The Commission’s Rule of Law Reports: A Diagnosis or an Autopsy?

On 5 October 2020, the German Marshall Fund of the United States held a webinar dedicated to the first rule of law reports released by the European Commission under the new, much anticipated Rule of Law Mechanism. While the event was announced much before the publication of the reports, its title gave away the fears of rule of law experts – “Assessing the State of Rule of Law in the European Union: Diagnosis or Autopsy?”

I was honored to be invited to serve as one of the panelists along with Prof. Laurent Pech, Prof. Petra Bard, Anna Wójcik, who is the co-founder of Rule of Law in Poland, and Joachim Herrmann from the Cabinet of Commissioner Dreynders. As one could expect, the rule of law experts on the panel entertain very different views on the usefulness and the objectivity of these rule of law reports compared to the formal position of the European Commission. All of us seem to concur that the Commission spares hard truths for governments and that the reports rely heavily on euphemisms. I do believe that the criticism the Commission received was constructive and may benefit its own assessments in the future.

If you are interested in the debate, you can watch the recording on YouTube here. Prof. Pech discussed the general deficiencies of this mechanism while the rest of us critically evaluated the country chapters on Poland, Hungary, and Bulgaria:

I am also grateful to one of my readers who transcribed part of my contribution to the discussion. Here it is in case you do not have the time to follow the whole debate:

Daniel Hegedus, host: Ms. Vassileva, how is it possible that in spite of this attention and leverage the rule of law situation in Bulgaria is one of the most alarming in the European Union? How would you evaluate the Commission’s recent Bulgarian country overview?

Radosveta Vassileva: Thank you very much for having me. I have to admit that I read the report with great interest exactly for the reason you mentioned – Bulgaria has been subjected to the CVM for 13 years. In addition, I’ve been following rule of law decay in Bulgaria for quite some time and many of my conclusions are corroborated by the three-month long epic protests demanding the resignation of Boyko Borissov’s government and the resignation of the General Prosecutor of Bulgaria Mr Ivan Geshev.

Unfortunately, my conclusions about this assessment by the Commission are rather negative. In my view,  this is an example of Pontius Pilate washing his hands.

I have three main reasons to put forward to this end. What the report says is true – it’s factually correct. It’s just that it presents 40% of the picture. 60% of the picture is missing, in my view, and I think that evidence to this regard is provided by the rather spicy, quite straightforward resolution that the European Parliament has in store for Bulgaria. This afternoon we have a plenary debate on the lack of rule of law and severe breaches of fundamental rights in the country.

In addition, the 40% of the picture, which is in this assessment, is painted in very diplomatic colors. In this way, it could be read both in a positive and in a negative light depending on who you ask. If you ask the government, they’re very happy. Mr. Borissov said that he was very satisfied with this report because it recognized a lot of progress he has achieved. However, the report misses the key challenges that Bulgaria faces. Also, all corruption scandals in which M.r Borissov is allegedly involved have been missed while less important scandals have been mentioned.

Meanwhile, some critics are also happy with this report because for the first time – here the Commission should be congratulated – it articulates some challenges that Bulgaria faces in a more direct, straightforward manner. It doesn’t really sugarcoat some problems anymore.

What I also noted is that – and this is unfortunate – some problems that have been identified by the Commission could be directly linked to compromises the Commission has made under the course of the Cooperation and Verification Mechanism, or the CVM, that you mentioned.

Here, I would like to provide several examples where the full picture is missing. I will start with the elephant in the Bulgarian room – corruption. This is a theme that runs throughout this report both in the section on the justice system and on the anti-corruption framework.

Now, what’s positive is that the Commission recognizes metrics by Transparency International according to which Bulgaria is the most corrupt member state in the European Union. The Commission also alleges that the protests have highlighted the lack of results in fighting corruption and – here we also have a copy/paste from the CVM – it declares that Bulgaria hasn’t built a long track record of final convictions on corruption.

The problem is that the purpose of the protests is somewhat misrepresented. These are not protests against corruption at large – these are protests against the concrete corruption by Mr. Borissov, his government, his party, his behind-the-curtain partners and also the corruption of the Prosecutor’s Office.

In the current framework, none of these issues and serious allegations can be investigated. On the end of the Prosecutor’s Office, the Commission, in this report, has rightfully noted that it has a centralized structure. In addition, there is no mechanism to hold a serving Prosecutor General accountable for crimes he committed in office or elsewhere. In fact, this is a problem, which has been long known to the Commission since Kolevi v Bulgaria, which was rendered 10 or 11 even years ago. For nearly a decade, the Council of Europe has been playing a cat-and-mouse game with Bulgaria, trying to persuade Bulgaria to comply with this decision. Meanwhile, in the CVM, the Commission was very diplomatic and non-chalant. At some point, it even had the exotic idea that the Prosecutor’s Office had to reform itself. In the last CVM report, it noted that this was a complex issue for Bulgaria and, maybe, it would take some time to resolve. But it has been 10 years and how much longer can we wait?

