrative Procedure Code?
Indeed, this is a rather fresh piece of news. The Administrative Procedure Code draft, which was tabled by the government, caused heated arguments, as it made provisions for the establishment of nine to twelve regional courts of justice, but not for their distribution. This triggered the main argument within the Legal Affairs Committee in Parliament at the first reading of the draft bill. Many Members of Parliament cited the basic principle of access to justice, saying that if there were to be ten to twelve such regional courts of justice in Bulgaria, this would be a problem for the citizens who would need to travel to one of the major towns in order to claim their rights before a first instance. Some came up with the idea of not establishing regional courts and leaving the Supreme Administrative Court the way it is – like a “bodiless head” using the structures of the common courts of justice. However, we have learnt from experience that this is not an option because when administrative jurisdiction is exercised under a common denominator with the other branches of law – criminal, civil and merchant – there is a tendency to disregard it: it is mainly the least experienced magistrates who practice in the departments of administrative justice where judges preside only temporarily. In other words – the quality of jurisdiction is poor. Also, the standards and laws providing for administrative control grow incessantly in number and scope, which means that administrative judges must constantly update their knowledge and abide by ever changing standards. Thus arose the need for a narrower specialization to allow magistrates to deal with administrative law only. It was very important to me to establish a single structure of administrative courts of justice, and that was provided in the Administrative Procedure Code in question. Fortunately, the Members of Parliament on the Legal Affairs Committee realized that this was the very essence of the administrative jurisdiction reform and made a wise decision – that the structure of administrative courts of justice must match the one of the regional courts. There will be 29 regional administrative courts of justice which, on the one hand, meets the requirements for accessibility and, on the other, will lead to a better quality of jurisdiction. Within one or two years’ time, Bulgaria’s administrative jurisdiction will be an example for the other European countries to follow. We will get the unique chance to teach the rest of Europe.

Could you summarize the achievements of the Supreme Administrative Court over the last year, as well as the most common complaints of the Bulgarians? In what cases do they think that the State and its administrative bodies violate their rights most often?
Last year we made a peculiar record – we heard 12,366 trials, while over the last ten years, their number never topped 12,000. This means that every judge in the Supreme Administrative Court has decided about 200 cases during that year – a number which may be normal for a regional court of justice, but not for a Supreme Court. This is way too much, and I am not proud of it, for when Supreme Judges decide 200 cases a year each, they do not have the time to summarize their practice and prepare interpretative documents. There were 12,493 cases closed, which is more than the cases brought in. This indicates that the court does not put any cases “on the shelf”. You asked me what Bulgarians complain of most often. First, and it is only natural, it is the tax-related cases. Another major category of cases, heard by the Supreme Administrative Court are the ones, related to the Law on the structure of territory and the respective regulations and judgments on building and construction – problems we face in our everyday life. The good news is that Bulgarians exercise more and more often their rights as provisioned in the new laws, like the Personal Data Protection Act and the Access to Public Information Act which our consciousness refused to accept for a long time. We had adopted these acts as required by Europe, but our minds, including the magistrates’, refused to abide by them. For many years we were taught that the administration must have free access to any information, and if we were given a piece of it, we should be grateful. However, this turned out to be wrong. Every citizen has the right of free access to any information unless it is classified. Recently the complaints of citizens and NGOs against the administration’s refusal to provide information have been growing in number. This is a good tendency because it mobilizes and trains the State authorities. At first the administration defended itself rather ardently before the court, but state employees have grown progressively accustomed to the idea that information must be accessible to all. I do not see why the protocols or resolutions of the administration must be classified, given that everyone can read the decisions of the Supreme Administrative Court on the Internet.

The number of complaints against acts of ministers and the Cabinet is also growing, which means that citizens have also gotten used to the idea that it is possible for the court to cancel certain provisions in subdelegated legislation or entire government decrees if they are unstatutable. The administration itself profits from this, because it has the chance to learn from jurisprudence. The process is beneficial to the entire society.

Europe criticizes Bulgaria mainly for the lengthiness of proceedings and the non-transparence of the justice system. The Supreme Administrative Court has a system of maintaining transparency, which is a characteristic of major importance.
It is true that Europe criticizes us for not being transparent and efficient enough. I do not think that in most European countries cases are heard any faster than it is done in Bulgaria. At this stage, we are playing the role of the examinees, while they are the examiners, and we must obviously heed their advice. They will be leveling approaches, and we will be trying to meet their requirements. These are two indices which worry above all the Bulgarian society and make the reform indispensable. We, the citizens of Bulgaria, cannot continue to live like this. I am a judge, but this does not close my eyes for the problems within the justice system, which torment the people. We must establish a functioning system of jurisdiction. There still may be some complicated civil cases, which will last for years, but the court must decide all administrative cases duly or, better still, not decide them at all. The slowness of justice in Bulgaria makes people not resort to it at all. Everyday administrative work must be quick. People want their problems to be dealt with today or in five days’ time, instead of waiting three years for the court to come up with a decision. I find this criticism constructive and we are focusing our efforts on making life more bearable for the Bulgarian citizens, and work – more enjoyable and satisfying for us, the judges.

Transparency-wise, our system of keeping records is something unique. The web site of the Supreme Administrative Court offers free access to the electronic versions of the cases, brought in before the court. We scan all complaints, first-instance court decisions and the most important documents in each case. The system allows people to see the list of subpoenaed at a scheduled sitting of the court, as well as the summons sent. Every Internet user can read the minutes of the sittings and the decisions of court. This is very convenient for the citizens, the lawyers, the media and the administrative authorities.

How is the existence of an administrative court important for the development of the democratic processes in Bulgaria?
It is important not only for the development of the democratic processes in this country. Obviously, we (not only the people of Bulgaria, but society as a whole) are on our way to bureaucracy, paradoxical as it may sound. Naturally, the State must not intervene in economy, and free initiative must be encouraged. But the people in the most developed countries say that even if free economy is a fact, there must not be any monopolies and trusts, as they undermine the economy itself, i.e. there must be rules for protection of competition – the regulatory authorities, and namely the court before which the respective acts have been appealed against, must stick to these rules.