How are obedient judges created?

Analysis of Lawyer Adela Kachaunova

"I propose Mr. Delyan Slavchev Peevski to be elected as the Chairman of the Agency." These words by Prime Minister Plamen Oresharski in the morning hours of June 14, 2013, not only shook the plenary hall of the National Assembly but also intensified the public intolerance towards corruption in Bulgaria. On that day, a person evidently lacking qualifications and experience for such an influential public position was appointed to lead the State Agency for National Security. In return, the appointee was known in society for the strange progression of his career in similar positions and his inexplicable rise.

In response to these events, tens of thousands of people took to the streets of Sofia and many cities across the country to declare that they would not tolerate blatant and indifferent corruption when it happens in front of everyone.

Something similar happened on November 8, 2023. However, it did not receive the same attention and seemed to remain misunderstood by many.

Enter 28, vote 200.

This time, the focus is on the voting of judges in the building of the Supreme Administrative Court (SAC) during the weekend days of June 2022. During this weekend, they were choosing new members of the Supreme Judicial Council (SJC) from among their colleagues – the body responsible for the appointment, career development, disciplinary responsibility, and dismissal of both the presidents of the supreme courts and the chief prosecutor, as well as all regular judges, prosecutors, and investigators.

The striking irregularities in conducting the election are not news, but now we have evidence that this election was manipulated. In the two days at the SAC building, 28 judges entered, but 200 votes were cast. Unfortunately, this time there are no thousands, hundreds, or even dozens of people on the streets of Sofia and other cities in the country. And there should be. Because what happened is even more frightening than what happened on June 14, 2013.

In February 2023, a mixed composition of SAC and SCC found no violation of this election and rejected the appeal of several judges who had applied but were not elected as members from the judicial quota of the SJC. This decision caused sincere astonishment among lawyers and journalists closely following judicial power issues because the data about manipulated elections were publicly known and clearly indicated irregularities. The mixed composition of SAC and SCC did not see it as a reason to annul the election, did not gather more evidence, and did not agree with the thesis of the appellants.

The ill-fated voting in 2022 was accompanied by information that judges voluntarily provided ballot password slips to the chairpersons of the respective courts to allow them to vote with someone else's ballot. Judge Disheva spoke about it just days before the election: "It is commented in the public space that administrative leaders of the courts collect ballots from judges or are invited to do so."

Not surprisingly, among those elected as members of the SJC, there were no regular judges. Only managerial staff from the courts were elected.

Here, a phenomenon of voluntary cooperation by some judges in the absurdities of the judiciary emerges. It raises two questions. The first, which will not be addressed here, is the question of responsibility for this substitution of the vote, which, regardless of whether it is disciplinary or criminal, should be imposed again by those elected through the same tainted processes. The second question, which we will focus on here, is why these judges actively assist and participate in manipulating elections for their representatives in the highest judicial body?

Eternal Violation

At the moment, the election of a new president of the Regional Court – Plovdiv is forthcoming.

Materials are being published in the media about leadership problems with this court, at least since 2021. Its president is Ivan Kalibatsev, whose second term is expiring soon. At a general meeting in RC – Plovdiv on October 6, 2023, proposed by Kalibatsev, his deputy Dilyana Slavova was to be nominated by the general meeting and proposed to the SJC. At this meeting, another judge, Bozhidar Karpachev, personally nominates himself and declares that, in order for the judges of RC – Plovdiv to vote informedly for him or for Judge Slavova, they must be able to do so based on proposed concepts for the management of this court. He, like other judges, proposes not to vote for one of the two until they propose their concepts for the management of RC – Plovdiv. This proposal is not accepted, and the majority of judges vote for Judge Slavova to be proposed to the SJC.

However, Judge Karpachev pre-empts her, and before Ivan Kalibatsev sends the package of documents to the SJC on behalf of Judge Slavova, he sends his own, including a comprehensive concept for the management of the court. The concept itself contains very curious things that sporadically appeared in the public space years ago but did not receive worthy attention.

He writes the following about the apathy of the majority of judges regarding issues of their management:

"The explanation for this state of mind can easily be found in the high workload of the judges from RC – Plovdiv, which inevitably leads to a desire to dedicate working hours to urgent and quality justice delivery, rather than participation in the managerial process."

He continues with the following:

"Reluctance and fear of confrontation with the leadership by voting differently from the proposal of the court president, even if the specific judge has a dissenting opinion," and states that he will fight for "the establishment in RC – Plovdiv of a spirit of genuine judicial self-government as laid down in the Judicial System Act (JSA)."

Judge Karpachev himself explains that a day after declaring his intention to run for president of RC – Plovdiv, a disciplinary investigation into his panel began.

