US sues california for Immigration laws
Case Study 1
California’s governor has accused the US Department of Justice of waging war after it filed a lawsuit against the state over its immigration policies.
Governor Jerry Brown’s remarks came an hour after US Attorney General Jeff Sessions attacked the state’s “open borders” in a speech in Sacramento.
The department filed a lawsuit over the state’s “sanctuary” laws that protect illegal immigrants from deportation.
Mr Brown accused Mr Sessions of lying to appease President Donald Trump.
“Like so many in the Trump administration, this attorney general has no regard for the truth,” Governor Brown told reporters, arguing the state’s laws were created with input and support from California law enforcement.
“This is basically going to war against the state of California.”
Mr Sessions had earlier addressed a group of law enforcement officials in the state’s capital city a day after he filed a lawsuit over three of California’s laws regarding “sanctuary” policies, which curb co-operation with federal immigration authorities.
“California absolutely, it appears to me, is using every power it has – powers it doesn’t have – to frustrate federal law enforcement,” the top law enforcement official said on Wednesday.
“So you can be sure I’m going to use every power I have to stop them.”
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Case Study 2
Regulatory framework governing fees of legal professions
According to the Bulgarian Bar Act (last amended SG 69/05.08.2008):
Article 36 states that:
- Attorneys-at-law have the right to remuneration for their labour.
- The amount of the remuneration must be agreed in a contract between the attorney-at-law and his or her client. The amount of the contract must be fair and justified, and may not be lower than that envisaged for the type of work undertaken (Ordinance of the Supreme Bar Council).
- In the absence of a contract, on request by the attorney-at-law or the client, the Bar Council must set the remuneration (Ordinance of the Supreme Bar Council).
- Remuneration may be fixed in absolute terms and/or as a percentage of an amount that may, depending on the outcome of the proceedings, be awarded by the court. This excludes remuneration in criminal cases and in civil cases where a non-material interest is involved.
Article 38 states that:
- Attorneys-at-law may provide legal assistance and cooperation to:
- Individuals who are entitled to alimony
- Persons in financial difficulty
- Parents, friends or other lawyers
- In such cases, where the adverse party in the respective proceedings is sentenced to pay the expenses, the lawyer has the right to remuneration. The court must determine such remuneration in an amount not lower than that envisaged (in Ordinance under Article 36, Paragraph 3) and will sentence the other party to pay it.
The remuneration (fee) is regulated in line with the Ordinance of the Supreme Bar Council No 1 from 2004. The minimum fees are as follows:
- Fees for counselling, information, preparation of documents and contracts:
- Fixed fees – from approximately €10 to €300
- According to the material interest of the case, fixed fee (from approximately €75 to €350) + percentage of the material interest (from 0.1 to 1%)
- Fees for civil and administrative proceedings in one instance:
- Fixed fees (from approximately €50 to €250)
- According to the material interest of the case, fixed fee (from approximately €50 to €325) + percentage of the material interest (from 2 to 6%)
- For proceedings on the enforcement of court decisions
- ½ of the fees set out in section 2
- Fees for criminal and administrative sanctions proceedings in one instance only fixed fees:
- For the pre-trial phase, approximately €150
- For the trial phase – from approximately €150 to €900, depending on the seriousness of the alleged crime
- In administrative sanctions cases, €75
- Fees for proceedings under special laws (protection of children, family code, domestic violence, extradition and European Arrest Warrant etc):
- Only fixed fees, from approximately €75 to €125
Since 2006, bailiffs in Bulgaria have been private enforcement agents and state functionaries. Statutory tariffs apply to both of these.
- The fees of state functionaries are regulated (in section II of the tariff for state fees collected by the courts under the civil procedure code from 2008).
- The fees of private enforcement agents are regulated (article 78 of the Law on private enforcement agents and in the tariff for fees and expenses on enforcement, in the law on private enforcement agents).
The fees set by both tariffs are the same.
A private enforcement agent charges an additional fee of 50 percent of the standard fee for serving documents on non-working days and holidays, for sending subpoenas by mail and for making copies of the complaint, notification and papers.
