Bulgaria: Powerful Investigators Resist Change

Judicial reform is the key to Bulgaria’s European Union hopes, but as the accession date looms, Brussels’ patience with the slow pace of change is wearing thin.

Critics accuse the Bulgarian judiciary - particularly its chaotic investigation service and powerful prosecutor general - of abusing the substantial autonomy granted to it by the country’s constitution, and of blocking any attempts at significant reform.

Politicians, meanwhile, are weighed down by years of failed restructuring efforts and still can’t agree on how to improve the system in the face of strong opposition from the judiciary.

Accused on several fronts of wasting valuable time, Bulgaria is no closer to a solution now than it was in 1998, when Brussels first concluded that the main challenges to its accession were “transformation of the…. [judicial] system..”, in particular its investigative bodies.

This lack of progress on an issue it views as crucial has led the European Commission to threaten to delay Bulgaria’s membership – currently scheduled for 2007 – by up to a year, unless major changes are made.

“The overall reform of the judiciary is one of the most important remaining issues in Bulgaria’s preparation for EU membership,” an EU source in Brussels recently told Balkans Crisis Report, BCR.

At the heart of problem are the three autonomous bodies that investigate crime in Bulgaria - the prosecutor general, the police and a separate group called the National Investigating Service, NIS, a team of investigating magistrates who probe serious crimes like terrorism and offences committed by senior state officials.

But one of the difficulties is that Brussels has not told the Bulgarian exactly how these bodies should be reformed.

Yonko Grozev, a lawyer at the Bulgarian Helsinki Committee, describes the three as "self-ruling autonomous bureaucracies" and accuses them of blocking judicial reform.

The new constitution left it up to the penal code to divide investigative duties between the trio. But this arrangement ultimately failed, resulting in overlapping, ill-defined responsibilities and lack of communication between the branches.

Interior ministry investigators handle about 95 per cent of all cases in Bulgaria, with only about 5 per cent of the most complicated cases going to the NIS. Though the prosecutor general, Nikola Filchev, is seldom involved in the early-stages of the investigative process, he has the right to conduct further enquires once the case has been handed to him by either the police or the NIS.

Only when satisfied with the evidence does the prosecutor general issue an indictment and refer the case to a court, which then also has the right to bounce cases back for further investigation if it feels that more work needs to be done.

This laborious process, which delays some cases for years, is made possible by Bulgaria’s current penal code, which imposes no deadlines for those involved to complete investigations and issue charges.

A Brussels source told BCR that the current Bulgarian pre-trial system often leads to criminal suspects being denied the right to “a fair and public hearing within a reasonable time”.

The three branches of Bulgaria’s judiciary are overseen by a Supreme Judicial Council, SJC, of 25 members, who include legal academics, judges, prosecutors, magistrates and investigators. The council nominates candidates to fill the role of prosecutor general and the various court president posts. It is chaired by the minister of justice, though he has no right to vote on these appointments.

The SJC was originally conceived of by legislators as a way of ensuring that Bulgaria’s judiciary and investigation services should remain free from the political pressure that was so endemic in the old socialist system.

But critics say the plan has backfired, giving the investigative branches too much power and preventing any political or civic control over their operations.

Especially influential is the prosecutor general, who in fact has virtually unlimited authority.

Filchev has been accused of publicity-seeking, regularly appears in the national press and involves himself in political debates. He is also one of the most outspoken opponents of judicial reforms.

While he talks the talk in the media, Filchev’s effectiveness as prosecutor leaves something to be desired. Western diplomats in particular have questioned his ability to pursue corporate criminals and former communist leaders who seized state assets before relinquishing power.

In 2000, Filchev accused several top Bulgarian banks of illegally lending money to companies connected with bank officials or their relatives and associates. By 2002, 27 cases had been brought to court, with 12 resulting in convictions. Two others ended with acquittals and the rest remain in legal limbo and are still being investigated five years later.

In 2002, Filchev launched cases against 42 people, most of them members of former governments, accusing them of abuse of office and bad management. Embarrassingly for Filchev, the charges were later dropped against a number of prominent figures from amongst this group, including former deputy minister of defence Plamen Radonov and Zahari Zhelyazkov, ex-head of the state privatisation agency. Charges have been dropped against many of the others, but investigations are continuing in the majority of cases.

Elsewhere, abuse of power cases launched in recent years against the mayor of Sofia, Stefan Sofianski, and the former National Security Service director, General Atanas Atanasov, have also ended in acquittals.

Such high-profile failures have led to Filchev acquiring some influential critics including Judge Roumen Nenkov and Judge Ivan Grigorov, the vice president and president respectively of the Supreme Court of Cassation - which hears appeals from, and reviews decisions of, lower courts - who have been waging a public relations battle against him for the past year.

These detractors think that reforms of the prosecutor general’s office should be the foundation of its EU strategy.

Nenkov has been particularly critical, saying the office should be part of the government and thus subject to political scrutiny. But he believes politicians are afraid to take on the powerful Filchev, who recently hit back at Nenkov and Grigorov by suggesting that he might ask prosecutors to investigate the courts themselves.

In recent press interviews, Filchev has dismissed the criticisms levelled against him. IWPR repeatedly sought to gain an interview with either him or his spokesperson, to no avail.

