By Krassen Nikolov
For 12 years, Romania and Bulgaria have been under the European Commission’s monitoring because of the high-level corruption and the attacks against the independence of the judiciary. The similarities between the two countries, however, end here. Before joining the EU, Bucharest has implemented a serious judicial reform that has slowly but surely produced results. An independent National Anticorruption Directorate (DNA) was established to conduct investigations against politicians in the country. For only 10 years, it achieved more than 1,000 convictions, including one against the former Prime Minister – the socialist Adrian Năstase. The European Commission has recognized the Romanian Superior Council of Magistracy as an independent body able to resist political pressure.
Western Europe applaudеd the work of the DNA. The Eastern politicians feared such an institution. The most frightened were the Bulgarians, because the ways of doing business and politics most closely resemble those in Romania. Now the socialists are in power again in Bucharest.
Prime Minister Boyko Borissov has repeatedly indicated that he is not hot about the Romanian model of judicial reform. Four years ago, he explained that Bulgaria does not need two prosecution offices. Since then, he misses no opportunity to praise the unreformed Bulgarian prosecution, which the Council of Europe compares to a “Stalinist structure.” The reason is that the Bulgarian Chief Prosecutor has authority over all the prosecutors. The Chief Prosecutor can also block any attempt to be investigated.
In the election procedure for chief EU prosecutor, Bulgaria as expected voted against the superstar of the Romanian model Laura Kövesi. There are probably three reasons for that. First, it is a friendly diplomatic gesture to the neighboring country that is fighting against Kövesi. Second, Laura Kövesi knows Bulgaria well, and if she becomes chief prosecutor, she will have jurisdiction over the authorities in Sofia. Third, Kövesi has the aura of an independent magistrate. Such people are not liked by the Bulgarian authorities. The best example is the war the Bulgarian authorities are waging with the chairman of the Supreme Court of Cassation Lozan Panov. A large part of the state apparatus, supported by the media empire of DPS MP Delyan Peevski, is mobilised against Panov in this war.
In March 2017 Kövesi came to Sofia invited by Panov. She was ignored by the executive power and the Bulgarian Supreme Judicial Council. While Kövesi was speaking at an anti-corruption conference in Sofia, the Supreme Judicial Council was trying to dig something against Panov by holding a hearing with drivers which he had fired.
In 2014, Panov was nominated for the chairman position of the Supreme Court of Cassation with the expectation that he would be a consensual and obedient magistrate. The entire political lobby in the Supreme Judicial Council, as well as the representatives of the prosecutor’s office voted for him. But after being elected in January 2015, Panov did not become a part of the status quo. Instead, he became one of its most serious enemies.
In December 2015, during the celebration of the 135th anniversary of the Supreme Court of Cassation, Panov delivered a speech in which made an appeal to the Bulgarian magistrates: “Let’s say no to fear and do not let the silence turn us into cowards. Let’s shout out loudly: We have had enough.” The same evening, he and other judges in their robes, stood in front of the courthouse in protest against the parliament’s rejection of the judicial reform. At that time, the Parliament voted constitutional changes that left the fate of the Prosecutor’s Office entirely in the hands of the Chief Prosecutor, and the fate of the court in the hands of the members of the Supreme Judicial Council elected by the political power.
Panov has not stopped highlighting the problems in the judiciary. In November 2018, at a Judicial Forum, he delivered another emblematic speech. He pointed out that the Bulgarian judiciary is dependent, that the Chief Prosecutor protects his friends, that the country is heading for autocracy, and that the last CVM report was inexplicably shy in addressing the real issues.
“As magistrates, we have enough constitutional guarantees to fight without fear and without keeping silent, for the rule of law, and to expose its collapse in countries like ours. This is why lately, while listening to the sound of silence, I recall a great Churchill quote: “Those who chose democracy instead of bread are able today to choose between 300 kinds of bread, and those who chose bread instead of democracy now have neither democracy nor bread. You choose who you want to be,” said Panov.
He is now on the verge of an impeachment procedure. The reason is that he used his legal power to order a revision on a case in the Specialised Court of Appeal for Organised Crime. (The two specialised courts that deal with the cases of high-level corruption and organised crime were established on the initiative of GERB. The main suspicion about them is that they were created to sign up uncritically the prosecution’s important indictments that would otherwise fail in court. The Chairman of the Specialised Court of Appeal is currently being referred to as a possible candidate for the next Chief Prosecutor.) The revision found malpractice. But it was not the malpractice that impressed the Supreme Judicial Council, but the complaint by the specialised judges they were revised. Therefore, the council ordered its inspectorate to verify whether Panov had violated the judicial independence. The inspectorate’s conclusions are expected on 20 March. If the inspectors’ answer is in that sense, this may be the beginning of a procedure to remove Panov from his post. This will require 17 votes in the Supreme Judicial Council (out of 25, one of which is Panov’s). The status quo majority has them. And the Inspectorate has repeatedly shown that it is acting as being expected by the status quo.
Panov has also been investigated for a long time by the anti-corruption agency. It is a body with a huge repressive power that was created at the insistence of the EU (It is in charge of verifying conflicts of interest and private assets of high level officials, investigating allegations of malpractice among such officials, and conducting procedures for the seizing and confiscation of illicit assets.) The investigation began after two revisions on Panov and his family, carried out by the tax authorities. The first revision did not find any flaws, and the second one concluded that the magistrate owes about 16,000 leva in tax (€8,000). The tax audit itself is quite controversial. In this audit the price of a wooden bungalow, which Panov owns, is equivalent to the price of a beach restaurant.
An interesting detail in all of this is a decision of the Civil Council under the Supreme Judicial Council. On 25 January, on the initiative of the non-governmental organization Center for Applied Legal Studies and Practices, it was decided to send a letter to the European Commission complaining about Lozan Panov. The letter draws attention to the attempts of the Supreme Court to replace the anti-corruption law in Bulgaria by interpretative decision. This news was reported again by Peevski’s media. The Civil Council does not answer the media questions how the decision to seize Brussels was adopted. The current chairman of the anti-corruption commission, Plamen Georgiev, admits that he was part of the NGO that initiated the issue. The conflict of interest seems obvious. And the interpretative decision that annoyed the authorities was precisely related to the Confiscation Act.
So, Bulgaria is in fight with its own Laura Kövesi and does not need a second war on European level.
By Georgi Gotev: “I basically agree with my colleague Krassen Nikolov, but I would like to recall an ever clearer example why Bulgaria voted against Kövesi. Last year Ivailo Kalfin, a respected former MEP and former top official, was candidate for the post of director-general of OLAF, the EU’s anti-fraud office.
There had been a few dozens of candidates initially. Following a long procedure covered by confidentiality, two candidates emerged in April, Kalfin and Finland’s Ville Itälä , from the Finnish Kokoomus party, affiliated with the centre-right European Peoples’ Party (EPP).
Kalfin received no government support and the EPP candidate got the job.
Later, I heard comments that nobody in Sofia wanted Kalfin (or a Bulgarian for that matter) at the top of OLAF, out of fear that he would investigate the authorities for corruption.”
As simple as that.