The capture and release of alleged war criminal Cedomir Brankovic in Sofia two weeks ago was an ironic reminder that Bulgaria’s judicial system screams out for reform. JOHN DYER explores the issue.
The drama surrounding Serbian colonel Branovic – accused of torching Catholic churches and killing civilians in Croatia during the Yugoslav war – occurred days after Bulgaria signed its EU accession treaty.
The EU, remember, put Croatia’s membership talks on hold after that Balkan nation was deemed too lax in pursuing its war criminals.
No one should be surprised that Bulgaria let a wanted man to slip through its fingers. United States ambassador James Pardew regularly blasts officials here for not bagging any big fish in a country awash in corruption. The EU repeatedly cites Bulgaria’s slow pace of judicial reform as the one issue that could hang up its entry into the world’s largest group of liberal democracies.
In truth, Bulgarians are pushing for reform. But their progress is hampered by the nature of the system they’ve inherited. Not only are they dealing with a legal bureaucracy that bears the stamp of communist inefficiency and an absence of accountability, but the judicial system set up in the wake of communism’s collapse is also uniquely resistant to change.
In 1991, Bulgaria established the judiciary as a separate but equal branch of government, as it is in many Western countries. Unlike many Western countries, however, prosecutors were also lumped in with the courts. So the judges who decide cases and the attorneys who prosecute them on behalf of the state are, in a sense, part of the same institution. The Supreme Judicial Council (SJC), a hodgepodge of judges, prosecutors, investigators, prominent lawyers and government ministers, appoints both judges and prosecutors, for example.
At the time, the idea was that the law should be outside the reach of politicians. Bulgaria, after all, had plenty of experience with its rulers using puppet prosecutors and judges to railroad so-called enemies of the state into prison or worse.
Now, however, the problem is reversed, say Bulgarian and foreign legal experts. The politicians don’t have any say over how the prosecutors or judges act. They can’t pressure them to get in line. By the same token, what happens in the courts doesn’t affect elected officials. So is it any wonder reform has been slow? What politician willingly accepts the burden of fixing a broken system?
“The government bears no responsibility in case there is a failure to face crime,” said Sofia District Court Judge Nelly Koutzkova, chair of the Association of Judges in Bulgaria, at recent forum on the judiciary sponsored by the Centre for the Study of Democracy.”This is a very good excuse for their failure to cope.”
Worse, lacking political intervention, the judicial system has become a fiefdom that’s often more concerned with its own survival than enforcing the law, analysts say. “We have several autonomous bureaucratic mechanisms that are self-regarding to a large extent,” said Yonko Grozev of the Bulgarian Helsinki Committee, also speaking at the forum. “This is now largely the problem we’re facing.”
Bureaucratic miscommunication was evident in the case of Brankovic. The police arrested him on an Interpol warrant. The court released him, arguing he belonged to diplomatic mission and therefore enjoyed immunity. The Foreign Ministry sided with the police. The appeal court reaffirmed the lower court’s ruling.
Because judges are supposed to be above political and public opinion, the problem is especially evident in the prosecutor’s office, which Grozev says pursues its own agenda along with its legal work. “We expect that system to be more impartial and de-politicised,” he said. “In practice there is a very high level of politicisation. It runs under the surface. It is not based on official power.”
Crime and corruption are thriving in this environment. Last month, the Financial Times reported that 60 organised crime leaders in Bulgaria were assassinated over the past year, many gunned down in the streets of Sofia in broad daylight. Illegal construction on the Black Sea threatens to spoil the ecosystem there. Almost 14 per cent of companies doing business in Bulgaria in June 2003 obtained licences or permits by bribing public officials, according to Coalition 2000, a network of NGOs dedicated to stamping out corruption here. In the same period, according to the coalition, more than 45 per cent of firms receiving state contracts bribed officials in the bidding process.
Still more egregious is the lack of action taken against Bulgaria’s ex-communist leaders, who absconded with state assets as their regime toppled from power. Bringing them to justice and reclaiming some of that “red money” would serve the function of 10 truth and reconciliation commissions. But prosecutors and investigators are too aloof, too stubborn, too underfunded or too corrupt themselves to receive the training they need to undertake such complicated investigations, observers say.
“Prosecutors and the system as a whole needs more expertise in tracking down financial crime,” Tom Peebles, legal adviser for the U.S. Embassy, said at the Centre for the Study of Democracy forum.
Here some change of mentality is necessary on the part of the courts as well. Roumen Nenkov, vice president of the Supreme Court of Cassation – the last court of appeals in Bulgaria – was not very sanguine about bringing Bulgaria’s former communist leaders to justice. “They didn’t need to steal from the country, as all the country was theirs,” Nenkov said. “We have a rule that you cannot convict they guy when something has not been criminalised. Some things cannot be detected at all-the way they trafficked money from the country.”
When US authorities couldn’t nail American gangsters in the 1920s on serious crimes everyone knew they committed, like murder and racketeering, they went after them on lesser charges, like tax evasion.
One can see why Europe might be concerned. The deputy director of the Ministry of the Interior’s National Service for Combating Organised Crime, Ivan Yovchev, admitted that more heroin is trafficked through Bulgaria than other European countries. He added, however, that Bulgarian users can’t handle even the amount of drugs his officers seize. The extra, therefore, is landing in places like Amsterdam, Frankfurt and Paris. “These are crimes that rise to the level of being a problem in other European countries,” Yovchev said.
Even when Bulgarian officials take action to satisfy EU demands, it's an uphill battle. On Thursday, proposed penal code reforms fell by the wayside as Justice Minister Anton Stankov, SJC members and Prosecutor-General Nikola Filchev quibbled over how they didn't have time to review the documents. Stankov has said Bulgaria will institute a package of reforms by the end of the year. Not at this pace.
Adding to the inertia is a personal feud between Filchev and the President of the Supreme Court of Cassation, Ivan Grigorov. The two were once friends, but their relations soured in recent years. Filchev has ordered probes into construction work overseen by Grigorov at the Justice Chamber building on Vitosha Boulevard, the implication being that the judge might somehow be profiting from the project.
In March, Filchev kicked court workers out of some rooms in the building, saying the space was being transferred to his office. The court workers acknowledged they were supposed to move, but said they needed more time to pack documents and equipment. It was an unseemly episode, the prosecutor forcing clerks to interrupt court business because he wanted space for his staff.
Supreme Court of Cassation Vice President Nenkov, who is widely seen as representing Grigorov’s view in public, has since fired back. “The institution of the investigators and prosecutors was infiltrated by the communists,” he said. “The prosecutor is acting like a party now. It is high time to say the problem relates to the constitutional place of the prosecution.”
Bulgarian prosecutors should be part of the government, just as they are in many Western countries, so they are more accountable to the public, Nenkov said.
Filchev’s office did not respond to numerous requests for a statement. But in April he spoke to Bulgarian National Radio, echoing two themes observers say he’s sounded in the past. First, he criticised judges for not convicting criminals often enough when prosecutors bring cases before them. Second, he defended himself against press reports that highlight his spotty record of convicting high-profile criminals.
“It’s necessary to secure the inevitability of the penalties, to secure the justice of the penalties,” he said. “It will take a lot of competent efforts which are not related to announcements for the media, conferences, press conferences and reports.”
The media might not be as deliberative as a courtroom when it comes to judicial reform, but the press might eventually shame Bulgarian authorities into taking action if they continue to cover more embarrassments like that involving Brankovic.