Summary of Contents
1. GENERAL INFORMATION
Bulgaria is unitary state with a parliamentary form of government. Between 1944 and 1989 the country was under a Communist rule. Since 1992 the country has been a member of the Council of Europe and since 2007 has been a member of the European Union.
The population of the country as of December 31, 2018 is 7 million people. The share of women is 51.5%. In the last 35 years there is a pronounced trend of demographic aging of the population: the relative share of people aged 15 or less is declining and the relative share of people aged 65+ is on the rise. In the last general population census (2011) people aged 15 or less represented 13.2% of the population, while people aged 65+ were 18.5%.
As of 2011 about 60% of the population identified as Christian Orthodox, about 20% declined to answer and 8% identified as Muslims (almost exclusively Sunni).
The predominant share of the population (85%) is of Bulgarian ethnicity. According to the 2011 census results there are two distinct ethnic minorities: 8.8% of the respondent self-identified as ethnic Turks (traditionally Sunni Muslims, speaking Turkish as a mother tongue) and 4.9% of the population self-identified as ethnic Roma (speaking Roma as a mother tongue, some of them are Christian, some are Sunni Muslims). Both ethnic minorities are native to the country. Bulgaria is the only EU member state with a native Muslim minority. There is a very small number of immigrants residing in the country; these are mostly non-EU citizens with the Russians predominating amongst them.
In the years between 2014 and 2019 there were positive trends for the national economy: the overall GDP was on the rise and the unemployment was declining. Yet as of 2019 Bulgaria remains the poorest EU member state. In 2018 about 32% of the population (or roughly 2.3 million) lived at risk of poverty and social exclusion. The poverty line for 2018 was established by the National statistical institute (NSI) to be 4,213 BGN annual income (about 2,435 USD) for a single-member household and 8,848 BGN (about 5,114 USD) for a household of two adults and two children under 14 years of age. In 2018 about 22% of the population lived below this poverty line.
The representatives of the Roma minority are more likely to be affected by illiteracy, unemployment and poverty compared to the Turk minority and to the Bulgarian majority. As of 2011 the share of illiterates amongst the Roma was 11.8%, compared to 0.5% amongst the ethnic Bulgarians and 4.7% amongst the ethnic Turks. About 23% of the Roma children aged 7 to 15 were not enrolled in school, compared to 12% of the Turk children and 5.6% of the Bulgarian children.
In 2018 almost 68% of the ethnic Roma lived below the poverty line, compared to 22% of the average population, or 15.6% of the ethnic Bulgarians and 31.6% amongst the ethnic Turks.
From administrative point of view the territory of the country is divided into 265 municipalities organized in 28 provinces. During Communist rule the population was relatively evenly distributed amongst the provinces. After 1989 the country witnessed intensive migration, both internal and external. As a result nowadays the population of the country is very unevenly distributed amongst the provinces and municipalities: in 2018 about 17.5% of the country population lives in the capital city of Sofia and its neighbourhood. About 40% of the population is concentrated in only 9 municipalities each with population of above 100,000. Currently there are 60 municipalities with a population of less than 6,000 and together they account for 3% of the total population. As of 2018 about 74% of the population is urban, while 26% is rural. Amongst the rural population the relative share of elderly people, ethnic Roma and Turks is higher compared to the urban areas.
In spite of these demographic trends, the number and the structure of the public administration (including the court system) remained relatively unchanged compared to the period of Communist rule prior to 1989. As a result in districts the administration and the courts have to serve a small number of people and business, while in other areas (the capital and several big cities) they are routinely overburdened.
Chart 01. GDP of Bulgaria in the last 10 years, in current US dollars (billions)
Key data from UNDP, Human Development Indices and Indicators (2018, Statistical Update): GNI (PPP, 2017) is 18.740 USD; Gini coefficient (2017) is 37.4; Life expectancy at birth (2017) is 74.9; Expected years of schooling (2017) is 14.8; Mean years of schooling (2017) is 11.8; HDI (2017) is 0.813.
Bulgaria is a civil law country with unitary national justice system consisting of four levels of courts: 113 district courts that are handling small claims and petty crimes at the level of the municipalities, 28 provincial courts that act as a 2nd instance jurisdiction with respect to the district courts and handle as a first instance jurisdiction more significant disputes and serious criminal offences, 5 courts of appeal that act as appellate jurisdictions to the district courts and one Supreme court of cassation with jurisdiction over civil, trade law and criminal matters (Bulg., Върховен касационен съд). In parallel there are 3 semi-autonomous systems of specialized jurisdictions:
- Military – there are 5 military courts and one military court of appeal;
- Administrative – there are 28 administrative courts at provincial level and one Supreme administrative court (Bulg., Върховен административен съд);
- Specialized criminal (dealing with mafia/ organized crime cases) – there is one Specialized Criminal Court and one Specialized Criminal Court of Appeal.
The rulings of the military and of the specialized criminal jurisdictions are subject to cassation by the Supreme Court of cassation.
In 2018 in the district courts of general jurisdiction there were a total of 534,508 pending cases and 444,810 of these cases (or 83%) were solved within the same year. The predominant part of the solved cases (80%) were solved in less than 3 months. This share is even higher (91%) for the district courts that are in non-provincial capital towns. In addition, in 2018 the administrative courts had a total of 57,803 pending cases, and the predominant share of them were also solved within 3 months.
In 2018 in the provincial courts of general jurisdiction and in the Specialized Criminal Court there were a total of 107,530 pending cases and 83,821 of these cases (or 78%) were solved within the same year. The predominant part of the solved cases (79%) were solved in less than 3 months.
A permanent feature of the Bulgarian judiciary is the considerable discrepancy in the workload between the different courts – almost ¼ of all solved cases in the provincial courts for 2018 were solved in the Sofia City Court alone and the other ¾ were unevenly distributed between the other 27 provincial courts. The average workload of the judges varied considerably: at the provincial level, in 2018 the judges in the Specialized Criminal Court were by far the busiest with an average of 36 pending cases per a judge per month, followed by the judges in Sofia City Court with an average of about 25 pending cases per a judge per month. There were 11 provincial courts with 10-11 pending cases per a judge per month and 11 provincial courts with an average of less than 10 pending cases per a judge per month.
Art.134 of the Bulgarian Constitution guarantees that the lawyers (Bulg., адвокати) organized in a Bar as a profession are free, independent and self-governing. The conditions for practicing the lawyer’s profession are regulated by the Bar Act (BA).
The lawyers are organized in 27 local bar councils that correspond to the administrative provinces of the country. There is also a Supreme bar council that regulates the profession on national level and represents the Bar before the state authorities.
According to art. 2 of the BA lawyer’s profession is governed by the principles of independence, exclusivity, self-governance and self-support. The principle of exclusivity is further stipulated in art.3 – lawyer’s profession can be performed only by lawyers (acting as solo practitioner or as a part of collective practice). The BA distinguishes between lawyers, junior lawyers and lawyers from EU member states registered for practice in Bulgaria. The last group is rather small (total of 83 lawyers from EU in 2018) and has the same scope of practice as regular Bulgarian lawyer.
The junior lawyers have the licence to practice as lawyers but they do not have the 2-years legal practice period that is required by the BA in order for someone to practice the profession in full rights. The junior lawyers can practice before the district courts. They may appear before provincial courts only for the 2nd instance of cases they have represented before the district court. Junior lawyers may bring 1st instance disputes before a provincial court only in cooperation with a full-rights lawyer.
Only lawyers with at least five years of practice can defend cases before the Supreme Court of cassation or the Supreme administrative court (art.24 of the BA).
Collective lawyers’ practices are allowed by the BA in three forms: a) contract for collective practice under art.52 of the BA; the contract has to be registered (hic approved) by the respective bar council; b) law firm regulated by art. 57 of the BA (Bulg., Адвокатско дружество). It is a legal entity that can be established by two or more lawyers and has to be registered by the bar council; only lawyers can be members in law firms and one lawyer can be a member in only one law firm; c) lawyers’ collective practices based on contracts for commission – this is not a legal entity; it reflects the situation where one lawyer or a law firm commissions another lawyer to do specific legal work.
People who are not registered lawyers are not allowed to be members in law firms (art.57, al.2 of the BA), i.e. non lawyers cannot be owners or partners in law firms. This is the main criteria that distinguishes the law firms from legal entities under the commercial law.
As of 2018 in the country there were 13,640 registered lawyers. This number reflects only the lawyers who practice as advocates (Bulg., адвокати), i.e. legal counsels. The judges, prosecutors, investigators, the lawyers employed in production/ trade companies or in the state administration are not included in this number. They are considered as separate professions and are not members of the Bar.
Out of the 13,640 lawyers registered for practice in 2018, 7,137 were women and 6,503 were men. Included in the total number were also 473 junior lawyers.
The biggest concentration of lawyers traditionally is in the capital city: the Sofia Bar in 2018 had 5,865 registered lawyers; the second biggest local bar was the one in Plovdiv with 1,241 registered lawyers; 3rd was the Varna Bar with 1,130 registered lawyers.
Regarding the pricing of the lawyers’ services there are minimum thresholds and the lawyers are not allowed to negotiate prices below them. The thresholds vary according to the type of legal service, the size of the pecuniary interest or the severity of the crime in criminal cases. For instance the minimal fee for an oral consultation with a lawyer is 30 BGN (about 17 USD), written consultation is 60 BGN (about 35 USD), preparing papers and appearing for a client in a divorce case is minimum 600 BGN (about 347 USD), representation in 1st instance court in criminal cases with non-custodial sanction is minimum 400 BGN (about 231 USD). This last number is roughly 1/10 of the annual income that was established as poverty line for single member households by NSI for 2018 (4,213 BGN); 22% of the population lives bellow this line, i.e. the normative minimum fees for lawyers’ services are quite high and unaffordable for large groups of the population. In practice however, the local bar councils are not very active in enforcing these normative minimums and it is quite common for lawyers to accept lower than the minimum fees.
Appearing with a lawyer in court is not mandatory in most of the civil, administrative or labour law cases. A plaintiff can submit alone even a motion to the Supreme Court of cassation, but it has to be countersigned by a lawyer (art. 284, al.2 of the Civil Procedure Code – CPC). In criminal proceedings the participation of a defence lawyer is mandatory in specific cases (art.94 of the Penal Procedure Code – PPC, see Part 5 below).
Legal representation by paralegals is not permitted.
According to art. 117, al.2 of the Bulgarian Constitution, the judiciary is independent. When performing their functions all judges, prosecutors and investigators a subject only to the law. According to al.3 of the same text the budget of the judiciary is autonomous. The appointment and the career development of judges, prosecutors and investigators is decided by a special constitutional body (Supreme Judicial Council). Since the last constitutional amendments (2015), the Supreme Judicial Council sits in two different chambers when deciding on the career of judges (Judges Chamber) and when deciding on the career of the prosecutors and investigators (Prosecutors Chamber).
The career of judges, prosecutors and investigators is regulated by the Judicial System Act (JSA). They all are selected via open competition and appointed upon completion of nine months professional training in the National Institute of Justice. After 5 years on position and after receiving a positive professional appraisal, their appointments become stable (i.e. the judges/prosecutors/investigators become irremovable, art.197 of the JSA).
Mandatory retirement for all judges, prosecutors and investigators is fixed at 65 years of age (art. 165 of the JSA). After that age they are not allowed to occupy any working positions in the judiciary.
According to art. 126 of the Constitution, the structure of the prosecution service shall mirror that of the courts. The Prosecutor General is overseeing the legality and provides methodological guidance to all other prosecutors.
Bulgaria has a relatively high number of judges and prosecutors compared to other countries in the Council of Europe. In 2016 in Bulgaria there were almost 32 judges per 100,000 of population (with European average of 21) and 21 prosecutors per 100,000 of population (with European average of only 12).
