Judges in Bulgaria are sanctioned not when they commit a violation, but when they disobey, writes Ivanka Ivanova.
Ivanka Ivanova is the director of the judiciary programme of the Open Society Institute in Sofia. A longer version of her article can be found here.
“Until last fall Judge Miroslava Todorova served as the chairperson of the Bulgarian Judges Association. She has worked 15 years as a judge and 2 years as a trainer of junior judges at the National Institute of Justice. During her time at the Sofia City Court, only one of her many rulings was overturned by a court of higher instance.
In the last few years the Bulgarian Judges Association engaged in numerous acts that may appear as revolutionary. First, they protested against arbitrary appointments of court presidents; then, they complained against the lack of principles in the overall human resource policy of the Supreme Judicial Council and finally, they requested the collective resignation of the Council’s members.
The political establishment strongly resented this activity of the Bulgarian Judges Association and the chairperson of the association was subjected to several attacks. First, the Supreme Judicial Council cut Judge Todorova’s salary for alleged disciplinary misdemeanours. She appealed the decision in court. Next, the then Minister of Interior publicly accused her of connections to the mafia. She sued him for libel. Finally, on 12 July, the Supreme Judicial Council dismissed Judge Todorova on disciplinary grounds. The following day, some two hundred judges gathered in front of the Supreme Judicial Council in an unprecedented protest against her dismissal.
Judge Todorova appealed the decision for her dismissal before the Supreme Administrative Court. The first instance panel of three judges confirmed the decision, while on 16 May a five-judge panel of the same court heard the case at a second instance. The final decision is due in mid-June.
The outcome of this case will decide much more than a judge’s career. Once the Supreme Administrative Court announces its final decision, it will be obvious whether the rule of law and judicial independence are indeed a founding principle in the Bulgarian institutional design, or serve merely decorative purposes. As dramatic as it may sound, this statement is by no means exaggerated, because Judge Todorova’s case is not an isolated example; it is just the latest manifestation of an established trend of political interference in the governance of the judiciary in which Supreme Judicial Council decisions are used to subdue judges, instead of disciplining them. The case of Judge Todorova is indicative of the main challenges to the rule of law in Bulgaria.
Judge Todorova was removed from office for alleged violations with respect to eight court cases. In five out of them the Supreme Judicial Council claimed that Todorova had instructed a court clerk to file the cases as “completed” in the electronic case management system, while the cases had not actually been “completed” – the final acts had not been signed yet by all the judges who sat with her on the panels that had issued the rulings. With regard to these five cases no law was violated.
In three other cases Judge Todorova had issued the rulings, but delayed considerably the preparation of the written reasoning that should accompany them. The delays range between one and four years. Here there was clearly a violation of the law, as it requires that rulings and accompanying written reasoning be prepared by judges within a certain timeframe. However, it turned out that the then chairman of the Sofia City Court had been aware of the delays in two of the three cases since 2009. For three years he took no disciplinary measures against Todorova. The violations themselves were terminated in 2009 and 2011 when she submitted the written reasoning to the two rulings.
Hence, there is only one case that can potentially justify disciplinary proceedings against Todorova. But one violation can hardly constitute a “serious infringement or systematic neglect,” which under the provisions of the Constitution would justify the harshest disciplinary sanction. From this perspective the decision of the Supreme Judicial Council to remove Todorova from office is clearly disproportionate to the violation she committed. Moreover, it is obvious that her troubles began not at the time she committed the violations, but only after the Association of Judges, which she chaired, took a critical stance against the established status quo in the management of the judiciary.
The Supreme Judicial Council decided to dismiss Judge Todorova without even considering alternative sanctions. They did not take consideration of the quality of her excellent performance as a judge. They did not even consider her workload. For each of the years between 2009 and 2011 Todorova considered and managed to complete more cases than her colleagues. The difference is most striking in 2011 when the number of cases completed by Todorova (309) considerably exceeds the number of cases completed by her colleagues (181 on average) and is more than twice as much as the average number of cases completed by judges in district courts in the country.
Learning that the Supreme Judicial Council dismissed Todorova for delaying the submission of her written reasoning in one single court case, although her workload was considerably heavier than the country average, one may get the impression that the Council is very strict in enforcing its disciplinary function and no violation goes unpunished. However, this is not the case. Disciplinary proceedings seldom end with sanctions and even when they do, the mildest forms of disciplinary sanctions are usually imposed, in many cases only to be revoked by the Supreme Administrative Court.
Recently, for example, three of the most prominent Supreme Administrative Court judges were involved in a public scandal for trading influence in the judiciary. It was established that close relatives of these judges had acquired development rights on building lots along the Black Sea coast under a procedure reserved for indigent persons. Among them was the mother of one of the judges, in her early 80s at the time, and the daughter of another judge, in her early 20s, who built a five-story building on the lot and later sold several of its properties to her father. The sanction imposed on these three judges for “undermining the prestige of the Judiciary” was a 25% reduction of their salaries for a period of two years. During the disciplinary proceedings one of the then members of the Supreme Judicial Council said that “society has invested a lot in these judges and we cannot afford to lose them”. In mid-2012 even these negligible sanctions were revoked by the Supreme Administrative Court.
Under these circumstances it should come as no surprise that in 2010 an international study found that in the public perception the judiciary ranked first among the most corrupt branches of government.