Why the anticorrution reform will hardly amount to anything more than a facelift

By the end of this year Bulgaria must undertake a massive anticorruption reform in order to receive payments of 9,4 billion euro from the European Commission. The other reason is much more significant though - and one that Boyko Borissov’s party GERB is reluctant to talk about - the need to bypass the monopoly of the inefficient Prosecutor's Office of Bulgaria.

The second goal sounds impossible to comprehend for GERB, whom the electorate voted as having a leading role in the 48 National Assembly.

From GERB’s actions in the last decade, while it was the ruling party, and from what its leader Boyko Borissov has declared over the past several weeks, one could deduct the educated assumption that a government led by it will "at the very best" generate the consecutive imitation of a reform, just enough to unclog the payments from Brussels.

How was the Anticorruption Commission established?

The idea to establish the Anticorruption Commission was a promise of the Reformist Block back in 2015, and became a nonnegotiable Bulgarian obligation to the European Commission. The driving force behind the creation of the Anticorruption Commission was then deputy prime minister and leader of DBG Meglena Kuneva.

The fight against corruption had already been set as a first political priority by the Reformist Block in 2015, before the de facto collapse of the coalition a year later thanks to GERB’s successful actions to ruin the justice reform. The Democrats for a Srong Bulgaria left the government, Hristo Ivanov resigned the post of minister of justice and later went on to establish the party Yes, Bulgaria.

GERB, however, was supposed to finish what was promised somehow because this was a commitment to Brussels. The project was completed, and european cash continued to fuel the political engine of GERB and the Movement for Rights and Freedoms (DPS), while the EC carried on describing in its annual reports that the fight against corruption in Bulgaria is not going well.

How did it come to this?

In 2016 two bills were put on the table, both laying out the creation of the new Anticorruption Commission.

GERB’s proposal was based on the vision of the justice leading head in the party, Danail Kirilov. The other bill was by the Bulgarian Socialist Party and was written almost entirely by Krum Zarkov, who is currently the justice minister in the interim government. Before becoming minister of justice Zarkov worked as an expert to the Commission for Confiscation, which was part of the Anticorruption Commission.

Not surprisingly, the bill, which was passed was GERB’s.

Thus the Commission for Anticorruption and Illigal Assets Forfuture was established. Its governing body was chosen entirely by those in power in Parliament at the time, and it naturally obstructed investigations into corruption. Instead, what the Commission, in line with the Prosecutor’s Office and the media controlled by Delyan Peevski, became yet one more weapon against the inconvenient to those in power.

BSP proposed for the Commission’s chair to be appointed by the president, while the rest of its members to be chosen by Parliament, so the opposition may also have a say in the matter.

This proposal was rejected.

The result: everyone involved in the scandal with cheap apartments, which came to be known as Apartmentgate, which was uncovered by the media, critical to power, were all acquitted. The group’s frontman was Tsvetan Tsvetanov but among those in the scandal was also former minister of justice and presidential candidate Tsetska Tsacheva.

The director of the commission Plamen Georgiev himself was acquitted for purchasing his apartment, just after he had rendered Delyan Peevski the cleanest businessman in the country.

At this time the assets of the largest opposition media publisher Ivo Prokopiev were frozen due to an indictment by the Prosecutor's Office, which collapsed even in GERB’s and the prosecution’s favorite Specialized Court. The head of the Supreme Court Lozan Panov was also pressured for years.

An appendix of the Prosecutor’s Office

GERB’s Anticorruption Commission had become a mere appendix of the Prosecutor’s Office, which was clear from its very inception. The commission did not have real investigative functions, nor a mechanism to chose its management in a way that enables it to be emancipated by those who have appointed them. The freezing of suspicious assets is still not linked to actual penal trials but to the Prosecutor’s Office whims. Anyone could potentially become a target and any given moment.

The data collected by the commission for corruption are not relevant evidence in court unless a policeman or prosecutor collects them again. Not only is that senseless but the citizens are victimized twice in this scenario.

The main responsibility of the commission in terms of investigation is to take initiative is certain cases in front of the media, when that was convenient for then chief prosecutor Sotir Tsatsarov. This is how the star figure of now chief prosecutor and then deputy chief prosecutor rose. In 2015 he headed a spectacular five-hour special operation with the commission in the center of Sofia for the arrest of the mayor of Sofia’s Mladost District Dessislava Ivancheva. She is not yet convicted but managed to give birth while the trial drags away in the courts.

Three years after its creation the Anticorruption Commission Sotir Tsatsarov himself was appointed as its chief. This happened with the votes of GERB, DPS and partially BSP.

Now, once Tsatsarov has returned in the Prosecutor’s Office and the Anticorruption Commission is left in the hands of ex State Agency for National Security agent Anton Slavchev, it is clear how devoid of content is the GERB-made institution. Over the span of a year the commission was afraid to even announce that Slavi Trifonov has failed to submit his assets declaration. Nor did it wish to reveal whether it was investigating him.

