Who is right and who is wrong in the case of the blocked anti-corruption law? And what next? Krassen Nikolov has all the answers.
Krassen Nikolov is a journalist specialised in judiciary affairs. He works for Mediapool and will be a regular contributor for BulgarianPresidency.eu for the six months of the Bulgarian Presidency of the Council of the EU.
President Rumen Radev has made use of his veto right yesterday (2 January) against the new anti-corruption legislation of the country, which is a key measure expected by the European Commission, as its two last monitoring reports say.
The president believes that the law will not lead to an effective fight against corruption and could seriously jeopardise fundamental human rights. Radev warns of a risk that the GERB-led ruling majority with the United Patriots will master the leadership of the anti-corruption commission that will implement the law. His motive is that the chair of the committee and all its members will be appointed by the parliament with a simple majority (GERB and the United Patriots have such majority).
The centerpiece of the President’s motives is the right of the anti-corruption commission to wiretap politicians and state and municipal officials when they are suspected of corruption and conflict of interest. This entails a serious risk of eavesdropping on their relatives, business people and citizens. The anti-corruption Commission will become the fourth body in Bulgaria authorised to wiretap people. The other three are the Prosecutor’s Office, the interior ministry, and SANS (the State Agency for National Security, also known as DANS).
Bulgaria has serious problems with the use of special intelligence means. This was flagged by the European Court of Human Rights as early as 2007. The Strasbourg court then called on Sofia to put limits to the secret eavesdropping on citizens, which amounts to systematic human rights abuses. By the way, the only other country with a systemic problem in this filed is Russia.
However, the new anti-corruption legislation was passed quickly through parliament, with the motive that the European Commission expected from Bulgaria decisive action against corruption. Under the new law, the authorities will be able to spy on citizens without having a criminal case against them. It is unclear how the data gathered in this way will bring convictions of corruption at the highest levels of power, because the data will be collected outside the mandatory procedural rules valid for the courts.
This creates the possibility for a politician to be spied upon first at the request of the anti-corruption commission and then by the other services, on the same ground, in order to gather appropriate evidence for the criminal court.
“It is not explicitly ruled out that special intelligence means may also be exploited for offenses which are not serious crimes It should not be ignored that the use of special intelligence entails temporary restriction of the person’s and of his house privacy, as well as the secrecy of correspondence and other messages, “said Radev in his veto motives.
The problem is rooted in the concept of law, which wraps up together several existing institutions in a single anti-corruption commission. This includes the institution responsible for the confiscation of illegal property, for the the fight against conflicts of interest and the Anti-Corruption Directorate of SANS.
The law passed by Parliament allows every citizen to report corruption or conflict of interest against a person at a power position. This leads to the possibility of secret surveillance, even within the civil procedure, which could ultimately trigger confiscation of illegal property. Citizens would be spied upon even in case of doubt about a conflict of interest, which is not even a crime in Bulgaria and is prosecuted in an administrative order.
According to the Bulgarian Constitution, as well as all international standards and conventions, infringement of privacy is only permissible for the detection of serious crimes. The new law allows these international standards to be circumvented.
As early as 15 December, the president warned he would veto the law. “The tools, intended to fight corruption under this law are ineffective, the law does not hit the corrupt, they will still fuel corruption,” the president said, adding that the law could be used as a “stick to deal with the embarrassing” politicians.
GERB argues that the anti-corruption law will not change the existing situation with the secret eavesdropping on citizens, but aims to make the fight against corruption more effective. The ruling party believes that uniting most anti-corruption institutions together will make it easier for the authorities to deal with the difficult problem.
The chairman of the parliamentary committee on legal affairs Danail Kirilov (GERB) reminded that member of the anti-corruption commission is the SANS directorate, which is fighting corruption. This directorate can even now listen to and track suspected citizens, therefore nothing changes in this area, he argued.
Radev was elected and elected president with the support of the opposition Bulgarian Socialist Party (BSP). This political force had its own concept of the needed anti-corruption law, which provided for the creation of an investigative agency. BSP wanted the head of this agency to be named precisely by the president. However, the government rejected this project, which created reasonable doubts that the anti-corruption debate in Bulgaria is only about who will control the new institution.
Independent observers believe that Bulgaria will be creating more problems with the new law rather than resolving existing ones. Attorney Alexander Kashumov of the authoritative NGO “Access to Information Program” has alerted the authorities about the deficiencies in the law.
The law would open an opportunity to collect information about people only because their neighbor has reported on them, says Kashumov, according to whom this creates prerequisites for a non-controlled eavesdropping. It is true that such monitoring has to be authorised by a court, but now we have enough institutions that can obtain the monitoring of people – SANS, the police, the prosecution … Now comes the anti-corruption commission will now be brought in. Who else follows before the door is closed? Tomorrow they can ask the tax officials to track people to better collect taxes”, says Kashumov.
The president’s veto will likely delay the entry into force of the law by no more than a week. The ruling GERB and the United Patriots have a majority to rule out the veto, and they are likely to be supported by the Movement for Rights and Freedoms (MRF).