In a bid to answer Bulgarians and the European Commission’s call for an improved and more efficient justice system, Bulgaria’s ruling majority in Parliament adopted a highly controversial and radical approach amid harsh criticism from the opposition.

This happened on March 25 when Parliament approved the second and final reading of amendments to the Penal Procedure Code on court proceedings. It was a long-awaited change as the EC has repeatedly urged Bulgaria to reform its court procedures, with the goal of avoiding possible abuses of rights by defendants, and to overcome shortcomings that delayed court cases for years.

From a political point of view, the changes could not have come at a better time. In summer 2009, Bulgarians voted Boiko Borissov’s Government into office with the clear hope that crime and corruption would be brought down and the work of the courts improved. On the first score, Interior Minister Tsvetan Tsvetanov has managed to win people’s hearts, as recent polls show, with a number of specialised police operations against kidnappers, racketeers, car thieves and tax fraudsters.

But although there have been dozens of arrests, courts have been setting people free on bail or acquitting them. On the other score, a large number of cases against alleged mobsters have been pending for years because of the seemingly limitless opportunities that defendants have to postpone hearings – in turn, causing disillusionment and scepticism among the public.    

In this respect, Tsvetanov’s frequent and sharp criticism of Bulgarian courts helped prepare public opinion for what was to be decided on March 25.

Substitute lawyers
Ruling party the Citizens for the European Development of Bulgaria (abbreviated as GERB in Bulgarian) entrusted Justice Minister and former top prosecutor Margarita Popova with the task of satisfying people’s calls for justice by preparing the much-needed amendments to the Penal Procedure Code.

Of the changes put forward by Popova’s team, three were seized on for criticism by the opposition. The first was the introduction of a so-called "substitute lawyer" system. This is designed to prevent defendants from abusing their right to repeatedly change their lawyers in the course of their trials which, as experience has shown, slows down court proceedings.

Similarly, lawyers frequently have absented themselves from hearings, claiming illness. To stop this, Popova asked – and Parliament approved – the introduction of the figure of the substitute lawyer, who will step in when the lawyer chosen by the defendant fails to appear in court for no justifiable reason. But the opposition objected to the fact that this substitute lawyer will be chosen by prosecutors when the case is in its pre-trial phase, and by the presiding judge when the case has entered court.

This means that defendants will not have a say in the choice of their substitute legal representative which, according to the two parties in opposition, will prejudice defendants’ rights. During the debates in Parliament, the Bulgarian Socialist Party (BSP) likened this amendment to the "swift justice" of Stalinism, while Hristo Bisserov of the Movement for Rights and Freedoms (MRF) said that the change was a form of twisted justice.          

Popova’s response was that this mechanism will be used very rarely and that it would protect victims’ rights, along with preventing defendants abusing theirs. The amendment says that a substitute lawyer will be appointed only in cases involving serious crimes – although this means two-thirds of all crimes. What was not discussed in Parliament was the question of paying for these substitute lawyers. Currently, the state owes hundreds of thousands of leva in unpaid fees to public defendants.   

The old new thing
The second amendment that raised concern was the possibility of prosecutors holding people facing criminal charges in indefinite detention. Some time ago, such a provision was scrapped because of the judiciary’s bad experience with then-prosecutor-general Nikola Filchev, who had been in the habit of keeping cases pending for years without them coming even close to entering court. Perceptions were that this was done to stop people fleeing the country after facing criminal charges, but critics said that the system was open to abuse of power.

After a number of cases were lodged against Bulgaria in the European Court of Human Rights (ECHR), this provision was lifted in 2006 and people whose cases had been pending for more than two years were given the right to ask for their cases to go to court. The problem, according to Popova, was that this provision benefited defendants, because of prosecutors’ inability to close a case in two years, whether for professional reasons or lack of resources and overwork. The result, she said, was a sort of amnesty for some defendants. Now, in turn, prosecutors will have all the time they need to investigate people with charges pressed against them.

Secret witness
BSP and MRF MPs walked out of Parliament in protest against the introduction of the figure of the secret and anonymous witness, on the basis of whose evidence the court may reach a verdict of guilty. Similary, an accused may be found guilty solely on the basis of evidence gathered through intelligence work. Until now, such evidence was insufficient for a court to reach a verdict, but now judges will be able to rule solely on the basis of evidence from unidentified witness testimonies or on evidence collected through intelligence methods.

For the first time, police officers will be allowed to testify in court as anonymous and secret witnesses, which, according to critics, might provide police officers with the chance to fix certain flaws in their initial investigation and thus manipulate the case. According to GERB, however, the court still has the right to ask for more evidence, but the opposition responded that the ECHR had rejected the practice of issuing sentences based solely on such evidence.

Meanwhile, in the heat of debate, few welcomed the important amendment that allows evidence gathered by the European Anti-fraud Office (Olaf) to be used in Bulgarian courts.