Radosveta VASILEVA, De Facto
As a country frequently affected by scandals related to the misuse of EC funds and known for Corruption is widespread, Bulgaria offers enough opportunities for the European prosecutor to show his teeth. But three years later, the institution has only two successes to be praised for. It reached 6 months in prison and a fine for those who bribed an official with 2,500 euros. It also ensures that the court approves a fine of 1,500 euros for individuals who submit false documents when applying for EC funding.
In the Bulgarian context of grand corruption, these successes seem modest, to say the least. Bulgaria consistently scores poorly on reputable indices such as the Transparency International Corruption Perceptions Index, the World Justice Project Rule of Law Index, and the WorldWide Governance Indicators. Importantly, corruption is not just a matter of perception. The ongoing challenges to the rule of law in the country have drawn attention to anti-corruption programmes outside the EU. Πin 2021 and 2023 The US government is sanctioning senior government officials for corruption under the Global Magnitsky Act, citing “misappropriation of government assets, expropriation of private assets for personal gain, corruption related to government contracts or natural resource extraction, or bribery,” among others. Πrez 2023 The UK government, in its own words, sanctions “famous figures”, citing “violations, including misuse of public funds” in accordance with the Global Anti-Corruption Sanctions Framework.
One can easily get the impression that the European Commission is giving free rein to the big fish, while wasting time and resources on petty cases that have no significance for Bulgaria.
The European Commission as a victim of the breakdown of the rule of law state in Bulgaria
Unfortunately, there is evidence to support the argument that the European procuracy is a victim of a collapse of the rule of law in Bulgaria and, therefore, of the fundamental, but utopian, principle of mutual trust. Even worse, the factors hindering the work of the European Prosecutor's Office are long-standing challenges before the Bulgarian judicial system, which have either not been resolved or have been exacerbated by the Cooperation and Verification Mechanism (CVM), under which the European Commission was supposed to help Bulgaria catch up with other EC members in the area of the rule of law (see for example here, here and here). The CVM may have been officially suspended in September 2023, but the problems persist.
The main challenges to the proper implementation of the European Ombudsman in Bulgaria can be summarized as follows:
ΠChallenger 1 to the European Ombudsman: Questionable selection of European delegates (EPP)
In accordance with recital 43 and Article 17(1) of the Regulation on the European Parliament, the European Parliament College appoints the EPP on a proposal from the European Chief Executive. There is, however, one catch – EPPs must be nominated by the Member State of the EC in which they will first serve. In Bulgaria, the competent authority for such nominations is the Pro-Cypriot College of the Former Judicial Council (BCC). Following the pseudo-constitutional reform of December 2023, which has not yet been implemented, the competent authority will be the Former Pro-Cypriot Council. The cosmetic reform of 2023 However, it will retain the main shortcomings of the current ΠPokypopskėa college - namely its strong politicization, which is possible due to the mechanism for appointing its members. In practice, the politicization of this body translates into the elevation of magistrates loyal to the authorities, who often have questionable authorities and an uncalibrated moral compass. It is a burden and a hindrance to the useless magistrates.
The European Prosecutor seems to be aware of this problem, but its hands are tied. In 2021, for example, when the European Prosecutor's College nominated ten candidates for the EDR, the European Prosecutor sought more information about seven of them, which it subsequently rejected. Milan Yaron of the European Parliament was quoted in Bulgarian media as saying: “We do not want to enter into the discussion on how to interpret the regulations [for the European Parliament]. The letter from the European Commission clearly states that the Bulgarian side must nominate a group with the appropriate experience, who meet all the requirements for independence and moral integrity.
While the European Commission is trying to show its teeth, in the end it must compromise with the belief that the Bulgarian magistrates can learn best practices when they are taken out of their toxic environment. It is quite telling, however, that many Bulgarian EPΠs have written the European Constitution in order to return to work in the Bulgarian Constitution, where their official salaries are much lower. The investigator may have doubts about what the real main reasons were for the difficult work in the European counter-terrorism.
ΠChallenger 2 of the European counter-terrorism: the toxic culture of the counter-terrorism
If we accept that the European counter-terrorism has succeeded in identifying EDRs that are truly responsible for the criteria set out in Article 17(2) of the Regulation on the European Patent Office – “unquestionable independence” and “necessary qualifications and appropriate practical experience in the relevant national legal system” – EDRs are up to the challenge of doing their job amidst the toxic culture of Bulgarian opposition.
Much ink has been spilled about the Soviet structure and culture of the Bulgarian Procuracy, its corruption and the unlimited powers of the chief procurator, whose status as a Venetian commissioner is comparable to a monarch, who bears neither political nor legal responsibility for his actions (see, for example, here and here). In an attempt to deceive the Committee of Ministers of the Council of Europe that it has implemented the key Kolevi decision since 2009, Bulgaria even carried out a pseudo-reform in 2023, which preserved the current status quo.