A function of its management

Up until now the commission has proven itself as a function of its own management. For a short time Sotir Tsatsarov emitted signals that it was ready to investigate information connected to GERB, while GERB was in opposition. Tsatsarov did the same when he was appointed chief prosecutor with GERB’s protection and began to work against GERB once the party fell into opposition. Then he started going to regular meetings with Boyko Borissov at the Council of Ministers’ building once GERB regained power.

Late last year Tsatsarov iniciated five quick operations of the Anticorruption Commission against famous mayors of Boyko Borissov’s party but then prime minister Kiril Petkov apparently rejected the possibility of a deal. Tsatsarov was removed in January of this year and then submitted his resignation, and went back to Geshev.

Zero expectations

The expectations by the new Parliament with regards to the Anticorruption Commission cannot be large because of the reluctance, which GERB and DPS has demonstrated util now to execute real anticorruption reforms. Boyko Borissov already declared that he is ready to support reforms so he can secure the support by Continuing the Change (PP) and Democratic Bulgaria, but not a word could be uttered in the way of removing Geshev.

As a whole GERB’s and DPS’s policy in this area continues to be dictated according to a single goal - to not allow a reform, which would create independent anticorruption institutions, which in turn would open actual investigations into real violations and abuse of power from Boyko Borisso’s time in office, or to go after Delyan Peevski, who was sanctioned by the U.S. for "significant corrupion" under the Magnitsky Act.

GERB have not proposed a bill of amendment to its anticorruption legislation, which was passed five years ago. At the same time, there are two new bills ready at the moment. One was introduced to Parliament by Kiril Petkov’s cabinet just before it was removed from power. The bill, which was initially proposed by the former minister of justice, Nadezhda Yordanova, and after that revised for several months by Petkov’s team at the Council of Ministers, was met with great resistance by There Is Such A People (ITN) and became one of the reasons for the governing coalition to collapse.

The bill was boycotted by GERB, DPS, ITN and Vazrazhdane.

The second bill is authored by the current justice minister from the interim government, Krum Zarkov, which is also unlikely to fit GERB’s wishes.

Still, the first political party will have to take some decision or hide behind the lack of parliamentary majority, which will however, in turn block the installments from the EU’s Recovery and Resilience Fund. A third option is for GERB to table its own anticorruption reform, which again will do little more than refresh the surface.

PP’s bill

The anticorruption bill by PP past the first reading in Parliament during the last session, but the insufficient time and boycott by the majority then (GERB, DPS, ITN, Vazrazhdane) ruined its final vote into law. The bill provided a six-year mandate for the governing body of the Anticorruption Commission and an entirely independent investigative inspectors, who would have all the tools they would need to conduct corruption investigation at the top levels of power at their disposal.

PP proposes to divide the current commission into two institutions. One would become the commission for countering corruption while the other would become the commission for illegal assets confiscation. The bill provides for the new anticorruption commission to have a much wider authority than the current one, which could only do probes, while the collected data is not eligible in court.

If the bill passes, the investigators would have full police powers. This includes not only inquiries and document checks and questioning of citizens, also infiltrating buildings and vehicles, marking banknotes and objects, collecting specimens for comparative investigations, installing undercover agents, trust agreements, operative experiments, use of special investigative tools, etc.

The inspectors would have wide jurisdiction to investigate a wide range of crimes including tax fraud, corruption, abuse of office, and misuse of EU funds. The key element here is that they will be fully independent. The bill explicitly states that no one can direct the investigators, including their direct superiors. Their actions will only be governed by the law. The only form of control will be integrity inquiries, which will be done no more than once a year.

The commission will be able to begin investigations on information by citizens published by the media, but anonymous tips will not be allowed to prompt actions by the authority. The bill proposes the investigators to be able to open preliminary trial proceedings on their own, which means they will be independent from the Prosecutor’s Office. This is an exclusive right, which at the moment only a prosecutor has, and in certain cases - the Ministry of Interior.

At the moment the Anticorruption Commission can open an investigation like the police, only in emergency circumstances. This is the procedure used for the arrest of Boyko Borissov. The new commission will be able to appeal a refusal by a prosecutor to open an investigation.

Krum Zarkov’s bill

Krum Zarkov’s bill is also centered around the idea that the commission must have investigative powers and the bill is very similar to that of PP.

The institution would combat corruption on the high levels of power with preliminary court proceedings, because convictions cannot be attained with document probes.

The new element here is that Zarkov proposes for the governing body of the commission to be composed on the basis of quotas. Two members would be chosen by Parliament, one - by the president, and another two by the General Councils of the two Supreme Courts.

"The idea is to install people from the judicial system in this institution. After that we must ensure the internal control among these five individuals. You all know that the question at the end comes to who is the chairman. If he or she is chosen by the majority in Parliament, too bad for all the quotas. This is why we will propose for these five people to change. The mandate will be five years and each of them will chair the governing body for one year. The first to chair will be chosen by draw. This is the most certain way to ensure internal control and guarantee the independence of the institution," Zarkov told Mediapool.bg

At the end of the day, it is very unlikely GERB, DPS and even BSP to adopt these ideas entirely. The question here is rather which parts will remain of these bills because the most effective provisions in them will certainly be rejected.

The Bulgarian version of this text can be found here.

mediapool.bg