Data about the distribution of judges and prosecutors by gender and ethnicity are not available. Data about ethnicity most likely is not collected at all. The visible trend regarding gender balance is consistent with the established European trend of feminisation of the judge’s profession, higher share of women in the lower instances jurisdictions and very few women at the position of court president at appellate or higher level.
Public perceptions about the independence of the Bulgarian judiciary vis-à-vis the political and business establishment are negative: between 2016 and 2019 only between 22 and 32 % of the respondents in the country replied that the independence of courts and judges was very good or fairly good. Only two EU member states performed worse (Slovakia and Hungary). Independence of the judiciary was one of the key concerns expressed by the PACE Resolution 2296(2019) where it was noted that the structure and the functioning of the Bulgarian Supreme Judicial Council did not fully comply with the Committee of Ministers Recommendation CM/R (2010)12 on judges which specified that “not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary. In the present Supreme Judicial Council, judges chosen by their peers constitute 6 out of 25 members”.
The predominant understanding among the legal professionals is that in 2019 in Bulgaria there is no shortage of legal services: on the contrary, many of the lawyers in Sofia and in some provincial centres struggle to find clients. In practice, however, the high average number of all key legal professionals does not automatically mean easily accessible legal services. The situation in Bulgaria is characterised by the disproportionate distribution of legal professionals on the territory: high numbers of them practice in the capital and in 3-4 big provincial centres. The lawyers’ practices in particular are concentrated in the towns which are centre of a province (since the provincial courts are there). There are relatively few lawyers practices in the towns which are municipal centres and only in half of the municipal centres there are 1st instances courts. Hence considerable number of disadvantaged population in the towns where there are no courts and in the villages are left with limited access to legal services. At the same time citizens of the capital also suffer from a specific form of shortage of legal services: there are enough lawyers, but the courts are overburdened, hence citizens are more likely to experience longer waiting time and worse treatment by court staff. It is quite likely also that the sharp increase in the number of lawyers in Bulgaria after the mid-90es is linked to declining public trust in the independence of the profession and declining quality of the legal services.
3. PROCESS AND PROCEEDINGS: OVERVIEW
3.1. Criminal Procedure
Criminal procedure in Bulgaria is regulated by the PPC, with some norms pertaining to police detention included in the Ministry of the Interior Act. According to art.23 of the PPC a penal procedure is initiated either by the police/the investigator (with the first action of investigation) or by the prosecutor, when the necessary legal requirements are met (there is a legal reason and sufficient data that an offence has been committed). The prosecutor controls and monitors the legality in the acts of the authorities conducting the pre-trial phase of the procedure. He/she has also the power to conduct an investigation by himself or to transfer an investigation from the police to an investigator.
According to art. 191 of the PPC in all criminal cases of general nature (i.e. that are prosecuted based on a motion of the prosecutor) there should be a formal pre-trial procedure. It consists of two stages: investigation and actions of the prosecutor after the investigation is completed. The pre-trail phase develops under the direction and supervision of the prosecutor (art. 196 of the PPC). When there are enough evidence that a specific person has committed the offence he/she is formally instituted as a defendant through a separate decree of the investigative authority. Once the investigating authority is convinced that all relevant evidence is collected, the case is reported to the court (art. 227 of the PPC) and the interested parties (the defendant, the victims etc.) get acquainted with the collected material in the case file. Each one of the interested parties can make additional requests, notes and objections to the evidence that is already collected and they should be reflected in the records of the pre-trial phase.
The legally established period for investigation is two months from the date of its institution (art. 234 of the PPC); under specific circumstances this period may be extended by a superior prosecutor. After the completion of the investigation the prosecutor has several options: he/she may decide to discontinue the penal procedure, to suspend the penal procedure, to submit to the court a motion for exemption of criminal liability, for plea bargaining or an act of indictment (art. 242 of the PPC).
Detention may be ordered either by the police (for up to 24 hours) or by the prosecutor (for up to 72 hours). Detention in custody for longer period (up to 1 year maximum) may only be imposed in official pre-trial procedure by a court as a restraining measure. According to art. 63 of the PPC detention in custody may be imposed as a restraining measure only if several circumstances are established: there is a reasonable suspicion that the defendant has committed an offence punishable by deprivation of liberty and there is evidence that he/she may escape or commit another crime.
The Bulgarian criminal legal system is to a large extend compliant with rule of law and once the criminal procedure initiated, in most of the cases it develops in line with international due process standards. A major problem is the lack of proper investigation of crimes committed by high-level politicians, corruption and mafia style crimes, but the reasons behind it are structural in nature. They are related to the constitutional status of independence of the judges and prosecutors and do not concern the regulation of the criminal procedure per se. With this respect since 2007 Bulgaria and Romania were the only two EU member states where reforms in the national judiciaries and the fight against corruption and organized crime have been subject to monitoring by the European Commission though a Cooperation and verification mechanism (Bulg., Механизъм за сътрудничество и проверка).
As of 2019 Bulgaria is still under enhanced supervision by the Committee of Ministers of the Council of Europe for failure to execute ECHR judgments that concern the following shortcomings of the national criminal justice:
- Lack of effective investigation into various criminal offences (murders, injuries, rapes, unlawful confinement, incitement to prostitution etc.);
- Lack of effective investigations into the actions of police or other security forces resulting in death, torture, ill-treatment, excessive use of force, or lack of medical assistance in due time, occurring on arrest, in police detention or in penitentiary facilities;
- Ineffectiveness of the investigation into the murder, in 2002, of a high-ranking prosecutor on account of the lack of guarantees in Bulgarian law for the independence of criminal investigation.
3.2. Civil Procedure
The civil procedure in Bulgaria is regulated by the CPC. The main steps of the 1st instance procedure include: submission of a statement of claim to the court; service of the statement of claim to the defendant; submission of a response to the statement of claim; sorting out the preliminary questions – the court renders a ruling on the formal admissibility of the statement of claim and on admission of the evidences; court hearing for collecting evidence (in one or several court sessions, depending on the evidences) and finally the court renders the judgement.
The court is obliged to inform the parties about the possibility of mediation and to invite them to agree amicably. According to art. 145, al.3 of the CPC in the first session of the court after the preliminary questions were sorted out, the court invites the parties to the dispute to reach an agreement and explains to them what would be the consequences of it. If the parties are not inclined to reach an agreement, the court is registering this in the court record and proceeds with the collection of evidence. After the completion of the court hearings for collection of evidences, the court has to invite the parties to reach an agreement again. In case they decline, the oral arguments of the parties begin (art. 149, al.1 of the CPC).
Similar legal requirement for the court to invite the parties to agree amicably is included in the administrative procedure and in the divorce procedure in the Family Law Code (art.49, al.2). The parties to a divorce procedure can also choose no-fault divorce as regulated by art. 50 and fallowing of the Family Law Code.
The judge’s role in the civil procedure is active (art. 7 of the CPC). He/ she both performs ex officio all necessary steps to move the procedure further and controls whether the parties perform theirs respectively. The judge may independently summon parties and/or expert witnesses.
With respect to litigants who are unable to afford a lawyer, the judge ought to inform him/her about the right to legal aid. The judge also has to explain to the litigant the obligations with respect to the legal aid provided, as well as about the legal consequences if he/she does not abide by their obligations (art. 99 of the CPC).
As with respect to the criminal legal system, the Bulgarian civil legal system is to a very large extend compliant with the rule of law and in most of the cases due process is respected. Concerns are related to the independence of the judiciary from political and other undue influence that are connected to structural deficiencies more than to the legal framework of the civil procedure.
3.3. Alternative Dispute Resolution
In Bulgaria ADR is available in the form of mediation, regulated by a special Law on Mediation (Bulg., Закон за медиацията). It defines the mediation as a voluntary and confidential procedure that may be applied in civil, trade, labour, family or administrative law disputes between natural persons and legal entities alike. It is also applicable in very limited number of criminal cases.
The mediation procedure is initiated by the parties to a dispute. The courts or other competent state authorities can direct the parties to mediation, but the parties cannot be obliged to do so. The criteria for becoming a mediator and a list of mediators is approved by the Ministry of Justice. The mediators can practice collectively either as a firm or as a non-for-profit legal entity. Since 2009 there is a working mediation centre with the Sofia Regional Court (Bulg., Център да спогодби и медиация към Софийски районен съд) and in couple of other big towns. In most of the towns where there are 1st instance courts however there are no working mediation centres for the judges to direct people to and the mediation as an instrument is virtually unknown for litigants outside of the big towns.
In Bulgaria there is no compulsory diversion of disputes to dispute resolution mechanisms outside the courts. In 2019 the Supreme Judicial Council and the Ministry of Justice each set a working group to examine potential introduction of compulsory mediation with respect to specific disputes, but the results of their work are not known yet.
The major policy drivers behind the legislative amendments to introduce the mediation in Bulgaria as an ADR were linked on one hand with the conditionality of the EU membership and the development of the EU law in this area and on the other, with the activity of small group of judges through the mediation centre with the Sofia Regional Court.
3.4. Simplification of law and by-passing legal process
In Bulgaria lately there were several amendments to the laws that were aimed at reducing the cost and time of legal proceedings but they were not necessarily related to the simplification of the laws and by-passing the legal process.
Most notable with this respect are amendment to the CPC introduced in 2018 which altered the rules for establishing the jurisdiction in selected types of cases. By rule, when there is a claim against a legal entity it has to be submitted and considered by the court where the headquarters of the legal entity are. This rule is one of the reasons for the enormous workload of Sofia courts, since a disproportionate number of business have their headquarters in Sofia. The 2018 amendments to the CPC stipulate that the cases for consumer protection and the ones against insurance companies (including car insurance companies) are to be considered by the court where the accident happened or where the last address of the insured person was. According to an expert this led to 34% reduction of the workload of the Sofia City Court of law.
In 2011 two pilot judgments of the ECHR required Bulgaria to introduce remedies to deal with unreasonably long criminal proceedings and a compensatory remedy in respect of unreasonably long criminal, civil and administrative proceedings. In 2012 a complex package of legal amendments set up a national mechanism for compensation of the victims in the case of excessive length of the criminal, civil or administrative proceedings. On the long run it is quite likely that this step will reduce the number of cases against Bulgaria in the ECHR and will speed up the proceedings on national level.
4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL
According to art. 6 of the Bulgarian Constitution all persons are born free and equal in dignity and rights. All persons are equal before the law. There shall be no privileges or restrictions of rights on the grounds of race, national or social origin, ethnic self-identification, sex, religion, education, opinion, political affiliation, personal or social status or property status.
According to art. 30, al.4 everyone shall be entitled to legal counsel from the moment of detention or from the moment of being charged (with a crime, in case he/ she is not detained already). The Constitution also states that everyone shall be entitled to meet his legal counsel in private. The confidentiality of such communication shall be inviolable (art.30, al.5).
The right to a fair trial is not specifically stated in the Constitution, but the rule of law is recognized as a constitutional principle in art.4 and this also implies that people are entitled to fair trial.
Since 1992 Bulgaria has been a member state of the Council of Europe and bound to apply the ECHR. In art. 6 and art.13 ECHR guarantees access to justice, right to a fair trial and right to legal aid. Since 2007 Bulgaria is also a member state of the EU. When implementing the EU law the national institutions are also bound by the Charter of Fundamental Rights that also stipulates the right to a fair trial (art.47). With respect to criminal proceedings Bulgarian authorities are bound to apply also Directive 2013/48/EU on the right of access to a lawyer and Directive (EU) 2016/1919 on legal aid.
In Bulgaria there is a political commitment to improve access to justice. From this perspective there are two policy documents – one general and one specific. The general policy document is the Updated Strategy for Sustaining the Reform in the Judiciary (2015-2022). Among the general goals of the reform are listed ensuring the implementation of the right to a fair trial and effective protection of human rights. The Updated Strategy also plans for measures to evaluate and redistribute more fairly the workload between courts and to promote e-justice (including the provision of electronic services by the Ministry of Justice and the courts, publishing court decisions and information about pending cases on the web sites of the courts, electronic communications between the courts and the litigants and between the courts and the state administration).
