COURTS AND MISDEMEANOURS

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Will Special Criminal Court be more trouble than worth? 



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We catch them, but they let them go. In plain language this translates as "We did our best but someone else is responsible for the failure," and of course it belongs to Boyko Borisov, the current prime minister, at the time when he was a senior policeman in the government of the Simeon II National Movement. 10 years later it is still very much in currency. It pops up every time the police spectacularly "catch" an alleged criminal but fail to provide enough evidence to stand up in court.

One might think that improving the standard of police work would help, specifically after the significant number of botched investigations in the previous years.

The government, however, takes a different line. They say the judiciary are to blame. This belief became more pronounced than ever at the beginning of 2012, when Interior Minister Tsvetan Tsvetanov publicly accused a prominent judge of having connections to the mafia. His charges coincided with the unveiling of GERB's own grand project, the institution that, according to the government, will put an end to all high profile crime. This is the Special Criminal Court, or SCC, which was established to fight corruption and organised crime by thwarting the they-let-them-go option. It has no counterpart in the EU but the government claims full international support for it. According to documents revealed by Wikileaks, in July 2009 Tsvetanov shared the idea for the special court with the then American Ambassador Nancy McEldowney, and received sympathy for it.

The need for the SCC, however, is still disputed. "Judicial specialisation can be beneficial in increasing effectiveness, particularly in areas of specific legal or procedural complexity or where high levels of non-legal expertise, like accounting, is required," Hristo Ivanov, from the Bulgarian Institute for Legal Initiatives, says. "The downside is that such courts can become opaque islets controlled by tightly-knit professional cliques. When it comes to criminal law, these courts tend to cultivate a bias in favour of the prosecution. It is no coincidence that specialised tribunals are often used by repressive regimes and in exceptional political situations."

The legislation governing the SCC was implemented in January 2011. The new institution is divided into prosecutor's offices for penal and financial crimes, and first and second instance courts. The SCC is Sofia-based and has the status of a regional court in the ranking system of the Bulgarian judiciary.

Even professionals are puzzled about how the SCC will work. "It was created without a clear definition of what judicial or social problems it is meant to resolve. Its broad jurisdiction is far from having a well defined focus," Ivanov says. He is positive that the problems in the Bulgarian criminal law system begin long before a case is brought before a judge. "Most of the delays and failures in evidence collection are incurred by the police or prosecution offices and later surface in the courtroom to abort the outcome. Badly trained, equipped and motivated police officers and prosecutors often lack the ability or the will to investigate complex and serious crime. Even where such cases come up without the initiative of the police and the prosecution, the successful collection of evidence and the effective litigation is all too often beyond their capacity. This certainly calls for specialisation and investment in the prosecution and police offices, but it is difficult to see how the creation of a specialised court would help in that respect."


The court started work in the first days of 2012, when about 80 cases were referred to the specialised prosecutors and judges. The first of them, against aп "organised criminal group," ended in an extrajudicial agreement. The number of cases estimated to come before the court this year is about 350.

The SCC is located in part of a building on Cherkovna Street that until recently belonged to DANS, or the National Security State Agency. DANS was created in 2007 by the government of Sergey Stanishev to be an all powerful and super independent police-cum-investigation-cum-intelligence entity that entirely failed in its task to halt corruption and organised crime. The GERB government curtailed its authority and moved DANS to the premises of GDBOP, or the Directorate General for the Fight Against Organised Crime. GDBOP, a part of the Interior Ministry, has also moved. It is now in the newly renovated offices of the DKSI, or the State Commission for Security of Information. The staff of the DKSI went to the Cherkovna building, which they share with the SCC. So far, about 6.4 million leva have been spent on the new institution. The salaries of the 134 employees – 81 of them administrative personnel – amount to about 2 million leva. About 2.5 million have been poured into the creation of holding cells and five court rooms.

