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

Rule of Law under attack

One thing I know – ALL POWER CORRUPTS. I know that because I was a senior politician for 22 years and could feel and see its effects on both myself and my colleagues. And that was the 1970s when - despite the swirling doubts - idealism was still in play, understood and respected.

But power brings yes-men, groupthink and conceit. Politicians have generally been well-intentioned and, by nature, seek applause. Criticism they will attribute to malevolence – journalists are written off as purveyors of gossip who are too cynical to appreciate the good intentions of the policy-makers. Sadly, however, those with power make little attempt to run their policy ideas through critical testing - unless they are in a political system which forces them to seek consensus – such as Germany and, increasingly, mainland Europe with their coalition government.   

But the negotiation which is central to the political system of many European countries is actually a dirty word in England. Britain, like the US, has chosen an adversarial two-party system – in the belief that this can better smoke out the truth. The reality couldn’t be further from the truth – with groupthink being strongly evident in both countries. A senior Conservative Minister indeed once argued in an important lecture (in the 1970s) that the UK was “an elective dictatorship”. And that was in an era when the civil service still functioned to challenge simplistic policy ideas - nowadays the echo-chamber of political advisers has replaced neutral civil servants. One prominent political commentator put it very aptly - this Prime Minister is so weak that he has surrounded himself with  "courtiers"

The absence of a constitution is certainly a curious feature in the modern age – and british citizens were stunned to learn in 2019 that their Prime Minister apparently had the power to send parliament packing when he found it troublesome. Only an appeal to the country’s new Supreme Court by a citizen saved parliament’s skin – but a supine press which had branded such judges as “enemies of the state” gives the government full scope to rein in such judicial cheek. 

I had actually wanted to write about a great paper which was commissioned by an Irish member of the European Parliament about the rule of law in European countries (which now excludes the UK) - but find myself sidetracked by the scandal which has blown up this week by Boris Johnson’s typically ham-fisted attempt to protect one of his parliamentary friends from scrutiny.

The details are boring – what it boils down to is that not only was a British PM prepared to throw out an agreed system of scrutiny and bring in a new one simply to protect a friend but that he actually required his conservative MPs (at 24 hours’ notice) to vote that way. With some protests 250 obeyed him – an honourable few refused. When all opposition parties refused to participate in the new system, Johnson backed down. You can imagine how many of those 250 now feel about themselves....They have been made to look craven lapdogs. This was a good article on the debacle – just the latest of a long line of stupidities from the British government 

There is an Arabic expression that warns against the perils of an abundance of wealth: “Loose money teaches theft.” Britain has the dubious honour of being the home of the loose money of the global rich, facilitating its movement through secret offshore companies, setting up entirely legal means to profit from these opaque transactions. 

Taking liberties in office tends to work the same way. Loose power teaches corruption, which in turn happens through technically above-board means. That loose power broadly requires three further conditions to trigger misconduct –

·       a craven or cowed press,

·       a lack of what is seen as a viable political alternative and

·       a large section of the public made quiescent, either through apathy or tribalism. 

Sound familiar? Welcome to the global community of those living under corrupt governance. The good news is that you are not alone. The bad news is that, once corruption starts to set in, it becomes very hard to reverse. It becomes (this will also sound familiar to you), “priced in” to people’s expectations of the political class, even institutionalised. 

People in those other countries – the ones you more easily associate with corruption than your own – will explain the subtle evolution: what was before a furtive cash bribe that you needed to pay for a government stamp becomes an official fee that you are handed a nice crisp receipt for. What was before an outrageous grab of power from a democratically elected government becomes a legal process blessed by an election, perhaps one even overseen by international observers. The unprincipled will not be shunned but enriched and honoured. 

The press will contradict what you have seen with your own eyes. Conspiracy theories will begin to flourish because everyone is in the business of making up narratives, so the truth becomes a matter of spinning and selling the most convincing lie. Ministers might even, after attempting to rig a regulatory system in their favour, tell you that their government is trying to “restore a degree of integrity and probity in public life”. It will begin to exhaust your sense of outrage and warp your sense of right and wrong.

Eventually what will begin to settle is a sense that you as an individual have no control, no matter how many freedoms – voting, protesting – you feel you can exercise. Those rights will feel like levers that aren’t connected to anything. And so you give up. The main political emotion I grew up with in the Middle East and north Africa was not that of suffering oppression, but of jaundice – a sort of cultivated cynicism that protected us against the despair of life under regimes that stole from us and then remade the rules in their favour. 

I have felt this creeping up on me in the UK. It is an impulse that I recognise in the continuing support for the Conservatives, or the tepid resistance to them despite their proven malpractice, their endless scandals, their failure to deliver on what were once considered basic criteria for governments: that the state does everything it can to protect its citizens’ lives in a pandemic, and that most people’s material circumstances get better with time.  

Once the state withdraws from that role of honest broker and facilitator, the result is a fatalism: we must carry on and make do with what we have. 

I will return in the next post to the European aspects of the attack on the rule of law

The How and the What of Change

I need to return to the paper for the Varna Conference – a final version of which has to be posted on the NISPAcee site in a couple of weeks. I’ve known for some time that there were two separate issues – the first about how procedurally the procurement system might be improved to get a better match of needs and consultants. The second issue is the more profound one of the what – the nature of the knowledge and skill base which a consultant operating in the very specific context of Neighbourhood Countries needs to be effective. The What requires us to face up to the following sorts of questions –
• What were the forces which helped reform the state system of the various EU member countries?
• In the absence of such forces should we actually get involved in institution-building in neighbourhood countries?
• what do we actually know about the results of institution-building (IB) in kleptocratic regimes?
• Does it not simply give a new arrogant and kleptocratic elite a better vocabulary
• Does the “windows of opportunity” theory not suggest a totally different approach to IB?

I’m happy enough for the moment with my comments on the EC’s Backbone Strategy for the reform of TA. They convince me (at any rate) that the strategy is mere bureaucratic tinkering to satisfy the (highly limited) concerns of auditors. The strategy doesn’t even raise the fundamental WHAT questions.
TA based on project management and competitive tendering is fatally flawed – imagining that a series of “products” procured randomly by competitive company bidding can develop the sort of trust, networking and knowledge on which lasting change depends.
In a recent blog I referred to the rigorous analysis of fashions in institution building in Technical Assistance always to be found in the work of Tom Carrothers and Derek Brinkerhoff
His second paper points out the ambiguity of the rhetoric about “rule of law” - which finds support from a variety of ideological and professional positions and therefore leads to confused implementation if not state capture. Good overviews of this are here, here and here

I have also said how little scrutiny there is of the various tools in the consultancy toolkit. The one exception is the “democracy promotion” strand of work where Richard Youngs is particularly prolific. Indeed I discovered today an important book he edited in 2009 which matches the concern I voice in the second part of my draft paper - about the failure of the EU to understand properly the context of neighbourhood countries and to adjust TA accordingly. The book has the marvellous title of “Democracy’s Plight in the European Neighbourhood – Struggling transitions and proliferating dynasties” - with chapters on Bulgaria, Romania, Moldova, Serbia, Turkey, Georgia, Armenia, Azerbaijan, Ukraine, Russia, Kazakhstan, Belarus, Egypt, Algeria and Morocco.
The painting is a Napoleon Alekov which went recently for 350 euros only