Like the prosecutor general, the NIS is also largely unaccountable to anyone and is often blamed for creating endless delays in the complicated cases which it usually handles.

It is also accused of abusing the ambiguity about exactly which aspect of the investigative process each of the three branches is responsible for.

The NIS denies the claims it is ineffective, arguing that it produces regular activity reports detailing its work. However, some complain the information contained in these reports is hard to verify.

Absorbing NIS investigators into the police force itself has been suggested as one solution, but there is little enthusiasm within the judicial system itself for this kind of change in the status quo.

As Neli Kutskova, chairman of the Bulgarian union of judges, puts it, “[The three autonomous investigating bureaucracies] perceive any reform talk as an attempt to deprive them of their unlimited powers.”

With the judiciary proving reluctant to restructure itself, Bulgaria’s political leaders are beginning to accept the fact that they must step in.

On the whole, previous governments and the current administration have been committed to accomplishing rapid EU-oriented reforms. But it is with the judiciary that they have suffered failures. Both Ivan Kostov and Simeon Saxcoburggotski, the former prime ministers, achieved minor changes, but they generally proved unable to untangle its complex problems.

As they advance towards general elections in June, the major political parties – including the ruling coalition made up of the National Movement Simeon the Second, NDSV, and the Movement for Rights and Freedoms, DPS – don’t seem either willing or able to seek consensus.

The government itself is split on what should be done on the major issues: how to regain the lost civic and political authority over the judiciary without threatening its independence and how to restructure the investigative process.

Most parties agree that some political control should be imposed over the prosecutor general, but there are various ideas about how the overall investigation service should be improved.

Much of the debate so far has focused on the future of the NIS.

The Bulgarian Socialist Party, BSP, which created the NIS, perhaps not surprisingly insists that it should continue to exist as a separate unit that specialises in handling complicated cases.

They believe improvements could be made by ensuring clearer division of responsibilities between the NIS and Bulgaria’s other two investigative bodies.

"One of the reasons of the National Assembly to set up this body [the NIS] in first place was that interrogation by [lawyers] better guarantees preservation of human rights, compared to interrogation by policemen," said BSP member Michail Mikov.

But democratic parties in parliament hold the opposite position. They insist that the NIS ought to be closed and its role as an investigator of serious crimes divided between the interior ministry and the state prosecution service.

Democrats for a Strong Bulgaria, DSB, is promoting reforms which would transfer the NIS’s investigative and prosecution powers to the interior ministry, allowing a certain degree of political control over it.

"There is no equal of the Bulgarian NIS in the [rest of the] developed world," said the DSB’s Eliana Maseva. "We do not mean to replace people in the NIS, but only to change their position in the [judicial] structure."

The NDSV, the major partner in the ruling coalition, first suggested closing the NIS and dividing its investigative responsibilities between the police and prosecution – something it thought the EU wanted.

A Brussels source told BCR that the EU objects to the use of the NIS’s investigative magistrates in the pre-trial process, pointing out that this happens in no other member states. But Brussels has refrained from officially telling Bulgarians exactly what they ought to do.

After disagreements with coalition partner, the DPS, however, the NDSV backed down from demands that the NIS be shut and has since been silent on the issue.

The DPS supports the Socialist Party’s position, insisting the NIS should stay as it is. “We think these well-prepared people should maintain their status as magistrates, should investigate the more complicated cases and should even lead investigating teams of police investigators,” said deputy Chetin Kazak.

Meanwhile, without the support of the DPS, the NDSV couldn’t muster enough votes to push a new penal code through parliament spelling out more clearly what each investigative branch should do and imposing deadlines for charges to be issued and cases brought before the courts. This is a key condition that Bulgaria must meet before it will be allowed to join the EU.

Though a quick solution seems unlikely, some think progress could be made soon after the June parliamentary elections, when a newly-formed government could still have enough public goodwill to make unpopular decisions.

However, opinion polls show there is little chance that any party can win a full majority, with the BSP intending to start the debate anew if, as expected, it captures the most votes.

The BSP’s Mikov wants to see a comprehensive discussion take place between all sides in the debate on judicial reform, something he says the NDSV has not allowed to happen.

Mikov says the government’s promise to adopt a new penal code by the end of this year is impossible. But he doubts that this failure will delay Bulgaria’s EU membership, arguing that Brussels has not made any specific requests but is rather expecting a broad improvement in the judicial system.

“There is no [EU law] on the subject of how a … member state must organise its justice system generally, or which actors should be involved in the pre-trial phase,” the Brussels source told BCR.

Without any real political will for change, it may be up to those outside the political spectrum to push for rapid reform.

Non-governmental organisations have already launched an initiative appealing to Bulgarians not to vote for parties who have not stated a clear strategy for transforming the judiciary.

“This is a trivial point, but civil society is probably the key here,” said Kjell Engelbrekt from the Department of Political Science at Stockholm University. “In all developed societies there are non-governmental organisations … and over time the most serious among them become transmission belts between professionals and the government."

Vassil Chobanov is a journalist for Radio Nova Evropa in Sofia, Albena Shkodrova is BIRN Bulgaria director and Svetlana Jovanovska is a BIRN contributor in Brussels. BIRN is a localised IWPR project.

John Dyer, a Fulbright lecturer in Bulgaria, contributed to this article.