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Bulgaria’s institutional wars

Bulgaria’s new government was brought to power on a wave of optimism regarding anti-corruption reforms. However, promised changes are easier said than done. The administration now finds itself in a battle with those still loyal to previous Prime Minister Boyko Borissov.

March 21, 2022 - Radosveta Vassileva - Articles and Commentary

The ministers of the Petkov Government are sworn during the Government's inauguration ceremony on the December 13th 2021. Photo: Yuli Krivoshiev wikimedia.org

The arrest of Boyko Borissov, former Prime Minister of Bulgaria, on March 17th, 2022 made international headlines and seems to have surprised many. However, it is just the latest episode in Bulgaria’s institutional wars which started after Borissov fell from power. Much ink has been spilled on highlighting the key elements of the modern autocratic playbook. There is a general understanding that political leaders building autocracies advance similar policies and legislation to concentrate power and ensure the longevity of their repressive regimes by removing checks and balances and persecuting opponents. While there may indeed be an autocratic playbook, it is questionable if there is a playbook regarding how to dismantle an autocracy. The new Bulgarian coalition government led by Kiril Petkov, which was sworn into office on December 13th, 2021, seems to be finding this out the hard way. After all, it needs to respond to high public expectations regarding its anti-corruption efforts.

Since its first day in power, Petkov’s government has been drawn into wars with institutions that have been captured by Boyko Borissov and his allies: the Prosecutor’s Office, the Supreme Judicial Council, the Anti-Corruption Commission (KPKONPI), and the specialised criminal courts set up during Borissov’s first government. Unfortunately, Petkov’s tools in this fight are rather limited, so it is not surprising that his government resorted to a collaboration with the European Public Prosecutor’s Office (EPPO) to expose the scale of corruption in Bulgaria internationally.

The origins of the institutional wars

For years, Borissov’s autocracy appeared unshakeable. Nevertheless, the 2020 raid against the Bulgarian Presidency by the Prosecutor’s Office served as a wake-up call for citizens. This sparked mass protests against Borissov’s third government (2017-21) and controversial General Prosecutor Ivan Geshev that lasted for months. The protests also paved the way for a powerful resolution on rule of law deficiencies in Bulgaria by the European Parliament. The raid was the catalyst that helped many Bulgarians realise that the separation of powers was just an empty slogan in the Constitution – the Presidency was the last institution that had not been captured by Borissov and his allies.

Since coming to power for the first time in 2009, Borissov and his close circle closely followed the autocratic playbook seen in other countries. They gradually took control of institutions that are important for protecting the rule of law by abusing systemic deficiencies in the justice system and by promoting dependent, subservient people to strategically important positions. Borissov and his allies took care to remove checks and balances and ensure protection for magistrates abusing their office to serve the interests of the corrupt status quo. In this way, rampant corruption could be shielded and critical voices could be harassed.

In the summer of 2020, citizens demanded that this corrupt system be demolished. Predictably, they were met with fierce resistance from those who support Bulgaria’s status quo. This group has too much to lose should its corruption be properly exposed and prosecuted. In 2020, Borissov pulled every imaginable trick out of his bag to prevent early elections. Overall, he thought that public discontent would simply die out. Nevertheless, the political point of no return had already been reached after the regular parliamentary election in April 2021. Borissov’s GERB party did not have enough seats to form a government. Sadly, it was also clear that the true opposition was fragmented and did not have enough parliamentary seats to elect a cabinet either. It took two snap parliamentary elections in 2021 for the opposition to finally understand that they had to find some common ground and make compromises. An anti-corruption government led by Kiril Petkov from the newly created Produlzhavame promyanata (We Continue the Change) party was ultimately formed in December 2021.

At this stage, however, civil society was hungry to see reforms immediately. That is why, it was disappointing to see how Petkov’s government was pushed to the wall by the institutions in Borissov’s FrankenState which clearly did not want to cooperate in anti-corruption efforts.

Who is who in Borissov’s Frankenstate

Before explaining the current confrontation between Petkov’s government and the bastions of Borissov’s autocracy, it seems important to shed light on why these institutions are threats to the rule of law in Bulgaria.

Over the years, the most pivotal institution in sustaining Borissov’s autocracy has been the Prosecutor’s Office, which was modelled after the Soviet prokuratura and introduced to Bulgaria in this form in 1947. Under communism, the Prosecutor’s Office was considered more important than the courts because it was the voice of the regime. In general, the courts were just there to serve as a rubber stamp body. Moreover, the Prosecutor’s Office has a vertical structure and a strict system of subordination where all decisions depend on the General Prosecutor. Whoever is at the very top controls all decisions by lower prosecutors: whether to start an investigation, whether to stop an investigation, whether to constitute someone as accused party, whether to take someone to trial, etc. Moreover, someone could be accused in perpetuity and deprived of rights but not taken to trial. None of these decisions are subject to judicial oversight. Therefore, it is not uncommon for this institution to frame inconvenient people and start bogus criminal proceedings in a truly Kafkaesque fashion.