Fixed costs in civil proceedings
Fixed costs for litigants in civil proceedings
The fees for civil proceedings are provided (in section I of the tariff for state fees collected by the courts under the Civil Procedure Code from 2008), as follows. The fee for:
- A civil claim is 4 percent of the claimed amount, but not less than €25
- A moral damage claim is up to €40, but not less than €15
- Divorce cases (including those settled by mutual agreement) are 2 percent of the three-year total of each party’s share (according to the agreement for dividing matrimonial property and alimony)
- An enforcement order is 2 percent of the material interest, but not less than €12.5
- For adoption cases is €12.5
- For securing claimed property is €20
- For securing of evidence is €10
- For insolvency cases is €25 for a sole propriety trader, €125 for a commercial company
Stage of the civil proceeding at which fixed costs must be paid
The fees are paid before the proceedings begin or the required actions are performed (article 76 of the Civil Procedure Code).
Fixed costs in criminal proceedings
Fixed costs for litigants in criminal proceedings
The coverage of costs and remuneration in criminal proceedings is regulated by the Criminal Procedure Code:
Article 187: Covering costs
- Costs for criminal proceedings must be covered by the amount specified in the budget of the respective institution, except in cases specified by law.
- In criminal cases arising from a complaint by a victim and filed with the court, the private complainant must deposit the amount of the costs in advance. If they are not deposited, the private complainant must be given seven days to deposit them.
- In cases arising from a complaint by the victim and filed with the court, the costs of evidentiary claims made by the defendant in court must be covered by the court’s budget.
The fixed costs for criminal proceeding are provided (in Tariff № 1 of the law on state fees collected by the courts, prosecutors’ offices, investigation services and the Ministry of Justice, last amended in 2005) as follows:
- For complaints giving rise to criminal proceedings of a private character – €6
- For private claims in criminal proceedings of a private character – €2.5
- For requests for rehabilitation when a case remains open – €3
Stage of the criminal proceeding where fixed costs must be paid
The costs described above must be deposited in advance by the private complainant (according to the Criminal Procedure Code). If they are not deposited, he or she must be given seven days to deposit them.
Fixed costs in constitutional proceedings
Fixed costs for litigants in constitutional proceedings
There are no constitutional proceedings in the Bulgarian legal system.
Prior information to be provided by legal representatives
Rights and obligations of the parties
Article 40 (3) of the Bar Act provides that “attorneys-at-law shall be obligated to accurately inform their clients of their rights and obligations”. There is no explicit obligation to provide information to their clients on anticipated costs in the course of legal proceedings. However, the lawyers’ ethical code implies such an obligation.
Where can I find information on cost sources in Bulgaria?
A physical person or legal entity interested in bringing a case to court will be unable to find any public information explaining how much they this will cost them, since there is no official or unofficial website or other public body that provides such synthesised information. Therefore, clients rely mainly on their lawyers to inform them about costs.
Nevertheless, from the following public websites, citizens can find the legal regulations on fees and costs of legal proceedings and make their own calculations. They are: national legislation, the site of the Supreme Bar Council, the site of the Supreme Judicial Council and the site of the National Service for Legal Aid, All these websites are currently available in the Bulgarian language only.
In what languages can I obtain information on cost sources in Bulgaria?
All the above-listed websites are currently available only in the Bulgarian language.
Where can I find information on mediation?
Such information is available on the website of the Bulgarian Ministry of Justice.
Where can I find additional information on costs?
Where can I find information on the average length of time that different procedures take?
On the website of the Supreme Judicial Council, you can find annual and bi-annual reports of court activities at all levels. There is information on the number of cases finalised within the past 3 months, 6 months, 1 year, 2 years or more. The Supreme Judicial Council statistics department provides analysis and information on the average length of court proceedings in civil, criminal and administrative cases.
Where can I find information on the average aggregate cost for a particular proceeding?
No such official public information is available.
Value Added Tax
How is this information provided? What are the applicable rates?
VAT is included in the costs (according to the tariffs and regulations above).
