Once again, it is uncertain whether Bulgaria would have a regular government after the fourth round of parliamentary elections in the past year and a half. The topic of fighting corruption is a crucial element for the campaign of the parties who were last in power, however, it has been increasingly overshadowed by current social and economic issues. In this context, it is good to think about the situation now, what could have changed during the brief life of the 47th National Assembly, and what is laid out by the current caretaker government in Bulgaria.
The current Counter-Corruption and Unlawfully Acquired Assets Forfeiture Act (the Counter-Corruption Act) passed with GERB’s majority in parliament in 2018. It includes components that are at odds with each other: seizure of illegally acquired property, prevention of corruption, declaration of incompatibility, conflict of interests and property from people at high public service positions; the administrative proceedings for determining conflict of interests; investigatory activities according to this Counter-Corruption Act itself but unfit for a typical criminal proceeding. As of now, this act applies three different procedure laws; this is too chaotic and thus should be put in order.
During the short-lived 47th parliament this debate was central, but the results were slow to come. PP (“We continue the change”) presented a project which attempts to solve a couple of issues in various directions. If we ignore the technical imperfections in some provisions, the concept was sound and had the clear goals of separating confiscation proceedings and the administrative instruments of fighting corruption and giving the Counter-Corruption Agency the power to correct the actions or inactions of the prosecution.
Now, it is the turn of the Ministry of Justice, especially given that two deputy ministers from Petkov’s cabinet, who have experience on the matter, are in the team of the current minister – Krum Zarkov. Work on reshaping the counter-corruption legislature is more than necessary.
The next regular government may be formed by GERB, a party that has not been concerned with judicial reform since 2015, despite the ever-present issue of corruption. Thus, Krum Zarkov and his team could either force GERB into addressing the issue or do part of the work for the potential government of the counter-corruption parties.
However, let us focus on a concept for the Counter-Corruption Agency.
The Purpose of Counter-Corruption Agency
Firstly, it may be time for a different approach, which does not just focus on people holding high public offices. Some prerogatives of such a counter-corruption agency, which is tighter in terms of staff, would include:
- Checking declarations of incompatibility, property, and conflict of interests of people in high public offices.
- When there is doubt of a committed crime, as well as a justified suspicion of a discrepancy between declared and actual property, inspectors would be able to investigate. This would have to apply only to people in high public service positions. The new counter-corruption body would be able to investigate directly (without overlaps with the prosecution) according to the Code of Penal Procedure – a change, featured in the project of PP from June 2022. This idea is socially justified and has been growing more popular. And because this is a concentration of power at the hands of a highly repressive body, following the Penal Procedure Code here would lead to a procedural economy and would also allow for the needed legal defense of the person. All repression in the form of obstructing rights must be limited to certain limits and options for control.
- The new counter-corruption body would have to be able to counter the problematic segments of the prosecution by appealing against decisions for not initiating criminal proceedings with the necessary expertise. This applies also to the decisions for pausing or stopping criminal proceedings that have begun. Such prerogatives would not be something new in the current social context. Such a project has already been put up for discussion by the Ministry of Justice when it was headed by Nadezhda Yordanova from Democratic Bulgaria (available here).
- These powers aim to provide the prosecution with evidence, the validity of which would persuade a prosecutor to initiate a criminal proceeding. As we know, once such action has begun, certain mechanisms could be used to stop it. A solution could include a change in the Code of Penal Procedure, according to which the first action of investigation from the counter-corruption body is considered an initiated criminal proceeding.
An interesting question here is the prosecution’s leading and overseeing of the investigation and we should examine this separately, alongside issues like removing the investigating body by order of the prosecutor and transferring the proceeding from one investigating body to another.
Another important topic is the people holding lower-ranking offices such as the administrations of the National Assembly, the Council of Ministers, the Presidency, local authorities, etc., which are currently regulated according to Paragraph 2 from the additional legislation concerning the Counter-Corruption Agency.
In practice, their status and monitoring are a concern of committees attached to these institutions, which hinders their effectiveness, given that committee members are usually personally acquainted with the figures they should be monitoring. A future solution could be the inclusion of a member of the counter-corruption body in these committees. It is important to stop dependencies between and within administrative bodies, regardless of the rank of officials, and this could happen either through surprise or planned checks – a question that remains open.
From an operation standpoint, the state would allocate resources to confiscation, not only by organizing it appropriately but also by putting efforts into checks and procedures since the property of not only high-ranking officials but also regular citizens could be confiscated.
Is There Room for Criticism?
Given the presence of the prosecution and its investigating bodies, the Ministry of Internal Affairs, the State Agency for National Security, another body with investigating powers would be a sign of the state’s ineffectiveness.
However, we should not forget that not tackling the challenging task of thoroughly reforming the Judiciary and more specifically the prosecution is what leads to the need for non-standard solutions. This more operative counter-corruption body would not function long into the distant future and thus should be periodically reevaluated and eventually dissolved after the bigger problems in the Judiciary are dealt with.
The idea is to provide enough control over the work of the prosecution until there is a parliamentary majority that can change the rules for monitoring institutions through judicial reform. During this time, the ability to appeal against the prosecution’s refusals to initiate criminal proceedings allows tracking the sources of its inaction and then seeking institutional and disciplinary measures. These appeals will not untie the hands of the counter-corruption body, but they would contribute to reaching the desired result.
Who Should Choose and Monitor
Here comes the question of how to determine the leadership of a counter-corruption committee. It is supposed to have just one goal – to guarantee the independence of staff and absolute transparency of the actions and inactions of the body’s leadership, so that there is no need for foreign agencies to sanction Bulgarian politicians and officials.
The parliament should have a leading role here, with the guarantee that the ruling majority would not deal with these matters alone. There are also other issues around what majority should be needed for electing the leadership of the counter-corruption body. This calls for the inclusion of members of the Judiciary (even with the current members of the Supreme Judicial Council) and representatives of the presidency (again, even with the current staff). After all, institutions change their members and we should not forget that, regardless of whether we currently approve of them.
The independence of inspectors should be guaranteed by law through clear and uncontradictory texts determining their competencies. For example, their decisions should not be open to dismissal from the committee leadership and the progress of their work should be reported weekly so that they do not remain unmonitored. Let us remind ourselves how long it took until the publishing of certain remarks on a certain house in Barcelona, which was unacceptable, given the high degree of public interest and judicial importance.
I am skeptical of utopian perfectly functioning state bodies, but I suspect that a tight operative counter-corruption body could address some dependencies within the Bulgarian political elite, without the waste of administrative resources, local structures, long deadlines and intentionally ignored responsibilities. A job well done would be hard to hide from the public, regardless of those in power after October 2.