On same-sex marriage and corruption in Bulgaria and Romania

A rainbow over the "hydra fighter" fountain in Bulgaria's fifth largest city, Ruse. Photo: Cameltrader (cc) wikimedia.org

Is there a relationship between the debate on same-sex marriage and the fight against corruption? Recent developments in Bulgaria and Romania seem to indicate there could be, where the question of same sex-marriage has been used to divert attention from the failed fight against corruption. Bulgaria and Romania have used almost identical tactics to exacerbate divisions and prioritise topics which did not rank highly on the agenda in the past.

The divide and rule strategy has been used by rulers for millennia. When citizens are encouraged to argue with one another, their attention is diverted from the abuses and failings of those in power. It proved successful in Bulgaria this time, but in Romania the public was not going to be fooled, and the attempted dupe was called out by vigilant members of civil society.

Rampant corruption

When Bulgaria and Romania joined the EU in 2007, they did not entirely fulfill the accession criteria. That is why the European Commission subjected them to the Cooperation and Verification mechanism, which monitors progress in the areas of judicial independence, the fight against corruption, and in the case of Bulgaria, combatting organised crime. Eleven years after entry, Bulgaria and Romania still struggle to achieve the benchmarks initially set for them, a problem visible in official reports. The authoritative Corruption Perceptions Index by Transparency International has ranked Bulgaria and Romania 71st and 59th in the world respectively – Bulgaria has the worst score among all EU members. The two countries are permanently torn by scandals exposing corruption at the highest ranks of government, illegitimate pressure on the judiciary, and controversial law reforms.

In Romania, for instance, the summer of 2018 saw polemics over the dismissal of the head of the anti-corruption directorate (DNA) Laura Kövesi as well as amendments to the Criminal Code allegedly aimed at corrupt politicians, including prominent members of the ruling Social Democratic Party. In Bulgaria, the Prosecutor’s Office, which has excessive powers and an entirely vertical structure where there are no checks and balances, is traditionally used to target inconvenient opponents and critics of the government rather than to combat corruption. It is unsurprising that this institution has not successfully prosecuted a single politician.

Since the decision Kolevi v Bulgaria, which identified significant deficiencies in the work of Bulgaria’s Prosecutor’s Office, was handed down by the European Court of Human Rights in 2009, the Council of Europe has been calling for a reform to no avail. Bulgaria has stubbornly refused to comply with it and just missed the latest deadline to introduce changes by October 2018 set by the Committee of Ministers. Bulgarian judges openly complain that they are harassed if they do not conform to behind-the-curtain orders issued by the executive and the Prosecutor’s Office.

Epic debates at a convenient time

In 2018, Bulgaria’s and Romania’s government seem to have purposefully enhanced debates of epic proportions on same-sex marriage and LGBTI rights to distract citizens from failures in other areas. In Bulgaria, 75 members of Boyko Borissov’s ruling Party GERB submitted a request for constitutional review of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (known as the Istanbul Convention) before Bulgaria’s Constitutional Court. They were particularly concerned if the Istanbul Convention contradicted their constitution’s definition of marriage as a union between a man and a woman. Romania’s constitution does not explicitly define marriage as a union between a man and a woman, so Romania’s government organised a referendum in October 2018 in an attempt to introduce such a definition.

One can discern peculiarities and strange coincidences in both the Bulgarian and the Romanian case. Bulgaria had signed the Istanbul Convention without protest in 2016. GERB’s sudden worries about the Convention’s compatibility with Bulgaria’s Constitution were linked to the start of Bulgaria’s Presidency of the Council of the EU, when all eyes were focused on Bulgaria and the government wanted to avoid discussions about corruption at all costs. Yet GERB itself has notoriously ignored calls for constitutional review in the past. For instance, in the summer of 2017, Bulgaria’s Parliament enacted highly controversial amendments to Bulgaria’s Code of Criminal Procedure without debate, even though the Association of Bulgarian Judges, the Association of Bulgarian Lawyers and members of civil society deemed them anti-constitutional.

