Cause and Effect in European Politics and Law

In 2012 the European Commission will prepare a mega report on Bulgaria and Romania

Ralitsa Kovacheva, July 22, 2011

“Changing the legal and judicial system to further align it with other Member States is a national task” and a fundamental reform of the judiciary should be seen as a national priority. This is one of the most important messages in the fifth monitoring report of the European Commission under the Cooperation and Verification Mechanism (CVM). The Mechanism has been imposed on Bulgaria (as well as on Romania) in 2007, when both countries joined the EU, in order to ensure that they will make the necessary reforms in the legal and judicial system.

In its fifth report the Commission unambiguously indicates that establishment of rule of law is a mission of the whole society, not just of the institutions. Not accidentally, the position of the civil society is widely covered in the report - it was mentioned 8 times, moreover in terms of an active participant with a corrective role. This is an important signal, given the resistance against the CVM, which is particularly strong in the institutions most criticised in the report - for example, the Supreme Judicial Council. This has not passed unnoticed by the Commission, which reports on the positive role of the CVM in promoting changes, although “at times the CVM has been contested and criticised by one or other element of this necessary national consensus”.

The report clearly states that nearly five years after joining the EU, Bulgaria must shift the focus: “The elements of the legal framework needed for the reform are now largely in place, even if not complete,” so “the next necessary steps in this process should focus on implementation by the judiciary and the police of the new laws”. From this perspective it becomes clear why most of the criticisms are focused on the judiciary and its leadership – because there the adopted legislation should be implemented in practice.

The political assessment of the Bulgarian government states that it “has shown sustained political will and commitment to pursue its reform strategy”. A major role in the reform process is assigned to professional associations of magistrates and civil society, because of the “increased public demand for an irreversible reform process”. “But the leadership of the judiciary has yet to show a real commitment to thorough judicial reform as slow progress is not just the result of shortcomings in judicial practice and in the Penal Code.”

The Supreme Judicial Council is passive and disengaged from reforms

Bulgarian judicial reform has two long-term goals - to improve accountability and increase the professionalism of those working in the system, the report recalls. The amendments to the Judicial System Act have created the legal basis to achieve these goals, improving procedures for appointments, training and appraisal, as well as for strengthening the integrity of the magistrates. But: “The Supreme Judicial Council (SJC) will need to show a strong commitment to reform by translating the new law into practice in order to effectively strengthen the management of judicial bodies, notably in terms of allocation of workload, in close cooperation with the Ministry of Justice, professional association and civil society”. Despite the amendments to the Criminal Procedure Code, the judiciary does not make a serious effort to meet the recommendations of the Commission in terms of improving the judicial practice, as well as the recommendations for systematic persecution of allegations of corruption among magistrates.

“Judicial appointments still lack the necessary level of transparency and credibility,” the report notes. It cites some concrete examples which provoked pubic debates in Bulgaria, summarising: “The subsequent mobilisation of professional associations of magistrates and civil society calling for reform of the Supreme Judicial Council sends an important signal of support for judicial reform. Recommendations by civil society to hold public debates and announce the names of candidates at an earlier stage are laudable. The appointment of highly competent and motivated magistrates of unquestionable integrity via transparent procedures, in particular for the new specialised court for organised crime, is indispensable to successfully implement judicial reform.”

Where is the General Prosecutor?

The acquittals in a number of cases involving high-level corruption and organised crime are again an emphasis in the report, because they show “serious deficiencies in judicial practice”. Although this is a permanent criticism in the CVM reports, “these deficiencies have not been properly analysed or followed up by the leadership of the judiciary, the Supreme Judicial Council, the General Prosecutor and the President of the Supreme Court of Cassation.” So far, the prosecution has behaved as though it has nothing to do with the report and has successfully avoided the punches in the fight between the executive and the judiciary.

Obviously, this has been noted by the Commission and this time the General Prosecutor is mentioned three times in the report in the same context. "The General Prosecutor should systematically analyse the reasons for acquittals in high level cases, make recommendations for the handling of future cases when shortcomings in the procedure have been identified and appeal the acquittal decisions when it appears that the Courts did not properly assess the evidence provided.” And again: “The generally passive attitude of the judiciary's leadership, the Supreme Judicial Council, the General Prosecutor and the President of the Supreme Cassation Court towards considerable shortcomings in judicial practice raise serious concerns.”

