site.btaOn the Tendency of Judges to Withdraw from Hearing Cases

Available data show that the Debora case of domestic violence, from which all judges of the Stara Zagora Regional Court have recused themselves, is symptomatic rather than incidental. The last three years have seen 37,000 withdrawals of judges in Bulgaria from hearing cases assigned to them. The most commonly stated reason is that one of the parties concerned may view the court as biased or interested in a certain outcome of the trial, Ekaterina Baksanova of the Institute for Market Economics (IME) says in an analysis published on the IME website on January 12.

Baksanova argues that public outrage over the work of the law enforcement and judicial authorities, and more importantly, public expectations about the outcome of a trial, should not and cannot be a valid reason for a judge to withdraw. The functions entrusted to judges in the judicial system, and in society at large, require them to possess a kind of intellectual and psychological resilience that allows and empowers them to hear cases objectively without yielding to external factors.

According to the expert, public opinion and undue political influence are equally harmful external factors undermining judicial independence. A judge who is scared or eulogized is just as dependent as a corrupt one. Contrary to common perception, judges are not bureaucrats. They are professionals engaged in analytical work, who are called upon to settle conflicts even if the scale of the conflicts transcends the limits of the courtroom.

Of course, the possibility for a judge or judges to recuse themselves from a case is a guarantee for fair trial and is regulated in Bulgaria's Criminal Procedure Code and Civil Procedure Code, the analyst notes. She adds, however, that a judge's declaration of their own inability to rely on their inner conviction, despite the absence of objective evidence to support that claim, has many publicly and legally unacceptable implications:

• The trial is delayed and becomes more costly, that is, the standard and the speed of administration of justice are lowered;
• Conditions for workload imbalances emerge in the respective judicial body;
• Court users get the impression that they can exert pressure on judges and thus force them to withdraw;
• This enables parties to choose, or at least avoid, concrete judges, judge panels and courts;
• Responsibility is evaded;
• Justice is practically denied;
• Public confidence in the judicial system is undermined.

The problem of unfounded and mass withdrawals of judges shows deficits in other fields as well, Baksanova says. As far as judge recruitment is concerned, an applicant's competence is not the only thing that should matter. Other relevant considerations are experience and psychological and emotional resilience. Second: attestation. Although unfounded withdrawals are taken into account in the process of attestation, this is obviously not enough to resolve the issue. And finally, the matter has a bearing on judges' skills and follow-up training. After the judges in 20 regional courts in Eastern Bulgaria recused themselves from hearing a case a few years ago, the Supreme Court of Cassation said in a determination in July 2017: "This panel of judges finds it necessary for a copy of the determination to be sent to the presidents of [the regional courts concerned] in connection with their entitlement to organize skill improvement training for the courts in their jurisdiction."

The Bulgarian judicial system has the human and financial resources it needs, and even more, Baksanova says. The latest amendments to the country's Constitution finally created the foundation for real self-governance of the judiciary, which can sustain the system's independence. It is crystal clear, however, that when we talk about judicial reform, we should not limit our discussions to constitutional, legal and structural reformatting, because the professional ethos still leaves room for improvement, the analyst concludes.