“The Post-Communist Judiciary: One Step Forward, Two Steps Back”
2020. In Engelbrekt, K. and Petia Kostadinova (eds.), Bulgaria’s Democratic Institutions at Thirty: A Balance Sheet.
Bulgaria’s post-communist judicial development presents a puzzling contrast. The Constitutional Court is powerful and effectively constrains politicians (Ganev 2003, Popova 2010, Hanretty 2014); the ordinary judiciary’s institutional setup conforms to the best practices of the judicial council model (Schoenfelder 2005, Popova 2012); and for the last 12 years, the EU has monitored and encouraged the consolidation of judicial independence and the rule of law (Noutcheva and Bechev, 2008, Smilov 2011, Kuzmova 2014). But trust in the judicial system is dismally low, partly due to the perception of thorough politicization; judicial corruption scandals abound; and the human rights violation rate, as established by ECHR judgments against Bulgaria, is the fourth highest per capita in Europe. How is it that an auspicious institutional environment has failed to produce a strong, impartial, and trusted judicial system? Where can we put the blame for the status quo? What are some pathways towards stronger rule of law in Bulgaria?
This chapter lays out evidence of both the successes and failures of Bulgarian judicial reforms over the past 30 years. It also considers, and dismisses, some potential explanations of the disappointing results in Bulgaria that come from the literature on comparative judicial politics. Low public demand for law, political domination of the judiciary due to low political competition/fragmentation, and the absence of an internal reform constituency cannot account for the Bulgarian situation (Hendley 1999, Stephenson 2003, Popova and Beers, forthcoming). Recent criticism of the European Union’s emphasis on formal reform benchmarks (Mendelski 2015) may partially pinpoint why EU pressure has not been as effective, but it can hardly tell us why the outcome is suboptimal to begin with. The chapter posits that to understand Bulgaria’s struggle with the rule of law, we must first decouple judicial independence and judicial impartiality and recognize that an independent, self-governing judiciary can consistently deliver biased and unjust decisions if it develops and maintains symbiotic ties to non-transparent networks of political corruption. Second, the chapter proposes that the main pathology of the Bulgarian judicial system stems from the powerful and unaccountable prosecution. As the institution that delivers the eventual outcome of the judicial process, the courts end up bearing the brunt of criticism when their decisions are perceived as biased and corrupt. But any court decision is only as good as the case filed initially by the prosecution.
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