On the price of horses and the rule of law in the EU

Horses in the Bieszczady mountains. (cc) maxpixel.

On June 30th 2019, during the EU Summit at which the EU’s top jobs were negotiated, the aficionados of EU politics had the rare chance to witness a meeting between Bulgaria’s Prime Minister, Boyko Borissov, and Frans Timmermans, the lead candidate of the Party of European Socialists in the 2019 EU elections. Part of the meeting, which took place late in the evening, was streamed live on Borissov’s personal Facebook page. Commentators quickly noted that this video offered ‘a glimpse of conversations normally held behind the scenes’; however, a well-equipped eye may infer more from this interaction.

Beyond the personal realpolitik of seasoned politicians who are skilled at horse-trading, one is ultimately left with the bitter feeling that EU values have a price tag.

The golden question

Experts in actual horse-trading have argued that ‘[pricing horses] is a golden question, as a horse is worth what someone will pay for it’. It seems that the same can be said about rule of law in the EU.

As a Commissioner for the Rule of Law, Frans Timmermans has built a reputation for defending EU values because he activated Article 7 of the Treaty on European Union against Poland. Timmermans’ alleged commitment to the rule of law was a key selling point of his candidacy for President of the Commission. Nevertheless, those following the democratic decay in Bulgaria as well as the Cooperation and Verification Mechanism (CVM), which is part of Timmermans’ portfolio in the Juncker Commission, may question this alleged dedication. The video of the Timmermans-Borissov meeting only fuels further doubts.

For once, it was not Borissov paying a visit to Timmermans, but Timmermans negotiating to gain Borissov’s support to become President of the Commission. Borissov was blunt and transparent about his priorities — ‘the [Balkan] gas hub, [Bulgaria’s entry into] Schengen, and [the termination of the] CVM’. Lifting the CVM is a prerequisite for Bulgaria’s entry into Schengen and the European Exchange Rate Mechanism (ERM II). Timmermans told Borissov: ‘I have always expressed my admiration for what you are doing in the fight against organised crime and corruption. We have had many frank discussions about that. And that is the basis on which I value our friendship’. Although many in politics would argue that the end justifies the means and the brevity of the video does not clearly indicate that any concrete promises were made, Timmermans’ statement was surely shocking for any researcher familiar with the Bulgarian context.

Organised crime: ‘Trouble rides a fast horse’ (Italian proverb)

A WikiLeaks cable has linked Borissov himself to ‘oil-siphoning scandals, illegal deals involving LUKoil and major traffic in methamphetamines’. A recent article in Politico claims that FBI director Robert Mueller, who recently carried out the Russia probe in the United States, refused to meet Borissov in 2005 ‘even though [Borissov] was the country’s top law enforcement official at the time’ because of his ‘alleged connection to three dozen mob-related murders in [Bulgaria]’. Indeed, between 2001 and 2005, Borissov served as Secretary General of the Ministry of Interior: the most important law enforcement job in the country. In this role, he made questionable choices too.

For instance, in Dimov and others v Bulgaria, the European Court of Human Rights found Bulgaria in violation of the utmost ‘right to life’ because of a violent police operation personally led by Borissov in 2003. The facts of the case raise concern about the lack of proportionality and the extreme level of brutality. 92 police officers, 21 officers from the anti-terrorism unit, 19 border police offices, 30 smoke bombs, multiple explosives, and 15 rocket-propelled grenades were used against one person (nicknamed Chakara) with the purpose of arresting him to serve a six-month prison sentence. Chakara was convicted for letting out his house for lewd acts.

Between 2003 and 2018, Bulgaria witnessed a series of high-profile murders: famous businessmen, an established prosecutor, an important director at Bulgaria’s Tax Authority, and a key expert witness in a public trial on illegal wiretapping by Borissov’s government were all shot dead. These murders were not solved by authorities, and it is doubtful they were properly investigated either. In one case, it took numerous reminders by the Council of Europe to open a fresh inquiry into the ruthless murder of Prosecutor Kolev, which took place in 2002 while Borissov served as Secretary General of the Ministry of Interior. As stated in the facts of Kolevi v Bulgaria, Prosecutor Kolev had warned key institutions, including the Ministry of Interior, that he feared for his life because he had criticised Bulgaria’s General Prosecutor.

