With the emergence of the Office of the European Public Prosecutor the autocracy of the Bulgarian Chief Prosecutor will come to an end, writes Svetoslav Terziev.
Svetoslav Terziev is a commentator for Sega daily, a professor in journalism and a senior contributor to Bulgarianpresidency.eu. An earlier version of this commentary was published by Sega Daily today (2 April).
While Boyko Borissov was playing big international politics in Varna, a more important European event took place in Sofia. Under the Bulgarian Presidency of the Council of the EU, justice ministers, prosecutors and high-ranking lawyers discussed during two days at the Boyana Residence how to make operational the Office of the European Public Prosecutor in two years and a half.
The forecast date is 1 November 2020, and at the end of the Bulgarian presidency in June 2018, the procedure for the election of a European (chief) prosecutor whose name we will learn in March 2019 will begin. In the coming two months, a temporary administration with a budget of €4.9 million will work as the vanguard of the future prosecution service.
Almost ten years have passed since Art. 86 of the Lisbon Treaty in 2009 opened the possibility of setting up such a service. It seemed unlikely that states would give up full sovereignty in one of the most jealously guarded prerogatives of the national authorities – the prosecution offices. It was easier for them to admit supranational justice, as it has been operating since 1952 in Luxembourg (the Court of Justice) and 1959 in Strasbourg (the European Court of Human Rights), but no one has made illusions that a European prosecutor would raise charges against individuals and legal entities in the EU regardless of the action or inaction of national prosecutors.
Of course, it is a matter of initiating criminal cases on European initiative before the national courts, not a European judicial institution. Everywhere, national law (where European legal acts have priority) will apply, but with the possibility of using the starting gun by the European Prosecutor’s Office, if the national one shows incompetence, clumsiness or conscious blindness.
The Bulgarian have longed for justice since the beginning of the criminal transition from communism, in which the first task of the new leadership was to paralyze the justice system in order not to be disturbed while plundering the state resources and the personal savings of the citizens. The last hope of people was in the intervention of the European Union, which, through its modest investigative service OLAF, has detected corrupt attitudes among those on power since the pre-accession period. But the individuals identified by Brussel of having abused EU funds have never been imprisoned as opposed to their accomplices in Germany, under the same case. There were no punishments against even bigger offenders, because of whom Bulgaria lost €200 million in 2008. All reports of the European Commission on justice and internal order proved to be uselss, their only accurate finding having been that despite the criticisms, the state did not give “real results” and no high-ranking corrupt individuals and bosses of organized crime had been sent to jail.
This shows that the weakness of the EU is its executive power, the European Commission, because OLAF is in fact nothing more than a Directorate-General in its structure. The European Commission tends to be in agreement with the member states’ governments, which is clearly noticed in its collaboration with the government of Boyko Borissov. The kisses and affections from its President Jean-Claude Juncker are more important than EU rules. That is why the EC can fine-tune its reports to its own benefit or delay and freeze punitive decisions against the ruling party in Bulgaria (for example, for unlawful state aid through land swaps of paradise terrains on the Black Sea coast against unattractive land in the mainland, or for overthrowing competition by forcibly removing “intermediaries” from the energy market). In fact, the European Commission, which ought to be the guardian of the EU treaties, becomes an accomplice to their violation by states the leadership of which, for political or other reasons, is liked by its senior management.
A process of further aggravating the Commission’s infamous image is the appointment of Martin Selmayr (Germany), former chief of cabinet of Jean-Claude Juncker, as EC Secretary-General of the EU executive. Despite the general indignation in the European institutions, including in the European Parliament, the “grey cardinal” of the European Commission has taken this key post without any intention of complying with anyone’s opinion. Knowing that Jean-Claude Juncker is sick and dependent on his weaknesses, the decisions are very often inspired by Martin Selmayr, and we can expect that for the remaining less than two years of this Commission’s mandate, the ambitious German will be the main driver of its policy.
For Bulgaria, this means almost certainly that the Co-operation and Verification Mechanism (SVM), based on which the annual reports on the state of its justice and its fight against organized crime and high-level corruption were written, will be abandoned. These reports are the prerogatives of the Secretary-General of the European Commission. Selmayr has already voiced his negative attitude toward reports of corruption in the EU, and on the occasion of his visit to Sofia in October 2017, he said that his preferred form is the so-called European Semester – a periodic toothless assessment of the general economic situation of each country with specific recommendations to it, having the power of wishes. The Juncker Commission has refrained from publishing the forthcoming second anti-corruption report in the EU, which was due to come out two years after the first one, issued in 2014 by the Barroso Commission.
Bulgaria has long insisted on ending the specific monitoring of it and Romania through SMEs, its main argument being that, through the general anticorruption reports, it will be monitored anyway along with other EU countries. With the fact that these reports are being cancelled by the Juncker Commission, corruption in Bulgaria will suddenly cease to exist as a topic in the EU, without the authorities letting a hair fall from the head of any corrupt VIP.
Poor Romanians – how naïve they came out of putting so many former ministers, lawmakers, magistrates and oligarchs behind bars. Now they will have to break the doors of prisons and carry them on their hands as martyrs of the Eurocracy.
In what way will the European Public Prosecution be of help to Bulgarians? Firstly, it will be an independent body over which the Commission will have no leverage. Second, the Office of the European Prosecutor will have great powers. For starters, it will investigate the encroachments on the financial interests of the EU, which is by no means a small prerogative, because in countries like Bulgaria, EU funds are the main and often the only major source of foreign investment. When the authorities are thieves by default, there is no doubt that they distribute these funds to relatives, friends, and companions through ministries and other agencies. They also feed with EU funds specific media, which mushroomed in Bulgaria as a pro-government monopoly.
The policy planes of the EU Prosecutor office declared their ambition to give this project more authority over major crimes that affect common interests in the EU. Even Bulgaria, which is among the 22 countries in favour of setting up a European Prosecutor’s Office, agree. Said Justice Minister Tsetska Tsacheva at the Sofia conference: “We are ready to hold a future discussion on the idea of expanding the Office’s competence. We agree that we are faced with serious challenges to the security of European citizens”. She obviously thought it was just about fight against terrorism, but Luxembourg’s Justice Minister added that the fight against organized crime groups should be stepped up. Could anyone remember Bulgaria’s promise of joining the EU by defeating the three major criminal groups? Their bosses are still riding their SUVs in central Sofia. If the Chief Prosecutor wanted it, it was enough for him to extend his Hand to grab one of them. But his mission is obviously different, since nothing has changed since the beginning of the transition.
Here comes the most beautiful part of the deal for Bulgaria from the European Public Prosecutor project. The new figure will put an to the autocracy of the Bulgarian Chief Prosecutor, who, according to definition by the first holder of this post after the beginning of the transition Ivan Tatarchev, lives in the self-confidence that “above me is only God”. The new European Prosecutor’s Office, which will be based in Luxembourg, will not only have independent status and will be able to peek, when he deems necessary, in national criminal landscapes, but will also delegate prosecutors to any country that will do their jobs directly without being disturbed by the presence of local chief prosecutors.
The enthusiasm with which Chief Prosecutor Sotir Tsatsarov welcomes this development is anecdotic: “A strong, effective and independent prosecution is in the making, and I believe that this will be achieved with common efforts”, he said at the Sofia conference. He realises that this will happen shortly after the end of his mandate, and the European sword could only hit his shadow. In any case, his successor will not be able to be the match of God. Tsatsarov will only mark the end of the transition, which will be remembered with state-guaranteed immunity for its top criminals.