There is a big risk that the way it has been designed, civil confiscation in Bulgaria could be used as a mechanism for harassment instead of addressing the real problems of law-enforcement, writes Blaga Thavard.
Blaga Thavard is attorney at law, Sofia Bar, lawyer at Pappas & Associates, Brussels.
Given its own democratisation processes, the civil confiscation model in Bulgaria is one of the most challenging issue, since confiscation measures are directly impacting the citizens’ right of property. With respect to democratic values it is critical for the relevant institutions, bodies, offices and agencies of the state to be fully in line with the European Convention on Human Rights (ECHR), the case-law of the European Court of Human Rights (ECtHR) and the Charter of Fundamental Rights of the European Union, especially since the state allows freezing and confiscation of assets without prior criminal conviction by a court and as well from third parties.
The ECHR stated clearly that for any interference with the right of property to be justified, it needs to pursue a legitimate aim, and to be foreseen by a sufficiently precise law, in order to enable any citizen to regulate his conduct and, in particular, to be able to foresee the consequences which a given action may entail.
Without these conditions to be fulfilled, a civil confiscation process cannot be effective and it needs to operate in a balanced legal environment when the rule of law is respected. If else, it allows the State to dip in arbitrariness and instead of fighting corruption, to use the legislation as a cover for repression.
In the case Dimitrovi v. Bulgaria (Application no. 12655/09), the ECtHR stated that general justifications for confiscation such as protection of fairness and equality, and guarantee of fair conditions of economic activity cannot justify a civil confiscation legislation, as they are both too broad and unclear.
In Bulgaria, where the system of civil confiscation has been adopted in 2012, the Agency in charge (KPKONPI) can initiate a confiscation against a citizen just because the prosecution authority has raised charges against him. However, the ECtHR strongly stated in this regard, that the prosecution authorities are free to open, suspend, close and reopen proceedings at will, and at any time, which do not meet the foreseeability requirement.
In addition, the domestic law is silent on the definition of “lawful income”. It has led to a situation where different courts have reached conflicting conclusions on the question to know if the evidence presented to them is relevant and sufficient to prove assets as lawful part of the income. Additionally, a satisfactory explanation of the origin of assets is extremely difficult to be given by the defendant, when the legislation ignores the principle of equality of arms and procedural rights such as presumption of innocence as well as right of defence.
In such an environment, where Bulgaria is still learning to apply European Union basic principles and values, the two leading roles in the civil confiscation procedure are given to the criminal prosecution authorities and the Anticorruption Agency – KPKONPI, both deeply flawed.
Having regard to the Anticorruption Agency, it itself has been established to be entirely dependent of the government and to follow its policies. As a result, it has been demonstrated by the recent practice that its actions prove to be inadequate, extremely aggressive and unprincipled according to the spirit of the European legislation, due to the large powers given to it, uncontrolled by any jurisdiction.
Organizations like MEDEL – Magistrats Européens pour la Démocratie et les Libertés, have already raised concern regarding the Anticorruption Agency’s powers and political dependency while being the main agency responsible for confiscation of assets in Bulgaria
MEDEL in a recent letter to the President of the EU Commission, strongly stated its concern, regarding the Agency extensive competence to carry out surveillance and intelligence measures and despite having such a great power, has a political leadership and no explicit rules regarding its control. In other words, experts pointed out that such a dangerous tool can be used as a mechanism for harassment instead of creating a balanced system.
The same issue applies regarding the Bulgarian prosecution authorities due to their vertical structure lacking checks and balances. Anyone could become accused upon the unilateral decision of a prosecutor who has excessive powers. In that regard, The Council of Europe has repeatedly asked for Bulgaria to reform the model of Bulgaria’s Prosecution Office, which has not been reformed since communist times.
In this sense, Bulgaria’s legal and historic background explains the reasons for Bulgarian sensitivities towards providing appropriate guarantees in proceedings when discussing implementation of Directive 2014/42/EU. The challenge here is to overcome the deeply rooted national tradition of an all-powerful state by implementing a system respectful of fair trial guarantees.
Indeed, the provisions of art. 2 par 4 define “confiscation” as a final deprivation of property ordered by a court in relation to a criminal offence. However, the situations in which a confiscation order may be applied without the existence of a conviction are limited to the situations where an accused is unable to stand judgement either due to health issue or because he fled justice.
In that regard, it has to be noted that Bulgaria did not transpose the Directive correctly as the civil confiscation was open to cases where the criminal proceedings had been closed due to lack of elements able to lead to a conviction, which according to article 4 of the Directive would disqualify the confiscation procedure to take place or to be continued. In 2018 The Bulgarian Supreme Court of Cassation recognised the issue and took a significant step in the right direction by recently adopting an interpretative decision where it held that once the criminal case basing the civil forfeiture proceedings is over, a claim for civil confiscation of property cannot be filed or sustained anymore. Alas, less than a week after the abovementioned decision, an amendment was presented to the parliament proposing to remove the link with the criminal proceedings which literally leaves the door wide open for arbitrary acts.
Needless to say, without any effective safeguards, goals such as fighting economic criminality and corruption could not be achieved and, on the opposite, could lead to an autocratic model. One can only wonders why the Bulgarian legislative body would choose to go down such a road, when there are clear indicators that such a law violates ECHR.
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