No Angels in the Battle for Bulgaria's Judicial Reform
Assumptions that the judicial reform has largely failed in Bulgaria are yet to stand or fail the test of time. The following overview of last week’s developments, one that requires some patience, is an attempt to explain why the results of Parliament's vote should not be dismissed as meaningless.
Hours after stepping down as Bulgaria’s Justice Minister last week, Hristo Ivanov had already left politicians and citizens split right down the middle. To some, he is a hero who wanted to purge the judicial system from everything that aids corruption and questions the supremacy of the rule of law. To others, he is just an agent for vested interests of an elite that has not yet been able to tap the vast opportunities of the judiciary, after having been in de-facto opposition for many years.
Ivanov cited as the reason for his resignation a U-turn in lawmakers’ positions who months earlier had given the green light (in principle) to a package of constitutional amendments that he believed would make the judiciary more efficient. On Wednesday, a vote by MPs showed an overwhelming majority had backtracked on two points: they refused to make Bulgaria’s Chief Prosecutor liable to Parliament scrutiny and turned down a proposal under which the Prosecutor’s Office and Parliament would have the right to appoint an equal number of prosecutors and judges to the Supreme Judicial Council (VSS), the high judicial body of Bulgaria. Thus, the “professionals” (magistrates and prosecutors) retain the right to some decision-making in appointments to the VSS.
Who Says the Judicial Reform is Dead?
What lawmakers accepted was a controversially received suggestion that the VSS should be divided into a judges' and a prosecutors' college. A constitutional amendment was also passed that will remove the need for the VSS to hold a secret vote as an instrument of decision-making (even though it does not necessarily offer an alternative procedure). Some of the other proposals were passed as well. In other words, some progress was made, even if the rejection of several key sections means a step back was made after two steps forward.
How are laymen in law to know whether or not the “U-turn” was a positive or a negative development? This is a dispute that should be left to law professors. The European Commission says the judicial system of Bulgaria is ineffective, not just inefficient; but in a country where every administrative or regulatory issue is politicized to levels of absurdity (with MPs quarreling over which members to appoint to different bodies), the role of Parliament was again the bone of contention and one couldn’t help wondering if “more political control” would deliver the results expected.
And yet, Ivanov portrayed the partial defeat he had suffered as an example of the growing influence of the Chief Prosecutor over the state (a figure that for many years has indeed had overarching powers) and a conspiracy against his reform proposals.
A protest followed his resignation
and was repeated over the next several days. Some social media users changed their profile pictures to images of Hristo Ivanov (see at the end of the text) that bear resemblance to the 2008 “Hope” portraits of Barack Obama where his face was set against a red-and-blue background. Some people voiced their indignation at what increasingly looked to them as a “Mafia Strikes Back” scenario, suggesting the “status quo” parties had agreed on a backlash against the judicial reform inspired (or threatened) by the Chief Prosecutor.
Sotir Tsatsarov, currently holding the latter office, is indeed a figure of alarming influence, even though this is not related to his personality but to legislative provisions: starting to work for a media outlet, junior journalists are often taught by their more experienced colleagues that the Chief Prosecutor is “the most important person in the state”. Concerns of some civil society groups over the developments in Parliament are therefore not groundless. Moreover, with some of his public actions (and this includes a number of indictments and proceedings) Tsatsarov has repeatedly drawn fire from the public, with some alleging he has ties to Delyan Peevski, an MP whose appointment to the State Agency for National Security (DANS) in June 2013 prompted tens of thousands to protest against the government for many days.
Ivanov and Whose Army? ‘Reformists’ Are Far from Unified over the Reform
Two and a half years later, only several hundred people took to the streets, and most of them supporters of the Reformist Bloc (RB). It was this loose coalition of right-wing (and right, leaning to centrist) parties, the junior partner in Boyko Borisov’s GERB-led government, that Ivanov represented in the cabinet. The wave of indignation voiced by one of the parties in the RB was not echoed by the latter, though. With RB’s leadership hastily distancing itself from Radan Kanev, the leader of Democrats for Strong Bulgaria (DSB) who announced he was moving into opposition was followed by declarations of loyalty to the government issued by the two other RB powerhouses, the Bulgaria for Citizens Movement (DBG) of Deputy PM Meglena Kuneva and the Union of Democratic Forces (SDS) of Economy Minister Bozhidar Lukarski. DSB was not unified in its response either as its Deputy Chair Petar Moskov resigned from the office to go on as Health Minister in Borisov’s cabinet, criticizing Kanev’s actions.
