Bulgaria flies under the radar

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

 update;  https://verfassungsblog.de/impunity/

Challenge to Rule of Law in Europe

2004 saw 10 new member countries admitted to the European Union. Just 2 countries were judged not sufficiently ready – Bulgaria and Romania – on grounds of their levels of corruption and judicial incapacity. They were both eventually admitted to the EU on 1^st January 2007 – but, uniquely, subjected to an annual inspection through a new procedure called the Cooperation and Verification mechanism (CVM).

Coincidentally, these are the 2 countries in which I have lived since 2007 – indeed I had no sooner returned to Romania from an 8 year stint in Central Asia than I took up a position as Team Leader in Sofia in a project for training regional and local officials to ensure the country’s compliance with EU legislation.   

Schengen and the Euro give Bulgaria and Romania additional reasons for feeling the smack of second-class citizenship – particularly because after more than a decade they have not managed to satisfy the taskmasters in Brussels on judicial reform. The requirement for annual reports on judicial aspects and corruption continued until 2019 when it was replaced by the Rule of Law Mechanism (RLM) which necessitates an annual report to be submitted to the Commission by each and every member country.

Bulgaria and Romania had by then become the least of the EU’s concerns - Hungary and Poland had quickly instituted significant departures from the rule of law – packing courts with political appointees, severely limiting media freedom and making political use of European Funds. And some older member countries such as France and Spain were considered to have questionable aspects to their judicial and constitutional systems 

Much of this had passed me by – what caught my attention at the weekend was the release of a critical report commissioned by an Irish MEP Clare Daley on the 2021 assessment by the European Commission - which engages in a dialogue with member countries about their submissions.

Her report – called Binding the Guardians – is just over 100 pages long and was written by a well-known political economist Albena Azmanova who basically analyses how well the European Commission is fulfilling the task of holding member countries to account for their observation of the Rule of Law. It starts, brilliantly, by suggesting four tests 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.

Azmanova then applies these tests to the Commission commentary and finds the following problems

·       A dangerous conflation of “rule of Law” with aspects of procedural democracy

·       Vague, overly-diplomatic language

·       Restricted focus - The Commission report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’.

·       Failing to include the operations of the private sector 

At this stage, I’m conscious that I recently took a vow of brevity and that I am about to share excerpts from the report which will double the size of this post…..so having tantalised you with the summary, I’ll continue shortly

How does a country go about constructing a hopeful future?

It’s been fashionable recently to write about how countries fail – but the challenge of finding countries which have put together a winning formula and emerged as both economic and socio-political successes has proven much more difficult. Germany, Japan and South Korea are about the only cases quoted – with tiny countries such as Estonia and Singapore also being acknowledged.

But all, save Estonia, go back to the post-war period…..

Right now Bulgaria is without a government since the populist who carried the most votes wasn’t interested in forming a government and  - despite the flashy cars and new office blocks - neither it nor its northern neighbour, Romania, have made any sustainable progress in the 30 years since the Berlin Wall fell.

A couple of decades ago, global bodies were shoving “good governance” down the throat of recalcitrant countries as a precondition of admittance to select clubs such as the EU – although any efforts to comply were immediately relaxed on admission.

And progress in countries such as Hungary and Poland has been in a consistently rapid backward direction – with others such as Bulgaria and Romania not even trying very hard in the first instance. Both are still (after more than a decade) subject to the “conditionalities” of the Compliance monitoring of judicial systems – with the efforts Romania has certainly made in that sector being consistently challenged in recent judgements in the European Court of Justice in what increasingly looks to have been collusion between the country’s Prosecutor and its Secret Services.

All this I have covered in posts in the last decade. But I have – like most of the literature – devoted almost no space to how such countries might end the vicious downward spiral and find ways to return some hope to their despairing citizens. Alasdair Roberts put it very well in his “Strategies for Governing” - 

We must recover the capacity to talk about the fundamentals of government, because the fundamentals matter immensely. Right now, there are billions of people on this planet who suffer terribly because governments cannot perform basic functions properly.

-       People live in fear because governments cannot protect their homes from war and crime.

-       They live in poverty because governments cannot create the conditions for trade and commerce to thrive.

