The European Commission slammed Bulgaria over the lack of any progress in judicial reform and expressed concern over the extensive influence and lack of accountability of the chief prosecutor in its rule of law report released on July 20.
Other Southeast European EU members were also singled out for criticism on various issues, including media freedom in Slovenia, judicial independence in Croatia and delays in reversing controversial changes to the justice system in Romania.
The reports on the 27 EU member states were published amid efforts by Bulgaria’s caretaker government to remove chief prosecutor Ivan Geshev, a highly divisive figure whose controversial appointment and subsequent actions sparked months of mass protests.
Geshev was the sole candidate for the chief prosecutor post in a much-criticised process run under the former government led by Boyko Borissov’s Gerb party. He was appointed despite high-profile scandals such as the failure to deliver significant results in a trial concerning embezzlement at one of Bulgaria’s biggest banks, Corpbank, staging an action movie-style arrest of a Sofia district mayor and raiding the offices of an independent publisher.
Since his appointment, Geshev’s actions led to further criticisms, most recently over the prosecutions’ thwarting of efforts by the caretaker government to probe numerous cases of suspected corruption under the former Gerb government. This led to an open conflict between state institutions, pitting Geshev against President Rumen Radev and the caretaker government.
The European Commission report was released days after caretaker Justice Minister Yanaki Stoilov said he will propose to the Supreme Judicial Council (SJC) to dismiss Geshev after Interior Minister Boyko Rashkov said the chief prosecutor had broken the law.
Stoilov said he has summarised the violations made by Geshev. “They concern disclosure of pre-trial proceedings using special intelligence tools, lack of unified criteria for investigation of individuals taking high state positions and others,” Stoilov said.
The move is unlikely to lead to the dismissal of Geshev as he is believed to have a majority of supporters in the SJC, which is due to vote on Stoilov’s request in the coming days.
Bulgaria has been criticised for years for not fulfilling the requirement to amend its legislation to ensure accountability of the chief prosecutor and allow independent investigations into the chief prosecutor, as well as for the lack of a track record of high-profile corruption convictions. Borissov’s government attempted to resolve the issue by introducing an ‘independent’ prosecutor to probe the chief prosecutor and his or her deputies, but this was declared unconstitutional.
“The combination of the powers of the prosecutor general together with his position in the Supreme Judicial Council results in a considerable influence within the Prosecutor’s Office, potentially in the Supreme Judicial Council (both in the Prosecutorial Council and in the Plenary) and within the magistracy,” the EC noted in the report.
The report noted that the law had other issues, identified by the Council of Europe, which concern the considerable influence of the prosecutor general, which may lead to control over the candidacies for the special prosecutor and on his or her appointment.
In March 2021, the Committee of Ministers of the Council of Europe urged Bulgaria to reduce the influence of the chief prosecutor within the prosecutor’s office, any potential influence in the SJC and within the magistracy, so to allow for the implementation of an effective investigation mechanism, including by extending the judicial review to any prosecutorial refusals to open investigations.
“The absence of judicial review against a decision of a prosecutor not to open an investigation raises concerns,” the report noted.Meanwhile, the
The EC report criticised the composition of the SJC, which is responsible for appointing the chief prosecutor. “Voting practice demonstrates the limited influence in decision-making of the peer-elected judges in the SJC and the potential influence of the Prosecutor General over the SJC. Notwithstanding progress made through earlier reforms, the situation of the SJC continues to be a source of concern for the Council of Europe and various stakeholders,” the report noted.
It also criticised Bulgaria over the low number of final high-level corruption convictions despite the increased investigative activity.
The report also noted that the level of perceived judicial independence in Bulgaria remains low among the general public and average among companies. Only 31% of the population consider it to be ‘fairly or very good’. The level of perceived independence among companies remains average, with 43% considering it to be ‘fairly or very good’.
“The level of perceived judicial independence has remained consistently low among the general public during the last five years. Among companies, the level of perceived judicial independence used to be very low until 2019 and ever since it remains average despite slight fluctuations,” the report reads.