Even Kanev was not as straightforward in his position as he looks. It was not long ago, at the beginning of December, that Kanev produced an unusual comment on a local scandal involving wiretapped conversations between Vladimira Yaneva (a dismissed Sofia City Court Chair) and Rumyana Chenalova (a controversial former judge) that local media dubbed "Yanevagate".
The content was admittedly self-evident and scandalous, exposing dependencies in the judicial system; but Kanev, otherwise keen to style himself as a pure freedom fighter against the "judicial status quo", surprisingly announced, in an interview with private national NOVA TV station on December 01 that Yanevagate was
"an attempt at applying pressure on Chief Prosecutor Tsatsarov".
Kanev's own rhetoric, along with that of ex-Minister Ivanov, has always sought to single out Tsatsarov as a kingmaker in Bulgarian political affairs who often tends to meddle in the judiciary; last week, however, he fervently warned the Chief Prosecutor was being subject to blackmail. He added the Chief Prosecutor was falling into a trap - a position coinciding with Tsatsarov's own thesis that a "scenario" was being played out that would go on while the constitutional changes were being under discussion. In other words, "martyr" is a label none of those who worked for the judicial reform truly deserves; there are no angels in this political battle.
Obviously, the author needn't mention the opponents of the judicial reform – not because he sides with them but rather because their goals and interests are well-known and predictable. The opposition parties - the Bulgarian Socialist Party (BSP) and the Movement for Rights and Freedoms (DPS) - were against the amendments from the very beginning. Prime Minister Boyko Borisov as the “last instance” is, for that matter, not worth mentioning at all, given he openly declared his priorities during the vote on the judicial reform by going for a football match with his team, Vitosha (Bistritsa), also known as the "Bistritsa Tigers", where he has been a player for years.
What matters here is the consistency of accusations hurled by the other side, the one arguing its reform proposals were killed by the vote.
Advocates of the Judicial Reform Are Facing a Logical Paradox
They suggest politicians should be seeking to wield influence over a judicial system that, many allege, has long been constrained by political and economic factors and has subsequently failed to send major political and (again allegedly) criminal factors behind bars.
The EU might be right to point a finger at Bulgaria for its failure to hold accountable people against whom there is substantial evidence of involvement in corruption schemes (a summary of the Commission's last CVM report is also available here). Certain magistrates’ and certain prosecutors’ dependencies – and this is said to include a number of Chief Prosecutors in a row – are often a public secret, and the presumption of innocence is a comfortable and undeniable excuse for them to get away with whatever they have done; and nevertheless Ivanov and Kanev expect to heal the vices of the judicial system through boosting political control over it, at times when Bulgarians are showing distrust for politicians.
"Quotas", as said, have long been an obsession of Bulgarian lawmakers and are not only inherent to the judicial reform proposals. The question Bulgarians are facing is: how in a country where everything is ultimately led to politicization wider control by Parliament over the judiciary will boost the latter's independence?
The record of several governments with “Parliament appointments” to a number of bodies, such as the election commission and the auditing body, has so far yielded mixed results; lawmakers' “election” of members at energy regulator KEVR, a procedure introduced last year, is yet to stand or fail the test of time. With inconsistent voting behavior and a push to issue joint positions by their respective parliamentary groups that is often marred by infighting,
Bulgarian MPs, in this or any other legislatures, still have to prove they can be trusted
and can (because this is the notion underpinning most of the proposals) bring the judicial system to a state of genuine independence and efficiency.
What is more, if the judicial reform package isn’t passed in its entirety, both “sides” are to blame. The so-called “status quo” parties were of course defending (what a surprise!) the “status quo”. The reform’s proponents, however, turned out to be softer and more careful about their most important issue – the reason they joined the government after all – than they had initially maintained. Responsibility for the so-called “step back” should be shared equally between the two sides, which both have their own interests in gaining more power or cling to the one they already have.
All that said, movement forward is born out of compromise which is a result of the clash of those interests, not of vehement and hawkish rhetoric. Carrying out a reform is not like subscribing to cable TV: in the latter case one is shown the offers of providers as a full package of channels and services (and furthermore, cable TV is somewhat morally outdated). One cannot say reforms don't work just because of not having received the whole package. Progress was made and should be used to make improvements, instead of stirring divisions among both parties and the public. Radicals should know that if it is a “less corrupt Bulgaria” they are really waging a battle for.
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No one knows what the reform is about. Not that we are happy with our judicial system.. but we suspect the pressure from EU is not because of our unhappiness. Because EU also did not explain what is required.. We are simple people and do not understand the doublespeak language.