-       They live in pain because governments cannot stop the spread of disease.

-       And they live in ignorance because governments do not provide opportunities for education.

Almost 3 years ago, one of Romania’s foremost analysts shared a despairing article but was least convincing when he tried to offer a way forward  

I have a list of what to do – starting with the need for an exploration of what sort of Romania we should be aiming for in the next few decades. Such a process would be moderated by professionals using proper diagnostics, scenario thinking and milestones.
It would be managed by a group with a vision emancipated from the toxic present.  

 At the time I indicated my support for such approaches embodied, for example, in the Future Search method. It’s how I started my own political journey in 1971 – with an annual conference in a shipbuilding town facing the decline of the trade on which it had depended for so long….But any venture would have to demonstrate that it can deal with the astonishing level of distrust of others shown by the fact that, in 2014, only 7% of the Romanian population could say that “most people can be trusted” (compared with about 20% in Italy and 40% in Germany)

For my money Social Trust is one of the fundamental elements of the soil in which democracy grows. From the start of the transition countries such as Bulgaria and Romania have been caught up in a global neo-liberalism tsunami which has been corroding that soil….

South Africa is the country people select when they want a recent example of positive reconciliation. Clearly Nelson Mandela was an exceptional visionary – but he did not work alone. He brought with him the support and assistance of the sort of people Dorel Sandor was referring to – professionals not associated with the “toxic present”.

But where are they to be found? What professional, religious or other groups can inspire the trust that Bulgaria and Romania need?

Earlier this year I indicated some of the toolkits available for those seriously interested in building a country back together.

But they can be used ONLY when a country has taken the first step and brought together the warring factions to forge a new future together.

Crowds and Power in Sofia and Bucharest - III

 How, 30 years on, is post-communism doing?

I’ve been living in Bulgaria and Romania since 2007 – for a decade I enjoyed crossing the Danube, with the last 100 km stretch of the drive on the highway through the Balkans and the sight of the Vitosha mountain which dominates Sofia always bringing a particular thrill.  

The last post focused mainly on the Sofia street protests of the past 3 months – with a brief reference to the fact that only in Romania has the Crowd succeeded in toppling governments – three times in 30 years…and twice in the past five years.

This post looks at what two recent books by well-known authors born in these countries have to say about the “progress” the two countries have made since 1989 and considers the prospects for effective change

 

In the 1990s there was an interesting body of literature known as “transitology” which was effectively a retraining scheme for those in redundant Soviet and Eastern European studies University Departments as they tried to adjust to the new reality of “liberal democracy” and “free-market capitalism”.

The integration of many of these countries into the European Union seemed to leave the others in a state of suspended animation – still “transiting”.

Except that the “integration” had not gone as planned – some countries (such as Hungary and Poland) had clearly reneged on their commitments and were challenging the “rule of law” canons; and others (such as Bulgaria and Romania) had been unable to satisfy the monitors that they had even got to the required judicial standards. Indeed Philippe Schmitter, one of the doyens of the field, went so far in 2012 as to talk of “ambidextrous democratisation”

 

Bulgaria's world-renowned political scientist Ivan Krastev has (with US Stephen Holmes) written one of the surprisingly few books which attempt to assess the fortunes since 1989 of the eastern countries – although it’s primary concern seems more that of “the crisis of modern liberalism”. It’s entitled "The Light that Failed – a Reckoning” - published last year, with the Bulgarian translation appearing next month.

The book starts with a chapter on the psychological effects on central European countries of the “imitation game” they were forced to play and the demographic shock as millions left the country for a better future elsewhere; followed by one on how Putin’s Russia moved on in 2007 from imitation to “mirroring” Western hypocrisy; a chapter on Trump’s America; and a final one which takes in China.

 

The authors argue that part of the nationalist reaction in Hungary and Poland was the shock of realising that the European "normality" they had hoped for had been transformed into an agenda which included homosexuality, gay weddings and rights for Romas. But their emphasis on the “psychology of imitation” totally ignores the brazen way west European countries and companies exploited the opening which the collapse of communism gave them to extend their markets in both goods and people - with the consequences touched on in the first post and brilliantly dissected by Alexander Clapp in a 2017 New Left Review article “Romania Redivivus”.