Optimism in Romania
There was a more positive report on Romania, whose report from the European Commission was broadly supportive of the current government led by the National Liberal Party (PNL).
However, it noted that Romania failed to reverse the controversial amendments to justice laws passed by the Social Democratic Party (PSD) in 2017-2019 and furthermore pointed out more recent concerns about the stability and predictability of legislation.
In the absence of solid legislative and policy solutions to Constitutional Court decisions, there are increased obstacles and legal uncertainty for the fight against corruption in Romania, the European Commission’s 2021 Rule of Law Report on Romania reads.
The Commission remains confident the new ruling coalition will remove the obstacles, but noted that “the amendments to the justice laws, still in force, had a serious impact on the independence, quality and efficiency of the justice system”.
Increased institutional cooperation in the context of the elections in 2020 could mark a change of approach on the integrity for elected officials, the report reads on a positive note.
The Commission’s report also noted concerns on the stability and predictability of legislation. Among the main concerns is a Constitutional Court decision that apparently questions the principle of primacy of EU law.
“Following the ruling of the Court of Justice of the EU of 18 May 2021 on several aspects of the justice laws, the Constitutional Court gave a judgment on 8 June 2021, which raises serious concerns, as it questions the principle of primacy of EU law,” the report said.
Disappointingly for Bucharest, the report did not provide a calendar for the lifting of the Cooperation and Verification Mechanism (CVM) — a step that the government in Bucharest expects for this year ahead of full Schengen membership.
On the CVM, the EC concluded that “there is progress across all the remaining CVM recommendations and many are on the path to being fulfilled if progress remains steady,” but avoided mentioning any time horizon for the expected lifting of the mechanism.
The EC’s November 2018 report concluded that developments had reversed or called into question the irreversibility of progress and added eight recommendations to the 12 drafted in 2017. The Commission’s latest CVM report, adopted in June 2021, assessed progress on the 12 recommendations of January 2017 and the eight additional recommendations of November 2018.
Media freedom deteriorating in Slovenia
In the report on Slovenia, the current holder of the EU Council’s rotating six-month presidency, the European Commission said that the situation of media freedom and pluralism in Slovenia has been deteriorating.
“The independence of the media regulator is ensured by law but challenges remain regarding resources for its broad spectrum of tasks and commitment to further strengthen its independence. A revision of the media and audiovisual services laws is still pending,” the Commission said in the report.
Slovenia was also criticised for online harassment of and threats against journalists. “Concerns have been raised by national and international stakeholders following the refusal by the authorities to finance the Slovenian Press Agency (STA) for 2021,” it said.
The European Commission also raised concerns due to the failure of Slovenian authorities to timely nominate European Delegated Prosecutors (EDPs), adding that appointments of state prosecutors are unjustifiably delayed.
Presenting the 2021 Rule of Law Report, European Commission Vice President Vera Jourova and Justice Commissioner Didier Reynders called on the Slovenian authorities to ensure a stable financing of the STA, the agency reported.
Reynders also pointed to potential measures in the wake of Slovenia's non-appointment of European delegated prosecutors in autumn.
The report noted positive developments in Slovenian justice system, including on issues raised in the 2020 Rule of Law Report. It also assessed that the legal and institutional framework for preventing and fighting corruption in the country continues to improve.
Croatia’s judicial independence declining
The level of perceived independence in Croatia has been declining and remained the lowest in the EU, according to the rule of law report from the European Commission released on July 20.
“The 2021 EU Justice Scoreboard shows a continued downward trend since 2016. The main perceived reason cited by the general public for the perceived lack of independence of courts and judges is the perception of interference or pressure from the Government and politicians,” the report noted.
It also expressed concern regarding the ongoing process for appointing the new Supreme Court president, urging the authorities to cooperate.
“The process for appointing the new president has led to an intense exchange between highest representatives of state authorities, which included repeated negative statements about Supreme Court and other judges,” the report says.
Meanwhile, perceptions among experts and business executives about the level of corruption in the public sector remained high.
Croatia has also achieved only limited progress on the strengthening of the legal framework on prevention of conflict of interest since the 2020 Rule of Law Report.