On the end of the alleged corruption of the government, many experts concur that the Prosecutor’s Office is a political puppet. There is direct and indirect evidence to this end. There are many issues of concern regarding the way the General Prosecutor is elected because he’s elected by the Supreme Judicial Council which is heavily politicized. Five years ago, Bulgaria saw a reform of this Supreme Judicial Council which was – I would deem – cosmetic. It didn’t resolve most challenges this institution faces and so it has remained as a ‘political’ institution. Yet, this reform five years ago was recognized as progress by the European Commission in the CVM. There are many issues here that have their roots in the CVM, or omissions and compromises in the CVM.

On the note of the final convictions on which the Commission insists, part of the picture is missing too because these would matter only after an objective investigation and only after a fair trial. Bulgaria has a long troublesome track record of losing cases before the ECHR because of severe violations by the Prosecutor’s Office and this has been omitted in the report. Yet, it has been mentioned in the draft resolution that the European Parliament has planned for Bulgaria.

In addition, of course, for that to take place, one needs an independent judiciary. Bulgarian judiciary is consistently subjected under attacks and here in this report we only have one sentence about this in passing. I actually think this is a positive thing because it is the first time that there is a straightforward recognition of these assaults. However, I want to point out that in 2018 the European Commission closed the judicial independence benchmark in the CVM, so they declared that our judiciary was independent. Even then, there were so many scandals about harassment and assaults against the judiciary, including against the President of our Supreme Court who has been very vocal about this and we know that he has sent many reports to the European Commission on this matter.

There are some areas in this report that show some, I would say, one-sidedness – only one side of the coin is presented. For instance, we have a paragraph dedicated to the alleged lack of financial resources of the Prosecutor’s Office which is supposed to explain why they aren’t leading efficient investigations, etc. But what’s missing here is that this office is known for its unwise spending. Only this year we had several scandals. One of them was the investment in extremely expensive, luxurious cars that one may use for a holiday. Not sure how this enhances the investigative process. Also, millions were poured into the development of a police force associated with this Prosecutor’s Office. This force doesn’t really have a constitutional basis, so it’s a bit of a controversial issue.

In addition, this summer it was with this police force that the Prosecutor’s Office raided Bulgaria’s Presidency. This is actually the main event that triggered the mass protests and this hasn’t even been mentioned in this report. According to all leading constitutional experts in Bulgaria I know, this illustrates that the Prosecutor’s Office disregards the important principle of immunity from which the President benefits and also constitutes a violation of the principle of separation of powers.

A similar one-sidedness could be seen in the discussion on the Anti-Corruption Commission. The European Commission has shown a lot of sympathy to the fact that the Anti-Corruption Commission has the entire framework but it hasn’t achieved results that are expected. Maybe that’s because of lack of staffing? My common sense dictates that a fish rots from the head down. The previous head of this commission was forced to resign last year because of a corruption scandal he was involved in.

The current head is no other than the previous General Prosecutor of Bulgaria who was as controversial as the current one. He was allegedly implicated into a series of scandals and at least one of them is known to the European Commission because it is mentioned in the CVM report from five years ago. It’s called Yaneva Gate. In this scandal Prime Minister Borissov and then General Prosecutor Tsatsarov instructed senior judges how to decide cases. This scandal was never investigated objectively. In fact, there was no investigation into the facts and the European Commission never insisted on a true investigation of this scandal. So it’s just that this background leaves a very bitter feeling. One may question if a person who hasn’t cleared his background is the right person to lead this institution.

Now, last but not least, and in order not to sound too negative – if there is a section I, more or less, agree with, this is the section on the media. I think this is the most objective section in this assessment. For the first time, I see the Commission overly admitting that state money, including EU funds, may be used to finance pro-government media. This is really troublesome. What is missing from the picture? Actually the Commission says that some of these media are used to harass journalists but these media are also used to harass civil society members, opponents of Mr. Borissov and his close circle, etc.

These media are also employed by the Prosecutor’s Office for media trials. There are many instances where people have learned that they would be charged by the Prosecutor’s Office from these media – not from the Prosecutor’s Office itself. There are cases in which the Prosecutor’s Office submits proof to these media before submitting the proof to the court. I can elaborate some more if you wish. There are even instances where the Prosecutor’s Office overtly spreads false information and this was even caught by the European Parliament because they had some remarks in this regard.

So, overall, I think that the report is incomplete and it is in the silence that we have most concerns.