ON COMBATING CORRUPTION AND FORFEITING ILLEGALLY ACQUIRED ASSETS BILL
Status: The bill was introduced by the Government in the National Assembly in October 2017 and is expected to be adopted by the end of the year.
The bill (including its explanatory notes) does not provide sufficient justification of the need to create new institution on the basis of existing agencies with different functions. The new super-agency (Commission for Combating Corruption and Forfeiting Illegally Acquired Assets) mixes several functions: administrative sanctions, preventive measures, conflict of interests finding, operative-searching and intelligence, analytical. For executing its competences, the Commission will use different procedures and will apply different standards which may lead to confusion, inefficiency and legal uncertainty.
According to the ACF, there is a sufficient justification for creating new agency for integrity checks of the persons, holding public offices (including publicity and checks of their property/ assets declarations and prevention/finding of conflict of interests), while the procedures of “civil asset forfeiture” should remain administered by different agency. This will increase efficiency of both institutions.
In relation to the structural issues, in order to guarantee independence form political pressure, the ACF proposes that the members of the new commission should be elected by qualified majority from the parliament after a public procedure (including public and well-motivated nominations of candidates and public hearing before a parliamentary committee).
Property/ Asset Declarations
The ACF proposes specific measures for increasing transparency and publicity of the assets/ property of persons holding public office to be adopted in the bill. The new law should require additional information in the declarations submitted to the Commission. Public officials should declare in full their assets/ property in off-shores zones (tax heavens) in a way that allows the Commission and other authorities to check all relevant information (ownership, financial transactions, annual reporting, activity).
Regarding functions of civil asset forfeiture
The ACF proposes changes in the bill regarding the legal definition of significant discrepancy between the value of the assets and the net income for the 10-year period (review and investigation of acquired assets is allowed only in this fixed period). The proposal is to lower the threshold from BGN 150 000 to 50 000. This will allow more efficient enforcement of the law.
The ACF also proposes changes with respect to the initial checks of the assets in order to guarantee effective judicial review of the acts of the Commission.
Regarding the operative-searching and intelligence functions
According to the bill a specialized unit (responsible for prevention and intelligence of the high-level corruption) from the National Security State Agency will be transferred to the Commission. This means that the new institution will also have operative-searching and intelligence functions, including the competence to use Special Intelligence Means (wiretapping, tracking). The transfer of this specific competence, given the absence of appropriate mechanisms of checks and balances, as well as weak judicial review of the permissions to use SIM, may lead to concentration of power and its abuse by the newly created institution. It opens loopholes in the SIM application regime which allows their use outside the criminal investigation procedure.
Regarding the functions of conflict of interest prevention and sanctioning
In principle, the bill preserves and integrates the existing procedures of prevention and sanctioning of conflict of interests, which are nonetheless ineffective and flawed. Some of the proposed reforms of the system include decentralizing the procedure regarding the midlevel civil servants which will be accountable before the internal inspectorates existing in each governmental institution. This will create conflicting practice of implementing the law and will further weaken the preventive effect of the procedure. It is also a step back in the legal regulation of the prevention of conflict of interests, reintroducing a decentralized procedure that existed until 2010.
In addition, the ACF proposes specific changes in the bill with respect to the legal definition of connected persons (to broaden the definition to include more situations of factual relationships; to include more hypotheses of connections and dependencies between legal persons).
In conclusion, the ACF emphasizes the need to reform the public prosecution service in line with the recommendations given by the Venice Commission and the European Commission under the Cooperation and Verification Mechanism, in order to ensure truly efficient institution to combat high-level political corruption. Such reforms should include measures for public accountability of the prosecution service and the Prosecutor General, as well as a procedure for effective investigation and impeachment of the Prosecutor General in cases of systematic violations of the code of conduct of the magistrates involving serious integrity issues, other legal offenses or commitment of crimes.