ANTI-CORRUPTION PRESSURE GROUP PROJECT

RESULTS OF THE LEGAL ANALYSIS

The basic aim of the project Anti-Corruption Pressure Group in its legal format is to approach Prosecutor’s Office with articles about corruption published in the Bulgarian press, of which there have been no indications in the public sphere that the Prosecutor’s Office has referred to.

The idea has been incited by the sure fact that in spite of the text of Art. 187 (1)(1) of the Penal Code (PC), according to which “articles, notes and letters about a committed crime, published in the press, are a lawful reason for initiating preliminary proceedings”, there is no legislative text to oblige the Prosecutor’s Office to monitor the press, and, on the other hand, that is not always possible. As the press in the last few years has abounded in articles about cases of corruption in all spheres of the state, political, economic and social life, which remain uninvestigated or unpunished, which is by itself a strong irritating factor in the public opinion, and provides food for the legislative nihilism, the Anticorruption Pressure Group takes over the function to refer press publications to the Prosecutor’s Office, as well as to the Public Internal Financial Control Agency, and other institutions.

To this end, as a first step, the project envisages monitoring on the press and some electronic media for materials containing information about corruption.

The materials are subjected to a legal analysis. Those, which contain grounded enough assumption of a committed corrupt act, are submitted to the Anticorruption Pressure Group for discussion. The Group issues a statement whether the case will be referred to the Prosecutor’s Office, or to another juridical institution, or not.

The legal analysis of the articles about corruption is carried out along the following criteria:

1. The formal criterion:

There has not been an inquiry by the competent legal institutions – the police, the investigation, the National Investigation Department, the National Police Department, the National Department for Combating Organized Crime, the Prosecutor’s Office, there have not been any lawsuits, checks by the Court of Audit or by the Public Internal Financial Control Agency (PIFCA). Articles containing information about prosecutor’s cases which have been prolonged for years, violating procedure deadlines stipulated in the Penal Code, are included in the legal analysis and are an exception to the above rule.

2. Essential criteria:

The articles should contain “enough data”, according to Art. 190 of the Penal Code, that a crime of corruption has been committed, that is, when a well-grounded assumption can be made that there has been an abuse of economic, political or administrative power with a view to private benefit. An essential condition is the estimated degree of public threat and damage from the act of corruption, especially when it is a matter of infringement of public interest when managing public resources in the social sphere, healthcare, and education.

The analysis of the articles about corruption after the monitoring of the media, however, shows that the publications usually do not contain enough data about in the capacity of what the perpetrator has committed a corrupt act, which laws or other acts have been violated, what exactly his/her benefit is. Most of the allegations of the authors of articles about corruption simply go down to the categorical statement that there has been an act of corruption, and that the public interest has been infringed. Few are the journalistic allegations supported by facts, collected according to the rules, adopted in the journalistic practice, that they must be checked by independent sources and that the objective truth must be sought out.

Another weakness of the articles about corruption is their one-sidedness: quoting mainly statements of the Court of Audit or PIFCA, or even prosecutors’ decrees. Categorical allegations of corruption, which do not contain facts about one’s private benefit, obstruct the ascertaining of a corrupt act and its legal qualification. From a legal point of view, to talk about a crime of corruption, it is necessary to find out whether there has been a private profit for the person who has abused his/her administrative, economic or political power, thus infringing the public interest.

Another weakness of the articles about corruption is that often they do not make the difference between violation of the law, going round the law or not observing the imperative norms of the law when taking an administrative decision, and in any case, when the investigating institutions find out that an administrative decision has been taken incorrectly, the journalists announce it a corrupt act.

The emphasis of the investigating journalists is laid mainly on the public reaction to the corrupt act, instead of looking for the objective truth. Referring to statistics about to the great number of unrevealed crimes or not sentenced persons, in the context of the conclusion about the slow jurisdiction, also ignites the public opinion. This stimulates dangerous appeals to limit the legal rights of citizens and increasing the rights of the repressive institutions with a view to combating crime.

