Supreme Magistrates of Bulgaria

The interviews were made within the information-educational campaign The Court and We of the Club Journalists Against Corruption with the support of the Strengthening of the Judiciary Project of the Agency for State Internal Control

Rumen Nenkov, Vice President of the Supreme Court of Cassation, head of Penal College

Mr. Nenkov, could you tell us about the penal college with the Supreme Court of Cassation?
The penal college with the Supreme Court of Cassation consists of 25 judges, divided into three sections. Grouped into panels of three, they hear as the last instance the most complicated criminal cases, brought in before the Supreme Court. They also decide cases of renewal of already imposed sentences at the request of the Prosecutor General and, since recently, at the request of the parties concerned. According to the Constitution, the most important function of the penal college is to make sure that the laws in the sphere of criminal jurisdiction are enforced equally and accurately. In this line, the penal college makes interpretative decisions on controversial practices, which then become obligatory for all courts of justice and the executive authorities. Such are the functions and goals of the penal college in a nutshell. Every judge must prepare the reasons of 12 to 15 judgments a month and take part in the hearing of 45 cases. This is a great work-load, compared to those of the Supreme Courts of the EU member states and the rest of Europe.

How many cases did the penal college hear last year?
About 3,500.

What is the deadline for setting a trial down?
Cases are usually down for hearing on the 7th or 8th month after they are brought before court. At first, when I took over the college, it was two months, but we have seen a rise in the number of incoming cases since then, and the problem of work overload at our courts of justice cannot be solved simply by appointing more judges. The legal systems of other countries have alternative ways of closing cases and differentiated procedures while the less complicated cases are not even brought to a court of cassation. Conversely, our legislators have left too wide a margin for the Supreme Court of Cassation, and that is why cases are now set down for hearing on the seventh or eighth month, chronologically and without giving priority to any of them. Only I, being head of the penal college, and only under extraordinary circumstances, can order the earlier setting down of a case if this serves the interests of society. The distribution of cases is done by a computer at random, in compliance with the European requirement for independence of the court. Each case is respectively entrusted to the first, second or third section of the penal college. The chairs of each section give the cases in their order of arrival to the speakers, which is in accordance with an organizational order, issued by me. Thus, we try to apply the principle of randomness, lest suspicions arise that cases are being given to particular judges and that court is sometimes partial.

The main criticism from the EU about our justice system is that it works too slow and has way too much loopholes, which allow for proceedings to be stayed, as for example patients’ charts, the difficulty of summoning people to court, and the changing of lawyers just before the trial. What is the way out of this situation?
I think that the legislature, the executive and the judiciary must join their efforts, because the administering of cases and the staying of proceedings are not solely a problem of the courts of justice. There are also legislative issues, and the problem cannot be solved through the intensive setting down of cases alone. The staying of proceedings is a very serious topic. The Union of Judges has put forward a plan to restrict the acceptable causes for staying of proceedings through validating medical vouchers. Restrictions should be imposed, so that those who issue such vouchers know that they will be criminally responsible for any false information. The State prosecution ought to do its job and sentence two or three medics, who have certified false information. Naturally, the executive authorities, through the court police, also help the judiciary secure and summon witnesses and experts, and it is the duty of every judge to administer the cases. This is the European standard.

Being its president, how do you evaluate the work of the Corruption Control Commission with the Supreme Judicial Council?
It would be too naive of us to think that the Corruption Control Commission with the Supreme Judicial Council will solve the problem of corruption in the judiciary. Neither does the Commission expose crimes, nor investigate into them or punish the perpetrators. These are functions of other authorities. The Commission can devise programs and strategies so that the prerequisites for corruption are prevented. Gaining experience from various cases, we can see where “the ice is so thin it could crack.” At the end of the day, the recipes for fighting corruption are no different from any other system of government. Wherever there is power, there is also the risk of corruption. The solution is in the transparency, the public and social control and the predictability of decisions.

How many signals did the Commission receive last year?
The signal are many, but only a small part concern corruption. The people are not satisfied with the way their cases have been decided which makes them question the honesty of the magistrates, the prosecutors, the lawyers and the judges.

Obviously, the public does not trust Bulgaria’s justice system anymore. They see it as something slow and unreliable, and they think that even if they lodge a complaint, no one would pay attention to it. How can their frame of mind be changed?
The people must realize that their cases are decided neither by the Supreme Judicial Council, nor by the anti-corruption Commission with it. If we want to be a constitutional state, we must be certain that cases are only decided by the court alone, without intervention of any other authorities. But whenever there are reasons to believe that a judge, a prosecutor or an inquirer receive benefits in exchange for their dishonesty, people must tip off the anti-corruption commission with the Supreme Judicial Council.

The credibility of our judiciary is a subject of another conversation. I think that there was a mistake at the constitutional level, which consists of giving the false impression that our judiciary includes not only the court, which settles disputes, but also the authorities which expose crimes and press charges – a function, typical of the executive power. I am sorry that the court was not constitutionally separated from the prosecution and the investigation, but we must respect the Bulgarian Constitution anyway. It is true that the judges are sometimes blamed for the mistakes of other magistrates, and vice versa, but this does not happen very often even in developed democracies. Usually there is always a losing party. In most civil cases, claims are not granted and it is often that no one is satisfied. In criminal cases, victims always think that the penalty imposed is not adequate to the gravity of the crime, while defendants think their sentence too harsh. Compared to other justice systems, we have a very small number of exculpatory sentences, which good for the prosecution, but not for the court. Unfortunately, upon hearing a case, we often find out that the pretrial work has not been done properly: evidence is not always duly collected, and there are frequent instances of professional incompetence.

The American Agency for International Development launched a project for strengthening our judiciary. How can Bulgaria’s judiciary be strengthened in fact?
A: This is a very difficult question. It is very important what people will be entering the justice system, and our legislators have been giving contradictory signals with this respect over the recent years. In the beginning they came up with the requirement that everyone who wants to be part of the judiciary must enter a competition, but then the legislators made a concession – some were admitted through the main entrance: they applied for junior judges, passing difficult written and oral examinations, and specializing for six months at the National Magistrates Institute, while others managed to get in only because they had two years of working experience as legal experts or lawyers. Obviously, we must not go on like this. Also, there must be strict criteria for the attestation of magistrates – when they are promoted or downgraded, and when their remuneration is being assessed. These are duties of the Supreme Judicial Council which we have not done. It is not easy to assess sophisticated mental work, but there is also a combination of quality and quantity criteria when dealing with cases – every case is unique, and we cannot use the number of cases, amended and canceled acts as a sole criterion. The attestation of magistrates and the assessment of their work are very important. When our staff consists of experienced professionals, even if the law is not perfect, the situation is not that bad. A perfect law, enforced by incompetent people would not do the job. What really counts in the field of justice are the people working in it.