Corruption: ‘It is too late to lock the stable door when the horses have already been stolen (Dutch proverb)

Bulgaria is notorious for its corruption, too. The 2018 Corruption Perceptions Index by Transparency International has ranked the country as the most corrupt in the EU. Bulgaria has been receiving poor marks by this metric since it entered the EU in 2007. The country was placed slightly above the 50th percentile for both corruption and the rule of law in the last three measurements (2007, 2012, and 2017) by the World Bank Governance Indicators, a very low score compared to other EU members. The latest Rule of Law Index by the World Justice Project, which has a special rubric on corruption, has not been generous towards Bulgaria either; the country has received the same score as Russia for corruption in the executive branch and the second lowest overall score on the rule of law among EU members.

Of course, corruption is not just a question of perception or a phenomenon which can be dissected through complex metrics. It is also quite visible to the public from multiple scandals. Two investigators from Bulgaria’s Prosecutor’s Office have overtly spoken of a special unit within the prosecution, which frames government opponents and whitewashes politicians. Apartment Gate (also referred to as Flat Gate), which erupted in 2019, does not paint a flattering picture of the government either. It emerged that leading politicians from Borissov’s GERB party and its ally parties, as well as prosecutors, the President and the Vice President of Bulgaria’s Anti-Corruption Agency, have acquired luxurious property at discounted prices. Some of them failed to declare such property according to the law. Corruption experts suspect that either these properties are gifts for favours or that these public officials simply do not have proven income, so they choose not to specify the actual price they pay. Yet, the Anti-Corruption Agency has found no violations. Critics maintain that ‘compromised officials’ cannot investigate ‘compromised officials’.

Bulgaria’s CVM: ‘Fear the goat from the front, the horse from the rear, and man from all sides’ (Russian proverb)

The above background is necessary to illustrate why there is a mismatch between reality and Bulgaria’s CVM. Since the country did not fulfill the accession criteria on the rule of law when it joined the EU in 2007, the EU Commission placed it under this mechanism to monitor progress in the areas of judicial independence, corruption and organised crime.

The reports on Bulgaria have always been overly diplomatic, but in the past few years, under Timmermans’ guidance, the Commission started identifying progress where there was actually regression. The last report declared three benchmarks set for Bulgaria to be provisionally closed: judicial independence, legal framework, and organised crime. This resulted in fervent criticism by Bulgaria’s civil society and the European association of judges and prosecutors (MEDEL). Despite the CVM, the EU Commission turned a blind eye to blatant abuses against Bulgaria’s judiciary, legal reforms that promote autocratic values, and rampant criminality.

In November 2018, Timmermans promised to lift the CVM before the end of Juncker’s term if ‘progress’ continued. In April 2019, Timmermans met with Bulgaria’s General Prosecutor Tsatsarov to discuss Bulgaria’s CVM and what remained to be done. It is striking that Timmermans would discuss CVM recommendations addressed at the government with a public official who is not part of government. Moreover, it is interesting that Timmermans did not look troubled by Tsatsarov’s infamous Russian connections despite continuously stressing that Russian interference was a threat to the EU in his campaign as the lead candidate for the European Socialists. Tsatsarov has a warm relationship with Russia’s notorious General Prosecutor Yury Chaika, whom he has met on multiple occasions in Bulgaria and Russia. They even signed a cooperation agreement on corruption, human rights, and terrorism. It is known that the only EU members in which Chaika has been welcomed in an official capacity are Hungary and Bulgaria. Recently, it became clear that Bulgarian prosecutors often travel to Russia on work trips. The Prosecutor’s Office has attempted to keep information about this exchange hidden, despite the fact that withholding such information from the public constitutes a violation of Bulgarian law.

‘Only when the horses have escaped do men repair the stable’ (German proverb)

While EU leaders price their horses, it is more and more palpable that EU stables are in dire need of major repair work. Experts traditionally explain Bulgaria’s sugar-coated CVM with the fact that Borissov’s GERB party is a member of the European People’s Party. However, the Timmermans-Borissov meeting provides further evidence that the price tag of Bulgaria’s rule of law is rather low, even for European Socialists. It is understandable why Borissov was willing to negotiate, but it is incomprehensible why a person campaigning on a rule of law platform would be willing to consider Faustian bargains.

Dual standards on EU values and complicity with a rogue regime are inadmissible as a question of principle. The next Commission President should be aware of this and demonstrate their integrity through their actions, especially since Bulgaria is not the only ticking bomb that has been left unattended due to unsavvy horse pricing and horse-trading. Furthermore, it is essential that civil society not judge horses by their saddles and monitor closely the work and errors of judgment of the next Commission President and the next Commissioner for the Rule of Law.

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, EU