In practice, the EPΠs work in the same building as the other Bulgarian proxies and share the same administration with them. This means that they can easily be monitored, influenced and/or intimidated and information can leak. European Union chief prosecutor Lyra Kövesi clearly sees this as a major challenge, as she is personally seeking a separate building for ΠΠD when she visits Bulgaria in 2022. However, while the Bulgarian authorities promise to look into this issue, the information that the changes have been made is misleading and unconvincing.
ΠChallenge 3 of the European Prosecutor General: Captured Courts
Even if the EPΠs are able to withstand the pressure of the prosecutor general, they must be corrected before the victims Bulgarian courts – it can therefore be speculated that with the blessings of the authorities, some sacrificial lambs will be convicted, and the sacred corrupt cows will be acquitted.
It is important to clarify that the highly politicized BCC guarantees that the courts remain occupied through two main strategies. The first is the promotion of good judges and the suppression of bad judges through extensive procedures. The second is the deliberate avoidance of organizing competitions for the appointment of judges in courts of strategic importance to the system. ΠIn this way, court presidents can command judges according to their personal (subjective) preferences and circumvent the requirements for authority and professional experience. A shocking example is the Sofia Court of Appeal, the most important appellate court in terms of competence, where according to recent rulings, one third of the judges are commanded. The court itself is often plagued by scandals with the non-random distribution of orders. And again, the correct allocation to the correct judge guarantees the correct result for the institution.
The seriousness of the quote is shared by Lazan &Pianov, President of the Supreme Court of Cassation (2015-2022), who was one of the few judges trying to shed light on the challenges to the rule of law in Bulgaria, before Der Sriegel: “…the most important parts of the Bulgarian judicial system are under political influence and corruption. All judicial reforms in recent years have been mere simulations of reforms.
ΠChallenger 4 of the European Procuracy: Legislative Sabotage or the Experience of Pseudo-Reform
ΠOver the years, but mostly thanks to the MCΠ, Bulgaria has developed a remarkable ability to carry out pseudo-reforms and/or dangerous reforms, as it observes the international institutions that are ahead. From the very beginning, the European Commission has been an easy target for legislative sabotage and can remain a target depending on the political context.
For example, in an attempt to save the reputation of the most corrupt member of the EC, Bulgaria presented the application of the European Commission as a “basic "priority" of its Presidency of the Council of the European Union, which it held between January 2018 and July 2018. Shortly thereafter, in a hasty and ironic twist, Bulgarian lawmakers amended the legislation to guarantee that the Specialized Criminal Court had exclusive jurisdiction to review cases investigated by the European Prosecutor. This court, which was created by the Boyko Borisov regime, had many of the characteristics of an extraordinary court and was called the "Kangaroo Court". It was closed forever in 2022. on the proposal of a short-term reformist government on the grounds that it “creates risks to the independence of the judicial system and undermines the rule of law“ (see the explanatory memorandum to the proposed amendments to the Law on the Judiciary of 28 January 2022).
In other words, while the independence of the Bulgarian courts as a whole is compromised, the institution wants to be sure that the European Prosecutor should plead her cases before the most controversial court in the country. While the closure of the Kangyup courts was good news for the rule of law, there is no guarantee that other forms of legislative sabotage will not arise in the future.
Πs from Bulgaria: Can a tamed cat become a tiger?
„The tiger does not assert power, it attacks“, goes a famous quote from Bolesław Solin. And again, it seems that power depends on context.
The European opposition can easily be seen as a victim of the breakdown of the rule of law in Bulgaria, as seen by the politicized BCC and Πopposition, the seized courts and legislators who want to overthrow it. If we dig deeper, we can see that the European Commission has fallen into this uninspiring position due to various factors, including:
— its utopian design, embedded in the European Commission Regulation, which relies too much on the good faith of EC Member States – an approach consistent with the equally utopian but beneficial principle of mutual trust;
—the failed MCΠ, which has wasted fifteen years in failing to resolve a single serious challenge to the rule of law in Bulgaria;
— the full participation of the European Commission in the attacks on Bulgaria's rule of law (the rule of law monitoring mechanism inherited the shortcomings of the CVM; the Commission has never initiated proceedings for a violation of Bulgaria's rule of law).
Without implementing changes ensuring more transparent procedures for the appointment of the ΠΠD and without first resolving the challenges to the Bulgarian rule of law, the legitimacy and work of the European Prosecutor in Bulgaria will always be in question.
The author is a guest a research fellow at Middlesex University. She holds a doctorate in law from University College London, where she was a lecturer.