Bulgaria is unquestionably the European Union’s rule-of-law basket case. Successive governments in Sofia have failed to reform its dysfunctional judicial system, corruption remains rampant and anti-graft measures against high-level officials would best be described as a charade.
Yet in November the European Commission concluded in its regular assessment of the state of the rule of law in Bulgaria and Romania that Sofia "has made significant progress on [EU] recommendations" in its fight against high-level corruption.
This assessment, made by the EU’s executive body under the Cooperation and Verification Mechanism introduced in 2007 especially for the two laggards, is shockingly positive compared to previous evaluations. And yet no high-level official or prominent businessman has been punished in Bulgaria to date despite evidence of rigged public tenders, extensive conflict of interest and outright embezzlement of EU funds.
Since 2012, the country’s score in the Transparency International Corruption Perception Index has not changed – its citizens (whose opinion TI measures) continue to think of their country as the EU’s most corrupt. The prosecution and anti-corruption authorities usually show a flurry of activity before the next assessment from Brussels, only to return to their routine of politically motivated actions. Organized crime is less visible on the streets but, arguably, only because Bulgaria’s accession to the EU offered a bigger pie to divide, reducing the number of conflicts between underground bosses.
So, what made Bulgaria the European Commission’s darling?
The short answer is - the approach of the Bulgarian authorities. In comparison with the cavalry attack against the rule of law in Poland, the total war against liberal democracy in Hungary and the brazen return to corrupt ways on the part of the Romanian authorities, Bulgaria’s guerrilla actions against EU oversight and pressure to make more reforms simply disarmed Brussels’ bureaucracy.
Fake it till you make itBulgarians have the custom of nodding for "No" and shaking their heads for "Yes", which frequently confuses foreigners. It’s a custom seemingly widely used by Bulgarian authorities in Brussels– they appear to agree, the EU officials think, but in reality their Bulgarian counterparts actually mean to disagree.
Bulgaria has never taken a staunch position on any piece of legislation or initiative coming from EU institutions, unlike Poland, Hungary or Italy. As a result, it scores a lot of positives from the European Commission. Several months ago, the president of the Commission, Jean-Claude Juncker, praised the Bulgarian government for listening to its advice. However, Sofia is no less frequent in breaking basic principles of democracy or public accountability.
Take immigration, for example. Bulgaria, sitting at the external border of the EU, has every interest in an EU-wide migration and asylum system. During its six-month presidency of the Council of the EU in the first half of 2018, its diplomats worked hard to reach a compromise between the member states.
But when it comes to accepting refugees, which is an inseparable part of the EU solution to the migrant crisis, Sofia follows a different book. Even though it accepted its obligation to accommodate some refugees and migrants, unlike Hungary or Poland which noisily disagreed, Bulgaria passively repelled asylum seekers by not making serious efforts to actually host them. The authorities welcomed only 60 people reallocated from Italy and Greece, where the bulk of immigrants land on EU territory, considerably fewer than tiny Latvia. Most of them spent several months in Bulgaria and then flee to richer EU countries.
The same approach could clearly be seen in rule-of-law issues. The European Commission presses for reforms, Bulgarian authorities make promises, and then nothing really happens. For example, an EU technical mission drew a report at the end of 2016 on the need to reform Bulgaria’s prosecution service. The prosecutor’s office promised to take it into account, but all they have done since then is pay lip service to Brussels’ recommendations.
Alternatively, the recommendations are seemingly followed but meaningful change on the ground rarely ensues. Or the result is far from the intended goal, which is best seen in the tortoise pace of reforms of the Bulgarian judicial and law enforcement systems.
Don’t control the judiciary, own it
To begin with, the judicial system has never been very effective or independent from political interference. This explains why the European Commission has been praising even the smallest progress as a great success. This approach contrasts starkly with its criticism of Romania, which, at least until recently, had an effective anti-corruption system, now dismantled by politicians feeling guilty. Or Poland and Hungary, which saw a major backtracking on rule of law issues. In short, compared to the transgressions of Bucharest, Warsaw or Budapest, Sofia’s misdeeds look manageable. However, this is fundamentally wrong.
Unlike its peers in Hungary and Poland, Bulgaria’s power elite doesn’t need to lower the retirement age of judges or change the constitution in order to stuff the courts with loyalists. That’s because it already has a considerable advantage over Victor Orban and Jaroslaw Kaczyncki. Both strongmen had to overcome the resistance of a live and kicking judicial system. Bulgaria’s has rarely shown character in opposing the powerful of the day and is easily subdued. And since there is no resistance, Bulgaria’s political elite can use deals difficult to trace behind the curtain to control and corrupt the judicial system.
The recently launched Specialized Criminal Court (SCC), which is supposed to tackle high-level corruption and organized crime, is а case in point. It is one of Bulgaria’s achievements, according to the European Commission. In fact, it is everything but. From its inception it has been clear that the SCC would be politically controlled. The sole purpose of creating it was to take over cases from unruly regular courts. Against this backdrop, most well-known and respected magistrates were demotivated to apply for positions and SCC was stuffed with judges and former investigators having limited experience, but higher political loyalty.