The Istanbul Convention does not actually refer to marriage at all, though this has not prevented ministers from trying to claim that it paves the way to legitimating the “third sex” and same-sex marriages. Bulgarian pro-government media inflamed fears with endless discussions on the merits and deficiencies of the Istanbul Convention and its implications for traditional family values for months. Social media were flooded with misleading information about the purposes of the Istanbul Convention: “experts” and engaged citizens expressed views that it was underpinned by a “gender ideology” that would ruin the concept of family as we know it. The evidence? The Convention uses the term “gender” – that’s it. Even Bulgaria’s Orthodox Church, which rarely makes comments on political issues, got involved. It released a public statement in which it declared the Istanbul Convention “incompatible” with Bulgaria’s “public order” and “Orthodox faith.”

In Romania, the initiative to amend the constitutional definition of marriage was launched in 2015 by a group of NGOs. A referendum on the issue was announced only in September 2018, by means of an emergency ordinance. The referendum was scheduled for October 2018, to coincide with the moment the leader of the Social Democratic Party Liviu Dragnea would be appealing a sentence for abuse of office. Because of failed referenda in the past, in 2012, the Social Democrats proposed an amendment to the law to lower the participation threshold to 30 per cent. Yet the government still could not be confident that the referendum on the definition of marriage would go their way. To increase its chances, they scheduled it for two days instead of one: 6 and 7 October 2018.

The campaign to persuade Romanian citizens to vote in favour of the constitutional amendment was ambitious: priests attended parent-teacher conferences to convince parents to vote yes, billboards called on voters to “save Romania’s children,” etc. Prior to the referendum, Romania’s Orthodox Church issued several statements. “[The proposed constitutional amendment] promotes the family as a fundamental human institution created and blessed by God for the growth and perpetuation of humanity, according to the words of the Holy Scripture,” one of them read.

A tale of two civil societies

Clearly, many Bulgarian and Romanian citizens fear recognizing LGBTI rights – the 2018 Rainbow Index, which ranks countries based on policies and laws that have a direct impact on the human rights of LGBTI people, has put Bulgaria and Romania respectively at 34th and 35th place out of the 49 European countries it evaluates. However, the timing of these debates and votes is more indicative of political calculations rather than of concern for the protection of so-called family values.

A comparison between how these attempts to stir up fear played out in the two countries is highly revealing. In Romania, only 20.4 per cent voted in the referendum, which made the results invalid. The majority of Romanians chose tolerance over division. In fact, in the past, supporters of LGBTI rights have organised well-attended protests in support of the LGBTI community. Moreover, commentators quickly denounced the government for exploiting a controversial topic for political dividends and deviating attention from corruption scandals.

In Bulgaria, by contrast, many members of civil society not only underestimated the government’s true purpose in bringing up this debate at this particular time, but also fell victim to misleading information about the Istanbul Convention. The Constitutional Court then handed down a highly controversial decision in July 2018 which established that the Istanbul Convention contradicted Bulgaria’s Constitution. While the legal reasoning is suspect and unconvincing, it is also troublesome that dissenting judges shared their worries that the majority took its decision because of non-legal factors, namely public and political pressure.

The ultimate price is paid by Bulgarian women who cannot benefit from the protection granted by the Istanbul Convention at a time when they really need it: Bulgaria ranked worst among all EU member states in the European Institute of Gender Equality’s composite measure of violence against women. Religious rhetoric, coupled with overt manipulation, succeeded in a country in which 39 per cent define themselves as non-believers and 3 per cent  say they are atheist. There are vital lessons to be learned here, and an in-depth examination of this case would enhance our understanding of the political and social cultures of the region. It is striking that same-sex marriage, which ostensibly has a direct impact only on those who enter into it, could steal the stage from corruption, which affects all citizens directly. We are left pondering this question: why has Bulgaria in particular fallen prey to this kind of political manipulation?

Dr. Radosveta Vassileva teaches law at University College London. Her research interests encompass comparative public and private law and EU law. She maintains a personal blog dedicated to the rule of law in Bulgaria.

Bulgaria, corruption, LGBT rights, Romania