"In Bulgaria there are large courts which are overwhelmed with work, resulting in delays and making it impossible for judges and prosecutors to work properly on complex cases," Ivanov says. "While no one has provided a reliable estimate of the costs and the expected benefits of the SCC, it is certain that this court is an expensive experiment. It seems to lack an economic basis. If the same money was put into the long overdue provision of adequate buildings for the Sofia courts and prosecution offices, or even more so into the police, it would undoubtedly be a much more effective investment. And when it comes to judicial specialisation, these resources would have been much better spent on the creation of labour and juvenile courts. There is a long standing consensus on their need."

For the time being, the judicial system is critical of the SCC. The court received bad publicity months before its official opening, and one of the main problems was the staff. The selection and election of prosecutors and judges led to several minor scandals. In July 2011, for example, the only candidate for the position of the head of the Special Court of Appeal, Rosen Rusev, was forced to withdraw as allegations about his misuse of power emerged. 


Despite handsome salaries, interest in the positions in the SCC was not enormous. Many of the candidates were underqualified and the reputation of some was dubious. For example, in 2010 Judge Stoyan Tonev became infamous for sentencing a defendant for armed robbery, when there was no motive and an alibi confirmed by several witnesses. The judge rejected evidence pointing to the innocence of the accused and gave his verdict based solely on the account of the victim. The second instance court, however, dropped the charges. The defendant is now suing Bulgaria at the European Court for Human Rights in Strasbourg, and in January 2012 Judge Tonev was appointed deputy chairman of the SCC.


The judicial system in Bulgaria is often criticised for corruption. "One of the arguments in favour of the SCC is that it would be an oasis free of judicial corruption," Ivanov explains. "There are three main ways to corrupt a court. One is to influence the appointment of the judge who will deal with a certain case. Another scenario includes pressure from other state institutions and political lobbies cultivating acquiescence on part of judges. And in smaller courts there comes the pressure from local 'strong men.' But judges in the SCC were appointed through the same process as all other magistrates: there was virtually no check of their economic or social background to ensure that they would not have corruption 'pressure points.' The selection was not justified by clear, objective and merit-based criteria which, given the small number of candidates with adequate judicial experience for the SCC, was of particular concern. As for pressure from other institutions and positions of power – for many observers, the creation of the SCC was the epitome of these pressures on the judicial branch. It is important to note, however, that one respect in which the SCC could be hoped to have a positive effect is the curtailing of pressure from local factors that judges in smaller courts face."

There is a broader problem, however. "The SCC is the culmination of a flawed policy of piecemeal approach to the problems of the judiciary," Ivanov says. "Instead of reforming head-on the problems of the judicial branch in a systemic and sustainable way, we see Bulgarian policy-makers opting for the creation of ad hoc experimental bodies to compensate for the inefficiencies of the 'traditional' institutions, and which often results in duplication of their work. Thus, the Asset Forfeiture Commission was created to compensate for the failures of the prosecution office, for example. Unfortunately, whatever virtues the new institutions may have, they soon become affected by the old, underlying problems of the Bulgarian judicial and political system and need to be reformed in their own right. The result of this approach is that the systemic problems are never addressed, the resources – time, money and public trust – are wasted, and the field for making reforms is fragmented.

"Against this background, it is easy to see why many judges and analysts are not optimistic about the SCC. It is too early to know how exactly it will organise its work and to what result, but what is certain is that the new institution starts with an up-hill battle for the trust of the experts and the public, burdened by a bad policy-making process."


COMEDY OF ERRORS

At the beginning of February, in what has become a rather typical miscommunication between the government and the general public, the Special Criminal Court sent out a press release requesting journalist and editors to "coordinate" their articles with the court PRs prior to publication. Further, it requested what it called "proper" usage of the court's name: Special Criminal Court.

An overwhelming majority of Bulgarian hacks otherwise perfectly well used to submitting their articles and interviews for approval by ministers and other government officials were furious.

Amid shouts of bloody murder of what free speech Bulgaria had, the new court was forced to explain that it did not mean to censor articles but to ensure what the reporters wrote in their articles was "correct."

In the meantime, Nikolay Barekov, a TV anchor who has become notorious for his uncritical attitude to Boyko Borisov's government, offered to serve as a PR to the court, free of charge. It seems he will be rather underworked as the court had to withdraw its request completely.

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