With regards to the upcoming discussion of the Bulgarian President’s veto against the Anti-Corruption and Forfeiture of Illegal Property Act, the Anti-Corruption Fund Foundation (ACF) wishes to participate with its own representative in accordance with Art. 42 of the Rules on the Organization and Activities of the National Assembly.
As an organization that works in the interests of civil society and collaborates with public institutions towards the detection and investigation of corruption, ACF fully supports the efforts to establish an effective legal and institutional framework for counteracting corruption.
As can be seen from the statements we put forward during the preliminary stage of public consultations on the draft law, as well as during the legislative process in Parliament, we believe it is very important that the new legal framework be in accordance with the constitutional principles of rule of law and separation of powers, and that concentration or abuse of power should not be permitted. The composition procedure of this newly-founded institution should not raise any questions as to its independence or that of its staff members. Therefore, the composition procedure should ensure transparency and independence from political influence, while the requirements for education, professional experience, and integrity should be higher. The stipulated possibility to use special surveillance means for the purposes of a single administrative case (i.e., outside criminal proceedings) creates immediate risks of abuse of power and direct infringement of constitutional rights and liberties.
It is important to guarantee the fundamental rights and freedoms of the Bulgarian people with the final adoption of the legislation, including their right to defense against unfounded action or decisions of the Commission for Anti-Corruption and the Forfeiture of Illegally Acquired Property. This means to ensure judicial oversight over decisions of the Commission that concern the protected legal rights and interests of citizens at all stages of the administrative proceedings.
An aspect of particular significance is the need to protect against any infringement on the Bulgarian people’s constitutional right to property in cases involving assessment of the “legal sources” of their income and property. The very concept that citizens should be expected to prove the legality of their income, which in effect shifts the burden of proof in judicial proceedings, is highly problematic with regards to the fundamental principles of the Continental legal system, as well as with regards to the principle of inviolability of private property, stipulated in Art. 17, par. 3 of the Bulgarian Constitution.
Furthermore, in accordance with Art. 7 of the Bulgarian Constitution, citizens should have the right to claim and receive compensation in cases when they have incurred undue damages as a result of the actions or decisions of the institution.
The adopted legislation lacks an adequate mechanism for public accountability of the institution’s work. Submitting an annual activity report to Parliament does not guarantee sufficient accountability and citizen control over the commission’s work, considering the wide scope of its competences.
In order to be effective, the Commission should be able to rely on specific information regarding cases of conflict of interest or corrupt behavior, submitted by citizens or other stakeholders. Therefore, strong protection for whistleblowers should be ensured, so that the latter are encouraged to disclose information regarding corrupt acts and behavior. Instead, there is a risk that citizens remain passive and inactive under the threat of prosecution for reporting a case. ACF believes that, at the upcoming discussion, the legislature should assess the extent to which the adopted framework collides with the constitutional rights of the Bulgarian people: the right to file complaints, referrals, recommendations, and petitions to public institutions; the right to information and opinion; the freedom of speech and the media.
ACF is prepared to provide legal expertise on all the issues mentioned above by actively participating in the session of the Committee on Legal Affairs, devoted to discussing the President’s veto against the legislation.