Strategic goal 5 of the Updated Strategy is defined as safeguarding the rule of law, the access of citizens to justice and (promoting a) humanistic approach in the administration of justice. One of the specific measures under this strategic goal is to evaluate the structure of the courts from the point of view of effective guarantees of the right of access to justice (measure 5.1.2).
Under the same strategic goal there is Specific objective 4: Development of the Legal aid system with three measures: 5.4.1. Improvement of the systems for monitoring and evaluation of the quality of the state guaranteed legal aid – improving the selection of the legal aid lawyers, fostering their specialisation and professional qualification; 5.4.2. Improving the access to primary legal aid; 5.4.3. Popularisation of the legal aid system among the citizens.
On the basis of this general policy document, in 2016 the National Legal Aid Bureau (NLAB) adopted its own specific policy document: Updated Strategy for the Development of the NLAB where the above mentioned measures are operationalised.
The availability of these two policy documents is important because they allow the NLAB to secure funding for specific projects aimed at strengthening its administrative capacity and developing new services. Since 2014 the NLAB implemented at least three important projects with funding from the Financial Mechanism of the European Economic Area/ Norwegian Financial Mechanism and the EU Structural Funds (Operation Program Administrative Capacity).
The availability of political commitment to equal access to justice and a fair trial is more uncertain. There is no available research on how different minority groups interact with the justice system and what the specific obstacles to access to justice for each one of them are. This topic rarely appears in the media or in the parliamentary debates. Furthermore, in the current Parliament there are three Bulgarian nationalistic political parties whose MPs actively use xenophobe and anti-Gypsy rhetoric, effectively blocking every effort to promote policies for equal access to justice.
It is not quite certain which government body is responsible for the access to justice policy. The above mentioned Updated Strategy for reform of the judiciary was developed by the Ministry of Justice and received formal endorsement by the Supreme Judicial Council and by the Parliament. Any further step in its implementation needs also careful planning and cooperation between these three institutions.
The Bulgarian law assigns specific responsibility only for the legal aid policy, which is a much more narrow field compared to access to justice policy. According to art.6, al.1 of the Legal aid act (LAA) (Bulg., Закон за правната помощ) the Minister of Justice is responsible for the legal aid policy, while the provision of legal aid is organized by the NLAB and the local bar councils. In practice, the legal aid policy is driven primarily by the initiative of the NLAB and in cooperation with the Supreme Bar Council, since it is the later that holds the majority seats in the NLAB.
As stated above the specific problems that the different minorities face in their interactions with the justice system are not subject of thorough research nor are visible part of the scientific, media or political discourse.
To the extend there are at all some research publications in this area, they were carried out by non-for-profit organisations through projects funded ad hoc by foreign donors and were providing only snapshots to specific problems rather than studying the field systematically. In 2003 the Bulgarian Helsinki Committee published the results of the first study on the access to justice on national level that was studying access to defence counsel in criminal cases. It revealed that 40% of the convicted at the time had not been represented by a lawyer at trial. It also noted that “the majority of those convicted without a lawyer were Roma, even though the majority of the prisoners surveyed were ethnically Bulgarian”.
The NLAB has conducted only one survey so far of the legal needs of the citizens (2017, Nationally Representative Survey of the Need for Legal Aid in Bulgaria – Bulg., Национално-представително изследване на нуждата от правна помощ в България и качествени проучвания). It showed that the incidence of legal problems amongst the Roma was much higher than the average for the country, while amongst the Turkish ethnic group was lower than the average; 38% of the Roma respondents had a legal problem in the last two years prior to the survey (2015-2017), compared to 27% in average; Roma were also less inclined to seek assistance from a lawyer in case of a legal problem and for them the lack of financial means and the lack of information were more significant obstacles for access to a lawyer compared to the general population.
In 2018 a study of Open Society Institute – Sofia (OSI-S) on the access to legal aid in the pre-trail phase of criminal proceedings tried to establish the ethnic background of the defendants in criminal cases but was unable to find reliable data. Interviews with lawyers showed that Roma were overrepresented amongst the defendants in criminal cases and amongst the clients of the legal aid system. According to the interviews Roma were also more likely to receive custodial remand measures since they were more frequently unemployed compared to the majority of the population. But the review of the documents available in the NLAB did not manage to produce precise data to back these findings: in many cases the ethnic origin of the defendant was not registered in the documents of the criminal proceedings, or when it was, it was mentioned that the defendants were Bulgarians because many of the Roma chose to identify as such.
The time-frame of the OSI-S’s study coincided with the influx of immigrants in the country, most of whom crossed Bulgaria as a transit way to go from the Middle East to Western Europe. In Bulgaria the illegal border crossing is a crime and in 2015 it was the third most punished crime in the country (after theft and driving in violation of the law). In 2015 according to the OSI-S’s study 11% of the clients of the legal aid system in pre-trial criminal cases were foreign citizens and 16% of the clients of the legal aid system did not understand Bulgarian language. Interviews with lawyers showed that the lack of adequate interpretation from the languages spoken by the migrants was a problem at the time and an obstacle of their access to justice.
The NLAB does not have budget available for securing interpretation for the lawyers – clients’ communication nor a legal ground to cover such expenses made by the lawyers. When needed, the interpretation is secured by interpreters paid for by the police and not always adequate to the languages spoken by the migrants.
5. LEGAL AID SYSTEM
5.1. History of legal aid
Bulgaria gained national independence in 1878 and in the next 20 years set the foundations for its material and procedural legislation by copying the most advanced examples from Western Europe in some cases directly, in others through the intermediary of the Russian legislation. In 1897 the first Bulgarian Law on the Penal Procedure was promulgated (Bulg., Закон за углавното съдопроизводство). In art.310 it provided for the opportunity for indigent defendants to petition the court for the appointment of an ex-officio defence counsel and to the court president to approve it to the extend it is possible.
In 1925 the Law on lawyers (art.42-43) stipulated that a litigant who is indigent may petition the bar council and may ask for free legal representation in both civil and criminal cases. The applicant was required to provide enough evidence that he/she was unable to pay for a lawyer. In such cases the bar council was legally bound to distribute the applications for free legal aid equally among the lawyers.
Later Bulgarian codes of penal procedure (1952 and 1974) also guaranteed ex-officio defence and gradually increased the grounds for its granting by the courts.
In 1970 Bulgaria ratified the International Covenant on Civil and Political Rights, where in art.14, 3(d) the right to legal aid was explicitly guaranteed. The Covenant took effect for Bulgaria only in 1976, but influenced the national legislation even before that. In line with the Covenant art. 70 of the Bulgarian Penal Procedure Code of 1974 guaranteed ex officio defence in the following cases: a) when the defendant was under 18 years of age; b) when the defendant had a physical or psychological ailment that was preventing him/her to act in his/hers own defence; c) the crime was punishable by death or more than 10 years imprisonment; d) the defendant did not speak Bulgarian; e) the trial involved several defendants whose interests were conflicting and one of them already was represented by a lawyer. Since 1986 ex officio defence was provided also when the trial was held in absentia.
In 1992 Bulgaria ratified the European Convention on Human Rights where art.6, §3c also guaranteed the right to legal aid. Following the ratification, in 1999 the PPC was amended to include one new ground for ex officio defence: when the defendant couldn’t afford to pay for a lawyer, desired to be represented by one and the interests of justice so required. In 2006 the same grounds for provision of ex officio defence were replicated in the actual PPC.
Until 2006 the organization of the provision of legal aid relied on the courts and the local bar councils: whenever the court decided that the legal requirements for ex officio defence were in place, the judge appointed a defence counsel from the list of the lawyers in the local bar. The remuneration of the lawyer was determined by the court and paid for by the court budget. In the court budgets there was not a separate line for this type of expenses so until 2006 it was unknown in how many cases and at what cost legal aid was granted.
In 2005 for the first time in Bulgaria a special Legal Aid Act – LAA (Bulg., Закон за правната помощ) was adopted that took effect from the beginning of the next year. The LAA placed the organisation of the legal aid system on entirely new ground. For the first time in the country’s history a designated public budget was allocated for legal aid, a specialised public administration was established to manage the legal aid system (the NLAB), legal aid was made available in civil and administrative law cases and legal aid was made available in the form of consultations and preparation of documents prior to or instead of a court trial (primary legal aid).
In the last 5 years the NLAB has developed its policy in two major directions: a) reducing the administrative burden involved in the management of the legal aid system by establishing its own electronic information system and by introducing electronic communications with the courts, the local bar councils, the legal aid providers and the public welfare system (see Part 9 below) and b) trying to make primary legal aid accessible to a broader range of indigent people.
The main sociological reasons that were driving the reform of the legal aid system in Bulgaria in the last 20 years are linked to the complex transformation of the country after the fall of Communist rule: a) the geopolitical opening of the country and in particular the accession of Bulgaria to the ECHR and later on to the EU brought new and higher legal standards; b) the advent of the market economy and of the free economic initiative brought sharp increase in the legal problems of citizens compared to the period prior to 1989 and c) after the dismantlement of the centralised planned economy considerable parts of the population were affected by unemployment and poverty; the less educated were affected the most.
There is a correlation between the demographic trends and the development of the legal aid system, but it is a modest one since the indigent people who are the most in need of legal aid are usually on the margins of the political decision making. The major factor from the three quoted above quite likely is the conditionality related to the EU membership and the developments of the EU law in this area after 2009; so far these are the factors producing the most palpable impact on the development of the national legal aid system.
Currently the legal aid system is seen as the main vehicle for achieving access to justice, equal access to justice and fair trial rights.
5.2. Legislative framework for legal aid
Bulgaria is a state party to the ECHR, hence art. 6 §3 c applies.
The Constitution in art.30, al.4 and 5 (quoted above in Part 4) provides for the right to defence in case of detention or criminal charges irrespective of the financial or property status of the individual, i.e. implies a constitutional right to legal aid.
The legislative framework for the right to legal aid is developed in three specialised laws.
The cases of mandatory defence in criminal proceedings are regulated by the PPC. According to art. 94 ex officio counsel has to be appointed by the court when the defendant does not have a lawyer in the following cases: when the defendant is under 18 years of age; when the defendant suffers from physical or psychological ailment that are severe enough to prevent him/ her to act in his/ hers own defence; when the crime is punishable by more than 10 years imprisonment; when the defendant does not speak Bulgarian; when there are several defendants, their interests are conflicting and one of them has a defence counsel; when pre-trial detention is requested by the prosecutor; when the proceedings are in absentia; when the defendant cannot afford to pay for a lawyer, but he/ she wants to be assisted by one and the interests of justice so require.
According to art. 381, al.1 of the PPC, when the prosecutor decides that the case may be terminated with plea bargaining and the defendant does not have a defence counsel, the court has to appoint one ex officio so that the prosecutor discusses the terms of the plea bargaining with him/her. According to art. 371 of the PPC there is a possibility for the parties to choose a fast track criminal procedure instead of the regular trial and if this is the case, there also has to be an ex officio defence counsel appointed if the defendant already does not have a lawyer. The legal requirement for an ex officio counsel to participate in the plea bargaining and in the fast track criminal procedure are justified by the fact that both procedures are initiated only if the defendant admitted he/she was guilty.
The provision of legal aid in the form of legal representation in civil law and administrative law cases is regulated by art. 23, al.2 and 3 of the LLA and in the CPC (art.95). It covers the cases where a party in a dispute does not have the necessary means to pay a lawyer, desires to be assisted by one and the interests of justice so require. In case the dispute has already being brought to a court, the competent authority to decide to grant legal aid is the judge.
