The fall of the Communist regime in 1989 marked a moment of anxious uncertainty and anticipation for the Bulgarian people. The nation held its breath, awaiting the introduction of democracy and its promises of political and economic freedom.
Around 30 years later, I ask my grandparents which party they will be voting for in the upcoming elections. Their response is preceded by a wonderfully dismissive scoff paired with a wry smirk: ‘‘Probably the BSP (Bulgarian Socialist Party), not like it makes any difference.”
The bitter cynicism of my grandparents aptly captures the profound disillusionment shared by many other Bulgarians, who face a climate of serious social unrest and poverty, with 22% of Bulgarians living below the national poverty line in 2017.
The dire social and economic climate is largely attributable to widespread institutional corruption which upholds oligarchical monopolies over key economic sectors, as well as alleged governmental misuse of public and EU funds. Such endemic corruption triggered the large-scale popular protests of 2020, which called for the resignation of Prime Minister Boyko Borisov and demanded the exit of his party, GERB (Citizens for European Development of Bulgaria), from government, after their involvement in multiple widely publicized corruption scandals.
These issues, however, are in part symptomatic of a more fundamental issue: an inadequate constitutional structure that fails to enforce respect for rule of law values. One is found searching, unfruitfully, for evidence of an independent judiciary, a transparent legislative process, and a free press. Such shortcomings ultimately enable the oligarchic elite to increasingly usurp the legal, political and in turn economic realms.
State influence on the judiciary
The corrupt governance of GERB is largely empowered by an unbalanced constitutional order, which has enabled the party’s successful capturing of state institutions. This is most significantly manifested in a troubling lack of judicial independence, a concern underlined by the EU’s 2020 Rule of Law Report on Bulgaria, according to which only 37% of the general public consider judicial independence to be ‘fairly or very good’.
A particularly urgent concern underlined by the report is the concentrated and excessive power of the Prosecutor General (a key member of the Judiciary in Bulgaria), whose independence is contested. The Prosecutor General’s role is ‘one of the most influential ones in the legal system’, having the ability to annul or amend any decision made by a prosecutor which has not been reviewed by a judge, as well as the power to launch or stop any investigation, including a hypothetical investigation against himself. He also holds an important position in the Supreme Judicial Council (SCJ), the body responsible for appointing, promoting and removing judges, prosecutors and investigators.
The disquiet surrounding the Prosecutor General’s excessive powers is harshly exacerbated by the concerns regarding his independence. He is nominated by the Bulgarian President with the SCJ’s consent. Yet the SCJ itself is highly politicized and susceptible to executive influence, due to an oversized political quota which amounts to 14 of the 25 members of the Council being elected by either the National Assembly or the President, with a minority of judges being elected by their peers. Thus, the impartiality of the Prosecutor General, who wields such absolute and disproportionate power within the judicial system, is highly questionable. Indeed, a major demand of the protestors in 2020 was the resignation of Chief Prosecutor Ivan Genshev, viewed by many as a clear political ally of the Government.
The lack of an independent judiciary helps to explain the disconcertingly low level of corruption investigations and convictions. As highlighted by the EU report, ‘A solid track-record of final convictions in high level corruption cases remains to be established.’ Yet, an increased number of investigations would be a superficial solution to the much deeper issue of the lack of an independent judiciary and prosecution. A fundamental restructuring of the judiciary and prosecution is necessary, in order to ensure a proper separation of powers and an effective legal means of holding government officials to account for their corrupt activities.
The lack of transparency within the legislative process
The EU Commission equally outlined concerns regarding the transparency of the legislative progress in Bulgaria. Lobbying is completely unregulated, and as Transparency International underscores, ‘without clear and enforceable rules and regulations, a select number of voices with more money and insider contacts can come to dominate political decision-making’. The lack of lobbying regulations thus bolsters corruption within the political arena.
Moreover, nearly 37% of adopted legal acts between 2017-2019 contain amendments that modify previous acts, and in some cases the amendments concern legal acts which are completely unrelated to the amending act. This troubling ‘legal technique’ curbs public discourse and engagement with legislation proposals, as well as ‘bypassing the requirements for impact assessment’. Some have equally raised concerns that the significant number of amendments to previous legislation indicates irregular lobbying within Parliament. This concerning trend vastly undermines the operation of a transparent law-making process and the scrutiny of executive legislative action, facilitating the advancement of select private interests which counter the general public interest.
A controlled and biased press
An equally pivotal tenet of any democracy purporting to uphold rule of law values is a free press that represents a plurality of voices. However, according to the Reporters Without Borders 2020 World Press Freedom Index, Bulgaria ranks 112th in the world, making it the worst country for press freedom in the EU.
In particular, there is a notable deficit of transparency in media ownership, in addition to a lack of regulatory safeguards for fair and transparent distribution of state advertising. As outlined by the 2020 EU Report, ‘State advertising reportedly plays an important role in the country’s media landscape, especially at local level’. State control over the media, which minimizes the potential for objective commentary and criticism of governmental action, is thus a serious concern. The executive not only circumvents scrutiny in the legal and political arenas, but in the public sphere too.
Similarly, supposedly independent media owners often hold close ties to political actors, due to a climate of oppression of dissident voices. Reporters Without Borders outline that “‘The few outspoken journalists are constantly subjected not only to smear campaigns and harassment by the state, but also to intimidation and violence”.
Indeed, the protection of press freedom is largely contingent upon the establishment of an independent judiciary and prosecution. Currently, judicial ties to the state make the punishment of such threatening and violent behaviour elusive, empowering the executive to further encroach upon the media.
The rule of law in Bulgaria is clearly in a fragile state. The judiciary defers to unlawful executive action, the legislative process is opaque, and the press does not offer a platform where criticism can be completely freely voiced and circulated. This allows the government to evade political and legal accountability. Abuses of governmental authority which privilege personal and oligarchical private interests are inevitable in such a climate. Remedying these rule of law deficiencies is an indispensable first step towards combating the pernicious and draining influence of corruption within Bulgaria.