Thursday, December 20, 2012

Judges, Lawyers, and the Courthouse


Last week I had multiple opportunities to learn about the Bulgarian justice system and to interact with members of the bar.  On Monday, I visited the Sofia courthouse at the invitation of Judge Emil Dechev of the Sofia City Court.  I sat in on a couple of “second instance” criminal hearings, including a lascivious acts case.  Since my practice background is in criminal law, I found this very interesting and I learned a lot about the criminal trial and appeals process in Bulgaria.

"Grrr..." says the Lion of Justice.
Following a decision in the trial court (“first instance”), a party to most criminal cases can request a second instance hearing to review that decision.  The second instance hearing takes place before a panel of judges within several months of the initial decision.  While the hearing takes on the role of an appeal, it is different from an appeal in the American system in several ways.  For example, the parties have the opportunity to present new evidence at this stage, whereas appellate courts in the United States are generally limited to reviewing the existing record.  In addition, the second instance hearing can be requested by any party – the defendant, the prosecution, or a third party (usually the victim).  The prosecutor, therefore, has the right to seek reversal of an acquittal – an idea very foreign to American lawyers.

Judge Dechev told me that he thinks around 15% of second instance hearings result in a reversal of the trial court decision.  The judges issue written decisions in second instance cases, but if the initial decision is reversed they must announce this in court.  Because of this, the judges have to actively engage in their decision-making during the hearing rather than waiting to talk behind closed doors.  During the hearing I observed, the three judges on the bench would occasionally lean together with each holding an open file folder in front of his or her face so that they could talk with one another privately.  Parties can appeal the second instance decision to the Supreme Court of Cassation.

After the hearing I had a chance to talk with Judge Dechev a bit more.  I learned that the defense for indigent defendants is provided by individual lawyers who are compensated by the state, similar to Iowa’s contract attorney system.  I also found out that the judiciary is a career track that is typically pursued immediately after law school.  While it is possible for a practicing lawyer to become a judge later in his or her career, this is a rare occurrence.

Later on Monday, I talked with a lawyer, Rumen, who works in a small firm in Sofia where I happen to make my rent payment.  He’s been practicing since the 1980s, and told me a bit about the changes that he’s seen over the years.  Like Judge Dechev, Rumen had to choose whether he would seek to become a judge, a prosecutor, or a private lawyer.  However, under the communist government’s allocation system he was then assigned to a particular city.  He practiced as one of a handful of private lawyers in that region until moving to Sofia in the 1990s.  While he now practices exclusively in the area of civil transactions, he told me that in the communist era there was little work along those lines done because things like housing and inheritance were completely within state control.   Back then, he did a bit of criminal work and civil litigation.

Rumen heads an eight-person firm and told me that he does a fair amount of international business work.  He speculated that his share of this work might decrease, however, as Bulgaria is in the process of approving European Union rules that will make it easier for foreign lawyers to work here.  He also spoke disapprovingly of the tendency of international lawyers to use lengthy contracts, usually verbatim translations of American or British contracts into Bulgarian.  His complaint is not that these lawyers are overly-cautious or that the contingencies they contemplate are unlikely to occur here, but instead that Bulgaria’s civil code covers most of the situations they are trying to anticipate.  For example, he recently reviewed a lengthy real estate lease based on an American model, much of which contradicted or duplicated matters already specifically spelled out in Bulgarian law.  It reminded me of the importance of a lawyer who truly knows the ins and outs of his or her own system, and doesn’t just happen to be licensed there.

The fun continued on Wednesday evening, when I returned to the courthouse at the invitation of the Sofia Law Society.  This is an informal group of lawyers and judges who meet occasionally to discuss legal issues.  The judge who organizes the society studies in the United States for a while and mentioned that the American Inns of Court served as a bit of a model for the Society.  The topic for this meeting was judicial independence, and I was invited to talk about the judicial selection process in Iowa and to share our experiences in the recent judicial retention elections.  The other speaker who was invited was a prosecutor who talked about some specific aspects of the Bulgarian system.  My host did his best to translate the other presentation and the discussion, so I was able to follow along fairly well.  I think it is fair to say that there is concern among the bar about the independence of the courts, and there was lively debate about the best way to promote this.  The attendees were interested in hearing about Iowa’s merit selection process, and this generated some discussion.  

It was great to have these opportunities to learn about the system here and to meet some of the individuals who have a role in it.  Despite the systemic differences, I discovered a lot of parallels in terms of process.  I was also very impressed with the passion and intelligence of the people I met.

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