Tsatsarov before Geshev – Analyzes

Replacement of Geshev and Tsatsarov. These are unconditional priorities, two red lines that “We continue to change” will not give up in government talks, one of the party’s leaders, Kiril Petkov, said last week. On the first day of government talks, he expressed hope that the chief prosecutor would resign himself in order to get rid of them as a problem. “KPKONPI must work as a very strong anti-corruption commission, we will also talk about leadership change. Sotir Tsatsarov should not lead it, this is clear to us,” Petkov said a week earlier in an interview with Nova TV.

The difference between the Geshev problem and the Tsatsarov problem is that while judicial reform, and in particular that of the prosecution, largely depends on the possibility of achieving a constitutional majority, the reform of the anti-corruption commission, chaired by Tsatsarov, is entirely possible with legal changes. KPKONPI as an institution is not regulated in the constitution, so decisions on it can be passed by a simple majority in parliament. And if a new law is reached, it will not only affect Tsatsarov, but also the entire commission. It will be terminated and re-established, as all projects launched so far provide for its division into two or more parts, ie. new election in new bodies.

But the idea is far from a self-serving replacement of Tsatsarov (or Geshev), who is not only the face of this institution, which has gathered so much public negativity. Tsatsarov has long taken on the role of ideologue and organizer of the system of institutions that act in synchrony for the targeted repression of political competitors and business opponents. Tsatsarov was a major frontman of the idea of ​​creating special justice, which fired him to the post of chief prosecutor, where for one term he turned the prosecutor’s office into a political player, from which all parties and all other institutions tremble. After this feat, he had to go on a well-deserved vacation to the Constitutional Court (according to rumors from that time), but after the shoot of the previous chairman of KPKONPI Plamen Georgiev, who fucked up his career as a penthouse with a terrace, Tsatsarov was sent to head the anti-corruption commission. .

However, the problem should not be personalized, it is systemic and can be briefly summarized as follows: There is an anti-corruption commission in Bulgaria, but there is no fight against corruption. And there is no fight against corruption, because those who rule corruption also appoint the bodies that must fight it. and set policies for it. In-house orders are legal because they are written in the law, explains, for example, former regional minister Nikolay Nankov. But no one is checking whether there is a corruption thread in the contracts signed by the former head of “Motorways” Stoyan Belichev, with huge advances. No one from KPCONPI checks whether, having received the money to buy the building materials in advance, whether they can show that they bought them and when.

For many years, Brussels has been asking us why there are no convictions for corruption at the highest levels of government, and our authorities answer that there is no synchronicity between the various institutions and a single anti-corruption body must be created. There are exactly ten reports on SMEs that call for the creation of such a single body by uniting the various units in this area, precisely because the Bulgarian authorities have told them that this will lead to convictions, an expert on the subject commented to Capital. But again, there are no convictions, because this body does not deal with corruption in the government, but has become a batting institution, as we now have to explain again to Brussels.

And the reason is that for many years the authorities have been trying to hide the real problem – corruption at the highest levels of government is being prosecuted and punished with the leading role of the prosecutor’s office, which in Bulgaria is controlled by those who rule corruption.

“The long-term anti-corruption measure is a working prosecutor’s office. Corruption is a crime difficult to investigate. So prevention is, of course, important, but high-level corruption fights criminal law,” Krum Zarkov said in talks on Tuesday. for the justice sector.

Those who practice corruption will not go to fight it, but will try to create an illusion. Tsatsarov is a specialist in the creation of “Potemkin settlements”. Behind the sets lies an institutionalized mechanism for harassment, in which the prosecutor’s office, KPKONPI, NRA, SANS, special justice, BFSA, if necessary, etc., act in concert.

The beginning was set in 2012, but it lies in glorious traditions

In the criminal case for draining the Corporate Commercial Bank, the prosecutor’s office has no request for confiscation of the funds and benefits from crimes, as they are qualified in the indictment prepared by Geshev. The request for confiscation was made by KPKONPI before the civil court. The question arises why the Bulgarian authorities replaced the criminal confiscation with a civil one? The short (and incomplete) answer is – because in criminal proceedings it must be proved by an effective sentence:

• committed a crime that is capable of generating benefits
• a link between the specific property whose confiscation is sought and that specific crime
• precise assessment of property prices, revenues, expenses according to a clear methodology, which the defendant can challenge and the court is obliged to check, and is not bound by the conclusions of the prosecution
• the entire burden of proof lies with the prosecution.