Taking into account of the above, the Anticorruption Pressure Group sees its role in mediating and control on the process of jurisdiction: whether the legally-binding deadlines or lawsuits are deliberately prolonged for certain political or economic interests, which are foreign to the penal proceedings. Thus a considerable part of the work of the Anticorruption Pressure Group involves sending letters to the Supreme Cassation Prosecution (SCP) asking about the course of lawsuits, which periodically appear in the focus of public attention, due to the serious infringement of the state and public interests, as a result of economic malpractices, including corrupt acts. Unfortunately, the response of SCP is normally limited to the phrase that investigation is going on, and that SCP have given their instructions to speed it up. On the other hand, the prosecution is particularly active when it is a matter of investigating about former senior civil servants, members of the cabinet, heads of agencies, Members of Parliament, etc., people without political protection. Within the project we have found out that in all cases whenever we have sent letters to SCP, containing data about an act of corruption, committed by former ministers or deputy-ministers – former senior civil servants, in general, the prosecution has quickly issued instructions for immediate investigation. The cases of abuse of authority at the Ministry of Agriculture and Agriculture State Fund concerning Ivan Kostov’s cabinet, which we sent to SCP, were attached to the files of the lawsuits against the former Minister of Agriculture, Ventsislav Varbanov. For example, the acts of corruption, committed by the former President of the State Agency for Youth and Sport (SAYS), Simon Spassov, were investigated, and preliminary proceedings were launched.

On the other hand, the cases of corruption, committed by current senior civil servants, take too long in court. On each one of them proceedings have started at SCP, yet by this moment we have not received any information about the course of the cases.

Meanwhile, the prosecution feels obviously reluctant to comment information about corruption, related to representatives of the ruling majority. Thus, for example, the prosecution refused to provide us with information about the course of the prosecution investigation about the findings, included in an auditing act (covering the period 1999 – 2000), concerning allegations about gross violations, including corruption, committed by the Chairman of the National Assembly, Prof. Ognyan Gerdjikov in his capacity of assignee of bankruptcy at the bankrupt Agrobusinessbank, which were widely covered by the Bulgarian national press. Though we have sent several letters to Prosecutors’ Offices (both to SCP and to the Regional Prosecutor’s Office in the city of Plovdiv), asking whether an inquest had been filed, to what phase the preliminary proceedings had come to, respectively, by this date we have not received any answer. The immunity, enjoyed by the Chairman of the National Assembly, obliges even to a greater extent the investigating institutions to throw some light on the results from the investigation, carried out by Plovdiv Regional Prosecutor’s Office. Both media and the public at large have the right to know whether the Chairman of the National Assembly has been involved in an act of corruption in his function of an assignee in bankruptcy. Our insistent inquiries on the question were a reason for a special meeting at SCP. At this meeting, we were time and again warned the legal restriction to reveal information about launched preliminary investigations.

Neither was there an answer to our letters about cases of corrupt practices of current Members of Parliament and members of the cabinet, prior to their entering politics.

Within the project, we sent letters about two cases of corruption referring to Members of Parliament from Simeon II National Movement Parliamentary Group in the 39th National Assembly: demanding and receiving bribes; about six cases of corrupt practices of ministers from Saxe-Cobourg-Gotha Cabinet, related mainly to malpractices with transactions, which were concluded violating the Public Procurement Act (PPA). After our notification, SCP initiated preliminary proceedings, yet so far we have not received any information whether the prosecution has revealed a committed crime. Only about one of these cases we know that the Economic Police Department has been assigned to carry out an inquiry to find out the state of affairs.

The analysis of the articles about corruption, enclosed in the letters to the prosecution, reveals that the most common crime of corruption, which has attracted the media attention, is abuse of authority, according to Art. 282, and the next, from the Penal Code (PC), committed by officials, who have consciously violated, or unaccomplished, respectively, their official duties, or have exceeded their authority, with the purpose to provide a benefit or infringe a damage, as a result of which significant harmful consequences have occurred, or could have occurred.

