Fact check: Is the Bulgarian Chief Prosecutor lying about the judicial reform?

By Krassen Nikolov

The Bulgarian Chief Prosecutor Sotir Tsatsarov held a working meeting with the First Vice President of the European Commission, Frans Timmermans in Brussels on 15 April. The aim was to inform Timmermans about the progress in the field of judicial reform and some important ongoing investigations.

The news came on the next day. The Chief Prosecutor announced that the European Commission “strongly supports” the idea of ​​setting up a special investigative procedure for the three major figures in the Bulgarian judicial system. These are the Chief Prosecutor and the presidents of the two supreme courts (the Supreme Court of Cassation and the Supreme Judicial Council) .

“The proposal is understood and strongly supported by the European Commission,” Tsatsarov said.

The issue is fundamental, because such mechanism would lead to a serious structural and even political change in the Bulgarian judicial system. Does the European Commission really support this idea? Or is the Chief Prosecutor misleading the society?

For 12 years, Bulgaria has failed to meet the Commission’s demands to achieve convincing results in the fight against high-level corruption. During these years, the Commission has concluded on several occasions that the main problem is the excessive powers of the Chief Prosecutor.

The Bulgarian Chief Prosecutor is untouchable. As the highest prosecutor in the hierarchy, he has the power to issue binding orders concerning the work of every prosecutor, including work on particular cases, or to take over a case handled by another prosecutor. If suspected of crime, the Chief Prosecutor has the power to block investigations against him/her.

Back in 2012 Commission recommended to Bulgaria to take further steps towards a fundamental reform of the judicial system, notably by establishing and implementing proposals for reform of the Supreme Judicial Council and the prosecution.

This recommendation was also based on the judgement of the case of ‘Kolevi v. Bulgaria’ of the European Court of Human Rights. In 2009 the court found that the Chief Prosecutor was above any control and asked Bulgaria to change this. Ten years later the lack of control and unaccountability of the Chief prosecutor is exactly the same – Bulgaria has done nothing about it.

The Commission’s recommendations on the matter continued after 2012. In 2016, five European prosecutors were on a mission in Bulgaria and identified the same problem as all foreign experts before them – Bulgaria has a problem with the uncontrolled power of its Chief Prosecutor. European prosecutors have recommended that there should be a special mechanism for investigating the Chief Prosecutor in case he/she is suspected of a crime.

In January 2017 the report of the European Commission made the recommendations of the five experts into a political demand. The report says that Bulgaria should “establish a roadmap for the implementation of the recommendations”.

Two months after the report, the Chief Prosecutor Sotir Tsatsarov was involved in a huge scandal. The society became aware that he had held an unofficial meeting outside his office with an influential politician from the Bulgarian Socialist Party and a businessman. It turned out that the both persons Tsatsarov had met were ‘’of interest” to the prosecution because of ongoing investigations. A criminal investigation on this meeting was not held because there was no one to investigate the Chief prosecutor. This prompted the President of the Supreme Court of Cassation Lozan Panov to insist publicly for the implementation of the Commission’s recommendations.

Under this pressure, in May 2017 Tsatsarov put forward his own version to follow up on the recommendations. He suggested the setting up of a special mechanism for investigating not only the Chief Prosecutor, but also the presidents of the two supreme courts.

The difference between the demands of the European Commission and the idea of ​​Sotir Tsatsarov is enormous. Establishing a mechanism for investigating the Chief Prosecutor is necessary because such a mechanism is not currently available. The presidents of the two supreme courts can be easily investigated by the prosecution, because they have no authority over it. They also have no authority to order the judges how to decide a case against them. In the Bulgarian judiciary there is even a case in which the Supreme Court of Cassation has condemned itself for having violated the rights of a Bulgarian citizen.

Tsatsarov’s idea raises in fact can seriously undermine the independence of the two supreme judges.

Despite this, the Bulgarian authorities introduced Tsatsarov’s idea, and not the recommendations of the European Commission, in the roadmap for Implementation of the updated strategy for judicial reform. By April this year the road map was not fulfilled. Now the minister of justice and former GERB MP Danail Kirilov has revived the ideas of Tsatsarov. Kirilov announced his serious intention to pass a special investigative mechanism for the Chief prosecutor and the two court presidents. Tsatsarov said he supported the ideas of Kirilov, actually his own ideas. Then he claimed that they were also supported by the European Commission.

The Commission’s three reports since 2017 include no indication that Brussels “strongly supports” the idea of ​an investigation mechanism for the two supreme judges. The only thing the Commission has explicitly requested is a mechanism to investigate the Chief prosecutor. The latest report even quotes the insistence of the Council of Europe on this.

This website has asked the European Commission whether it has indeed expressed “strong support” for the realisation of this idea. The question was: Did the European Commission “strongly support” the creation of a special investigative mechanism for the presidents of the supreme Courts in Bulgaria?

The answer was unequivocal. The statement of Frans Timmermans after the meeting with Tsatsarov was cited.

“This is a meeting to discuss with the Bulgarian Chief Prosecutor the steps needed for Bulgaria to implement the recommendations the Commission has made in the CVM report. I meet with a lot of officials from both Romania and Bulgaria, those directly involved in those issues, to discuss with them how to best implement these recommendations. I was really encouraged by the fact that the Chief Prosecutor said that they are committed to implementing them, that there is still quite a lot of work to do and that they work closely with the Commission services to make that happen. So that was the nature of our discussion this morning”, Timmermans said.

Timmermans speaks of support for the implementation of the recommendations of the European Commission and not of the modified ideas of Tsatsarov, which are presented as recommendations of the EC. In this case, it can be said that Sotir Tsatsarov misleads the Bulgarian society before fundamental changes in the judiciary are made.

As this article was about to be published, the news came the news that the Juncker Commission will not lift the monitoring on Bulgaria under the so-called “Cooperation and Verification Mechanism” (CVM). Should anyone be surprised?