site.btaThink-Tank Decries Abuse of Mechanism for Posting of Judges

Amendments to the Judicial Power Act, adopted in 2016, introduced a minimum of safeguards against malpractice in the posting of judges. By that time, the posting of magistrates had mutated from a temporary measure for addressing staff shortages and balancing workloads into a method for circumventing competitive recruitment as a natural career development avenue. This made judges dependent on the posting authority and put them under major corruption pressure. Subsequent Judicial Power Act amendments in 2017 and 2018 revoked the limitations imposed in 2016 and even expanded the breeding ground for wrongdoing by making it virtually impossible for the Supreme Judicial Council to conduct effective staff promotion competitions, the Institute for Market Economics (IME) says in an analysis published in October on its website.

Therefore, the IME says, recent disclosures about non-transparent postings of judges from the Sofia City Court to the Sofia Appellate Court did not come as a big surprise.

Supreme Judicial Council data show that the Sofia Appellate Court has 85 staff positions for judges. According to information on the court's website, the judges actually working there are 81. By September 30, 2023, judges posted from other courts accounted for almost half of all judges at the Sofia Appellate Court. Even if the number of filled positions is lower than the official figure, the share of judges posted from other courts is certainly more than one-third. The vast majority of the postings have lasted for years, with some of them going on for 95, 106, 131 and 140 months, respectively. In effect, these postings are a form of promotion (which normally entails higher pay) without a recruitment competition, simply on the basis of the subjective judgment of the court president.

The malpractice is partly due to the inability of the Supreme Judicial Council to exercise effectively and regularly its powers of workload management, attestation and competitive recruitment. Another factor is that the Supreme Administrative Court has abolished promotion competitions in the civil and commercial law divisions of appellate courts.

As a result, posting has evolved from a measure applicable by exception into a convenient compensatory mechanism which puts the independence of individual judges and entire courts at risk.

According to information from the register of posted magistrates, all postings are made without due reasoning. Some of the decisions are accompanied by notes about workload differences, personnel resource levels, or the need to fill vacant positions until a recruitment competition is held. Such notes are just factual statements rather than reasons for choosing one magistrate or court over another. The same applies to post ending decisions.

It is unclear why almost 60% of judges posted to the Sofia Appellate Court are from the Sofia City Court, especially if we consider that the Sofia City Court is the busiest court in Bulgaria at that level. It is also unclear why judges from certain regional courts are preferred over people from other regional courts when it comes to postings to the Sofia Appellate Court.

Sometimes the president of the Sofia Appellate Court brings judges from other courts to replace magistrates she has posted from her own court. This means that the same court leader has the power to change the staff landscape in lower courts as well as her own. It is important to note that all decisions for postings to the Sofia Appellate Court have been made by its president, except for three decisions made by the head of the Supreme Court of Cassation. If we also consider that the reputation of Sofia Appellate Court President Daniela Doncheva is far from immaculate, we can see that the practice of posting judges has degenerated into a dangerous phenomenon which demotivates those magistrates who expect a predictable path of development in their career.

In addition to getting the Supreme Judicial Council to organize regular recruitment competitions, such malpractices can be curbed by establishing relevant safeguards, which can be done by:

• Creating a mechanism where a court president is bound by the collective opinion of the court's general assembly when posting judges or ending their postings;
• Setting clear internal rules for starting and ending judge postings. The rules should be approved by the court's general assembly;
• Adopting a principle whereby a judge, a prosecutor or an investigator may not be posted for more than six months within a calendar year;
• Making sure that posting a magistrate to fill a vacant position is done only by exception and only if necessary. Posting should not assume the functions of the career process;
• Revoking all conservative and harmful amendments to the Judicial Power Act related to the posting of magistrates.

Revising the Judicial Power Act will be necessary after the reformists in the National Assembly fulfill their intention to amend the Constitution. Changing the provisions on the posting of judiciary members is a must, because it was the lawmakers who silently paved the way for arbitrary and unreasonable use of this mechanism, and now it is their responsibility to take care of the situation. If the courts follow suit and adopt posting rules in good faith, it will be possible to disarm, or at least suppress to some extent, the gross subjectivity of court presidents' personal judgment about which magistrates should be posted, and will make the process more transparent, the IME concludes.