EKIP– Expert Club for Economics and Politics A Different Opinion
Author: Alexander Terziev
Apart from being in direct contradiction with European law, it is more than obvious that the KPONPI will be used as a bludgeon against the opposition.
“The state policy on combating corruption is not aimed at retribution, but at restoring justice in society (...) regardless of the criminal proceedings against the person under investigation or persons associated with him.” The sentence in question was not taken from some manual on establishing a Marxist-Leninist state order, but is part of the motivations for the Law on Amendments and Supplements to the Law on Combating Corruption and Confiscation of Illegally Acquired Property (LACCOP), which was urgently adopted by the National Assembly last week in order to render meaningless a newly issued interpretative decision of the Supreme Court of Cassation (SCC), according to which civil confiscation proceedings cannot continue if the criminal proceedings on the basis of which they were initiated have been terminated.
The adoption of such amendments is unprecedented in the recent history of Bulgaria and is far more relevant to the communist regime than to a democratic and legal state of the European type such as Bulgaria. The reason for this is that the legislative body, represented by the majority of GERB, is for the first time “suppressing” the court with the sole purpose of creating an uncontrolled apparatus for harassment and self-dealing with political opponents. And arguments in support of this exist – both legal and political.
The adopted changes in practice aim only to deepen the already established vicious practice in the application of the law by the CCCIPIA, allowing the civil confiscation proceedings to live their own life, independent of the life of the criminal case on the basis of which it was initiated. Such an understanding of what is "illegally acquired property" and what should be the scope of rights regulated in favor of the state to file a claim against a person found in possession of such, is a completely endemic understanding of the Bulgarian legislator and is not based either on the regulated similar proceedings in other European countries, nor on the regulation of Directive 2014/42/EU on the basis of which civil confiscation is regulated in the CCCIPIA. A similar opinion (particularly indicative) is also represented in the opinion of the Supreme Bar Council on the draft law submitted to the National Assembly, which, considering the motivated foundations of the Bulgarian version of civil confiscation, only comments on them in brackets - "(whatever that means)".
The Directive explicitly provides for the introduction of two separate confiscation procedures – simple and extended confiscation, and both types of confiscation should be carried out on the condition that there is a final conviction against the person for a specific crime. The Law on the Protection of Personal Data and after the criminal nature of the act committed by the person on the basis of which the property, determined to be illegal, was acquired has been established, within the framework of a court trial. Moreover, with the latest amendments to the Law on the Prevention and Control of Illegal Assets, the legislator has decided to completely “surround” the court, by accepting the situation that the civil confiscation proceedings may continue regardless of whether the initiated criminal proceedings have been terminated and regardless of the stage at which they have been carried out. In practice, it turns out that at the moment when the prosecutor’s office brings a person as an accused, the Law on the Prevention and Control of Illegal Assets can be activated, request the imposition of precautionary measures on the property of the accused in question and conduct civil proceedings for its confiscation. Regardless of whether the same person was acquitted after a trial and even regardless of whether the criminal proceedings were terminated at the initial stage of the same - for example, when the criminal proceedings were terminated by the court due to the absence of a crime, and even when the criminal proceedings themselves in the pre-trial phase were terminated by an act of the prosecutor.
Naturally, due to the obvious flaws of the claim, it is very likely that within the framework of the subsequently conducted civil proceedings, the person's property will still not be confiscated, as he will be able to prove its legal nature before the court. However, the damages from the conduct of the proceedings will still be present - the imposition of precautionary measures (seizures and injunctions) will prevent him from actively disposing of it until the conclusion of the trial. In this regard, the statement made in the explanatory memorandum to the bill that civil confiscation is not intended to punish the person against whom the proceedings are directed is more than groundless. Not only does the subject of the confiscation suffer damages during the proceedings (expressed in losses suffered and lost profits based on the imposed precautionary measures), but it can be argued that the same proceedings are in practice also subsidiary to the right of the state to realize criminal liability against the perpetrator. Thus, the same not only has the right to obtain a conviction against the perpetrator of the crime, to implement the imposed punishment and to treat the perpetrator as convicted through the institution of a criminal record, but also to implement to an additional extent his civil liability through enforcement against his property, regardless of the stage, development and end of the criminal proceedings initiated against him.