We have sent to the Prosecutor’s Office information about six cases of corrupt acts, committed by former and current heads of state agencies, six cases of corrupt acts, committed by deputy ministers and heads of agencies from Ivan Kostov’s cabinet, two cases of corruption at the National Health Insurance Fund (NHIF), two cases of corruption, committed by officials at the Hygiene-Epidemiological Institute (HEI), thirteen cases of corruption, committed by customs officers, two cases by senior officials from the system of the Ministry of Interior, two cases of corruption, committed by officers from the Ministry of Interior, five cases by senior officials managing budget funds (at the NHIF, with the judicial institutions, etc.). Part of the allegations do not contain a description of the corrupt practice, they mostly refer to facts that certain managerial decisions have been taken while violating legal procedures. We have reviewed complicated juridical cases, in which a criminal breech of trust has occurred accompanied by other corrupt practices. Most numerous are the cases of corruption of demanding and receiving bribes. The media abound in articles about cases of corruption of demanding and receiving bribes, when the accused person has ignored his/ her obligations and has demanded or received undue profit to do (or not to do) something, which is part of his/ her professional obligations. The media most often write about bribes, which have been demanded and/ or received by policemen, traffic policemen, customs officers, doctors, representatives of HEI, as well as officials, responsible for issuing permits and licenses. As the prosecution has started a thorough investigation of the privatization transactions, under the project we have analyzed only three cases, related to corruption practices in the privatization process. We have also reviewed five cases of corrupt practices related to violation of concession contracts. Apart from that, we looked into the granting of concessions on the cleaning services in Sofia to three companies-concessioners. We analyzed the concession contracts and the accompanying documentation (which we collected using the procedure under the Law on Access to Public Information), without finding a corrupt act.

In the last year, there have been a growing number of articles describing cases of corruption, related to violation of the public procurement legislation. With these cases, the most frequent practice of the media is to offer, instead of their own investigation, a synopsis of reports of the Court of Audit, conclusions of audit and revision reports and prosecution decrees, not even mentioning their source of information, or mentioning it just by the way, using abbreviations.

Under the project, we have notified the Prosecutor’s Office about the articles about violations of the public procurement procedure in concluding contracts by NHIF, by the Council of Ministers (three cases), some ministries, Agriculture State Fund, state companies (ten cases), the Bulgarian National Television (BNT) – two cases. Under the project, we analyzed articles about corruption in the system of the Ministry of Defense, related to the conversion of the military objects, as well as illegal classifying of public procurement procedures, so that the contracts went to companies close to the assigner. A popular corrupt practice in managing budget organizations and public resources is the violation of the Public Procurement Act, mostly by substituting the object of the public procurement, thus evading the open procedure of an auction or competition, and applying the procedure of direct negotiations. Part of the cases of corruption in managing hospital institutions and assimilation of European funds we reviewed did not contain “enough evidence” of committed crime, that was why we did not approach the Prosecutor’s Office, and went on following their media coverage. There have been violations in assigning public procurement services in all spheres of state government. Thus, for instance, under the project we have approached the Prosecutor’s Office about cases covered by the media: corrupt violation of the Public Procurement Act by the Chief Public Prosecutor in his capacity of assigner of public procurement service – repair works of the floor of the Court of Justice accommodating the prosecution; corrupt violation of the Public Procurement Act by the General Staff of the Bulgarian army organizing an auction, which was illegally classified; violation of the Public Procurement Act by the Minister of State Administration in concluding a contract for the purchase of an expensive product from Microsoft for the state, the municipal and the regional administration without calling a competition.

As the control on the lawfulness of the procedures of the assignment of public procurement services is carried out by PIFCA, when the publications do not contain “enough evidence” of committed crime, we send motivated letters directly to PIFCA enclosing copies of the publications. As a result, PIFCA initiated an internal audit in the Bulgarian National Television after publications of a scandalous unbeneficial contract, which had been signed in violation of the Public Procurement Act. The procedures under the Public Procurement Act are open to judicial control, to check their lawfulness, by the Supreme Administrative Court (SAC), which gives good possibilities for counteraction to corruption by a broad circle of interested persons. A great part of the corrupt practices, however, are related to violation of the very procedure of announcing the services, with a purpose of receiving a material profit by the assigner. With this exactly, as well as with fixing the price of the service, and then in the course of implementation, and increasing the price or paying sums without accompanying expenditure documents, are related most of the corrupt practices, which are an object of journalistic investigation.