The provision of primary legal aid in civil law and administrative law cases (advice/consultation or preparation of documents prior to a court procedure) is regulated by the LAA and the competent authority to grant legal aid is the chairperson of the NLAB.
5.3. Institutional framework for legal aid
According to art. 6 of the LAA the Minister of Justice (Bulg., Министър на правосъдието, https://mjs.bg/ is competent to develop, coordinate and implement the public legal aid policy. Responsible for the organisation of the provision of legal aid is the NLAB. (Bulg., Национално бюро за правна помощ, www.nbpp.govenment.bg) together with the local bar councils (art. 18 LLA) which are organizing the provision of legal aid on the territory of their respective district. There are 27 local bar councils in the country.
The NLAB is an independent public institution – a legal entity with headquarters in the capital city of Sofia. The NLAB is subordinated only with respect to budgetary matters to the Ministry of Justice (art. 6, al.3 of the LLA). The responsibilities of the NLAB are to provide general and methodological guidance on the legal aid provision, it is allowed to issue instructions and normative regulations pertaining to the implementation of the LLA. The main operational responsibilities of the NLAB are to manage the annual legal aid budget and draft budgetary proposal for the next budget cycle (usually 3 years), to maintain the National legal aid registry with the legal aid providers (Bulg., Национален регистър за правна помощ), to disburse payments to them for the legal aid granted, to control and supervise the provision of legal aid and to popularise the legal aid system among the general public (art. 8 of the LAA).
The NLAB takes decisions as a collective organ. It consists of five members: the chairperson and the deputy chairperson of the NLAB are appointed by the government. The other three members of the NLAB are elected by the Supreme bar council (art. 11 of the LLA). The activity of the NLAB is supported by an administration of 23 people (as of 2018). All members of the NLAB are appointed/ elected for 4 years tenure and reappointment/ re-election is possible. The members of the NLAB must hold a university degree in law, to have worked as a lawyer for at least five years prior to the appointment and to have a clean court record. It is prohibited to occupy another function in the public administration and to be a member of the NLAB at the same time.
According to art. 17 of the LAA the chairperson of the NLAB is responsible for the execution of the decisions taken by the NLAB, he/she appoint and dismisses the administrative staff of the NLAB, can conduct in person or can authorise other persons to conduct inspections with respect the implementation of the LAA, takes the final decision regarding the precise sum to be payed to the legal aid providers for legal aid granted in the form of legal representation and decides on the granting of primary legal aid.
According to art.18 of the LAA the local bar councils are responsible for the provision of legal aid in their respective districts. For this purpose their receive funds from the NLAB: by law the NLAB has to pay annually to the local bar councils 10% of the overall amount of legal aid granted in their district. This sum is to cover the expenses of the local bar councils for the administration of the legal aid and for the in-service training of the legal aid lawyers.
When a lawyer applies to be registered as a legal aid provider in the National legal aid registry, the respective bar council provides an opinion whether or not the lawyer ought to be included in the registry. The local bar council is responsible for maintaining the rosters for on-duly lawyers in the respective district. Once the court or the police (in pre-trial criminal cases) decides that there are legal grounds for granting legal aid, then the request for legal aid is forwarded to the local bar council. The council assigns the case to a specific lawyer from the National legal aid registry. When assigning the case, the local bar council is obliged by law to take into consideration the professional qualification and the experience of the lawyers, the factual or legal complexity of the case, the previous legal aid cases assigned to the lawyer and his/hers overall availability (art.18 of the LAA). The local bar council has to make sure that the legal aid cases are fairly distributed amongst the lawyers.
Once a specific lawyer is assigned to the case and after the completion of the case, the local bar council is responsible for verifying the amount and the quality of the work done by the lawyer.
In Bulgaria there are no public defenders offices; legal aid is provided only by individual lawyers (solo practitioners) who are registered as legal aid providers in the National legal aid registry.
With respect to the provision of legal aid in remote/ mountain areas, since 2015 the NLAB started to develop two new services: a telephone hotline where people can call and ask for legal information and/or advice and regional centres for legal consultations (Bulg., Национален телефон за правна помощ и Регионален център за консултиране), both regulated by art.30a – 30o of LAA. The telephone hotline is a service provided by legal aid lawyers. It is opened to the general public, at the cost of one local phone call irrespective from which part of the country people call. In case the consultation requires more than 20 min or in case the lawyer needs to examine relevant documents, their direct the client how he/she can apply for proper legal aid.
The Regional centres for legal consultations are also a service provided by legal aid lawyers organized in their respective local bar council. They provide legal information, consultation and prepare documents for initiating court proceedings for indigent people. The payment for the services is covered by the NLAB. As of the end of 2019 there are 13 regional centres and all but one are located in relatively big towns. The last Centre is located in the town of Lukovit – a small town with considerable share of underprivileged Roma population and with a mental health institution, so that before the local court there are frequently cases related to the legal status, the temporary isolation or the property rights of the patients. The centre was inaugurated at the end of 2019; it is the first one that is located outside district towns and an example of the effort of the NLAB to make the legal aid services more accessible.
According to the Updated Strategy for the Development of the NLAB (see above Part 4) for the period 2016 – 2019 the NLAB is pursuing three strategic goals: making the services more accessible to people in need, improving the quality of the legal aid services and improving the professional qualification of the lawyers from the National legal aid registry (see above Part 4). In practice an equally important preoccupation of the NLAB in the last years was to reduce the bureaucratic burden of the legal aid system (see below Part 9).
The general public or the legal aid clients are not involved in the management of the NLAB or in setting the priorities for the development of the legal aid services. The NLAB itself and the services provided are still not known to the general public. A public opinion survey carried out by the NLAB in 2017 (see above Part 4) showed that people are not aware of the right to legal aid, don’t know how to seek advice and predominantly do not trust the legal professionals.
5.4. Legal aid budget
In Bulgaria the only source of the legal aid funding is the state budget. In the law on the state budget, the legal aid budget does not appear as a separate line, but is included in the budget of the Ministry of Justice as one of its programs. The dominant understanding is that it is the responsibility of the government (through the Ministry of Justice) to cover the legal aid expenditures. The budget for the judiciary is included as a separate chapter in the state budget, but the legal aid budget is not included or related to it.
The budget of the NLAB is planned for three years framework as for the entire public administration. The NLAB itself is involved in the process of planning the budget, but the final decision is taken by the government. Traditionally, the main point of reference when drafting the new budget, is the historic budget for the previous year.
In the first years of operation of the NLAB (from 2006 through 2014) the legal aid budget had systemic deficits: legal aid granted was paid for only after several months of delay and frequently the payment came in the year after the service was provided. In those years the budget planned for the legal aid was usually much lower than the need and it became customary for the Ministry to revise and correct the budget on 2- 4 occasions throughout the year. Under these circumstances there were low incentives for the legal practitioners to take legal aid work and often there were tensions between the Ministry of Justice and the lawyers. As of 2014 the Ministry started to plan for the appropriate resources. In the same year began a pronounced decline in the overall number of criminal cases brought to court, and since they represent a considerable share of the legal aid provided, the budget is nowadays executed more smoothly.
In the years 2014 – 2018 the annual planned budget of the NLAB varied between 5.6 and 6 million USD. For a county of 7 million population, this was considerably less than a dollar per person per year spent on legal aid.
Chart 02. Budget of the NLAB, in current US dollars (million)
Source: Annual reports of the NLAB, author’s calculations. Here ”Approved” is the planned budget at the beginning of the year; usually throughout the year there are 2-4 corrections to the planned budget that are not included in this number. “Implemented” is the total budget disbursed by the NLAB during the year; for some years it exceeds the planned budget for the same year because there were payments to be covered for legal aid granted the previous year and delayed for payment because of the unavailability of funding for the same year. “Paid to lawyers” is only this part of the NLAB expenditures that went directly to lawyers to cover legal aid granted in the same year. The difference between “Implemented” and “Paid to lawyers” is the administrative cost for running the system, i.e. salaries of the NLAB staff, investments in materials and technology, payments to the local bar councils for administration of the legal aid and for in-service training of the lawyers.
The largest share of the legal aid expenditures was dedicated for direct payment of legal aid services provided by the legal aid lawyers. In 2013 the share of this expenses was 86% of the overall spending on legal aid and from this perspective there were no much fluctuations through the years. The expenditures for the administration of the legal aid system were split unequally between the local bar councils and the NLAB. The biggest expenditures the NLAB were the salaries of staff (23 people). The NLAB has been chronically underfunded in terms of budget for capital investments: in 2013 the total expenditure for maintenance of the NLAB was about 65 000 USD plus only about 3 000 USD for capital investments, total less than half percent of the overall legal aid budget. This structure of the legal aid expenditures has been persistent throughout the years. As a consequence the NLAB is only capable of maintaining the system as such; it does not have resources to develop innovations or to invest in new technological solutions to meet the legal aid needs of the population. As noted above, the activity of the NLAB in research and/or developing and testing new services, is conditioned by the availability of funding from the EU Structural Funds or international donors.
Chart 03. Legal aid budget by main type of expenditures, 2013.
Source: Annual report of the NLAB for 2013; author’s calculations.
Since the establishment of the NLAB the predominant part of the legal aid funding covered legal representation in criminal cases where the defence was mandatory. The biggest share of the legal aid funding (38% of all legal aid expenditures for 2015) went for legal representation in 1st instance criminal cases; the second biggest share was dedicated to legal representation in pre-trial criminal cases (29% of the legal aid expenditures in 2015). Legal aid in civil cases amounted to only 4% of the legal aid expenditures in 2015. The annual reports of the NLAB do not provide this type of information to compare with other years, but it is quite likely that this structure of the legal aid expenditures was stable throughout the years.
Chart 04. Legal aid expenditures by type of legal cases, 2015.
Source: Data provided by the NLAB. “Subsidiary” refers to court sessions that are not part of the main criminal procedure, but rather the judge is sitting to examine questions that are subsidiary to the trial; most common of these are court sessions where the judge has to decide on the remand measures (including pre-trial detention).
The Bulgarian legal aid service is relatively new (active since 2006) and for the time being has not experienced large-scale funding cuts. On the contrary, the major recent trend was for budgetary increase (2012-2013). There is a slight decline in the overall planned budget and the annual legal aid spending in the last 3 years. This is due to a decline in the registered crime and respectively a decline in the number of criminal cases brought to court. It may be also related to the policy effort of the NLAB to develop new services for provision of primary legal aid and thus to avoid more expensive legal aid provided before the courts.
5.5. Legal aid providers
In Bulgaria only qualified lawyers (Bulg., адвокати), i.e. bar members as solo practitioners are eligible to provide state funded legal aid. Based on art.4 of BA for a person to become a lawyer he/she has to satisfy the following criteria:
- To be a citizen of Bulgaria, of an EU member state or a member state of the EEA;
- Not have been legally incapacitated;
- To have an university degree in law;
- To possess legal practice permission based on Chapter 14 of the JSA (it requires six mounts of apprenticeship and theoretic-practical examination before the Ministry of Justice);
- To have at least two years of professional experience as legal professional;
- To have successfully passed the bar exam;
- To possess the moral and professional qualities that are required for the practice of legal profession.
In order to be eligible to provide state funded legal aid, the lawyers have to be registered in National legal aid registry (Bulg., Национален регистър за правна помощ), regulated by art.31 and following of the LAA. According to art. 33, al.5 of the LAA, the NLAB can refuse to register/ can remove from the registry a lawyer if:
- he/she has been disciplined by the local bar council;
- the NLAB/ the local bar council have established that the lawyer acted in violation of the LAA or provided legal aid in ill fate or incompetent;
- a lawyer has refused to accept legal aid cases assigned to him/her for more than six months without a legitimate reason.
