In Search of Budget Tolerance
Over the past more than two decades, efforts to restructure the judiciary in Bulgaria have expressively taken two directions, both to improve the system’s internal imperfections. One direction has been to assert the independence of judges by empowering them to decide their own career and organizational issues. The intended outcome with a judicial council was not achieved. The second direction was to protect rank-and-file prosecutors from the omnipotence of the Prosecutor General. Here too, partial and mainly normative results were achieved. While these processes were under way, the environment within the system changed due to various factors, generational change, sustained and ongoing salary increases accompanied by a significant reduction in the workload in places. Thus, as an end result, the state of the Bulgarian judiciary is in a position to be forcibly empowered by those who may not consciously want this and have no proactive behaviour in these processes. In the meantime, the unintended but typical effect of other post-socialist states has been achieved – ineffectiveness of the system at a high cost, internal passivity and payment through the state budget by the citizens themselves of more and more costs – over 1.2 billion leva this year. State fees are also more tariff-like per type of service, with no emphasis on access, quality and timeliness.
Тhe question of directing the public debate and efforts to how the issue of the budget of the judiciary should be reorganised is obvious. A key role in this endeavour can be sought in three directions. One option would be through various institutional and authority figures through the National Assembly, the Minister of Justice, the Supreme Judicial Council itself. A second option would also be through the implementation of administrative policies in specific areas such as the effective management of resources by the Judicial Council through the even workload, the geographical location of the courts and prosecution structures (judicial map), the consequent redesign of the staff /zero years for entry into the system, competitions only for promotions, targeted and efficient investment of capital expenditure. The third approach implies a normative development of the judicial budget framework through the laws on the judiciary.
According to the current texts of the Constitution, in Art. 117(3) enshrines the principle of the independence of the budget of the judiciary. It is the competence of the Plenum of the Judicial Council to adopt the draft budget and to manage the real estate of the judiciary – Article 130a(2)(1) and (6) /with reference to Decision No 13 of the Constitutional Court in constitutional case 1/2024. In turn, pursuant to Article 130c(1), the Minister of Justice proposes a draft budget for the judiciary and submits it to the SJC.
In order to find an appropriate solution to the problem of the growing but inefficiently spent budget of the judiciary, a possible approach would be to examine the permissible limits of intervention of the various key constitutional actors in this process. First in importance, is the National Assembly, but in practice, although it passes the State Budget Law and hears the annual reports of the judiciary, its role is peripheral. Thus, one of the branches of state power – that of the legislature – is rather passive in these processes.
Over the years, the Minister of Justice has had more power over budgetary matters, including the judiciary’s property.
Historically, this process has developed in the following order:
Initially, the powers of the Minister of Justice had no constitutional framework. This has given rise to a number of contradictory statutory authorisations over the years and subsequent Constitutional Court case law. It was only in 2006, with the third amendment of the Basic Law, that Article 130a, now Article 130c, introduced competences that attribute responsibility to the executive over the budget of the judiciary. These powers are limited precisely to the budget proposal of the judiciary to the SJC as well as the management of the judiciary’s property. In 2015, the Fifth Amendment to the Constitution removed the management of judicial property and transferred it to the Judicial Council. It shall extend to such property vested in it by the State as does not interfere with the efficient exercise of its functions or prejudice its independence.
A key decision in this area is Decision No. 8 of 2007 in Case No. 5/2007 of the Constitutional Court. It was on the request of the Prosecutor General on the scope and content of the powers of the Minister of Justice to “manage the assets of the judiciary”. The constitutional case, at first sight, derives trivial understandings of the law such as the scope of property, treating it as a set of rights and obligations, the reading of the provision of Article 130a(2) in the context of all relevant constitutional norms. However, what is interesting for the judicial independence-judiciary budget relationship is the understanding that in entrusting the Minister of Justice as a member of the Council of Ministers to manage the judiciary’s property (Article 130 bis(2) of the Constitution), the management must comply with Article 18(6) of the Constitution and be in the interest of the citizens and the public. It must also be in accordance with the other provisions of the Constitution (argument from Article 105(1) thereof). (…) The interests of the citizens and society require the establishment of an independent judiciary under the principle of separation of powers established by Article 8 of the Constitution. (…) All this means that the management of the judiciary’s property by the Minister of Justice is a management with the necessary balance and respect for its independence. It shall extend to such property vested in it by the State as does not interfere with the efficient exercise of its functions or prejudice its independence.
From this interpretative text in the reasoning of the decision, three principles can be deduced that warrant a reconsideration of the budget attitude of the judiciary – independence of the judiciary:
- the interests of citizens and society are the guiding principles in the construction of the judiciary, i.e. the existence and functioning of the judiciary cannot be an end in itself for the system,
- the search for balance, including setting limits on the expenditure of the judiciary,
- possible interference by the executive is still permissible in budgetary matters as long as it does not interfere with the functions and independence of the judiciary.
The operative part of the interpretative act of the Court confirms this meaning. With the repeal of the powers in question for a long period of time, now 9 years, this topic has been left in the past. However, the many-fold increase in the budget of the judiciary should bring the subject back to the fore.
In conclusion
In a nutshell, the big issue is leaving the territory of intra-departmental “enhancing judicial independence” and returning to the public getting efficiency from the judiciary at a reasonable cost to the state budget. Without these opportunities, the recognized self-governance of the judiciary would become a branch of state power, unconstrained by any principles, procedures, or rules, which is itself unchecked and unbounded. And this requires, at a minimum, a redefinition of the boundaries of the concept of “the judiciary has an independent budget” – Art. 117, para. 3 of the Constitution.