 

Talk of “transitology” disappeared more than a decade ago and was absorbed into the Anti-Corruption (or governance integrity) field which grew into a "name and shame" industry - complete with league tables and Manuals. But the world seems to have perhaps grown weary even of its talk…  

Alina Mungiu-Pippidi is a Romanian social psychologist - appointed, in 2007, as Professor of Democracy studies of the prestigious Hertie School of Governance in Berlin - with a unique understanding and knowledge of the issue. This was her blunt assessment in 2009 of the situation in Romania

 

Unfortunately, corruption in Romania is not only related to parties and businesses, but cuts across the most important institutions of society. Romanian media has gradually been captured, after having been largely free and fair at the end of the 1990s. After 2006, concentration in media ownership continued to increase in Romania. Three owners enjoy more than two-thirds of the TV political news market.

 As long as Romania was a supplicant for entry to the EU, it had to jump through the hoops of “conditionality” to satisfy Brussels it was behaving itself. When Poland, Hungary et al were let in in 2004, the pressures started to relax - but The European Union’s Cooperation and Verification Mechanism (CVM) replaced that conditionality in 2007 and Bulgaria and Romania are still subject of an annual check of their legal and judicial health. Mungi-Pippidi therefore concluded her 2009 assessment with a simple observation - 

At the end of day, “democracy promotion” succeeds by helping the domestic drivers of change, not by doing their job for them. Only Romanians themselves can do this.

 Her latest book  "Europe's Burden - promoting good governance across. borders" (2020) is a must-read for anyone who wants to know why a quarter of a century of trying to build systems of government that people can trust has had so little effect in ex-communist countries. It starts with a sketch of Switzerland’s political development which reminds us that Napoleon was the catalyst for a 50-year period during which the Swiss embedded the basic structures we associate with that country.

It is, however, Denmark to which most countries (according to Fukuyama) aspire to – although a study of its history suggests that, contrary to Dahrendorf’s optimism, that was more like a 100 year journey.

 

Her description of her own country, Romania, is quite damning –

·         From 2010-17 there were 600 convictions for corruption EACH YEAR – including 18 Ministers and one Prime Minister, Generals, half of the Presidents of County Councils and the Presidents of all the parliamentary parties

·         The Prosecution system became thoroughly politicised through its connection with the powerful intelligence system – the infamous Securitate which was never disbanded

·         The level of wiretapping used is 16 times the level of that used by the FBI

·         Romania heads the league table of cases brought to the European Court of Human Rights dismissed for breaching the right to a fair trial – with a half of its cases so failing

·         The annual CVM reports on the country are always positive and make no mention of any of this – on the basis that “questions about the intelligence services are outside our remit”!!

·         TV stations run by those convicted of corruption have provided damning evidence of the prosecution service threatening judges and fixing evidence

 

One of Romania's most famous political analysts gave an extensive interview a couple of years ago which was important enough for me to summarise as follows –

·         the so-called “revolution” of 1989 was nothing of the sort – just a takeover by the old-guard masquerading in the costumes of the market economy and democracy

·         which, after 30 years, has incubated a new anomie – with the “social” media dominating people’s minds

·         “European integration” has destroyed Romanian agriculture and industry - and drained the country of 4 million talented young Romanians

·         After 30 years, there is not a single part of the system – economic, political, religious, cultural, voluntary – which offers any real prospect of positive change

·         Even Brussels seems to have written the country off

·         The country is locked into a paralysis of suspicion, distrust, consumerism, apathy, anomie

·         No one is calling for a new start – let alone demonstrating the potential for realistic alliances

 

Dorel Sandor has clearly given up on the politicians and confessed to a hopelessness for the prospect of any sort of change in his country

 

“The stark reality is now that we do not have political parties any more. The Romanian political environment is in fact an ensemble of ordinary gangs that try to survive the process and jail and eventually save their wealth in the country or abroad. That's all! Romania has no rulers. It has mobsters in buildings with signs that say "The Ministry of Fish that Blooms".