The analysis of the articles about corruption reveals that in the last year there have been a growing number of publications about corrupt practices, committed by public servants. Whereas the main corrupt act, which was an object of media attention, used to be related to demanding and receiving bribes, now the journalists cover corrupt practices, which result from a conflict of interests, when public servants make profit from private economic or public activity, as well as sale of official information, with the purpose of setting privileges in participation in auctions and competitions – acts, which have been done during their official mandate, and which are inconsistent with their status. Typical of these cases is that it is very difficult to come by evidence. What is striking is that the ministries and the budget organizations rarely take up action to reveal corrupt practices related to violation of the Public Servant Law. The publications about gross violations of the Public Servant Law, which do not fall within the range of the Penal Code, we enclose to motivated letters to ministers and heads of agencies, so that they reveal the disciplinary violations.

In the course of the project, we have found out that the society as a whole is insensitive to the phenomenon of conflict of interests, as a result of which there have been a large number of violations of the Public Servant Law from the point of view of the set principles of functioning as a public servant. We referred to the Minister of Education, Mr. Atanassov, concrete cases of corrupt practices, described in the national Bulgarian media. The cases were gross violation of consistency rules. We came upon corrupt acts, committed by a functioning Deputy-Minister of Education, who was at the same time an author of decrees and of school textbooks, as well as the evaluator of the textbooks and their publishers, to whom he had sold official information, so that they published and released at the market in advance (before the new school programme was adopted) the textbook of which he was the author. We found out that there are a lot of publications about corruption, committed by experts at the Ministry of Education and Science (MES), who, as authors, co-authors, respectively, reviewers of school textbooks and reference books, are at the same time members of commissions for admission and evaluation of textbooks. The same commissions work out the new school programmes, decide the topics for entry exams. There are cases, when school inspectors recommend their own textbooks to be bought by schools.

Under the project, we have found out that there are corrupt practices in all spheres of state government, yet the series of publications in the national Bulgarian media about corruption in the system of the Ministry of Education and Science are staggering with their definiteness and concreteness. The examples of how public servants, during the term of their state job, receive payments on fulltime or part-time contracts with private companies, with which the Ministry of Education has had contacts, have brought about the conclusion that there has been a wide-range abuse of authority, misuse of information and public resources in the Ministry.

The analysis of the corruption articles, included in the report of the Anticorruption Pressure Group, shows that the majority of articles about corruption refer to the customs, Agriculture State Fund, the state veterinary control, the Ministry of Education and the Ministry of Healthcare.

Under the project, we have found out that the fight against corruption is the most efficient in the system of the Ministry of Interior. The Ministry of Interior has registered the most cases of corruption. As it is difficult to find enough evidence for each one of the corrupt acts so that they could enter court, and the corrupt official receives the due punishment, the Ministry of Interior seeks for administrative ways to punish their officials, accused of corruption.

The publications reveal that the biggest number of internal checks about corrupt officials are launched at the Ministry of Interior, and usually they end up with a concrete result, ranging from disciplinary punishment, including disciplinary removals from office, military prosecution investigations, and working out indictments, to lawsuits and even verdicts against corrupt policemen. Of course, the Ministry of Interior has a special mechanism and system of work, from receiving the signal, establishing the corrupt act to its operative realization.

The offices, which deal with issuing permits: checkpoints, passport departments, etc., are most susceptible to corruption. There are many cases of the so-called traitors – officers, who “sell” official police information they have access to, due to their official position. Information is revealed whether there is police investigation about a person going on, etc. It is a regular practice when a corrupt official “puts up an umbrella” – that is, conceals signals against a person. The analysis of the publications, included in the letters to the SCP, shows that most often the complexity in the investigation of cases of corruption comes from such an “umbrella”, which not only helps in committing a corrupt act, but further on also exercises pressure or hinders the investigation and the collection of evidence by the prosecution.

In general, the corrupt acts, committed by policemen, are characterized with a demonstration of omnipotence. Here there are cases when a bribe is received after blackmailing.