In the case of civil confiscation in its Bulgarian model:

• No proof of a crime / violation is required, it is enough for someone to be charged with a crime, if he is acquitted even after that. It is enough for the civil servant to be late with the submission of his tax return in order to start an inspection. It is enough for KPKONPI to rule on the existence of a conflict of interest, ie. only to create a ground for inspection.
• No connection has been proved between the crime / violation and the property whose confiscation is requested. There is no way to prove such a connection when it is not clear about what violation confiscation is requested, since it is possible even with an acquittal. Therefore, it is absurd to ask for confiscation of inherited property or acquired many years before the commission of the act in connection with which the inspection was launched, as well as property of third parties, who, however, have no possibility of protection in the process.
• The only reason for KPKONPI to request confiscation is the discrepancy found by it between income and expenses over a certain amount (BGN 150 thousand at the moment) according to an assessment made by KPKONPI itself on the basis of a methodology invented by it, which is not public. The most interesting thing is that this methodology is unknown to the court, and the assessment of KPKONPI is binding on the court, ie. he cannot make his own accounts for the property of the person concerned.
• The burden of proof has been shifted and the citizen who is subject to inspection must prove the legal source of his property for 10 years ago, without having such an obligation when he acquired the property.
• The court is bound by the irrebuttable presumption that everything for which a clear source of acquisition has not been proven is illegally acquired, without a clear normative definition of what is a legal / illegal source.
• The securities are imposed completely automatically when the requests from KPKONPI come, without assessing either the need or the validity. Our courts claim that the law does not allow them to rule on a precautionary measure again. Including when the imposed measure is illegal because, for example, the property of third parties is confiscated, on whose property such measures cannot be imposed.

At the moment, those accused of crimes have more rights than those in the proceedings for confiscation of property, commented Atanas Slavov from the DB during the discussions on Tuesday.

There is civil confiscation in various countries in Europe, its aim is to fight serious organized crime with an international element and to take away the benefits of crime where it cannot be done within the framework of criminal proceedings. Civil confiscation in Bulgaria was introduced for the first time in 2012 so that the prosecution would not have to prove the confiscation of funds and benefits from crimes. The draft law, drafted by the team of former Justice Minister Margarita Popova, a former prosecutor, has many times been for expertise in the Venice Commission, which each time explicitly emphasizes that The key element in such legislation on civil confiscation is the proof of the criminal origin of the property, although this is not done according to the criminal law standard of indisputable proof, but in the lowered standard of proof in civil proceedings.. In each of these statements, the Bulgarian authorities explained that they would comply with these criteria, and finally submitted it according to their own model. (A year earlier, in a transcript of a meeting of the Council of Ministers, Boyko Borissov explained to Margarita Popova that the prosecutors had nominated her as a minister so that the relevant legal changes could be made, although in this case it was not exactly a civil case. confiscation. “I do not want to be quoted European conventions,” Borissov said.

The changes

Reform of KPCONPI, and especially of civil confiscation, as its main activity is urgently needed. It is already shown by several interpretative cases before the Supreme Court of Cassation, two cases before the EU Court of Justice in Luxembourg and a recent conviction of the Court of Human Rights in Strasbourg, ruled on seven Bulgarian appeals. And this is just the beginning, there are many more such complaints in Strasbourg.

This in turn provides guidance on the proposed changes, which generally include, in the first place, the division of the commission into two – a commission for the prevention of corruption and conflict of interest and a commission for the recovery of state assets (confiscation of illegal property). As a guarantee that the members of the two commissions are independent, they should be constructed of three quotas – members elected by parliament, members appointed by the president, and representatives of the judiciary. The ITN is also proposing the return to SANS of the unit investigating corruption.

Secondly, civil confiscation must be brought into full compliance with the European legal framework, and the rights of citizens who are able to exercise their right to protection in this process must be protected. The lawyer of “We continue the change” Lena Borislavova said that the pending proceedings should be stopped and an assessment should be made of the lawsuits filed so far with collateral imposed on them for about BGN 3.6 billion, on the occasion of which the employees of KPCONPI admit that the state will soon be the subject of many compensation cases.

The political context

The need for urgent reform of the CCCIPI is, in fact, perhaps the most unifying theme of the future governing coalition in the form in which it is set – virtually all political forces involved in discussions on future coalition governance state this priority. Moreover, if they keep their commitments, this will be one of the first reforms that the new coalition government will have to undertake, because the discussion on Tuesday set a three-month deadline for drafting a completely new anti-corruption law.

At the same time, the successful launch of such a reform will be a litmus test for the desire and ability of the possible future governing coalition to really dismantle what we tentatively call the “GERB-MRF model”. Part of this model of governance is the consistent construction over the years of a system of bodies for purposeful institutional racketeering.

It will be very symptomatic how this reform will start given the rather restrained presentation on this topic by the BSP and ITN on Tuesday, against the background of the clear parameters set out by the PP and the DB. Observers have one thing in mind that the BSP is afraid of Tsatsarov, recalling how in December 2019 half of the parliamentary group of the left voted for his election as head of KPKONPI, despite the official decision of the group not to support him. Whether there are dependencies in ITN is also unclear.

“It’s all a matter of political conjuncture – if the coalition comes together and is stable, it will gain confidence in such things. If it is a sham – this issue has the potential to fall apart,” an experienced MP told Capital. One of the first signs in this direction will be whether the reform will be announced with a common bill on behalf of the entire coalition or each party will be marked separately. This will also show where the government is going.

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The column “Analyzes” presents different points of view, the opinions expressed do not necessarily coincide with the editorial position of “Dnevnik”.