Applicable income threshold in the area of civil justice
According to the Legal Aid Act, the conditions for both civil and criminal cases are the same (see below):
- Legal aid (under Items 1 and 2 of article 21) is granted to people who satisfy the eligibility requirements for monthly social assistance benefits (according to the procedure set out in the Regulations for Application of the Social Assistance Act), and to people who have been placed in specialised institutions where social services are provided.
- Legal aid (under Items 1 and 2 of article 21) must be granted to a foster family, family or friends and relatives with whom a child is placed (according to procedures set out in the Child Protection Act)
- The decision on the placement of a child must be certified by the director of the Social Assistance Directorate, or by court judgement, as the case may be. Any person who has not claimed the monthly social benefit to which they are entitled (according to the procedure established by the Regulations for Application of the Social Assistance Act) must submit to the National Legal Aid Office (NLAO) a certificate issued by the director of the Social Assistance Directorate, acknowledging that the person concerned satisfies the eligibility requirements for monthly social assistance benefits.
In civil and administrative cases, there are additional requirements.
- In civil and administrative matters, legal aid is granted where – on the basis of evidence presented by the relevant competent authorities – the court determines that the party is unable to pay for the assistance of a lawyer. To arrive at such determination, the court will take into consideration:
- The income of the person or family
- The property status, as certified by a declaration
- The family situation
- The health status
- The employment status
- The age
- Other circumstances ascertained.
Applicable income threshold in the area of criminal justice for defendants
In addition to the criteria set out for criminal cases (article 22 of the Legal Aid Act, described above) the following criteria apply:
- The legal aid system (referred to in item 3 of article 21) covers cases in which defence or representation by legal counsel is mandatory.
- The legal aid system must, furthermore, cover cases in which a suspect, an accused, a person incriminated, a defendant or a party to a criminal, civil or administrative case is unable to pay for the assistance of a lawyer, wishes to have such assistance, and the interests of justice require this.
- In criminal matters, such an assessment must be carried out by the relevant authority on the basis of the property status of the person/defendant who is unable to pay for the services of a lawyer.
Applicable income threshold in the area of criminal justice for victims
The applicable threshold is the same as for other parties in criminal proceedings (see above).
Other conditions attached to the granting of legal aid for victims
There are no specific conditions in the law that apply to victims of crime. The general rules for legal aid in criminal cases are applicable (articles 22 and 23 of the Legal Aid Act).
Other conditions attached to the granting of legal aid for defendants
There are no specific conditions in the law that apply to defendants. The general rules for legal aid in criminal cases are applicable (articles 22 and 23 of the Legal Aid Act)
Cost-free court proceedings
Article 83: Exemption from fees and expenses
- Fees and expenses for the handling of the lawsuits shall be not deposited:
- By the claimants – workers, employees and members of collective claims, arising from labour legal relationships
- For claimants in claims for maintenance
- For claims filed by a prosecutor
- By claimants – for claims for damages from tort from a crime, for which a verdict exists and has entered into force
- By appointed special representatives of a party whose address is not known
- Fees and expenses for proceedings must not be deposed by natural persons, where the court recognises that they do not have sufficient resources to pay them. On the application for exemption, the court will take into consideration:
- Incomes of the person and the person’s family
- Property status, as certified by a declaration
- Family status
- Health status
- Employment status
- Other relevant circumstances
- In the cases under paragraphs 1 and 2, the expenses for the proceedings must be paid from the amount provided in the court’s budget.
Article 84: Exemption in peculiar cases
Those exempted from payment of a state fee, but not from court expenses are:
- State and state institutions, except in cases of private state property and in claims for private state receivables and rights (amend. – SG 50/08, in force from 01.03.2008; amended by decision of the constitutional court case No 3 of 2008 – SG 63/08)
- The Bulgarian Red Cross
- Municipalities, except for claims for private municipal receivables and property rights – private municipal ownership
When does the losing party have to pay the winning party’s costs?
Article 78: Awarding expenses
- The fees paid by the claimant (including expenses for proceedings and remuneration for one attorney (if the party had one) must be paid by the defendant in proportion to the awarded amount of the claim.
- If the defendant has provided no reason for the lawsuit, the expenses must be awarded to the claimant.