There are great many cases of corruption in the central executive power. Part of them can be defined as clientelism and receiving profit from acts, grossly violating the Law on Administration. Under the project, we have notified the Prime Minister about a case of conflict of interests, in which three deputy ministers were involved: they received unregulated payments for activities, which were part of their official obligations. As the status of deputy ministers is regulated by the Law on Administration, and they are appointed and dismissed by the Prime Minister, and their obligations are determined by a decree of the respective minister, delegating their rights and obligations, determining their function in carrying out the political programme of the government, when working out draft projects on normative acts and carrying out the obligations of the ministers, the practice to receive money for activities within the framework of their status is corrupt. Unfortunately, this case is widely spread among the members of the Bulgarian government.

Under the project, we have considered cases when Members of Parliament have received payments from private legal persons for working out legal positions to their benefit. Apart from being immoral, these activities are a clear example of conflict of interests. Although there is no law to regulate the inconsistencies in the obligations of the Members of Parliament, the interpretation of the Constitution leads to the conclusion that any payment for an activity, which implies interference in the executive authority, is a corrupt conflict of interests. We send the articles, describing activities of Bulgarian Members of Parliament, and which cannot be treated as cases of corruption in the Penal Code, according to the current legislation, yet are contradictory to the obligations of the Members of Parliament, according to the Constitution of the Republic of Bulgaria, to the Combating Corruption Committee in Parliament. As there is no legal definition of “inconsistency”, to the effect of Art. 68 (1) of the Constitution of the Republic of Bulgaria, according to which “Members of Parliament cannot fulfill an official job or to carry out activities, which is, according to the law, in contradiction with their position of Members of Parliament”, our aim is to exert public pressure to initiate working out a set of rules of ethic behaviour of the Members of Parliament.

Cooperation with the Supreme Cassation Prosecution

Under the project, the materials about corruption, after a decision of the Anticorruption Pressure Group, are sent to the SCP in motivated letters and enclosed photocopies of the journalistic articles. By 30th November 2002, we sent 76 cases to SCP. Initially the letters were sent to the respective prosecution institution concerned, but following a meeting with representatives of SCP, the Group adopted the practice to notify SCP. This was also spurred by the fact that a big part of the cases of corruption, covered by the Bulgarian media, refer to activities carried out by senior representatives of the executive, legislative and judicial authorities, concerning persons, who enjoy immunity, and others, which lie within the competence of SCP. On the other hand, our experience in the first month under the project, when we directly notified Bourgas Regional Prosecutor’s Office, Plovdiv Regional Prosecutor’s Office, and Sofia City Prosecutor’s Office (SCPO), and received an answer only from SCPO, showed that the competent prosecution offices are not inclined to provide information without the sanction of SCP.

SCP has initiated proceedings on each one of the 76 cases, we have sent materials about. SCP has assigned inquest to be carried out by the competent prosecutor’s office on 37 of these cases. Twenty-three of the cases have been assigned for investigation by Sofia City Prosecutor’s Office, two of the cases have been assigned for investigation by Bourgas Regional Prosecutor’s Office, five of the cases – to Rousse Regional Prosecutor’s Office, one – to Plovdiv Regional Prosecutor’s Office, one – to Veliko Tarnovo Regional Prosecutor’s Office, one – to Vidin Regional Prosecutor’s Office, one – to Smolyan Regional Prosecutor’s Office, one – to Varna Regional Prosecutor’s Office, one – to Vratza Regional Prosecutor’s Office, one – to Haskovo Regional Prosecutor’s Office, and one – to Byala Slatina District Prosecutor’s Office. As a result of the investigation for clarifying the circumstances, described in the journalistic articles, there have followed eight prosecutor’s statements of refusal to initiate preliminary proceedings and the cases have been terminated. On seven of the cases there have been initiated pre-court proceedings. On one of the cases, as a result of the materials sent by the Group, SCP has decreed that the inquest must be sent back for further precision, and has specified to prepare and send a court order to Cyprus. On their turn, the competent prosecutor’s offices have assigned additional inquest to the competent police authorities on the initiated proceedings.