In order to be registered in the National legal aid registry a lawyer has to apply in writing to the NLAB (art.33 of the LAA). The application is processed by the local bar council which issues an opinion on the application and submits both documents to the NLAB. Based on a review of the documents, the NLAB takes a decision to register the lawyer as legal aid provider.
Once the legal aid lawyers are included in the National legal aid registry, they are expected to declare in what legal field is their expertise and the local bar councils have to take this in consideration when assigning the legal aid cases to individual lawyers.
There is no legal requirement for the legal aid lawyers to have additional specialisation, education, experience, training or skills compared to the lawyers who do not provide legal aid. This regulation is questionable with respect to at least one type of legal aid – the ex officio legal aid provided to children in criminal procedure. In 2018 a research article noted that there are international legal standards which require legal aid providers in such cases to be specialised and to have additional qualification.
In Bulgaria legal aid is provided only by solo practitioners; there are no public defenders offices and the NLAB does not contract legal aid provision with any legal entity, including association of lawyers, non-for-profit organisations, legal clinics or law firms.
There is a high interest amongst the lawyers to register in the National legal aid registry. In 2015 in the country there were a total of 12,629 registered lawyers and 5,034 out of them (or 40%) have been also registered as legal aid providers. In the following three years this share gradually increased to 44% of the lawyers. As of 2018 in the country there were 13,640 registered lawyers and 6,023 of them were also included in the National legal aid registry.
Not all the lawyers who are included in the National legal aid registry effectively provide legal aid. In 2015 there were 5,034 lawyers registered as legal aid providers, but only 3,791 out of them effectively received payments from the NLAB, i.e. provided legal aid in that year. These numbers indicate that there are more legal aid providers than applications for legal aid that can be effectively filtered through the legal aid system.
The payment of the legal aid provided is processed separately in each individual case. Usually after the completion of the case the lawyer prepares a report to the NLAB where he/she describes what work has been done and supplies copies of court documents verifying his participation in different court procedures. The local bar council reviews and countersigns the report and proposes to the NLAB what is the precise sum to be paid to the lawyer for the legal aid provided. The NLAB also reviews the report of the legal aid provider together with the attached documents, determines the precise sum to be paid to the lawyer and executes the payment. With respect to the sum to be paid the NLAB usually follows the recommendation of the local bar council, but may also differ.
There are normatively set thresholds for the pricing of the legal aid services which are regulated by Ordinance for the payment of legal aid (Bulg., Наредба за заплащането на правната помощ). The thresholds for payment of the legal aid are different from the normative minimum standards for payment of the legal services. The Ordinance states the minimum and maximum of payment for each activity of the legal aid lawyers. The amount depends of the type of activity performed by the lawyer and (in criminal cases) depends also on the severity of the sanction associated with the crime.
The data from a recent study showed that the average individual payment made to a legal aid lawyer in 2015 was 105 USD; the highest individual payments were in cassation court cases where the average individual payment to a legal aid lawyer in 2015 was 210 USD; the average payment for legal aid in civil law cases was 86 USD and in pre-trial criminal cases was 115 USD. The surveyed lawyers reports did not always reported the time spend on legal aid, but when reported the most commonly quoted numbers were between 120 and 360 minutes per case. Compared to the average monthly salary in the country which in 2015 was 520 USD, the individual payments to legal aid providers were not that low.
There are no normative impediments for legal aid providers to take legal action against unlawful acts committed by the government itself. In practice however legal aid in civil and administrative law cases is very rare.
Lawyers in Bulgaria enjoy special privilege that is meant to facilitate their professional performance. Based on art. 29 of the BA when exercising their functions in courts, police and administrative institutions, all lawyers are considered to have a status that is equal to the status of a judge. The lawyers ought to receive the same level of respect and cooperation from the other institutions as the judges do. There is no information to what extend this privilege is practically enforced.
5.6. Quality assurance
According to the LAA the responsibility for monitoring the quality of the legal aid provided is shared between the local bar councils and the NLAB. The local bar councils are responsible for the in-service control of the quality of the legal aid and for this purpose the councils can conduct inspections and can initiate disciplinary proceedings against legal aid lawyers (art.18 of the LLA). The bar councils are also responsible to verify the quality of the legal aid when countersigning the individual reports of the lawyers to the NLAB (art.38 LLA).
The NLAB has the right to inspect the legal aid granted (art.35). In case the lawyer acted in ill fate or was incompetent, the NLAB has the right to refuse the payment (art.37, al.2) and can also remove the lawyer from the National legal aid registry (art.33 LLA).
With respect to the legal aid granted in criminal procedure, the dominant understanding among the scholars is that it is the responsibility of the body which is in charge of the specific stage of the procedure (police, prosecution, court) to make sure that all participants abide by their legal duties. This implies that the police, the prosecution and the judges also ought to control whether the defence is effective and in case it is not, they can remove a legal aid lawyer from the case.
In practice however, the police and the prosecution never complain about poor performance of the legal aid defence counsels even though there are number of indices that this is often the case in particular with the pre-trial phase of criminal cases. In a recent study judges and lawyers alike have shared concerns with the performance of legal aid lawyers that was superficial and perfunctory. They were indeed present at various stages of the criminal procedure, signed the necessary documents but did not actually engage to protect the interests of their clients.
The activity of the NLAB with respect to monitoring the quality of the legal aid is rather limited. When in place, it is equally driven by reactive and proactive logic. In 2018 there were total of 18 inspections carried out by the NLAB and 8 of them were planned, the rest was because there was a signal/complaint. The complaints of legal aid clients received in the NLAB are traditionally very few – in 2018 only three of the inspections carried out by the NLAB were initiated by a client’s complaint. Larger portion of the inspections were initiated because of the signal sent to the NLAB by a judge or other institution.
In Bulgaria there are no external agencies, other than the quoted above, to oversee the quality of the legal aid.
All lawyers in Bulgaria are legally bound to maintain and improve their professional qualification (art. 27 of BA). One of the responsibilities of the local bar councils is to organise the in-service training of the lawyers, including the training of the legal aid providers (art. 89, p.11 of BA; art. 18, p.7 of LLA). For the purpose of assisting the lawyers with their in-service training in 2005 the Supreme bar council established a specialized non-for-profit entity – a Centre for training of lawyers “Krastjo Tzontchev” (Bulg., Център за обучение на адвокати „Кръстю Цончев“, http://advotraining.bg ).The Centre is active in organising specialised training courses for lawyers and in partnership with the NLAB also develops training courses for legal aid providers. These are used not only in order to improve the qualification of the legal aid providers, but simply to keep them up informed about the frequent changes in the relevant legislation.
Based on internal regulation of the Supreme bar council all lawyers are obliged to attend training courses on topics of their choosing for a minimum of eight hours annually. This applies to the legal aid providers as well. Until 2018 the required minimum of courses was four hours. The lawyers have to establish the fact that they attended a course. There is no monitoring or assessment of the quality of the proposed training nor on the level of qualification of the lawyers in general.
The NLAB can refuse to include in the National legal aid registry or to remove a lawyer from the registry in case the lawyer acted in violation of the LAA or when providing legal aid the lawyer acted in ill fate or was incompetent. These facts can be established through inspection by the respective local bar council or by the NLAB (art. 33 LLA). In 2018 the NLAB removed 16 lawyers from the National legal aid registry because of imposed disciplinary sanctions. In the six years prior to 2018 this number varied between 6 and 26.
5.7. Criminal legal aid
5.7.1. Scope of criminal legal aid
Art.21 of the LAA distinguishes four types of legal aid: consultation/advice prior to reaching an extra-judicial agreement or prior to initiating court proceedings; drafting documents needed to initiate court proceedings; representation during proceedings; representation in the case of detention by the police, the customs office or State Agency National Security.
In Bulgaria legal aid is available for suspects arrested or detained on criminal charges. Pre-trial detention is regulated in art. 64 of the PPC. For detention of up to 72 hours the prosecutor can decide independently. For longer detention he/she has to submit a motion to the court. In these cases art. 94, al.1, p.6 of the PPC applies, i.e. legal aid is mandatory and the suspect can consult a lawyer prior to and during the court proceedings.
More controversial is the availability of legal aid in the cases of the so called “police detention”. It is regulated in art.72, al.1 of the Ministry of the Interior Act which allows the police to detain people for up to 24 hours on various grounds, including the suspicion that a person has committed a crime. In this case the detention is based on an administrative order issued by the local police and as such this order is subject to appeal in the administrative courts of the country. The dominant understanding among the scholars and law enforcement staff is that people in “police detention” do not have the rights as suspects since no formal pre-trial procedure has initiated yet. This view has been subject to very well-reasoned criticism lately and ought to be abandoned, especially in light of the Directive (EU) 2016/1919.
Art. 21,p.4 of the LAA stipulates that legal aid can be granted to people in “police detention”. In practice, however such cases of legal aid granted are very rare. The main reasons for this are connected to low awareness of the right to legal aid and poor information provided by the police with this respect. A plausible reason is also that it does not make sense to appeal the legality of the police detention order: the administrative court will decide on the matter months after the person was released from police custody. From this perspective the national legislation is not in compliance with the ECHR since it does not provide for an opportunity for the detained person to appeal the legality of his/hers detention while it lasts (Case of Petkov and Profirov v. Bulgaria) .
For suspects who are charged with crime but not arrested or detained legal aid is available during the criminal investigation phase, but only if the conditions for provision of ex officio defence listed in art. 94 of PPC are met.
The PPC and the LAA do not provide for the possibility legal aid to be granted to convicted persons after the end of a trial.
Victims of crime can receive legal aid based on art. 23, al.2 of the LLA if they are already a party to a pending trial, if they do not have the means to pay a lawyer, but they desire to be assisted by one and the interest of justice so require. Victims of specific crimes (domestic violence, sexual violence or trafficking in human beings) are also eligible for free primary legal aid (advice and consultation), in case they do not have the means to pay a lawyer (art. 22, al.1, p.7 of the LAA).
Legal aid is not available to witnesses in criminal procedure.
5.7.2. Eligibility criteria for criminal legal aid
The eligibility criteria for provision of ex officio defence in criminal procedure are regulated by art. 94 of the PPC (quoted above in part 5.2). In a recent study of representative sample of the legal aid granted in pre-trial criminal cases in 2015 it was established that the most frequent justification for granting legal aid was that the defendant was unable to pay for lawyer, desired to be assisted by one and the interest of justice so required (40% of the cases). The second most frequent justification was that a motion for pre-trial detention was filed by the prosecutor (32% of the cases of legal aid in pre-trial cases), followed at a considerable distance by the cases where the defendant did not speak Bulgarian (16% of the cases).
The legal aid clients who were found guilty/ lost the case in civil procedure and who used legal aid in the form of legal representation (before the police or before the courts) are obliged to repay back to the NLAB the entire amount of money spent on legal aid. When adopted in 2005 the Bulgarian LAA did not regulate this matter explicitly. Between 2006 and 2009 the national courts developed contradictory jurisprudence on this question and in early 2010 the Supreme Court of Cassation issued a decision for binding interpretation of the law where it stated that the NLAB is entitled to receive its money back irrespective of the grounds of provision of legal aid.
According to art.25 of the LAA, whenever the judge or the police decides to allow the granting of ex officio legal aid, he/she has to explain to the defendant the consequences in case he/she is convicted, i.e. that he/she has to repay the money for legal aid to the NLAB. The defendant has to sign a declaration that he/she is aware of these consequences. There are no provisions for partial recovery of the sum depending on the financial status of the defendant. Even if the legal aid was granted on the grounds that the defendant was indigent and the interest of justice so required, if he/she was convicted, he/she is to repay the money to the NLAB. In practice, between 2015 and 2018 the state managed to recover about 4% of the money paid for legal aid provision each year mostly through voluntary execution on behalf of the debtor.