We can judge the political motives behind the adopted changes, namely - a crackdown on political opponents, from the words of the chairman of the parliamentary legal committee, Danail Kirilov, according to whom one of the reasons for the changes is the possibility of "the proceedings against the assets of Ognyan Donev and Grisha Ganchev being terminated."
The mention of Donev is particularly interesting given the fact that to date there is a pending criminal case against him for tax evasion, which is very likely to end in failure for the prosecution – the same is due to a number of criminal proceedings initiated against him in 2012 and related more to his attempt to gain control over “24 Chasa” and “Trud” than to the commission of real crimes. Donev is currently the publisher of “Club Z”, and the pending criminal case has been used more than once by representatives of the prosecution, and especially by the Prosecutor General Sotir Tsatsarov, in order to dismiss criticism of its activities with the argument that the same publication is a “media of the defendant”.
Which leads us to think that, in addition to being a bludgeon for self-defense, the legalized authority of the commission on a purely political level will allow the ruling party and the media controlled by them to stigmatize the defendant in the lawsuit based on the pending proceedings, thus declaring him "publicly guilty", regardless of the actual development of the confiscation proceedings - and subsequently, when the same collapses in court, to conveniently shift the blame to the latter, and not to the original stillbirth of the confiscation lawsuit. And all this outside the possibilities for racketeering and harassment of various businesses that are open to the ruling party.
In addition to Donev's name, some media outlets also mentioned Hristo Biserov's name - because the confiscation proceedings against him were terminated due to the decision of the Supreme Court of Cassation. The truth, however, is that the criminal proceedings against him, which ended in an acquittal (on the basis of which the confiscation claim was filed), failed due to the lack of evidence provided by the prosecution. The entire court proceedings practically rested on the testimonies of a handful of witnesses, including Biserov's relatives, who could (and did) refuse to testify against him, as well as a police officer who went to check whether the former MP lived at the address he had indicated. The prosecution also relied heavily on the provision of legal assistance from Switzerland in connection with the disclosure of the bank secrecy surrounding Biserov's accounts. The prosecution failed there as well, as it failed to prove to the Swiss authorities the validity of the charges brought against him.
In this regard, it is appropriate to point out that to a certain extent the adopted amendments aim to subsidize the prosecutor's activity with that of the KPOKONPI, which aims to provide a surrogate for the actions of the prosecutor's office in the cases of impotent indictments - those that are extremely incapable of achieving a conviction.
Fortunately, nothing is lost yet – the National Assembly is yet to be “seized” by a number of other courts and judicial jurisdictions, with the first from which similar actions are expected to be taken is the Constitutional Court. The bodies that have the authority to refer the Constitutional Court to the unconstitutionality of the amendments to the law are President Rumen Radev, Ombudsman Maya Manolova and some members of parliament. The BSP parliamentary group has already made a similar request, and given President Rumen Radev’s firm opposition to the already quite long list of laws adopted by the parliament, on which he has imposed a suspensive veto, we can expect that the same will happen again in the coming days. In a last resort, the Bulgarian legislator may have to be deterred by the European Courts, and another series of condemnatory decisions by the European Court of Human Rights can certainly be expected, even if only based on the actions already taken against certain individuals by the CPCONPI.
As a final note to the above, it is good to remember the following:
- That there are bodies to combat corruption and illegally acquired property without the CPO – prosecutor's office, tax, economic police; the problem is in their effectiveness;
- That threatening the foundations of private property through the creation of overpowering state bodies will always negatively affect the general welfare;
- That the sense of justice in society is a matter of subjective perceptions and should not be the main object of a legislative initiative.
Image source: "Capital"
