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Responsibility of the magistrate in ignorance of the law

Antonia Peeva
Antonia Peeva
Hristo Hristov
Hristo Hristov

Or what are Bulgarian magistrates responsible for in insufficient qualification and breach of the professional ethic

The Supreme Judicial Council assumes in its practice that the magistrates in their performances and contacts should refrain from actions that could compromise them.

Bulgarian magistrates take as their commitment to the Bulgarian society the requirement to implement and deploy in their professional activity and personal life the rules for ethic behavior, provided in the Code of Ethics for the behavior of Bulgarian magistrates. There is introduced a standard for behavior of the magistrates for their professional status and public expectations of fairness. The compliance with the rules for ethic behavior of the magistrates is an obligation while exercising their professional activity and personal life. The SJC assumes in its practice that the magistrates in their performances and contacts should refrain from actions that could compromise them and to form a negative attitude towards the judiciary and to undermine its authority. Behavior of the magistrates, which is contrary to those standards, points to a violation of the law and the ethical rules and it is a ground for engaging the disciplinary liability.

The Judiciary System Act

determines the disciplinary violations, in the performance of which the liability of the Bulgarian magistrate is engaged. In the Code, there are listed the basic principles that outline the framework for regulating their behavior in and out of the service they perform, namely: independence, impartiality, fairness and transparency, courtesy and tolerance, decency and propriety, competence and qualification, confidentiality. Competent and qualified is the well prepared magistrate, who knows the legislation of the Republic of Bulgaria and the European Union law. The competence and the qualification are a prerequisite for the proper implementation of the duties of the magistrate and for their professional career and therefore should be continuously improved.

Firstly, a self disciplinary violation is the systematic violation of the terms, provided in the procedural laws. The judgment on compliance with the terms and the existence of the element orderliness includes an assessment of the workload of the magistrate and their ability to objectively deal within the relevant terms with the workload assigned. In the practice it its assumed that in order to justify such a disciplinary violation, it is necessary to establish whether the particular failure to comply with the deadline is determined by the mentioned objective factors, or it is a result of the solely fault of the magistrate.

As another violation the legislator has defined an action or omission, which unduly delays the proceedings. Practically, there are almost no proposals for imposition of disciplinary penalty of a magistrate only for acts or omissions that unduly delay the proceedings. The violation of the law, as well as the action or omission of a magistrate, which undermines the authority of the judiciary are also disciplinary violations, which are similar and often the behavior of the magistrate qualifies both as a breach of the ethical rules and diminishing the authority of the judiciary.

Violations categories

The review of the disciplinary action of the SJC in disciplinary penalties of the magistrates for committed violations of the Code shows a formation of several categories: lobbying, use of official position for personal gain, actions/omissions that contain elements of a criminal offense and also violate the ethical rules and undermine the authority of the judiciary, behavior and/or contacts in the private life, which reflects negatively on the professional, public image of the magistrate and damages the image of the institution and the integrity of the profession, violations of the ethical rules at the workplace and while exercising the official, functional powers. As examples of lobbying* are showed cases of contacts of magistrates with individuals, for whom there are details for implementation of an impact on member of the SJC in the appointment of administrative heads in the judicial authorities. The SJC and the court qualify such behavior as unacceptable in terms of the ethical rules, with which the external creditability of the independence of the judiciary is undermined. Except such conduct that creates suspicion of corruption practices and compromises the independence of the judiciary, the magistrate undermines the authority of the judiciary (*source SJC – review).

As an example for attracting disciplinary responsibility of magistrates because of evidences of possible use of official position for personal gain are considered cases under initiated disciplinary proceedings against judges in connection with information in the media of acquired properties from their relatives in the same municipality.

According to the practice of the SJC non-compliance and violation of the law should also be interpreted as a disciplinary violation. In this sense are decision under disciplinary case №22/2010 and disciplinary case №24/2008, where it is assumed that the compliance with the rules for tribal and local jurisdiction is associated with the movement of the case and for their violation the judge should be disciplinary liable. The Supreme Administrative Court, however, has a different opinion and principally believes that the incorrect application of the law by magistrates is no reason for imposition of disciplinary penalties, and their acts can be appealed to the higher instance.

The penalties

In this sense, the question remains open whether the gaps of the law, jurisprudence and doctrine development, in other words, the insufficient initial and/or further qualification of the magistrate should be treated as a violation of the Code of Ethics and hence as a disciplinary violation. This question arises regularly not only in view of the practice of the SJC, but also in view of the general expectation that the impeccability of the magistrate is due in addition to the above, and to their preparedness to decide the specific case fairly, applying the law in development. The answer is imperative, because the misapplication of the law by a magistrate, thereby violating rights and legitimate interests of the parties, can be due to the usual ignorance of the law, as well as to other reasons.

In conclusion, the review of the practice of the SJC, covering disciplinary proceedings in the period 2009-2013 shows that most often the subject of disciplinary cases are violations, regarding breach of official duties of magistrates, in connection with the application of the procedural deadlines. There are not few cases of disciplinary sanctions for violations of the ethical rules and norms and undermining the reputation of the judiciary, committed by the magistrates. For the violations, committed in most cases by magistrates there is imposed a disciplinary penalty – reducing the base salary from 10 to 25 percent for a period of six months to two years in different amount and for different period of time, as there cannot be accounted any system in determining the disciplinary penalty in similar parameters for similar cases.

The article has been published in Bulgarian, in Capital Daily.