The legal aid granted in the form of legal consultation/advice with view of reaching amicable solution prior to a court procedure, the preparation of documents in view of initiating a court procedure and the legal aid granted in “police detention” are deemed by virtue of the LAA to be free of charge for the indigent client, i.e. the NLAB does not collect the money back.
5.7.3. Process for obtaining criminal legal aid
In criminal proceedings legal aid is granted by the authority which is responsible for carrying out the respective stage of the proceedings (art. 25, al.1 LAA). In the predominant number of pre-trial criminal proceedings the decision for granting legal aid is taken by the investigating police officer. When he/she establishes that the legal requirement for granting legal aid are met, he/she must issue a document for granting legal aid (it may be granted only in writing). The document has to include several legal requisites, including the name of the recipient of legal aid, the legal grounds for granting the legal aid and the circumstance justifying it and the characteristics of the criminal case. This document has to be immediately forwarded to the local bar council. It is the bar council which is assigning a legal aid provider to the case. Based on art. 25, al.6 of the LLA the local bar council has to take into consideration “if it is possible” a preference for a specific lawyer expressed by the suspect/defendant.
The criminal investigation proceedings where ex officio defence is required by law are conducted only when a lawyer is present. Otherwise the legality of the entire procedure is compromised.
The decision to deny legal aid must be supplied with motives and it can be appealed.
The defendant may choose to waive his right to legal aid, except when the defence is mandatory. In those cases the defendant may waive his right to legal aid only in two cases: if it was granted on the grounds that the defendant does not speak Bulgarian or when there were several defendants with conflicting interests and one of them already hired a lawyer. The waiver may be revoked by the defendant at any later stage of the criminal proceedings.
It is very difficult to establish the total number of criminal cases filed in court where state funded legal aid was provided because this information is not provided in the regular annual report of the NLAB and the overall number of criminal cases is measured by different criteria. According to the annual report of the courts in 2015 on the district and provincial Court level there were total of 39,123 pending cases of general nature. The prosecution service reports the number of prosecutorial acts brought to court on annual basis and in 2015 these were 33,411. These are not only indictments, this number also includes motions for plea bargaining and for imposing administrative sanctions instead of criminal liability. For 2015 the NSI reports that there were 32,985 accused persons in the country. For the same year the NLAB reported 17,930 cases of legal aid granted in 1st instance criminal proceedings, but in some cases legal aid was granted to more than one person at the time. So in 2015 the legal aid granted in 1st instance criminal cases of general nature represented slightly more than the half (54%) of the prosecutorial acts brought to court and against the total of the accused people, but 46% of the pending in the courts criminal cases of general nature.
5.8. Civil legal aid
5.8.1. Scope of civil legal aid
The scope of the civil legal aid is defined in the CPC and in the LAA. According to art. 94 of the CPC the legal aid consists in free legal representation in court proceedings. As noted above however, in case the litigant loses he/she has to restore the legal aid expenses to the NLAB proportionally to the part of the claim he/she was awarded by the court and irrespective of the fact that the legal aid may be granted to indigent persons.
The Bulgarian CPC does not provide for ex officio representation in civil law disputes. Some scholars are criticizing this from the point of view that the civil procedure was recently reformed and in order to speed it up a number of early preclusive deadlines were included in the procedure, i.e. after the completion of the deadline a party is no longer allowed to point new evidence. In such cases litigants who do not have a lawyer and who are not lawyers themselves are in very disadvantaged position.
According to art.21 of the LAA legal aid may be granted in the four different forms quoted above, including consultation for reaching an agreement prior to initiating court proceedings and preparation of documents with view of potential court proceedings. It is available to all cases of civil, administrative, family law and may be required at any stage of the proceedings.
Legal aid in civil law cases may be granted only to natural persons. Legal entities are not eligible for legal aid.
According to art. 24 of the LAA, there are 3 restrictions on the provision of legal aid for natural persons: when the granting of legal aid cannot provide any practical advantage to the applicant; when his/her claim is obviously unjustified, unsubstantiated or inadmissible in the court; in commercial law cases and cases related to tax law.
Based on art.21 of the LAA, legal aid may be granted also in the case of negotiating an amicable agreement prior to initiating a court case, i.e. hypothetically it is available for mediation, but there is no public data on the incidence of legal aid granted in such cases.
5.8.2. Eligibility criteria for civil legal aid
In the most common situation a person can apply for legal aid granted in the form of procedural representation when the court proceedings are already initiated and the litigant lacks adequate resources to pay a lawyer. The court considers the monthly financial revenue of the applicant and his/hers family; his/hers property status; family status; health status; employment; age etc. Based on art. 23 of the LAA, the court grants legal aid if the litigant lacks means to pay a lawyer, desires to have one and the interests of justice so require.
When the applicant only applies for legal aid in the form of consultation/ advice or preparation of documents (i.e. the dispute has not reach court stage yet) then under art. 22, al.1 of the LLA there are several categories of applicants who are allowed to receive such legal aid without having to prove that they lack resources (i.e. they do not have to provide documents or in any form to justify their indigent status). For them legal aid under the form of advice/ preparation of documents is completely free. On this ground legal aid may be granted to all persons who are entitled to monthly social benefits; to all persons who are entitled to seasonal social benefit to secure heating in the winter; to all persons who reside in specialised institutions for social protection or who use social services (i.e. single mothers); to all children at risk or children who are taken out of their families and reside with foster care.
Primary legal aid can be also granted to victims of domestic violence, sexual crime and trafficking in human beings in case they do not have means and desire to consult a lawyer; to all foreigners who have applied for international protection and to all foreigners who are detained in specialized centres, who lack means and want to be assisted by a lawyer. In all the above mentioned cases the provision of legal advice or preparation of documents is free.
5.8.3. Process for obtaining civil legal aid
Primary legal aid (advice/consultation and/or preparation of documents with view of potentially submitting a claim in court) is granted by the chairperson of the NLAB. The NLAB does not have regional offices, so this implies writing to the headquarters of the NLAB in Sofia or showing in person in one of the regional consultation centres (these are 12 for the entire country as of the end of 2019).
The decision of the NLAB to grant or to refuse legal aid may be appealed in Sofia administrative court.
Legal aid when the court proceedings are already initiated, is granted by the court considering the claim. Based on art. 95 of the CPC the application for legal aid has to be submitted in writing. The act with which the court refuses to grant legal aid is subject to appeal. Once the court decided to grant legal aid, its decision is forwarded to the local bar council, which is assigning the case to a specific lawyer following the same rules as with the provision of legal aid in criminal cases.
At a later stage of the proceedings and if the conditions that justified the granting of the legal aid are no longer in place, the court may decide to revoke the decision to grant legal aid.
In 2015 legal aid (in the form of legal representation) in civil procedure was granted in 2,339 cases. For the same year only the 1st instance civil procedures pending in courts were 82,760 (without taking into consideration the family law, the administrative law cases etc.), so only about 3% of the pending cases were probably involving legal aid assistance to one of the litigants.
In the same 2015 the NLAB receive 500 request for granting primary legal aid. Out of them, the NLAB granted legal aid in 180 cases. In 56 cases the NLAB refused to grant legal aid since none of the legal requirements were met. In the predominant number of the applications (264) the procedure was suspended because either the applicant failed to supply a document or because the NLAB referred the case to another state organ competent in the matter.
5.9. Holistic legal services
Under the state funded legal aid system there are no forms of collective provision of legal services nor holistic legal services. Such services are sporadically made available to specific vulnerable groups through non-for-profit entities acting individually or in collaboration. In such cases the funding for the legal aid provided is from private sources or international donors.
5.10. Legal aid before regional human rights mechanisms
Since 1992 Bulgaria is a member state to the ECHR and the jurisprudence of the ECtHR had a tremendous contribution to the effective protection of human rights in the country.
The state funded legal aid system does not cover cases of legal representation before any international tribunals nor before the ECtHR. In some instances, limited assistance is available through specialized non-for-profit entities that are using funding from foreign donors. The most prominent of these include the Bulgarian Helsinki Committee (www.bghelsinki.org), Bulgarian lawyers for human rights (www.blhr.org ), Association for European integration and human rights (active in the town of Plovdiv, www.hurights.com ), Access to Information Program (www.aip-bg.org).
6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY
6.1. Overview of judicial costs for litigants
The litigants in civil cases are required to pay a State fee and to cover the costs related to the proceedings (art. 71 of the CPC). The State fee may be simple or proportionate and depends on the material interest involved. The State fee is determined by a normative Tariff adopted by the Government (Bulg., Тарифа №1 към Закона за държавните такси за таксите, събирани от съдилищата, прокуратурата, следствените служби и министерството на правосъдието).
The State fee has to be paid prior to initiating the proceedings. The decision of the court to launch civil procedure is conditioned by the payment of the State fee. In the most common cases the state fee is 4% of the material interest involved. In addition, throughout the proceedings the parties have to pay for costs that incur, most frequently related to the expert witnesses and covering the costs of different tests etc. Each of the parties shall depose in advance in the court the sum covering the expenses for the procedure it has required. At the end of the proceedings, the State fee and the expenses (including the remuneration of the lawyers) are to be paid by the litigant proportionately to the recognized part of the claim (art. 78 of the CPC). In case the parties settle the dispute voluntarily after the beginning of the court proceedings, they are entitled to recover half of the State fee that is already paid.
6.2. Exemption from judicial costs
The grounds for exemption from payment of State fee and expenses are regulated by art. 83 of the CPC. Only natural person can be exempted from judicial costs; the prosecutors and some legal entities such as the National Red Cross in specific cases can also be exempt. The claimant and the defendant can both apply for exemption. Exempt from judicial costs by statutory regulation are people who are workers, employees and members of cooperatives when they bring to court labour law disputes with their employers; the claimants who are seeking spousal/ child support or litigants who are claiming tort from crime, when the perpetrator has been already convicted in a criminal procedure.
Based on al.2 of the art. 83 of the CPC if a litigant does not have enough resources to pay for the State fee and court expenses, the court may grant exemption. In this case the litigant has to specifically apply for exemption and provide evidence about his/her financial status. When deciding on the application, the court is taking into consideration not only the income and property status of the applicant, but also the family and health status, employment, age and other ascertained circumstances. The application for granting legal aid in those cases is separate and does not automatically exam the legal aid recipient from paying the State fee and court expenses.
In case the litigant who was exempt from the initial payment of State fee and court expenses, lost the case, he/she is obliged to pay for the State fee and court expenses already paid for by the other party. Expenses in this case may also include the legal aid granted to the aided litigant and the expenses the other party made to pay a contractual lawyer.
6.3. Mechanisms to reduce costs by variations to courts and procedures
The classic criminal and civil legal procedures are all together not that expensive for people in Bulgaria and there is no need for reducing cost further. As mentioned above in section 6.2 the labour law disputes in Bulgaria are by statutory regulation exempt from judicial expenses (art.83 of the CPC) for the employed. Based on the Tariff No 1 to the Law on the State Fees (quoted above in part 6.1), the State fee in administrative law cases is simple (i.e. does not depend on the size of the material interest involved) and for both natural and legal persons is quite low (10 BGN for natural persons and 50 BGN for most of the legal persons). The State fee for criminal cases that are brought to court by private prosecution is also simple and quite low (12 BGN).
7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS
Not applicable to Bulgaria’s legal system
8. PROFESSIONAL LEGAL ETHICS
It is difficult to assess whether the legal profession is effectively enforcing its own ethical standards, since there is no research available on the topic and publications are scarce. Based on art. 131 of the BA the lawyers are liable before the Disciplinary court of the local bar council in case of breach of the ethical standards of the profession. In such cases the Disciplinary panel of the Supreme bar council acts as appellate jurisdiction.
The rules of the professional ethics were codified in 2005 through the adoption by the Supreme bar council of a Code of ethics of the lawyer (Bulg., Етичен кодекс на адвоката).