One of the reasons why the EU is not too concerned about us is that it is that they reckon that you can only reform a driver with a car that works. We are a two-wheeled wagon and two horses, a chaotic space, broken into pieces. What's to reform? So it's a big difference.”

 

But he was least convincing when he tried to offer a way forward

 

I have a list of what to do – starting with the need for an exploration of what sort of Romania we should be aiming for in the next few decades. Such a process would be moderated by professionals using proper diagnostics, scenario thinking and milestones.

It would be managed by a group with a vision emancipated from the toxic present.

 

I have a lot of sympathy for such approaches – embodied, for example, in the "Future Search" method. But effective social change rarely comes from such an elitist approach; any such effort would have to demonstrate exactly how it would propose to deal with the astonishing level of distrust of others in the country.

In 2014, only 7% of the Romanian population could say that “most people can be trusted” (compared with about 20% in Italy and 40% in Germany).

 

The revelation of the collusion between the infamous Securitate and the Anti-Corruption Agency (DNA) has understandably fanned the flames of paranoia for which the Romanians can be forgiven - given the scale of the surveillance of the population the Securitate enjoyed under Ceausescu. Little wonder half of the population are Covid sceptics

 

Conclusion

In the 1980s it was Solidarity in Poland; Charter 77 in Czechoslovakia; and reformers in Hungary who were challenging the power structure – I remember taking the opportunity of being in the country to visit the Party’s “White House” in Budapest in 1987 to talk with a spokesman for the latter.

Bulgaria and Romania, on the other hand, were monolithic and frozen societies – with the only sign of discord being the odd Romanian poet – and on the Danube where protestors against a chemical plant included a few establishment figures such as Svetlin Rusev.

 

But the street has become much more active in the past decade – even if it is the more educated and “entitled” who are prominent there. And it is “the Crowd” that the power elite has always feared – particularly in the last century eg the infamous “Revolt of the Masses” (1930). And who can ever forget the moment when the massed crowd turned against Ceausescu in December 1989 – within minutes, he had been hoisted from his balcony by helicopter and, within days, summarily tried and shot.

 

It’s noticeable that the figures whose words I’ve quoted – Dahrendorf, Canetti, Krastev, Mungiu-Pippidi and Sandor – all represent the intelligentsia. I was brought up to take their words seriously - but they are not activists!  

The sadly-missed David Graeber was one of the very few such people prepared to get his hands dirty… to work across the barriers that normally divide people and to try to forge new coalitions…

 

The Crowd needs people like Graeber who understand how to bridge such barriers…………..particularly between the “downtrodden masses” and the “entitled”

Where is Bulgaria’s Graeber? There are, actually, several eg Vanya Grigorova – the economic adviser of the labour union “Podkrepa” (Support) and leading left-wing public figure – who has been travelling the country to present her latest book on labour rights and how to claim them. A year ago she gave this interview to Jacobin, which positioned her on the side of social change in Bulgaria and the region.

 

Both Covid19 and the greater concern about global warming - as embodied, for example in the recent Extinction Rebellion – suggest that the “normality” being sought by the entitled is a will o’ the wisp.

The Sofia protestors would therefore be well advised to widen the scope of their agenda. After all, smaller countries generally seem better able to “do” change viz Switzerland, Iceland, Denmark, Singapore, Estonia, Slovenia – particularly when they have women at their helm who have a combination of trustworthiness and strategic vision!!

 

Especially for them I updated my list of essential reading for activists – adding my own “opportunistic” theory of change which emphasises the element of individual responsibility as well as the dynamic of the crowd viz

 

“Most of the time our systems seem impervious to change – but always (and suddenly) an opportunity arises. Those who care about the future of their society, prepare for these “windows of opportunity – through proper analysis, mobilisation and integrity. It involves– 

·         speaking out about the need for change

·         learning the lessons of previous change efforts

·         creating and running networks of change

·         which mobilise social forces

·         understanding crowd dynamics

·         reaching out to forge coalitions

·         building credibility

 

I grant you that the time for preparation is over in Sofia; and appreciate that some of this may come across as rather elitist but the process it describes is still a crucial one – prepare, analyse, network, speak out, build coalitions, mobilise, no hidden games…..It’s a tough combination……