- The defendant also has the right to claim paid expenses in proportion to the denied part of the claim.
- The defendant is also entitled to expenses if the lawsuit is terminated.
- If the claim paid by the party for remuneration of an attorney is excessively high, with respect to the actual legal and factual difficulty of the case, the court may, upon request of the opposite party, award a smaller amount, but not less than the minimum amount (as per art. 36 of the attorney law).
- Where the case is decided in favour of a person who is exempt from state fees or expenses for proceedings, the sued person must pay all the due fees and expenses. The respective amounts must be awarded to the court.
- If the claim of a person who has used legal aid is recognised, the paid attorney’s remuneration will be awarded to the National Bureau of Legal Aid, in proportion to the recognised part of the claim. In cases of suing decisions, the person who has used legal aid will owe expenses in proportion to the denied part of the claim.
- Attorney remuneration will also be awarded in favour of legal persons and single entrepreneurs, if they have been defended by an employee – legal advisor.
- If the case is finalised by an agreement, half of the deposed state fee must be paid back to the claimant. The expenses of proceedings and the agreement remain, if not otherwise agreed.
- A third assisting person* will not be awarded expenses, but must pay the expenses of proceedings performed by him or her.
- Where a prosecutor participates in the lawsuit, the expenses due must be awarded to the state, or be paid by the state.
*A third assisting person is a separate party in civil proceedings with specific rights and duties regulated in the Civil Procedure Code.
Criminal Procedure Code – Costs and remunerations
Article 187: Covering costs
- Costs for criminal proceedings must be covered by amounts specified in the budget of the respectiveinstitution, except in cases specified by law.
- In cases of crime based on a complaint by a victim and filed with the court, costs must be deposited in advance by the private complainant. If they are not, the private complainant must be given a term of seven days to deposit them.
- In cases based on a complaint by a victim and filed with the court, costs for evidentiary claims made by the defendant in court must be covered by the court’s budget.
Article 188: Determination of costs
- The amount of costs must be determined by the court or the body of pre-trial proceedings.
- The remuneration of witnesses – workers or employees – must be determined by the court.
Article 189: Decision on costs
- The court must decide on the issue of costs incurred when sentencing or ruling.
- Costs for translation during pre-trial proceedings must be at the expense of the respective body; those incurred during court proceedings will be at the expense of the court.
- Where the accused party is found guilty, the court will sentence him/her to pay the costs of the trial, including attorney fees and other expenses for the defence counsel appointed ex officio. These will include the expenses incurred by the private prosecutor and the civil claimant, where the latter have made a request to this effect. In the presence of several sentenced persons, the court will apportion the costs payable by each of them.
- Where the accused party is found not guilty on some charges, the court will sentence the accused to pay only the costs incurred in connection with the charge under which he/she has been found guilty.
Article 190: Award of costs
- Where the accused is acquitted or criminal proceedings are terminated, all costs in publicly actionable cases remain at the expense of the state, and action raised by a complaint by the victim will be at the expense of the private complainant.
- A writ of execution for the costs awarded must be issued by the first instance court.
There is a general rule for experts’ fees in civil proceedings in the Civil Procedure Code:
Article 75: Determination of the expenses
”….the remuneration of the experts shall be determined by the court, taking in view the work done and the expenses made.”
Ordinance No 1 of 2008 for the registration, qualification and remuneration of experts was issued by the Supreme Judicial Council and applies to civil, criminal and administrative cases. Article 29 stipulates that experts’ fees must be determined by the authorities assigning the expertise in accordance with:
- Complicity of the task
- Competence and qualification of the expert
- Duration of the fulfilment of the task
- Quantity of the work done
- Necessary expenses, such as materials used, consumables, tools, equipment, etc
- Other conditions influencing the work done – such as meeting deadlines, extra work in out-of-working time and national holidays, etc
Translators’ and interpreters’ fees
The rules for experts apply for translators as well – see above.
Criminal Procedure Code: Article 189 (2)
Costs for translation during pre-trial proceedings are at the expense of the respective body, and those during court proceedings are at the expense of the court.