Half of the refusals of the prosecution to initiate preliminary proceedings were not motivated enough, therefore the Anticorruption Pressure Group was left with the suspicion that the prosecution had not carried out an objective enough and thorough investigation, and had not collected enough evidence to support the prosecution, although such evidence had been given by the authors of the articles revealing the corrupt act.

Three of the refusals were motivated with the fact that senior customs officials, who had been accused of corruption, had been dismissed, by virtue of the Public Servant Law, without being given a disciplinary punishment, so the prosecution had not considered necessary to carry out an inquest and collect evidence about the allegations of corruption (private benefit from non-commitment to official obligations, which brought about harmful effects) formulated in the publications.

The reports under the project include cases, which were covered by all the national media for months on end. Among those were cases of corruption and abuse in institutions for children and people suffering from mental disability, of corruption in import and export of meat, of corruption of HEI. Part of these cases involved scandalous findings, and as they were supported by numerous concrete facts of criminal benefit and harmful effects to budget organizations, we were surprised when we found out that the prosecution had not been self-notified, and took up action only after our signals. The conclusion is that the regional prosecutor’s offices very rarely initiate inquest in cases of corruption that have been covered by the media.

As a result of the activities of approaching the prosecutor’s offices under the project there has been another concrete effect: on a number of cases, the media reported had been prolonged violating the procedure deadlines, the materials sent by us were added to the already initiated cases by the prosecution, which gave grounds to the prosecution to assign additional inquest by the competent prosecutor’s offices. On one of the cases, of particular juridical and factual complexity, due to the fact that the activities in question were violations of the law, interpreted in different articles of the Penal Code, including corruption of police, customs, judicial and other institutions, a court order was decreed and sent to Cyprus. The case has been speeded up and SCP follows whether procedure deadlines are observed, and we are periodically informed.

The analysis of the letters from the prosecution about the cases we have approached it with, reveals that the quickest is the inquest about corruption allegedly committed by public servants of lower rank. On the other hand, it takes a long time to investigate allegations of corrupt activities, committed by senior representatives of the executive, legislative and judicial authorities. With the exception of a number of cases against members of the former government, which were completed in time and the indictments were brought to court. In all the rest of cases, the inquest has taken a long time, the cases themselves move very slowly from one investigating institution to another. The procedure deadlines for pre-court proceedings are prolonged. As a result, under the project, from the beginning to date, not a single indictment has been prepared. On one of the cases, we have been expecting information from Bourgas Regional Prosecutor’s Office, which is to prepare an indictment on a case of passive bribe by an official at HEI. On some of the cases, the materials, sent by the Group, have been attached to other cases of inquiry, on which there are indictments, which have been brought to court. The protraction of cases created conditions for covering up evidence, especially if the case is mingled with corrupt participation of a person, who has access to the materials and deliberately prolongs the inquest or conceals the case. The protraction is not always due to the activity (or inactivity) of the investigating institutions, although we have had cases when obvious evidence of the alleged corrupt act has not been taken into account. Particularly bewildering was the information, published in a daily, that the investigation on allegations of corruption in a concession contract, the violation of which had brought about enormous damage, took a long time, as the collection of evidence was extremely complicated, and by that time only parts of the concession contract had been gathered. Non-commitment to prosecution obligations, concerning collection of obvious evidence, brings out the conclusion that there are cases, which are deliberately prolonged for political reasons, incompatible with the essence of the penal procedure, and not because of their factual or judicial complexity. The work under the project brings to the conclusion that the greatest weakness in the work of the prosecution lies in the protraction of cases. The reasons, on the one hand, are purely technical. The cases, which are of factual and judicial complexity, take a long time to investigate, evidence is difficult to gather, the movement of the case along the different offices of prosecution is also very slow. On the other hand, the slow movement of the prosecution cases is associated with the fact in a number of cases, the prosecution, in the course of investigation, apart from the legal means, uses also political ones (political orders, aiming at intimidating and keeping certain persons dependent, on account of compromising materials).

The work under the project as a whole is particularly effective. By sending materials about corruption to the Prosecutor’s Office, to PIFCA, and other institutions, we contribute to the revealing of crimes, which have been committed by gross violation of the laws and the public interest.