In 2019 the Disciplinary panel of the Supreme bar council reviewed 245 cases for disciplinary sanctions and in 86% of these upheld as right the decision of the local bar council. There are no data in the 2019 report of the Supreme bar council about what type of violations of the professional standards were sanctioned.
Such data is available for the activity of the Sofia bar council. It is the biggest bar council in the country (about 40% of all lawyers are registered for practice in Sofia) and most probably the data is representative for the overall situation in the country. In 2019 the Disciplinary court of the Sofia bar council considered 329 disciplinary cases. The predominant part of these (307) were for lawyers who failed to pay the due fees to the Supreme bar council and/or to the local bar council. Only 22 disciplinary cases were based on a signal of institution or a complaint of a client against a lawyer. Out of these only in 8 cases the lawyer was disciplined by the Disciplinary court; in 8 other cases the statute of limitation for disciplinary responsibility has expired; the rest are still pending. Disciplinary sanctions for permanent or temporary prohibition to exercise the profession were imposed on 25 lawyers. When assessing the results of the activity of the Disciplinary court its chairman proudly pointed out that the court had both contributed to stabilizing the budget of the Sofia bar and for improving the public trust in the integrity of the profession.
Some of the smaller local bar councils reported that in 2019 there were no disciplinary proceedings at all. The predominant part of the annual reports of the local bar councils are not published on their websites, so it is difficult to evaluate to what extent they are effective in enforcing the ethical standards of the profession.
In Bulgaria there are no mechanisms for external regulation of the profession.
As of 2019 in Bulgaria there were nine law schools with total enrolment of about 9,389 students, or about 2,000 annual enrolment. The presence of professional ethics in the university law schools and in the in-service training of the lawyers is scarce and marginal. In 2017 a report of a working group with the Ministry of Justice examining the problems of the legal education noted: “…there are some deficits in the university legal education that pertain to the (knowledge of) the structure and the organisation of the judiciary, legal ethics and the ethical rules of the legal practice”.
The universities are autonomous in determining the content of their curriculum, but there are legally set requirements for the minimum content of the curriculum of the law schools – Regulation of the unitary state requirements for acquiring university degree in Law and professional qualification as lawyer (Bulg., Наредба за единните държавни изисквания за придобиване на висше образование по специалността „Право“ и професионална квалификация „юрист“). The Regulation lists number of courses that are mandatory for teaching in the law schools with the minimum hours per each. Teaching professional legal ethics is not included among the mandatory courses. The universities are free to develop and offer other courses to the students as well. As of 2018 only in two out of nine law schools the topic of professional legal ethic was included in the program: in the Law school of the University of World Economics and in the Law school of the Burgas Free University. In the Burgas Free University the course’s name is “Legal ethics” and includes 40 hours lectures and seminars for students in the first semester of the second year.
Professional legal ethics questions are included in the bar examination and have also some place in the in-service training of the lawyers.
In 2004-2005 the lawyers were actively involved in adopting the text of the LAA, but in the last couple of years they are not publicly seen as engaged in lobbying for sustaining the reform of the legal aid system and improving the accessibility and the quality of the services.
9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE
The broadband internet coverage in Bulgaria in 2018 was 96%, compared to EU average of 97%. Bulgaria was rated 19th according to the Digital Economy and Society Index. The spread of fixed broadband internet however is only 58% compared to an EU average of 77%, so in this respect Bulgaria performs worst among all the EU member states.
According to the share of individuals using internet for interacting with public authorities Bulgaria also performs way below the EU average. In 2019 only 22% of the Bulgarian population used internet to interact with public authorities, only 17% used internet to obtain information from public authorities, only 9% were downloading and sending official forms via internet.
Data about the number of legal practitioners/ non-for-profit providers using technology for business purposes is not available in public documents.
Prior to 2017 the communication between the NLAB and the local bar councils was based on paper and there was only partial electronic communication through software owned by the local bar councils (they use different brands of commercially available software). As of 2017 amendments were introduced to the LAA and the NLAB has developed unified software and informational system (art.8a of the LLA) that allows for electronic communication between the solo practitioners who are providing legal aid, the local bar councils and the NLAB. The local bar councils were allowed 2 years to adapt to the system and since 2019 they are legally bound to use only this system for communications with the NLAB and reporting about the legal aid granted.
The NLAB also linked its own electronic system to the inter-agency system for data transfers (REGIX) and obtained the support of the Supreme Judicial Council for linking electronically the informational system of the courts with the electronic systems of the local bar councils. Since 2018 based on art.22, al.4 of the LLA the NLAB employees verify the financial and the property status of the applicants for primary legal aid via electronic communication with the respective state agency. These measures reduced the administrative burden of the system for the legal aid lawyers and the local bar councils and reduced the waiting time for authorisation of the granting of primary legal aid for the potential clients.
10. UNMET LEGAL NEEDS
As of 2019 there were only two studies of the legal problems of citizens – the first one was published by Open Society Institute – Sofia in 2009. In 2017 its methodology was revised and adapted and the NLAB carried out its first similar study, made possible through project funding from the EU structural funds (main results quoted above in Part 4). Both studies established that the general population lacked awareness about the existence of the mechanism for legal aid provision and the level of awareness was the lowest among the most disadvantaged social groups. Only a small share of people who had legal problems were inclined to seek assistance from a lawyer and there was wide spread public mistrust in the profession.
Based on the results of the two studies, it is quite likely that in the country there are large groups of people who have legal problems and are eligible for legal aid, but cannot access the mechanism for state guaranteed legal aid.
11. PUBLIC LEGAL EDUCATION
In Bulgaria legal education is included in the school curriculum. Part of the mandatory curriculum in 10th grade in the high schools is a discipline called “Ethics and Law” with 54 hours for the school year. One of the declared goals of the pre-school and school education is for the children to “achieve competence for understanding and applying the principles of democracy and rule of law, of human rights and freedoms, for active and responsible civic participation”.
Public legal education is not available for adult citizens and for specific vulnerable groups. A recent public opinion poll showed very low public trust in the rule of law. In 2018 only 8% of adult Bulgarians agreed that the laws applied equally to all, only 14% agreed that the laws were clear and comprehensible for people and only 21% agreed that the laws in Bulgaria were fair.
In Bulgaria there is no state funded online platform for access to the full texts of the laws.
In the last 10 years the NLAB implemented at least two public campaigns in order to inform the citizens about the right to legal aid and the procedure for applying for free legal aid. Both were implemented as part of larger projects funded by the EU structural funds, were relatively limited in scope and not specifically targeted at vulnerable social groups. People in general are not aware about the availability of the legal aid service and rarely apply to it.
12. GLOBAL EFFORTS ON ACCESS TO JUSTICE
Since 1992, as a member state to the Council of Europe, Bulgaria implemented important reforms in the national justice system in order to bring it in line with the standard of the ECHR and the development of the case law of the ECtHR. Between 1999 and 2005 when Bulgaria concluded its negotiations for EU membership, improving access to justice was part of the EU accession agenda. During this time the LAA was adopted, together with new PPC and CPC, and the changes in the national legislation were complimented by a considerable EU technical assistance provided through the PHARE program.
Since 2007, as an EU member state Bulgaria participates in the judicial cooperation in civil and criminal matters, and since 2009 in the implementation of the EU Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings.
Improving human rights and access to justice for vulnerable social groups was an important goal of the national Open Society Foundation since the late 90es (in 2004 renamed Open Society Institute – Sofia, http://osis.bg). Independently and in partnership with the Open Society Justice Initiative, the Foundation implemented number of projects in Bulgaria in the last 20 years, including the first empirical legal studies in the access to justice on national level, piloting an alternative organisation of the provision of legal aid in the town of Veliko Tarnovo, the first sociological study in the legal problems of the population, monitoring the effective implementation of human rights in police custody etc.
In 2016 – 2019 the Bulgarian Helsinki Committee and Open Society Institute – Sofia participated in the implementation of EU funded projects under the Justice program of the EU aimed at improving access to justice for suspects and accused persons in criminal proceedings. This helped strengthening the capacity of the Bulgarian specialized non-for-profit organisations and the exchange of good practices between them and specialized organizations in other EU member states.
The recent reform of the Bulgarian legal aid system contains important lessons for both the positive and the negative side of the conditionality related to the EU accession. On the positive side, the Bulgarian case showed that the political pressure coming from outside was effective in producing improvements in the access to justice system on national level through the confluence of three factors: the ECHR provided the legal standards for the national justice system, the prospects for EU membership served as a political driver for reform and the technical assistance from the EU provided capital investments and training of legal professionals.
On the negative side, after the EU accession the reform process lost pace and intensity; because promoting access to justice depended on various national institutional actors (the Ministry of Justice, the Supreme Judicial Council, the bar councils and the NLAB) none of them emerged as internal reform engine. Besides, the EU accession negotiations were less focused on achieving rule of law as a result, and more on checking boxes with adopting new legislation and setting new institutions. In such a way the infrastructure of the national legal aid system was established together with the necessary procedural safeguards for suspects and defendants, but the legal aid system remained unknown and difficult to access for indigent people.
From this perspective, the Bulgarian legal aid system is still struggling with five major challenges:
- The first one is the low public trust in the justice system and in the legal professionals. Psychological factors left aside, it is striking that the administrative map of the country for quite some time now is in disconnect with the demographic one. Large portions of disadvantaged population (ethnic minorities, elderly, residents of villages and remote towns) simply lack physical access to legal institutions and to legal professionals.
- The second challenge is that legal aid granted in the form of legal representation before civil or criminal courts is actually not free even for the indigent client. The cases of legal aid granted are in practice reduced to the cases of mandatory defence in criminal proceedings where the defendant is not allowed to waive his right to legal aid. It is quite likely that in many criminal cases, when explained that they have to repay back the legal aid expenses to the NLAB, the indigent suspects/defendants chose to waive their right to legal aid. Moreover recent sociological research on the incidence of legal problems demonstrates that large groups of indigent people experience civil, administrative and family law problems which remain unsolved. Hence there is an important demand for legal aid services that the current organisation of the national legal aid system is unable to address and satisfy.
- The institutional reaction to the performance of legal aid lawyers that was superficial and perfunctory is very limited. Most of the legal aid clients are not in the position to know what standards they can expect from their lawyer and complaints for malpractice or incompetent services are extremely rare. Hence the need for the bar councils and the NLAB to take a proactive stance in promoting and monitoring the quality of the service provided.
- The availability of information and knowledge is also a major challenge to the access to justice. It is manifested on one hand through the lack of public legal education, unavailability of reliable legal information for citizens and information as to how to access the legal aid system. But there is a policy problem as well, because further policy changes depend on the availability of systematic research in the area of legal needs of indigent people, empirical legal studies, studies on the effectiveness and efficiency of justice. For the time being on national level these are scarce if not lacking entirely.
- The budget of the Ministry of Justice and the one of the NLAB are systematically short of capital investment funds, and hence both institutions lack instruments to stimulate innovations and for the development and adoption of new technological solutions.
 All data about the workload of the courts is taken from Report for the Implementation of the Law and the Activity of the Courts in 2018, Attachment 1 – Statistical Data about the Courts in 2018, (Bulg., Доклад за прилагането на закона и за дейността на съдилищата през 2018, Приложение 1 – Статистически таблици за съдилищата), available in Bulgarian at www.vks.bg The percentage shares are calculated by the author. The data reflects the actual workload of the judges who are employed by the courts and showed at work. The workload calculated based on the budgeted positions for judges is a little less impressive, since in the system at any given moment there are some vacancies or judges who don’t show at work because of illness, parental leave etc.
 The Constitution was promulgated in State Gazette No56/13.07.1991.
 Promulgated in State Gazette No 55/ 25.06.2004.
 Benatov, V. Collective legal practice in Bulgaria, Advokatski pregled, 2004, No 10-11 (Bulg., Бенатов, В. Съвместното упражняване на адвокатската професия в България, сп. Адвокатски преглед, 2004, №10-11.)
