30 May 2019: The Anti-Corruption Fund Foundation (ACF) has launched its annual monitoring report Anticorruption Institutions: Trends and Practice. Developed with the support of the Konrad-Adenauer-Stiftung Foundation and its Rule of Law- South East Europe Programme, the report evaluates the work of the major anti-corruption institutions in 2018 – the Public Prosecution, the court system and the recently-created Commission for Counteracting Corruption and the Forfeiture of Illegally Acquired Property (CAFIAP).
The report contains a number of recommendations to the relevant institutions:
- Guarantee CAFIAP’s independence, including by adopting a different procedure for the election of its members. Such a procedure would involve not only Parliament, but also other institutions (the President) or NGOs, thus ensuring stronger guarantees for transparency, political neutrality, and professionalism.
- Reconsider the commission’s competence to employ special surveillance means outside the scope of criminal proceedings.
- Revise the civil forfeiture framework so that it is compliant with the Constitution of the Republic of Bulgaria, as well as with the imperative requirements of the European Convention on Human Rights, by introducing appropriate procedural mechanisms for protecting the right to defense and the right to property.
- Limit the possibilities to grant gifts and benefits to public officials, associated with their position of influence, even in cases when they have not exercised public authority in the pursuit of a private interest.
The report evaluates the legislative framework and the case law, accumulated in preceding years. On the basis of the above-mentioned analysis and evaluation, a number of problem areas in the implementation of the existing legislation are outlined.
The implementation of criminal-law protection against corruption offences is hampered by the scale and complexity of the subject, as well as by the frequent changes in legislation. Particular shortcomings include:
- Legislative gaps regarding clientelism, nepotism, and fraudulent practices in public procurement, such as abuse of office and other offences.
- Missing provisions allowing for lower penalties or impunity for parties involved in bribery who voluntarily report the crime, as well as parties with special contributions in helping to investigate and prosecute serious criminal offences.
- Inconsistent framework with regards to the specialized courts and prosecution – corruption offences by executive-level public officials serving at certain institutions are unjustifiably removed from the jurisdiction of specialized courts.
- Ineffective and disparate practices in evidence-gathering.
- The formalism of criminal proceedings fails to encourage investigators to take initiative and develop original strategies.
- The judicial process is politicized when suspects are politically involved.
- Various drawbacks with regards to resources and interinstitutional cooperation.
One key issue is the frequent use of preliminary investigations – often carried out by inexperienced or incompetent investigators – even in the presence of evidence to initiate criminal proceedings.
Prosecutors still fail to show sufficient initiative when reviewing the assets of suspects and persons related to them and when carrying out financial audits to determine the origin of funds and to ensure any subsequent penalties, such as fines or confiscation of assets, are applied successively.
The report also focuses on the way the media covers proceedings on corruption cases of high public interest. A significant share of the information regarding proceedings is presented to the media, in effect making investigations public and involving the general public into the intricacies of strictly professional actions. The report recommends the creation of an agreed public standard regarding the kind of information from and about investigations that is of public interest.
With regards to the new anti-corruption body, the report reviews the mechanism of its creation in 2018 when CAFIAP took over functions, previously within the remit of several institutions: the Commission for the Forfeiture of Illegally Acquired Property, the Commission for the Prevention and Ascertainment of Conflict of Interest, a department within the National Audit Office, the Center for Preventing and Counteracting Corruption and Organized Crime to the Council of Ministers, and a directorate within the State Agency for National Security.
ACF reports that there is significant discrepancy between the large public expectations and the recommendations of the European Commission and the pledged actions and their implementation. A number of shortcomings are identified as far as CAFIAP and the new conflict of interest legislative framework are concerned:
- The legislation, adopted in 2018, defines corruption as a type of administrative offence or unjust enrichment rather than a serious crime that erodes the very foundations of state governance.
- CAFIAP lacks investigative powers and can hardly meet society’s expectations.
- The mechanical conflation of functions and activities of different nature – administrative sanctioning, verification, operational tracking, analysis, and prevention – within a single institution undermines the effectiveness of the commission and creates conditions for its involvement in politically-motivated investigations.
- The procedure for electing the chairman and members of CAFIAP (a simple majority vote in Parliament) gives the governing majority a decisive say in the composition of the public body.
- The new model for the ascertainment of conflicts of interest, which combines a centralized and decentralized approach is likely to lead to the emergence of inconsistent and contradictory practice.
- Instances of selective and contradictory application of the law which raises suspicions about politically driven inspections.
Entrusting the new institution with controlling and sanctioning competences that interfere significantly with individual rights creates a demand for guarantees for the independence of the institution, as well as for compliance with the principles of rule of law, separation of powers, and the constitutional right to defense. ACF and other independent expert and civic organizations have pointed out the problems in the legislative framework and the way it is applied.
The report outlines a number of recommendations with regards to the structure and functions of CAFIAP, as well as conflict of interest proceedings and proceedings related to the forfeiture of illegally acquired property.
ACF stresses the importance of guarantees for the commission’s independence, including by adopting a different procedure for the election of its members. Such a procedure would involve not only Parliament, but also other institutions (the President) or NGOs, thus ensuring stronger guarantees for transparency, political neutrality, and professionalism.
The definition of related parties should be extended with respect to in-laws to encompass in-laws up to the fourth degree included, as well as relationships stemming from the cohabitation of ascendants and descendants of the public official. This will limit opportunities for circumventing the law, facilitate the ascertainment of conflicts of interest, and increase the preventative effect of the legislation.
The following steps are also recommended:
- The current decentralized model for administering conflict of interest cases should be revisited.
- Prohibitive legal provisions should be clarified in order to clearly distinguish cases, in which the official must have actually exercised public authority, from cases, in which it is sufficient to objectively establish the existence of a certain situation that the high-ranking public official stepped into willingly or with foreseeability of its implications.
Last but not least, ACF stresses the need for adequate protection of whistleblowers. The requirement to provide whistleblower’s PIN in referrals should be abolished. Provisions should be added to empower civil society organizations, whose scope of work involves monitoring of institutions, to submit referrals.
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