Trust in the Judiciary is Achieved through Competent and Morally Elevated Judges

Trust in the Judiciary is Achieved through Competent and Morally Elevated Judges

Kalin Kalpakchiev is a Sofia Appellate Court judge and member of the Supreme Judicial Council, elected from the quota of the judges. He graduated “Law” in 1993 from the University of Sofia and specialized in the United States and France. He started his career in 1995 as a judge in Dobrich, from 2000 until 2005 he is a member of the Sofia Regional Court and from 2005 he is in the Sofia Appellate Court. From 2009 until the end of 2011 he is teaching Criminal Law in the National Institute for Justice. He practices as an attorney for two years. In 2012 he became a member of the SJC.

Trust in the implementation of justice and the quality of the judicial activity largely depends on the professional competence and morality of the judges.

Because "the most certain way to perverse principles, for both the proper administration and the law, lies in the personality of the judge. Good laws and bad judges is a less desirable outcome, than bad laws and good implementers.” The last was written by the famous Bulgarian lawyer prof. Luben Dikov in the 1930’s.

The problems:

 Performance Appraisal

The rules for appraisal of judges were created in 2009 in response to the persistent expectations of the judicial community and the public to improve the personnel selection for the system.

Despite the consistent efforts to improve the legal framework for appraisal in the Justice System Act (JSA), the purpose of this procedure - to make an objective assessment of the actual qualities of individual magistrates – has, in fact, not been achieved to date.

In recent years, the judicial community gathered around the idea for the establishment of a centralized appraisal authority composed of judges who are elected by the judicial general assemblies for a certain period. The realization of this idea requires an entirely new legal concept for the appraisal procedure. The JSA amendments made in 2015 by the Ministry of Justice were aimed at the implementation of this idea. The amendment of the process of evaluation is needed, because currently the procedure is completely nominal. Indicative of this is the fact that more than 90% of the magistrates receive “excellent" grades, which obviously means that the appraisal mechanism does not take into account the actual qualities of each judge as realized in their work.

In general, the new legislative concept aims at creating a permanent attestation commission with SJC, composed of judges with proven professionalism and authority recognized by their colleagues. The members of this commission will be elected by the general assembly of the judges and will exclusively deal with evaluating the performance of judges across the country for the duration of their term. This will create guarantees that the judges will be evaluated on the merits by unified criteria applied by respected members of the guild. The quality of the judges’ work must be assessed in a manner that does not jeopardize their independence on specific cases. In most general terms, the assessment must reflect the behavior of the judge in court, his attitude towards the litigants, knowledge of the law, the jurisprudence and the legal doctrine, and the depth and comprehensiveness of his judgments.

The promotion of judges to courts of higher instance should be given based on the same objective evaluation. This will ensure the high quality of justice that will inspire confidence in society.

Competitions for Promotion of Judges

The overview of the conducted competitions by SJC so far allows us to summarize the essential unsolved problems of the legal framework for promotion of judges, which could be boiled down to: lack of guarantees that the career development is based on true in-depth evaluation of the performance and professional qualities of the judge and on his persuasiveness and suitability for high judicial office. The current practice of evaluation clearly shows that the established evaluation system based on formal and statistical criteria is dysfunctional (almost 90% of judges receive the highest mark), which does not allow for specific and correct assessment of the activity of the judge.

Given the circumstances, the interview with the candidates takes a crucial part in the competitions and selection procedure. The criteria for conducting interviews, issued by SJC in 2013, failed to clarify and facilitate the practical conducting of competition interviews. The absence of a common unified framework for conducting the interviews resulted in the use of different criteria, approaches and methods depending on the respective selection committees. It is not a rare occasion for the interview to turn into a theoretical exam, and this is in an obvious contradiction with the main task of the committee: to appraise the merit of individual applicant vis-à-vis the requirements for available vacancies. That is, the total final score of the magistrate is, in essence, a prediction of whether and to what degree he is suitable to perform the duties of the post he applied for. In making that evaluation, of course, it is necessary to thoroughly examine the results of his activity thus far, based on six judicial acts (three selected by the candidate and three randomly selected). Practice shows us that this is not enough to gain a comprehensive picture of the judge’s performance. In addition, the commission does not have much time to study the acts and there is no requirement or time to explore the whole lawsuit, which would give a much more precise view of the judge's work. The lack of effective and qualitative appraisal of the judges’ activities, which should be the basis of promotion and selection of staff, cannot be satisfied by the review of six acts for the previous three years.

