Reality can be more absurd than imagination. Crime is better organised and more efficient than its hunter- the law enforcement. Desperate cynics have suggested that law enforcement should learn organizational skills from crime and even should ask criminal bosses to lecture at judicial seminars or why not manage the justice system for some time in order to upgrade it – as external producers. This shocking suggestion aims to quake the falling asleep with the 15 years of disturbing status-quo which is a provocation against any moral compass. Like a Himalayan climber who is giving up for the sake of fatal dreams and needs some hard shaking.

The reshuffle of top magistrates by new supreme judicial council as spear head of justice system reform is almost over. But whose heads are in the guillotine basket ? Are these only the opponents of today’s judicial superiors ? Is there a single demotion case in that reshuffle reasoned by corruption allegations ? Wasn’t it judicial corruption that triggered EU to impose Bulgarian constitution amendments ? And not a single conviction yet ? Have things improved or have only corruption estates been consolidated ? Such questions may infuriate some high priests but they should remember there is no independent deck on a sinking ship.

There is a very simple and clear criterion whether judicial reform has worked or not : Do foreign investors choose Bulgarian law and courts in their contracts or they still run to foreign law and jurisdictions ? The answer is too obvious and very bitter. It kills the enthusiasm and excitement of a whole generation of young, inspired and most professional magistrates who sincerely want to make a difference but are not welcome to the steering deck.

Division of powers does not mean a fair sharing of the political cake. Judiciary should look how the army functions politically neutral. Magistrates can repeal acts of the executive, constitutional court can repeal acts of legislature but neither government nor parliament can repeal judicial acts. Laws and regulations could be subsequently amended but not final court awards. Magistrates command what makes a law- the sanction, by directing its fire and switching it off and on. The privilege is clear but it may turn into a sweet poison- unlike legislature and executive, magistrates are neither democratically elected not subjected to democratic control. Their selection and recall are the most indirect- hence most independent from popular discontent. It is like the air condition of a car ventilating only the internal air.

A most recent example shows that not all problems of Bulgarian justice come from within. The new Bulgarian Law on the Bar (June 2004) in its art. 5 (4) reads : "Members of parliament, teachers of law science in high schools and research fellows of law in academic institutions shall be registered as bar members and shall perform the legal profession without leaving their job or position". We wonder whether that should ring anyone's bell because :
1. It means ACTING LEGISLATORS shall plead to the court and shall argue what exactly the law means- i.e. what they have meant when voting it. Who can oppose them and will that be fair justice ?
2. Those acting legislators vote the judicial budget in parliament as well as 11 out of 25 of the Supreme judicial council members plus the minister of justice with disciplinary powers over magistrates.
3. One could only imagine the effect of a front bench MP defending a grave criminal at police, prosecution or court. Is that not an incest of the divided powers ?
4. It is striking that Bulgarian legislators have so well mastered their main duty of drafting laws to have time to defend cases in court throughout their parliamentary working days ?

Is that EU and NATO in action ? Where is the reaction of the Bulgarian Bar Association, of the International Bar Association, of the American Bar Association etc. ? Have the watch dogs turned into pets ?

Yet there is much to celebrate. Our sincere admiration goes to the vast majority of middle rank and middle age magistrates who are never in the lime light, who are inhumanly overwhelmed with cases, who are first in the morning and last in the evening to drive in and out their third hand cars but who managed to preserve their integrity in communist and democratic times.
It is their eyes that we chase to meet in the court corridors for a simple head-nod. They still hold the flag flying- high and clean.

July 2004 Braykov’s Legal Office