The practice shows that in identical cases where regular courts find no crime in the evidence presented by the prosecution and seek clarification or outright dismissal of the indictments, the SCC is far more sympathetic to the prosecution, especially when it comes to defendants who don’t toe the line.
As a result, instead of stepping up the fight against graft and organised crime - the thing the European Commission demanded from Bulgaria - the government invented an instrument for politically motivated investigations. While claiming to be following Brussels’ advice, Sofia actually additionally undermined the European Commission’s policies.
Who cares about the media?
Unlike Hungary, where a government-linked NGO now controls over 500 media outlets, or Poland, where the ruling PiS party openly contemplates expelling foreign investors in local media, the Bulgarian political elite can honestly declare it doesn’t interfere in media ownership. Quite to the contrary of events in Victor Orban’s Hungary, in Bulgaria the biggest newspaper publisher is controlled by an MP from the opposition – what better guarantee of freedom of speech, right? The two biggest TV broadcasters have foreign owners who pursue their business interests, not a political agenda. Not only that, but media can even hurt the powerful. Prime Minister Boyko Borissov regularly complains about the cartoons in the small daily newspaper Sega for depicting him in rather brutal ways.
Of course, this is a charade. Since 2008 Bulgarian newspapers have fallen one by one into the hands of one person – the MP from the Movement for Rights and Freedoms party Delyan Peevski, a largely obscure figure by that time.
With lavish financial backing from the now bankrupt Corporate Commercial Bank (Corpbank), by 2014 Mr. Peevski acquired or controlled (through loans and advertisements) over 80% of Bulgarian newspaper circulation. He also took over the distribution companies and the biggest printing house and holds an undisclosed interest in the biggest Bulgarian media shop. Separately, without having formal links to them, he exercised influence over two of the most outrageous media portals and two weekly tabloids, collectively known as the brown media, i.e. worse than yellow.
To foot the expansion, the biggest state-owned enterprises, mainly in the energy sector, deposited their checking accounts in Corpbank. In 2011 it attracted 77% of the free cash of state-owned energy companies, which gave it a strong financial leverage. Until Corpbank’s owner Tsvetan Vassilev and Mr Peevski fell out of love in 2014, this scheme worked perfectly.
The mechanism is not very original – something similar happens in Hungary, but at least formally, with no government participation. In 2012 the European Commission tried to look into the media concentration in Bulgaria or into possible state aid to Corpbank but since everything was done unofficially, it was difficult to untangle the scheme and Brussels decided to step back.
What is more important, though, is that the Bulgarian political elite and Mr Peevski live in symbiosis, a media-political complex. Major political parties know that they will receive his support when the right time comes and the media mogul is sure that his services will be well remunerated. For example, in 2013 his media group was instrumental in toppling PM Boyko Borissov’s first government. Several months later, companies connected to Mr Peevski received contracts worth two billion euro to build the Bulgarian section of Gazprom’s South Stream natural gas pipeline. In 2014, when political winds changed, Mr Peevski’s media again backed Mr Borissov, who won the elections, and provided the media mogul with an opportunity to legalize his assets. Until then he had denied having any business interests at all.
Control, however, is not everything. Long before current US President Donald Trump tried making mainstream media irrelevant by claiming they spread fake news, this had been achieved in Bulgaria. It was not only the "yellowization" of the news outlets that facilitated this. Mr Peevski and his media underlings pursued an intentional policy of mimicking some of the language of the established press with their pseudo-journalist investigations and reports. The news market soon became flooded with this copycat approach, leaving readers unable to distinguish between the news media and the propaganda machines. Very soon, trust in Bulgarian journalists, which had never been very high, hit rock bottom. This explains why Bulgarian politicians feel at ease at home to say and do things that would be regarded as outrageous in most other EU countries.
Without exception, all owners of media outlets that don’t follow the government line are being investigated by the Prosecutor’s Office.
In 2012 Ognyan Donev, owner of the biggest Bulgarian pharma company, following tax evasion charges, was forced to sell the two biggest national daily newspapers to investors sympathetic to the government. The publisher of Sega daily whose cartoons particularly anger PM Borissov, Sasho Donchev, was invited to a meeting with the Prosecutor General in a private office to discuss an investigation against his business. The publisher of Capital, Dnevnik and KQ, Ivo Prokopiev, is a target of never ending prosecutorial investigations that started back in 2001. In 2018, the competition authority prevented Modern Times Group from selling its NovaTV station in Bulgaria to Czech investor Petr Kellner. The official motives for the decision were related to the degree of media concentration but most probably the real reason was that Mr Kellner might not suit Bulgaria’s media-political complex.
In short, where Brussels requires genuine compliance with rules and values, Sofia successfully answers with its guerrilla tactics of informal sabotage or passivity under the guise of obedience. And there is nothing the European Commission can do to change this behaviour.
It can threaten to stop the flow of EU funds, as it did before, or it can blame and shame, but all this will only have a temporary effect and, as a result, the Bulgarian authorities will simply become more skilful in faking reforms. Trying to help Bulgaria reform is a quagmire and after twelve years of feeble monitoring the EU’s executive body looks more and more ineffective and pathetic. At the end of the day, EU officials know that the whole game is not worth the hustle.