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Towards a new Bulgaria or a new deception?

Bulgaria has remained one of the worst performing EU states when it comes to issues of corruption. However, recent political changes suggest that the country may be entering a make or break period regarding its justice system.

February 11, 2022 - Blaga Thavard - Articles and Commentary

View of the Bulgarian Parliament. Photo: naskopi / Shutterstock

After three general elections in 2021, Bulgaria finally voted to move on from the troubled Borisov era. The country’s long-term problems eventually made international headlines last year following reports on endemic corruption and a rule of law crisis. These scandals even went beyond Europe. In June 2021, the US Treasury Department announced sanctions against numerous individuals connected to Bulgaria as part of the Global Magnitsky Act. However, the country’s chief prosecutor stayed in place and remains a powerful figure despite possessing no democratic legitimacy. Numerous voices in Bulgaria, such as the newly elected government, consider the prosecutor’s privileged position illegitimate.

This legacy from the communist era has been criticised by the European Court of Human Rights (ECHR) multiple times. Whilst the country’s prosecutor’s office was subject to reform, it remained de facto free from any oversight. The organisation’s continued ability to act outside of any system of checks and balances has led to the surveillance of citizens with little to no oversight. Naturally, this has led to politically motivated surveillance. The ECHR recently condemned Bulgaria for its mass surveillance system for the second time after an initial decision in 2007.

Doors wide open for abusive surveillance

According to Bulgarian legislation, covert surveillance is legal in the country. Surveillance techniques can be used for national security purposes or when an offence punishable by at least five years imprisonment is suspected. A warrant issued by the president of a few designated courts across the country can be delivered to prosecutors, police, the military and security agencies to initiate and access material obtained under covert surveillance. This is done under the supervision of a national bureau specifically created to control the country’s covert surveillance system. Similarly, the authorities have also introduced laws regarding the retention of and access to communication data. All communications operators are obliged to retain their data for six months and to give access following any warrant issued by a district court president.

Notably, even legitimate political activities by the opposition can be viewed as sufficient grounds for surveillance. Any limitation regarding communication data has been in practice completely removed in the case of serious offences. Thousands of access requests have been granted with little to no oversight from judges or associated bodies.

An endemic lack of oversight

The ECHR found that the grounds for surveillance set out in law were broadly in agreement with the European Convention on Human Rights. However, a lack of proper judicial oversight and little regulation on the storage and use of obtained data led to a situation in which secret surveillance could be used for illegal purposes. The independence of the national bureau was also not guaranteed. Additionally, the court stated that access requests and their associated legal decisions did not meet the requirements of the convention. This is because no justification was needed to pursue such actions. The court therefore could only conclude that Bulgaria was in breach of the convention.

This decision shone a light on the systemic issues present in Bulgaria’s legal system. A total lack of oversight and accountability has allowed the country’s chief prosecutor to effectively operate outside the bounds of the law that they are supposed to uphold. Such criticism existed all the way back in 2009 during the “Kolevi v. Bulgaria” case. The ECHR had pointed out that the position of the chief public prosecutor was in practice immune from any oversight or even criminal charges. This was due to the hierarchical structure of the prosecution service and institutional deficiencies. This immunity has led to numerous abuses of the law. Coupled with the fact that the chief prosecutor can only be removed from office by the country’s Supreme Judicial Council – some members being the prosecutor’s subordinates – this has led to the position becoming highly politicised. The position has been used to harass political opponents and offer protection for allies against criminal charges for the duration of a five-year mandate.

Real change?

The chief public prosecutor’s position therefore remains a key obstacle to reform in the Bulgarian political landscape. Recent years, however, have seen increasing political pressure build against the status quo. Protests throughout 2020 and 2021 aimed to bring about the resignation of the then prime minister and the newly nominated chief public prosecutor. The subsequent release of wiretaps of opposition members only days after the start of these protests clearly shows how the law was used for illegal purposes.

The Constitutional Court of the Republic of Bulgaria will rule on February 8th on whether the justice minister has the right to seek the early dismissal of the chief public prosecutor. The answer will in practice decide whether or not the minister of justice will submit a request regarding such action to the Supreme Judicial Council. Naturally, reform must reach beyond the man holding the position. A fundamental change in the system was promised by the new government’s zero-corruption platform. Overall, it appears that the administration is staking its credibility on this issue. Are we heading towards a new Bulgaria that is finally able to achieve European standards, or to a new period of disillusion? Only time will tell.

Blaga Thavard is a Bulgarian Attorney at Law, specialised in private law and human rights law.

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