The solutions:

Improvements in the promotion system could be achieved through a reformed SJC, on the one hand, and some legislative amendments, on the other. SJC should elaborate a comprehensive legislative framework for the different stages of the competition process in light of its efforts for upholding the judicial independence.

1. Under the current legal framework, the improvement of the competition process should focus on the following guidelines:

1.1. Preparing "profiles" for r positions in the judiciary, particularly judges' positions, to provide clarity as to what professional skills are required for a high-quality and effective performance of duties;

1.2. Careful consideration of the composition of selection committees, whose members must meet the requirements of high professionalism, integrity, and specialization in the specific legal subject matter;

1.3. Clear definition of a common unified framework for holding interviews - determination of the objectives, criteria, format, methods, and duration of the interview; clarifying its content. Thus, the interview would not be perceived as an academic exam, but would focus on the qualities of the competing candidate.

The main purpose of the competition for promotion or transfer is to determine as precisely as possible the person's suitability to fulfill the obligations pertaining to the position the candidate is applying for. That is, the total final score of the magistrate is, in essence, a prediction of whether and to what degree he is suitable to perform the duties of the position applied for. In making that evaluation, of course, it is necessary to thoroughly examine the results of his activity thus far, based on his performance appraisal. This, however, is not enough, and therefore, it is precisely the interview, which should allow the selectors to draw a reasonable estimate of the suitability of the magistrate to fill the vacancy applied for. The commission’s remarks should be motivated verbally and in writing.

Without turning it into an "exam" for the candidate, the interview should be a discussion on certain practical issues of the subject matter, for which the magistrate is applying, in order to establish his: specialized legal expertise and qualifications in the relevant field of law; ability to properly apply his theoretical legal knowledge in accordance with the law and jurisprudence; ability to analyze legal issues; skills for optimal organization of work etc., interpreted, as a must, in terms of the specific requirements for the particular vacancy (according to subject matter).

The interview must be regulated in detail with internal SJC rules.

2. Proposals for improving the legal framework of the competitions:

2.1. Until now, there has been no clear long-term policy to plan the development of human resources in the judiciary.

It is necessary to oblige SJC to plan judicial vacancies for each subsequent year, taking into account the workload of the respective courts, staffing needs and the reasoned proposals from the presidents of the courts.

2.2. Another essential question is who the magistrates are that participate in the selection committees. Without any doubt, an objective and qualitative assessment of the candidate's competence can only be made by assessors whose competence exceeds that of the assessed. In this respect, in addition to introducing a rule that the selection committee members must practice in the same legal field as the announced vacancies, the selection of the members of committee should also be improved. At present, pursuant to Art. 36, ln. 6 of the Rules of SJC regarding the procedure for conducting competitions and selection of administrative heads of the judiciary, the composition of each selection committee is decided by SJC by drawing lots at a public session as follows: at the level of regional and district courts - respectively from among the judges of appellate courts; at the level of appellate courts and the Supreme Court of Cassation - respectively among the judges of the Supreme Court of Cassation; at the levels of the administrative courts and the Supreme Administrative Court - respectively from amongst the judges of the Supreme Administrative Court.

SJC could consider the idea of narrowing the scope of appellate court judges who may participate in selection committees. They could be elected (in keeping with the principle of public random selection by lot) not among all judges in the appellate courts in Bulgaria, but rather among the judges included in a list determined by the General Assembly of the respective SCC colleges. Cassation judges have the best insight into the quality of the judges' decisions at appellate courts and, consequently, into their professional qualities. This may contribute to the unification of standards in assessing and addressing the risks of introducing divergent local practices into the competition procedure.

Another possible amendment in the Judicial System Act is to empower the general assembly of the respective district or appellate court, and colleges of the Supreme Court of Cassation to identify, based on an assessment of their work, judges to be promoted among all candidates for the position. The judges of the higher court are naturally most familiar with the work of the judges from the lower courts so they can reasonably decide who the best judges for promotion are. There is no obstacle in the creation of a system that combines interviews by a panel of judges, who are selected by the General Assembly of SCC, and reasoned opinions from the General Assemblies of the higher courts, for which the competition procedure is held.

Many of the ideas discussed above for improving the rules for the appraisal of judges and competition procedures are reflected in the draft prepared by the Ministry of Justice in 2015. The draft’s adoption by the Bulgarian Parliament will be crucial for a genuine judicial reform.

MOVE.BG

by Kalin Kalpakchiev