Instead of reforming the Prosecutor’s Office and making it subject to viable checks and balances to prevent abuses, Borissov’s governments increased its already excessive powers through questionable reforms. In addition, civil society has for years exposed evidence that both the previous General Prosecutor Sotir Tsatsarov (2012-19) and his successor Ivan Geshev (2019-) benefited from the blessing of Borissov’s circle behind the scenes. Unsurprisingly, Bulgaria’s Prosecutor’s Office has shielded the rampant corruption of Borissov and his allies throughout the years and has harassed the opponents of their regime.

Pushing beyond its official powers within the realm of investigation, the Prosecutor’s Office directly or indirectly dominates a number of institutions and has a more worrying importance than it appears at first glance. The Supreme Judicial Council, which is responsible for the election and promotion of all magistrates in the country and monitoring their ethical values, is controlled by the so-called “political quota” and “prosecutorial quota”. All members of the prosecutorial quota are subordinates to the eneral Prosecutor, while traditionally those from the political quota are highly favoured by the government. This composition allows for the promotion of convenient magistrates and the demotion of those deemed inconvenient.

Furthermore, Borissov’s first government set up a system of specialised criminal courts, which are extraordinary tribunals in all but name and overshadowed by the Prosecutor’s Office. This essentially violates the principle of “equality of arms” in criminal proceedings. Borissov’s governments also developed an Anti-Corruption Commission, which could coordinate its actions with the Prosecutor’s Office and start criminal proceedings disguised as civil proceedings against people investigated by the Prosecutor’s Office. Of course, all guarantees of a fair trial, such as the presumption of innocence, are disregarded in these cases and the burden of proof is in the reverse. In this way, a person’s property could be confiscated in pseudo-civil proceedings even if the Prosecutor’s Office did not send the associated case to trial. This process would be initiated by the Anti-Corruption Commission based on assumptions from the criminal investigation by the Prosecutor’s Office. Conveniently, after Sotir Tsatsarov’s mandate as General Prosecutor ended in 2019, Bulgaria’s GERB-dominated parliament elected him as head of this commission.

Bellicose defenders of the status quo

With all this in mind, it is easy to appreciate the tremendous task faced by Petkov’s government which is expected to fight corruption within the very institutions that are in theory supposed to do this and in which the control of the country’s repressive mechanisms is concentrated. Petkov and his ministers have made it clear in public statements that they know where the challenges in Bulgaria’s justice system are and that they are committed to deliver what civil society has been demanding since 2020. These demands include Ivan Geshev’s removal from office, an overhaul of the justice system, including reform of the Prosecutor’s Office and the Anti-Corruption Commission, and closing the specialised criminal courts.

However, Petkov’s efforts to this end have been met with fierce resistance. First, the Supreme Judicial Council is relying on procedural tricks with questionable legality to delay examining two formal requests for the dismissal of General Prosecutor Ivan Geshev for abuses of office by two Ministers of Justice (the current one and the previous caretaker one). Some bastions of autocracy, such as the prosecutorial college of the Supreme Judicial Council and the Prosecutor’s Office, are now trying to present themselves as victims, too. These bodies have sent letters to various EU institutions describing ongoing attempts at justice reform as an assault against the rule of law.

The tension between Petkov’s government and Borissov’s FrankenState culminated when Borissov was arrested along with other GERB members on March 17th, 2022 – the day coincided with the visit of Laura Kövesi, the European Chief Prosecutor, to Bulgaria. At a press briefing at midnight on March 18th, 2022, Prime Minister Kiril Petkov revealed the details of this operation that could be made public at that stage. Petkov disclosed that there was an ongoing operation of the Bulgarian police and the EPPO. The EPPO was investigating a factual matrix implicating Borissov in the period 2015-2019 within its jurisdiction. However, Bulgaria’s Prosecutor’s Office was clearly turning a blind eye to the same suspected crimes and related crimes because it neither had started an investigation itself nor referred the matter to the EPPO. Bulgaria’s Ministry of Interior had done the homework of the Prosecutor’s Office on two levels – by alerting the EPPO, which could start its own probe, and by starting an investigation into the suspected crimes that do not fall under EPPO’s jurisdiction. Following Borissov’s arrest, the Ministry of Interior asked Bulgaria’s Prosecutor’s Office to raise charges against Borissov and the other people arrested along with him based on its investigation, but the Prosecutor’s Office refused. Thus Borissov and his fellow party members had to be released from custody since the police may only detain suspects for up to 24 hours. On March 21st, 2022, Bulgaria’s Ministry of Interior reiterated its request before the Prosecutor’s Office.

A critical moment for Bulgaria’s rule of law

While the full details of EPPO’s operation are yet to be made public, one thing is certain – Petkov’s government is relying on creative means to expose the unhealthy dependencies of Bulgaria’s Prosecutor’s Office which has been shielding rampant corruption for more than a decade to the world. After all, how is it possible that the Prosecutor’s Office has been refusing to properly investigate the same factual matrix that is now of concern to European delegated prosecutors for years? Bulgarian civil society knows the answer, but the time seems ripe for other EU institutions to wake up and see what damage Borissov’s FrankenState has inflicted on Bulgaria’s rule of law.

Dr. Radosveta Vassileva is a Bulgarian legal scholar whose research interests encompass EU law and comparative public and private law. She maintains a personal blog dedicated to the rule of law in Bulgaria. She is currently a Visiting Research Fellow at Middlesex University.

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