 The data about the number of the lawyers here and below are taken from the annual report of the Supreme bar council for 2018, approved by the Supreme bar council with its decision No1590/18.01.2019 (Bulg., Отчет за дейността на Висшия адвокатски съвет за периода 1.01.2018 – 31.12.2018 г., приет с решение на Висшия адвокатски съвет №1590/18.01.2019 г.), available in Bulgarian at www.vas.bg
 Regulation No 1/ 9 July 2004 of the Supreme bar council about the minimal size of the lawyers’ fees, promulgated in State Gazette No 64/23.07.2004, last amended State Gazette No 84/25.10.2016 (Bulg., Наредба №1/9 юли 2004 г. за минималните размери на адвокатските възнаграждения, издадена от Висшия адвокатски съвет, публикувана в ДВ №64/23.07.2004 г., посл. изм. ДВ №84/25.10.2016г.
 Promulgated in State Gazette No83/18.10.2005.
 Promulgated in State Gazette No64/07.08.2007.
 CEPEJ, European judicial systems. Efficiency and quality of justice, CEPEJ Studies No 26, 2018 edition (2016 data).
 European Commission, 2019 EU Justice Scoreboard, Table: Perceived independence of courts and judges among the general public.
 PACE, Resolution 2296 (2019) on post-monitoring dialogue with Bulgaria.
 For more detailed description of the national criminal justice system and analysis of the main reforms during EU accession see Grozev, Y. (2012) Chapter 3.Bulgaria in Cape, E., Namoradze, Z. Effective Criminal Defence in Eastern Europe, Soros Foundation – Moldova, p.93-151. Note that here we use the abbreviation “PPC” for the Penal Procedure Code and not “CPC” as Grozev does in his text.
 Promulgated in State Gazette No53/27.06.2014.
 Since 2007 the European Commission produces annual CVM reports for both countries with observations and recommendations, see https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/assistance-bulgaria-and-romania-under-cvm/cooperation-and-verification-mechanism-bulgaria-and-romania_en
 For enumeration of the specific ECHR jurisprudence pertaining to each issue see Council of Europe, Department for the Execution of Judgements of the ECHR, Country Factsheet – Bulgaria, last update 17.12.2019.
 Bulg., Семеен кодекс. Promulgated in State Gazette No 47/23.06.2009.
 Promulgated in State Gazette No110/17.12.2004, last amendment promulgated in State Gazette No27/01.04.2011.
 Gradinarova, T. Do We Have to Introduce a Compulsory Mediation with Regard to Specific Disputes, published in Bulgarian on 11.11.2019 at www.legalworld.bg (Bulg., Градинарова, Т. Следва ли да бъде въведен задължителен елемент за провеждане на медиация по определени спорове, статия от сайта Правен свят, 11.11.2019 г.)
 Amendments to the CPC promulgated in State Gazette №65/7.08.2018.
 Interview of Boriana Dimitrova, member of the Supreme Judicial Council, Ikonomist, No2/2019.
 Two pilot judgements of ECtHR Dimitrov and Hamanov v. Bulgaria and Finger v. Bulgaria.
 Amendments to the JSA promulgated in State Gazette No50/2012 and amendments to the Act on the Liability of the State and the Municipalities for Damages promulgated in State Gazette No98/2012.
 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013
 Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016
 The text of the strategy is approved by the Parliament with a decision on Jan.21, 2015 (Bulg.) Актуализирана стратегия за продължаване на реформата в съдебната система, одобрена от Народното събрание на 21.01.2015 г.
 The text of the strategy is approved by the NLAB with decision No168/10.06.2016. (Bulg., Актуализирана стратегия за развитие на Нaционалното бюро за правна помощ, приета с решение на заседанието на НБПП №168/10.06.2016 г.) Available in Bulgarian on the website www.nbpp.government.bg
 Promulgated in State Gazette No79/4.10.2005.
 Public Interest Law Initiative, Interights, Bulgarian Helsinki Committee, Polish Helsinki Foundation for Human Rights (2003), Access to Justice in Central and Eastern Europe. A Source Book, p.3 available at www.pilnet.org
 Open Society Institute – Sofia (2018) Assessment of the Access to Legal Aid in the Pre-Trial Phase of Criminal Proceedings in Bulgaria in 2015, available in Bulgarian and English at https://osis.bg
 See Bulgarian Helsinki Committee, 2015 Annual Border Monitoring Report – Access to Territory and International Protection, p.20 – it describes the lack of adequate interpretation in the cases where foreigners seek asylum or international protection, but the problem concerns the criminal proceedings as well.
 Promulgated in State Gazette No78/08.07.1925; lost effect in 1936.
 This trend is briefly sketched in note 9 by Davidkova-Dimitrova, D. Obligatory participation of defence counsel in criminal proceedings, in De Jure, No1/2015 (Bulg., Давидкова-Димитрова, Д. Задължително участие на защитник в наказателния процес, De Jure, №1/2015).
 Ratified by Ordinance No1199 of the Presidency of the Parliament on 23.07.1970, State Gazette No 60/1970. (Bulg., Ратифициран с Указ №1199 на Президиума на Народното събрание от 23.07.1970 г., ДВ, бр.60/1970).
 In Davidkova-Dimitrova, D., op.cit.
 Promulgated in State Gazette, No79/4.10.2005; last amendments promulgated in State Gazette No92/6.11.2018. English translation of the LAA is available in internet at the website of the NLAB www.nbpp.government.bg
 Amendments to the LAA, promulgated in State Gazette No13/7.02.2017.
 Belezhkov, B. The defender in criminal procedure for offences, committed by minors, Advokatski pregled, No6-7/2018, pp.38-49. (Bulg., Бележков, Б. Защитникът в наказателното производство по делата за престъпления, извършени непълнолетни, сп. Адвокатски преглед, бр.6-7/2018.)
 Data about the overall number of the registered lawyers is from the annual reports of the Supreme Bar Council for the respective year. The data about the number of lawyers in the National legal aid registry are from the respective annual reports of the NLAB.
 Promulgated in State Gazette No5/17.01.2006, last amendment promulgated in State Gazette No98/15.12.2015.
 Open Society Institute – Sofia (2018), op.cit.
 Data about the average monthly salary are from the NSI, Employment and average monthly salaries in the fourth quarter of 2015 (Bulg., НСИ, Наети лица и средна брутна заплата през четвъртото тримесечие на 2015 г.), available in Bulgarian at www.nsi.bg
 Belezhkov, B. op.cit.
 Open Society Institute – Sofia (2018), op.cit., p.16.
 Based on art.8 of Ordinance No4/2006 of the Supreme bar council pertaining to the sustainability and the improvement of the professional qualification of lawyers and lawyers from the EU (Bulg., Наредба №4/2006 г. на Висшия адвокатски съвет за поддържане и повишаване на квалификацията на адвокатите и адвокатите от ЕС), promulgated in State Gazette No5/17.01.2006.
 Kanev, K. International legal standards for the right to legal defence and support for suspects, accused and defendants in criminal proceedings, Advokatski pregled, No1/2018, pp.3-51. (Bulg., Кънев, К. Международни стандарти за правото на правна защита и подпомагане на заподозрени, обвиняеми и подсъдими в наказателния процес, сп. Адвокатски преглед, бр.1/2018, с.3-51.)
 Detailed discussion on the access to various procedural rights in “police detention” see Grozev, Y. op.cit.
 Stefanova, Zl. (2018) In Support of the Detained by the Police and of the Defendant in Pre-trial Criminal Procedure. Open Society Institute – Sofia. р.17 (Bulg., Стефанова, Зл., (2018) В помощ на задържания от полицията и на обвиняемия в досъдебното производство, Институт Отворено общество – София, с.17)
 Open Society Institute-Sofia (2018), op.cit. p. 9.
 Interpretative Decision of the General Assembly of the Penal Chamber of the Supreme court of cassation No 4/2010, taken on 19 February 2010 (Bulg., Тълкувателно решение на общото събрание на Наказателна колегия на ВКС №4/2010 г., взето на 19.02.2010 г.)
 By criminal case “of general nature” it is meant the cases where the indictment is submitted by a prosecutor as opposite to the cases where based on the PPC the criminal case is initiated through a motion of private prosecution. The data about the workload of the courts is from Supreme Court of cassation, Report on the implementation of the law and the activity of the courts in 2015 (Bulg., Доклад за прилагането на закона и за дейността на съдилищата през 2015), available in Bulgarian at www.vks.bg
 In case there are several defendants and their interests are not contradicting, there may be only one legal aid lawyer for the case. See Open Society Institute-Sofia (2018), op.cit.
 For historic and comparative legal perspective on the ex officio defence in civil procedure see Kostov, I. Ex officio defence in civil and trade law cases, in Advokatski pregled, No.11/2018. (Bulg., Костов, И. Задължителната адвокатска защита по граждански и търговски дела, сп. Адвокатски преглед, №11/2018.)
 Some examples of services for victims of domestic violence combining legal and psychological help are provided by Gender Alternatives Foundation through funding from Oak Foundation, see https://genderalternatives.org; Foundation “H&D Gender Perspectives” through funding from EEA Grants, see http://hdgender.eu ); example of psychological and legal assistance for victims of trafficking in human beings at PULS Foundation, see http://pulsfoundation.org, etc.
 Promulgated in State Gazette No71/1.09.1992, last amendment promulgated in State Gazette No35/2.05.2017.
 About 5 USD and 25 USD respectively.
 Adopted by the Supreme bar council with its decision No324 of 08.07.2005, promulgated in the State Gazette No60/22.07.2005.
 Report of the chairman of the Disciplinary court of the Sofia bar council Mr. Svetozar Zlatanov to the General assembly of the Sofia bar held on 25-26.01.2020 in Sofia, page 71 – 72 of the records (Bulg., Отчет на председателя на дисциплинарния съд към САС г-н Светозар Златанов пред общото събрание на САС, проведено на 25-26.01.2020, с.71-72 от протокола)
 As quoted in Kiselova, N. (ed.) (2018) The Role of the Fundamental Disciplines in the Legal Education. Deontological Aspects in the Legal Education. Bulgarian Institute for Legal Initiatives. (Bulg., Киселова, Н. (ред.) Значението на фундаменталните дисциплини в юридическото образование. Ценностни измерения в юридическото образование, 2018, Български институт за правни инициативи), available in Bulgarian at www.bili-bg.org
 Adopted by Governmental decree No82/26.04.2017, promulgated in State Gazette No35/2.05.2017.
 Kiselova, N. op.cit. p.68.
 European Commission, Digital Government Infographic 2019. Bulgaria.
 Gramatikov, M. (2009) Justiciable Events in Bulgaria. Open Society Institute – Sofia. (Bulg., Граматиков, М. Изследване на правните проблеми в България по метода на justiciable events. Институт Отворено общество – София), available in Bulgarian at http://osis.bg ; for English language analysis of the results see also Gramatikov, M. Multiple Justiciable Problems in Bulgaria, Tilburg University Legal Studies Working Paper No16/2008.
 NLAB (2017) Nationally Representative Survey of the Need for Legal Aid in Bulgaria (Bulg., НБПП (2017) Национално-представително изследване на нуждата от правна помощ в България и качествени проучвания), available in Bulgarian at the website of the NLAB www.nbpp.govenment.bg
 Art.5, al.1, p.7 of the Law on Pre-school and School Education, promulgated in State Gazette No79/13.10.2015. (Bulg., чл.5, ал.1, т.7 от Закон за предучилищното и училищното образование, обн. ДВ №79/13.10.2015).
 Open Society Institute-Sofia (2019) Democracy and Civic Participation. Public Attitudes towards Democracy, the Rule of Law and Fundamental Human Rights in 2018. Available in Bulgarian and English at https://osis.bg