The election of the members of the new Anti-Corruption Commission has caused serious public and professional reactions. In addition to the disputes surrounding the nominations, more and more questions are being raised about the broad powers that the law grants to the new body. Will the commission be sufficiently independent, is there a risk of political influence and does the new regulatory framework create prerequisites for abuse of power? Lawyer Adelina Natina spoke to FACTI on these topics.
– Lawyer Natina, in an interview with FACTI, lawyer Alexander Kashumov questioned the way in which the Supreme Bar Council nominated its candidate for the new Anti-Corruption Commission. How do you think the procedure for selecting the members of this commission is going?
– Honestly - the procedure is strange and unclear, and most of all - it does not demonstrate a rejection of previous approaches to forming an anti-corruption body, such as the applications. Specifically regarding the election of the Supreme Bar Council, I would say that I have known my colleague Milena Kalcheva for years. She is a lawyer who actually deals with criminal law, and I dare say that she is extremely competent. I followed the presentation of both candidates. My colleague Kalcheva answered questions for nearly four and a half hours, while my colleague Milen Shopov, who was ultimately elected, had a significantly shorter hearing. From his answers, I was left with the impression that he has not dealt with criminal law before and does not have the necessary training in this area. This is a serious deficiency, because the work of the members of this commission requires in-depth knowledge of criminal law - they must be able to competently conduct investigations in accordance with Bulgarian legislation. This, in my opinion, is the key.
– The law provides for the members of the new commission to be nominated by different institutions - the parliament, the president, the Supreme Court of Cassation and the Supreme Bar Council. Does this model provide real guarantees of independence or rather creates prerequisites for political balances?
– Of the nominations and elected members that have actually taken place so far, in my opinion it is rather the latter. I do not believe that the very model of nomination by the institutions specified in the law provides sufficient guarantees of independence. In my opinion, this was not the most reasonable decision for changing the anti-corruption legislation. I am left with the feeling that the entire procedure took place formally in order to satisfy the conditions for receiving funds under the PVP, and not to form an independent body to fight corruption. Such behavior is very close to that of previous politicians and majorities, and there were requests for a different approach. The likelihood of receiving criticism and even sanctions for this formal approach is high, in my opinion.
– How do you assess the fact that some of the members are elected by political institutions, and others - by the professional legal community? Is this a sufficient balance?
– At first glance, it seems a logical approach, but at the moment it is insufficient. Not only lawyers, but also all Bulgarian citizens know that dependencies in the professional community exist and there are no real actions aimed at restoring independence. It would have been far more reasonable for public organizations and higher education institutions to also have the right to nominate candidates. The law should have given the opportunity not only to the institutions specified in it, but also to public organizations, universities and law schools to nominate candidates. In practice, the fact that 4 out of 5 members of the CPC were elected shows that some of the professional communities do not want to accept their responsibility to society and the fight against corruption. I mean the decision of the Supreme Court of Cassation not to elect the only candidate member - Ivaylo Yosifov. And so the question arises - how will the body work in a partial composition and how will a clear majority be achieved in decisions?!
- What qualities should a member of the new Anti-Corruption Commission possess - professional biography, reputation or rather, does the institution that nominated him/her matter?
– For me, the leading ones should be professional reputation and morality, no matter how devalued these definitions have become after many years, decades of serious compromises and obvious discrepancies between the declared values and the real behavior of senior magistrates. This is the most important thing if Bulgarian society and the Bulgarian parliament really want a real fight against corruption. I also return to the answer to the previous question – how does it happen that the Supreme Court of Cassation decides to “give up“ from combating corruption? Is someone worried about their income or their career development?!
– The new commission receives serious powers – investigation of corruption at the highest levels of power, property inspections, and others. Are these powers sufficient or is there a risk that the commission will remain dependent on other institutions?
– I have serious concerns that the commission may remain a dependent body, formed “…to save some money“. Moreover, I believe that its powers are even broader than those of the previous commission, and not in the spirit of the will to fight corruption, but as a well-known politically controlled body for repression of certain persons holding public positions. This is what raises serious concerns and worries me. I would very much like to imagine an “Italian scenario“ – a CCP like the Guardia di Finanza, which really sets a watershed in the fight against the mafia, corruption and dirty money, and the apparatus games rather return me to skepticism…
– You said that there are powers that worry you. What do you mean?
– As we have already noted, my most serious concern is the possibility of making decisions regarding persons with immunity without sanction from another institution. The Civil Procedure Code allows for the initiation of an inspection with a relatively low threshold of information - the law allows inspections based on signals and on official initiative. If there are no sufficiently strict credibility filters, multiple inspections can be initiated against one person based solely on multiple signals - even when there is no violation, the inspection itself can have a reputational effect. This, in my opinion, is extremely dangerous.
– There were comments that the Civil Procedure Code allows the commission itself to be able to authorize the use of special intelligence means without a judge's signature?
– This was changed between the two readings and without seeing specific cases, it would be speculation to claim that it will become a practice. But even without SRCs, unsanctioned by the court, the commission receives very broad access to information - state registers and institutions - which concentrates a significant information resource in one body. From some similar cases in “mergers“ between SANS and the Prosecutor's Office from the very recent past, we know how serious the consequences can be.
– What mechanisms should exist to prevent the Anti-Corruption Commission from becoming an instrument for political pressure against inconvenient people, regardless of who is in power?
– Much more serious judicial control over the actions of the commission is needed. Its very absence can open the door to the initiation of proceedings that can be used for political purposes. On the contrary - if the court is empowered to control the process, abuses and politically motivated proceedings can be prevented. A major defect of the entire practice in recent decades in the fight against corruption was that loopholes were always left, so that the "middle echelon" could remain intact and serve new high-level corruption networks. This has largely destroyed public trust that there is a will to fight corruption. We are still in the hypothesis of “to lie to the Europeans and take our money“ – and all of us – Bulgarian citizens and taxpayers will pay for this.
– After all that has been said, do you think that the new Anti-Corruption Commission will be an independent body, as is the idea of the law?
– Observing the process of lawmaking and the formation of the CPC – I have serious doubts. I know some of the colleagues who were nominated. In my opinion, the only candidate who actually has the necessary training in the field of criminal law and investigations is the candidate nominated by President Yotova – Pavel Gaydarov. All the other colleagues may be excellent specialists in their fields, but in my opinion they lack the necessary competence precisely in criminal law. And criminal law is the main subject with which this commission will have to work. This involves very specific knowledge, skills and practice that requires depth and a lot of personal dedication - literally, people have to "embed" themselves into the CCP and risk a much more peaceful professional life and good income. I very much doubt that there is a mass readiness among lawyers for such a challenge.