Bulgaria may be a popular holiday destination – for both snow AND sand – but remains a bit of a mystery for Europeans, not least for its Cyrillic language. Its citizens go to the polls today in the third attempt this year the country has made to find a government which can actually govern
Its neighbour, Romania, with whom it joined the EU in 2007 has more of a profile on corruption - but both are laggards on that and judicial reform. Bulgaria has simply managed to fly under everyone’s radar - for reasons perhaps not unconnected with Boyko Borrisov’s cultivation of Angela Merkel and her EPP grouping in his long rule from 2009 to earlier this year. And, perhaps, with Hungary and Poland to worry about and some political scalps to show in Romania, Brussels didn’t want to make any more enemies.
Given the importance the EU has given in the last two years to the Rule of Law Mechanism, its curious that they appointed a Romanian to head the new office of European Prosecutor. Perhaps they felt that Laura Kovesi falling foul of the Romanian government was proof of the effectiveness of her 12-year spell as Romania’s head Prosecutor. She certainly managed to put enough politicians behind bars – something which Bulgaria never managed to do.
But the notorious Securitate remains as strong as ever in the country and it is clear that Kovesi colluded with them to bring down both politicians and judges who did not act in appropriate ways. I wrote about this almost 5 years ago and was somewhat critical of an American report called Fighting Corruption with Con Tricks – Romania’s Assault on the Rule of Law – but had, ultimately, to agree with their criticisms. Both Bulgaria and Romania have dubious reputations with the European Court of Human Rights which has thrown out many of the cases the two countries have brought to them – for failure to observe “due process”.
So
the release into the public domain, in all the languages of the EU, of documentation
from governments, Civil Society and the European Commission about the state of
the rule of law is a highly welcome development. It certainly lifts the veil on
Bulgarian practices – particularly with the release last weekend of the 100
page report Binding the Guardians from Albena Azmanova about
the situation in France, Spain and Bulgaria.
And it is the Bulgarian section I want to focus on in the rest of this post – which can be separately read here (only 34 pages). Let me remind you of two things 1.
The scope of the European Commission’s exploration of the Rule of Law. Four fields are the focus of the Commission investigations:
- the justice system,
- the anti-corruption framework,
- media freedom, and
- ‘other institutional checks and balances’.
Azmanova rightly criticises the absence of interest in the operation of the rule of law in the private sector – the analysis being limited to the operations of the public sector. But I was delighted to see that the critical question of the ownership structure of the media is central to the investigations. The power of the corporate media is a scandal to democracy.
2. Four tests are suggested by Azmanova for the Commission’s work -
We suggest that, in order to effectively comply with the rule of law while conducting its annual rule of law surveys, the Commission needs to be guided by (at least) four norms:
· clarity of communication,
· thoroughness in addressing rule of law violations (that is, in the full range and depth of detail),
· equal treatment of the subjects of power, and
· impartiality in the use of power (in the sense of not having a narrow partisan-political agenda).
Obscurity is a fertile ground for arbitrariness, omissions tacitly condone what is omitted, favoritism disempowers some, and partisan-political considerations harm the common good.
These excerpts give a reasonable sense of the report
The overarching problem is that political forces in Bulgaria are using the justice system, including reforms purportedly aiming at fighting corruption, to complete the state capture by the oligarchic mafia. A Specialised Prosecution, a Specialised Appeals Court, and the Anticorruption Commission have recently been set up - with an attendant ’specialised’ committee dealing with a pre-trial confiscation of property in cases of suspected corruption (the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Commission). These have been set up via ‘extraordinary’ legislation by Parliament. In their area of competence, these courts have enhanced powers that lie outside of the normal legal system. As Evgenni Dainov noted in a 2018 letter to Justice Commissioner Vĕra Jourová, those implicated within the system of specialised courts do not have recourse to the normal institutions of law and order and thus suffer from lack of "due process" (Dainov 2018).
As of December 2018, new legislation specifically allows the Confiscation Commission to hold on to confiscated property - even after a court declares the person innocent. Several case-studies are given in Azmanova’s report - one bringing to light the logic at work in fighting graft and corruption in Bulgaria: the victims of corruption are punished while the perpetrators, usually well-connected political figures, run free.
Lozan Panov, the President of the Supreme Court of Cassation, says that “the rule of law and the division of powers are highly compromised and key state institutions have been captured by private interests [...] At the same time real corruption remains unchecked and pervasive. Those who are independent from power are under constant attack. Lists of ‘enemies’ and ‘traitors’ are published in newspapers. Xenophobia and hatred have become a government policy”
The 2020 EC Report, in its
commentary on the anti-corruption framework, mentions “the complex and
formalistic Bulgarian system of criminal procedural law has been highlighted by
different reports and analyses over the years as an obstacle to the effective
investigation and prosecution of high-level corruption” — but refrains from
addressing the arbitrary power of the specialized prosecution system.
The politicisation of the judiciary
in Bulgaria is endemic and pervasive. Appointments are commonly based on
personal relationships and deals rather than professional merit and application
of established procedures.
The Supreme Judicial Council (SJC) is responsible for the appointment and promotion of all magistrates (investigators, prosecutors and judges) as well as for monitoring their ethics. A Constitutional reform in 2015 introduced a system of appointments to this body that invites political influence over the judiciary. Thus, eleven of the SJC’s twenty-five members are directly elected by Bulgaria’s Parliament—appointments conducive to political influence. Moreover, the four prosecutors and one investigator who are elected to the SJC are direct subordinates of the Prosecutor General, who is an automatic member of the SJC. This is problematic because all prosecutors are under the direct control of the Prosecutor General, while the Prosecution is strongly influenced by the executive
The European Commission comments on
the deficient independence of the SJC by noting that
·
The overall number of judges
elected by their peers does not amount to a majority;
·
the Prosecutor General plays a
decisive role in the Prosecutor’s chamber as well as an influence on the
plenary and potentially the Judges’ chamber;
·
the “overall structure of the SJC
would limit its ability to safeguard judicial independence against pressure by
the executive, the legislative, the judiciary, including the office of the PG”;
· The lack of judicial independence is evidenced by the number of judges subject to attacks and criticism on their rulings (2020: 6-7).
However, deprived of proper diagnosis, and with a congratulatory reference to the Constitutional reform of 2015 which in fact deepened the SJC’s dependence on political forces, the Report treats the issue only superficially, as a matter of incidents, rather than as a systemic problem.
Some of the structural issues within the SJC are acknowledged in the Report, but they are framed in a way to convey the government’s commitment to reforms and create the impression of progress amidst a reality of ‘backsliding’—that is, of deliberate and systematic assault on the rule of law by the dominant political forces in Bulgaria. The incidents we reviewed above, however, and which had been communicated to the Commission by external stakeholders are not referenced; neither is criticism included on the amendments to the Constitution of Bulgaria in 2015 which have been contested as having effectively decreased the independence of the SJC (Venice Commission 2015).
Thus, while the Report effectively
addresses some of the problems and refers to Council of Europe recommendations,
the criticism is framed in terms of incomplete reforms and lack of sufficient
resources, not as a lack of political will to undertake the requested reforms.
Legal expert Radosveta Vassileva also points out that the Reports omit several spending scandals that have occurred within the office. Bulgaria has a long troublesome track record of losing cases before the ECHR because of severe violations by the Prosecutor’s Office and this has also been omitted in the Report
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