Therefore, the first recommendation of the Commission is to “establish proposals for a reform of the Supreme Judicial Council, the Supreme Cassation Prosecution Office and the Prosecution in general". Bulgaria is expected to demonstrate that the appointments in the judicial system, including the Supreme Judicial Council, fully respect the principles of transparency, independence, integrity and professional merit; that cases of corruption and malpractice within the judiciary will have disciplinary and criminal consequences; to “ensure complete electronic access to court verdicts and motivations and a strict application of the principle of random allocation of court cases.”

Is there a fight against corruption?

“The fight against high-level corruption has not yet led to convincing results. There have been very few final and enforced verdicts in this area and there are no indications of active targeting of high-level corruption.” Regarding the number of acquittals in major corruption cases, the recommendation is again the General prosecutor to examine the causes and take corrective measures. The analysis of some cases, made by the Commission and independent experts, shows “serious weaknesses in judicial and investigative practice”, primarily in terms of collection of evidence, witnesses protection, general lack of investigative strategies, comprehensive financial investigations and securing of assets. “Court practice is permissive and excessively cautious, overly attentive to procedures at the expense of delivering justice.”

Bulgaria continues to implement an integrated strategy to prevent and sanction corruption and organised crime and several measures have been taken, but “at the same time, the 2010 action plan focusing on tackling organised crime has not been fully implemented and has not been updated in 2011.” In this regard the Commission recommends greater involvement of the civil society through the participation of external experts in assessing the results of the strategy. The BORKOR project is also expected to deliver concrete results.

Conflict of interests is also not pursued effectively enough as the newly created dedicated commission is not still operational. The European Commission expresses concerns over “weaknesses in asset declarations and verifications of politicians, magistrates and senior civil servants” and expects false declarations and discrepancies to be effectively sanctioned.

Fight against Organised Crime – many police operations, less results

“In spite of persevering police actions to tackle organised crime, the overall results need to be significantly improved”. The Commission recommends police reform to be continued by “addressing shortcomings regarding the integrity and independence of police action, evidence gathering and witness protection”. In the technical update, accompanying the report, the issue of police practice to accept donations from private and legal persons to finance its operations is also raised. According to the Commission, “this practice challenges the independence of police investigation” and the issue requires further follow-up.

As expected, the Commission continues to insist Bulgaria to adopt urgently a law on asset forfeiture, although the draft legislation has recently been rejected by the Bulgarian Parliament. The Commission expects Bulgaria to have proper legislation allowing “non-conviction based confiscation and ex-officio verification of assets of senior officials, magistrates and politicians” and to show concrete results in its implementation.

5 years later

In 2012, 5 years after Bulgaria and Romania joined the EU and the Cooperation and Verification Mechanism has been launched, the Commission will make an overall evaluation of what has been achieved. Despite persistent efforts of Bulgarian and Romanian journalists to understand whether this means that the CVM may be abolished, European Commission spokesman Mark Gray answered briefly: everything depends on the results, which Bulgaria and Romania will achieve. He refused to comment on how the reports on Bulgaria and Romania would affect the assessment of the Member States on Sofia's and Bucharest's readiness to join the Schengen area.

But looking at the Bulgarian document it is obvious at first glance that one of the main requirements of our partners in the EU is not fulfilled – to show results in the fight against organised crime and corruption. For comparison we should note that in the report for Romania we can see a lot of criticism too, similar to that in Bulgarian, but a few key words make an impression. Romania has taken “significant steps” in some of the most important areas, the fight against corruption must “remain” a top priority (which means it is already a top priority) and Bucharest should “increase the pace of judicial reform” (as obviously it is currently under way).

Now we will hear another portion of mutual accusations between the executive and the judiciary. The first sharp reactions to the report are already a fact, but we will comment on these in a separate text. If, however, we assume that there must be a “positive hero” in the report - this is the Bulgarian civil society in the face of all those who keep pushing for a change. Now these efforts are taken into account and supported by the European Commission, which is clearly saying to the Bulgarian government: listen to the voice of your own citizens, give them a say, involve them into the overall effort to reform. Because, while the SJC believes it is self-sufficient and untouchable symbol of the (judicial) authority; while the police and the court are accusing each other, instead of working together; while the government is looking only for praises when reading the CVM reports; while citizens keep idly sitting side and waiting - there will be no judicial reform, no qualitative investigations, no convictions on important cases.

This is what the Bulgarian institutions and Bulgarian citizens must understand from this report. Five years later, it is time for us to realise that Bulgaria really is a member of the European Union and should become a really normal state. Nothing more, nothing less.

Read euinside's analysis of the 2010 CVM report here and a summary of the discussion on the CVM, organised by euinside and blogeurope - here.