The practice of numerous disciplinary investigations initiated against judges from RC – Plovdiv who have not expressed disagreement but merely questioned the management line has been known for several years to both the responsible institutions and the general public. There have been numerous publications about the multitude of investigations and penalties against judges Deyan Vatov and Tatyana Maslinkova, who, in addition to their high workload, must provide explanations and defend themselves in disciplinary proceedings.

What is happening to them, and now with Judge Bozhidar Karpachev, is actual workplace harassment. However, judges do not seem to be protected by their employers – SJC or the Inspectorate of SJC. Although a group of judges signaled SJC in 2021 about what was happening there and their forcible subordination under the threat of disciplinary proceedings, SJC acted slowly and no concrete counteractions against Kalibatsev were taken. Krasimir Shekerdzhiev, a member of SJC, stated the following on this occasion: "Judicial collegium, esteemed colleagues, we do not have any authority to take any relations on signals, counter-signals, and other writings of the judges except the mediating ones, with which we burden ourselves sometimes."

The described above resembles the self-trial with Judge Miroslava Todorova over ten years ago. The difference is that during the events, she was the chairwoman of the Union of Judges in Bulgaria, and the opinions she publicly expressed affected the management of the judicial authority, not the management of a specific court. The heroes of her criticisms were sadly known leaders like Veselin Pengesov, then chairman of Sofia Appellate Court, who filed signals against Todorova, Georgi Kolev, then chairman of SAC, and Vladimira Yaneva, then elected chairman of Sofia City Court, where Todorova herself worked and organized inspections against her with particular diligence. Judge Todorova herself suffered significantly due to her public criticisms, and delays in her cases gave her grounds to be disciplinary punished. Later, she condemned Bulgaria for the penalties imposed on her because they had a hidden purpose to silence her rather than address the issue of case management.

In the decision on the case Miroslava Todorova vs. Bulgaria by the European Court of Human Rights (ECHR), attention is drawn to the criticisms of appointments in the judiciary and the workload of judges, which is not addressed by the court presidents. Thus, the judges themselves are kept in constant fear that they will be sanctioned if they criticize the system, thus keeping them in submission (§§149 – 150). The ECHR itself in another decision against Bulgaria – the Dimitrov and Hamunov vs. Bulgaria case – finds that the excessive duration of cases is not necessarily due to delays by a specific judge but may result from other factors (§ 73).

These findings of the ECHR direct attention to the self-trial with the judges in RC – Plovdiv but probably existing in many other places. As another member of SJC, Tsvetinka Pashkunova, reminded at a council meeting on June 22, 2021, "such was the situation years ago in Blagoevgrad."

What is happening in the judiciary is to maintain the excessive workload of judges, so they are kept in obedience and submission. Those among them who have views different from those of the management or are dissatisfied with their workload receive a retaliatory reaction – explanations are demanded from them, investigations are initiated, and penalties are imposed. In this way, their leaders ensure comfort and opportunities for career advancement.

This is precisely what Kalibatsev achieves in Plovdiv, who obviously has ambitions for promotion in the hierarchy – although not elected as a member of the SJC in the unfortunate elections of 2022, he was a candidate. Now, he ensures his own tranquility as a regular judge if his deputy judge Slavova is elected by the SJC, instead of the self-promoted Bozhidar Karpachev. Most likely, Kalibatsev's aspiration for managerial positions will continue.

We are probably only seeing the tip of the iceberg of what is actually happening in many courts across the country. But, as the Venice Commission itself repeatedly points out, no matter what judicial reform is devised and adopted, if the spirit and self-discipline of the magistrates themselves do not change, we will not see real improvement. In its opinion from 2019, the Commission states (§ 11):

"However, there are other more indirect and subtle forms of pressure that are difficult to identify and almost impossible to combat (those based on friendship, family ties, common interests, corporate solidarity, career growth aspirations, etc.). An adequate legal framework is necessary, but professional ethos and the general political culture are no less important."

The (in)visible thread connecting the Kolevs, Miroslava Todorova, and Dimitrov and Hamunov.

To overcome this phenomenon of deliberately maintained obedience among judges through their high workload, which makes it impossible for them to fulfill their duties on time and thus inhibits them from expressing views and positions, serious measures are needed. These measures should follow the actual implementation of decisions in several key cases of the ECtHR – Miroslava Todorova (regarding the punishments imposed on Judge Todorova, aimed at silencing her), Kolevi (on the excessive power of the chief prosecutor and the subordination of prosecutors, even through murders), Dimitrov and Hamunov (regarding the excessive length of proceedings) at a minimum. Only the enforcement of all these decisions will lead to real judicial reform, making judges, as well as other magistrates, free and independent.

Judicial reform has several directions, and despite the fact that the figure of the chief prosecutor has been in the focus of public attention for years, events this year – starting with the involvement of SJC members in the scandals around the early termination of Ivan Geshev's mandate and reaching the newly emerged information about the judicial vote in 2022 – make the need for a more multidirectional reform and a holistic approach evident.

