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The Anti-Corruption Fund Foundation (ACF) published today an analysis of the new Act on Preventing and Fighting Corruption which entered into force this month. The analysis has been authored by Andrey Yankulov, senior legal expert at ACF and former prosecutor.
The author has reviewed the upcoming changes in the legal framework for detecting and investigating corruption-related crimes, following the closure of the Commission for Counteracting Corruption and the Forfeiture of Illegally Acquired Property (CAFIAP). The commission is to be dismantled and divided into two bodies: Commission on the Forfeiture of Illegally Acquired Property and Commission for the Counteracting of Corruption which, for the first time, will have investigative functions.
“In and of itself, the creation of new investigative bodies cannot guarantee more effective investigation of high-level corruption,” said Andrey Yankulov. “What is necessary is a comprehensive vision for reforming the criminal justice system capable of addressing all its major problems. Such a vision is currently lacking.”
A vicious cycle of reforms without any prior analysis
It is notable that the current round of reforms of Bulgaria’s anti-corruption legislation is taking place less than six years since the reforms in early 2018 when CAFIAP was created. Back then, the mega-structure took over the competencies of five different public anti-corruption bodies.
Through the new measures, the opposite approach is adopted. CAFIAP is being divided and the new Commission for the Counteracting of Corruption will be responsible for the detection and investigation of corruption-related crimes.
“Activities which fall under different legal frameworks but have similar goals and tasks, related to the detection and investigation of corruption crimes, will be carried out by one newly created public authority and this is a positive development.
Unfortunately, this restructuring is carried out without any analysis of the results of CAFIAP’s activities to detect corruption-related crimes, something that the commission was tasked with five years ago. Furthermore, there has been no effort to review what has been achieved under the current legal framework for investigating corruption-related crimes,” said Yankulov.
“Noone outside of CAFIAP, nor, perhaps, within it can tell how many corruption-related crimes have been detected in the course of its work. It is not known in how many cases the commission’s field operatives have been able to uncover or verify information that has led to charges of public officials for corruption-related crimes.”
Thus, the new set of reforms seems like the latest round of a vicious cycle: radical revamp of the anti-corruption legislative framework / formalistic proclamations of success / lack of clear results / lack of analysis of errors and deficiencies / calls for new sweeping changes.
“This vicious cycle tends to repeat every few years,” said Andrey Yankulov. “The current reform effort is a silent admission of the failure of the reforms back in 2018.”
The lack of analysis of the work of anti-corruption bodies as well as the lack of an overall concept for criminal justice reform are the reasons why the new legal framework for the detection and investigation of corruption-related crimes fails to address well-known problems while in some cases creating additional, new ones.
Main problems as outlined by ACF:
- Narrow definition of corruption-related crimes: The list of corruption-related crimes named in the new act is relatively short. Crimes such as mismanagement of public funds, as well as fraud, money laundering, offences against creditors, tax offences, document-related crimes and computer-related crimes have not been named. Thus, all of these crimes do not fall within the jurisdiction of the new Commission for the Counteracting of Corruption and it is not able to take any steps to detect and investigate them.
“A much better alternative would have been to list more crimes with a possible corruption element, supporting the goal of the new act, namely, enabling a single, specialized anti-corruption body to detect and investigate high-level corruption-related crimes,” said Yankulov.
- Complicated procedure for making referrals to the public prosecution:
As per the new Act on Preventing and Fighting Corruption, once a preliminary inquiry to detect the commission of a crime has been completed, a report should be filed with the director of the Directorate on Counteracting Corruption. Depending on the findings in each report, the director should notify the top executive levels of the commission. All reports are to be discussed at this level, and, depending on the findings of each report, top officials should decide whether to issue а referral to the public prosecution (or other relevant bodies) to open an investigation or whether to close a case.
ACF maintains that the procedure should be simplified to a significant degree. The guiding principle should be to exercise more stringent control only when decisions concern the closing of cases. In contrast, when it is evident that cases should be referred to the prosecution or other public bodies, or when it is necessary for commission staff to initiate a criminal investigation urgently, then the focus should be on taking all required steps without unnecessary formalities.
In contrast, if it is commission operatives establishing that cases should be closed, then these decisions should be subjected to internal control exercised by the head of the directorate or by the high-ranking members of the commission. Decisions to close cases could potentially hamper the efforts to review suspected corruption-related crimes comprehensively and objectively. The lack of control over such decisions increases the risk of abuses. Furthermore, the new law should make provisions for external control, exercised periodically, over the decisions to close cases.
- Legal framework lacks a mechanism for control over preliminary inquiries to detect the commission of crimes:
The possibility for oversight over the preliminary inquiries is a significant issue because oftentimes it affects citizens’ rights to a degree similar to that of investigative activities in criminal proceedings, although the latter are subject to much more detailed regulations and control mechanisms.
However, this issue has not been tackled in the existing legal framework. Considering that the Bulgarian Parliament has so far failed to carry out effective oversight over CAFIAP, significant changes in the near future are very unlikely.
- Failure to account for the limited powers of investigative bodies:
In Bulgaria, prosecutors have the exclusive remit to direct investigations. They take all key decisions related to initiating and closing criminal proceedings. They are authorized to investigate on their own and can order other investigative bodies to step down. These are the main principles of the pre-trial phase which remain unchanged.
Considering the fundamentally week position of investigative bodies in criminal proceedings, assigning the task of investigating corruption crimes to the new Commission for the Counteracting of Corruption, on its own, is not likely to lead to significant changes to the efforts to counteract and investigate corruption.
- Lack of mechanism for the commission to appeal prosecutors’ decisions to close criminal proceedings. In addition, the commission is not best positioned to file appeals against their decisions since its staff are subordinated to the prosecutors in criminal proceedings.
One positive new development is that the new act provides increased opportunities for more individuals to initiate judicial reviews of prosecutors’ decisions to close investigations.
However, no specific mechanism has been provided under the Criminal Procedure Code to support the commission in appealing decisions by the prosecution. Thus, the commission’s right to initiate judicial review has no legal foundation and remains an empty phrase in the Act on Preventing and Fighting Corruption.
Another issue is that the commission has been tasked with both investigative functions (with staff subordinated to prosecutors) and the exercising of external control over prosecutors’ decisions. The decision to assign such dual functions to the commission defies logic.
“Singular steps such as the creation of new investigative bodies will not be enough to accomplish the goal of the new anti-corruption law, namely the convictions of politicians and high-level public officials for corruption-related crimes,” said Yankulov.
“What is necessary is a comprehensive vision for reforming the criminal justice system capable of addressing all its major problems. At present, such a vision appears to be lacking among the ranks of the political parties representing the ruling majority in Parliament.”
The full text of the analysis is available here:
Download the full analysis here.