A reform, no less important than that regarding the chief prosecutor, is the reform of the SJC. It needs to begin with an analysis of the powers of the council and an assessment of whether it is not overburdened as well. The full verbatim transcripts of the sessions of the judicial college show lengthy sessions with often around 30-40 or more items on the agenda. This enormous workload leads to less attention to the tasks of the SJC, going through the agenda just to check it off. As a result, many important issues receive only formal attention – such as the certification of judges or the review of the work of court presidents. The signal from the judges in Plovdiv in 2021 does not receive substantive consideration; members of the judicial college do not delve into the depth of the problem, and this has a simple explanation. The item on the agenda is No. 52, and in the protocol, it is on page 308. It is not realistic to expect more from the members of the judicial college.

One of the functions of the administrative heads of the courts is to manage the workload across panels, departments, and colleges. It is in their hands to address this problem properly, so that judges are not overloaded – they could redistribute staff between civil and criminal departments, request additional staff, and so on. The workload in some of the Sofia courts is known, but the story does not end there.

There is a huge workload in other predominantly civil departments in the country. Due to the excessively high workload in civil departments, it is not the case in criminal ones, and there are vacant staff positions. The above examples show that dealing with judges' workload is in the hands of court presidents, and maintaining an artificially high workload for years is artificial.

In addition to the obvious harms to justice and citizens' rights, this also achieves keeping judges in submission. Logically, if a specific president does nothing to address this problem, it should reflect in his or her certification and, depending on the case, face disciplinary measures. The SJC would be responsible for this as an employer.

Procedures for the promotion of candidates to leadership positions in the judiciary must be transparent and competitive. In the above example, we see that the current president of the Regional Court in Plovdiv strives to secure his desired candidacy at the expense of another judge. This happens without a real assessment of management concepts because when the General Assembly of the Regional Court in Plovdiv decides to nominate Judge Slavova, no concepts are presented. She is nominated because of the preference of Ivan Kalibatsev, who speaks emotionally and sentimentally about her human qualities and how she looks people in the eyes. Not a word about her specific intentions regarding the administration of the court. Indeed, the judges vote for Slavova and Karpachev, and the majority elevates Slavova, but this should not be misleading. The voting is apparent and only formally and superficially fulfills the requirements of the law. Judges have already become accustomed to voting as the chairman wishes, because otherwise, they will face a retaliatory measure.

Another problem that needs to be addressed is the harassment of judges. The aforementioned examples – initiating disciplinary proceedings, investigations, and demanding explanations from judges such as Miroslava Todorova, Bozhidar Karpachev, Vatov, and Maslinkova – indicate that these measures pursue another, illegal goal. This is explicitly stated in the decision on Miroslava Todorova, in which Bulgaria was convicted of violating Article 18 of the ECHR – "Limitations, permissible under this Convention concerning the exercise of certain rights and freedoms, may not be applied for purposes other than those for which they have been prescribed."

Countries are rarely convicted of violating Article 18 of the Convention, and this is quite a shameful achievement. Bulgaria is the sixth country convicted under this provision, ranking alongside Azerbaijan, Moldova, Russia, Georgia, and Turkey. The commonality among these countries is a severely compromised democracy, if that term is even applicable to the respective regimes.

Conviction under Article 18 means that disciplinary measures are taken to silence these judges and prevent them from criticizing issues related to the management of the judicial system. In other words, they seek to limit their freedom of expression. Disciplinary measures turn into a kind of harassment over judges, and Bulgarian legislation lacks general protection against such a phenomenon.

Workplace harassment, a form of harassment different from discriminatory practices, is addressed by institutions known in other jurisdictions, and their legislations provide separate, general protection against such harassment. This is particularly necessary because a judge facing, for example, 10-15 measures to defend against it, in addition to their general workload, must allocate significantly more time. Even if the imposed measures are overturned, and the court cancels the imposed penalties, this does not address the judge's tarnished reputation, the time and effort wasted in defense, nor all the feelings of frustration or helplessness in the face of the injustice that has literally been poured upon them.

Therefore, it is necessary to introduce the concept of workplace harassment into Bulgarian legislation, along with a fast and effective mechanism for protection against it.

Only by implementing the above can the problem of the chilling effect on freedom of expression, which workplace harassment has on one judge, be addressed for all judges. This chilling or inhibiting effect is recognized by the ECtHR in several of its decisions but carries particular importance in the case of Miroslava Todorova due to the significance of the case in the Bulgarian context. In this case, the Court explicitly states:

„… тези производства и наложените наказания са оказали възпиращ ефект върху упражняването на свободата на изразяване на мнението на жалбоподателката и тази на всички съдии“ (§ 176).