Controversial Illegal Assets Forfeiture Act may turn out to be either a blessing or a curse
A phalanx of EU ambassadors, including those of the UK, Germany, France, The Netherlands and current EU president Denmark, lining up in a concerted show of support for a piece of domestic Bulgarian legislation and the political party (GERB) that introduced it? The American ambassador sending strongly-worded press releases to assert his unequivocal support for a Bulgarian law? Just stopping short of saying "... or else!"
I rarely write in the first person singular, but the events surrounding the adoption of the Illegal Assets Forfeiture Act in early May were so extraordinary, at least from the perspective of the democratic procedures and practices in Europe, that I thought I would speak my own mind ‒ and make a point of it.
The legislation in question is a bill that has been under discussion and compilation by the Justice Ministry and the ruling GERB for at least two years. It provides for the seizure of assets deemed to have been accumulated through criminal activities, without first securing a conviction in court. Under the new act, it will be up to the alleged criminals to prove the origin of their assets. To put it in another way, the individuals under investigation will have to prove they are innocent, not vice versa.
The so-called Venetian Commission, a Council of Europe consultative body on constitutional and legal affairs, has reportedly indicated that, if adopted, it would make Bulgaria the testing ground for similar laws to be enacted later in countries such as Serbia and Ukraine that have high corruption and crime levels but hope to accede to the EU.
Critics say that the new act may (and some say it will) be used for political and economic repression of opponents to GERB and its leader. They add that it will be extremely dangerous to leave it up to GERB and the prime minister to implement it, bearing in mind their handling of similar issues such as organised crime, election fraud and so on and so forth. One of the main points that critics feel particularly strongly about is the "presumption of guilt," a return to Communist-era practices that has nothing to do with legislation anywhere in the developed world.
Similar laws exist and are implemented in many EU countries and in the United States, but can it work in the highly corrupt environment of Bulgaria?
I think it can.
To justify my assumption, I need to bring up some historical background.
Bulgaria and its politicians have a long tradition of promising one thing and then doing something completely different. During the days of the Warsaw Pact and Comecon, the Bulgarian government said it was all in favour of detente and "good-neighbourly" relations, while it facilitated the free passage of narcotics and sold arms to rogue regimes in the Third World and to terrorists in Western Europe. When Communism collapsed and the wars in the former Yugoslavia started breaking out, Bulgaria said it would strictly abide by the international sanctions against the regime in Belgrade. In fact, many of the current millionaires in Bulgaria made their first millions by breaking these very sanctions, with the knowledge and often the endorsement, through kickbacks, of the agencies of the Bulgarian state. Other channels for illegal enrichment included ‒ some say still include ‒ political corruption, selling off public assets to private companies and individuals, cigarette smuggling and so on. The combination of all of these have led to a situation where corruption and organised crime have become deeply ingrained in the Bulgarian "way" of doing things. One politician famously said, as early as the 1990s, that "many countries in the world have a mafia. In Bulgaria, the mafia has a state."
Throughout Bulgaria's uneasy transition to democracy, there have been various bits and pieces of legislation, as well as various committees, subcommittees and agencies of the state, plus individual lawmakers and law enforcement officers appointed to fight organised crime. They have been successful to a greater or a lesser extent, in that some criminal elements have been apprehended. To put it in another way, they have won a few battles, but they have lost the war in that organised crime in Bulgaria has become so fused with the state that it would take a Herculean effort to disentangle the two 20 years on.
The amalgamation of organised crime and the state has had two obvious consequences. One, it has prevented the emergence of a genuine middle class with the ability to speak for itself and to protect its interests. Two, any democratic institution or practice in this country is still fragile, especially in the face of mutri, often backed up by corrupt officials, who will stop at nothing to get what they want. Truth be told, Bulgaria's "civil society," the guarantor of democracy, is still very weak, and in many instances non-existent.
Of course, Bulgaria in 2012 is very different from what it was in the 1990s. The severe economic crisis that the current government is doing nothing about will come and go (later rather than sooner), but what is a lot more worrying than the economy is the general feeling of depression, of a dead-end, of moral bankruptcy that has gripped the Bulgarian nation. It is true that the GERB establishment is doing what it can to dispel this through the creation of a parallel reality, mainly employing optimistic TV broadcasts showing a smiling prime minister inaugurating new kindergartens and sports facilities. But the Bulgarians who are increasingly having to scramble to make a living have little faith in these. Significantly, they are voting with their feet, because they have nothing better to look forward to.
Against this background of hopelessness, and the prevalent sentiment that "they, the politicians, are all crooks," the new Illegal Assets Forfeiture Act could work miracles.
It is very obvious that much of the wealth in Bulgaria has been accumulated through murky means and that some of the people who now fly private jets and enjoy a life of luxury in Sofia's suburbs should have been put in jail a long time ago. That they have not been has much to do with the police and the judicial systems, but not only with them. The main reason is the sometimes monstrously complicated world of "connections" and "links," personal "likes" and animosities, and intertwined political and economic preferences that have created a sense of impunity, embodied in a popular song as early as the beginning of the 1990s: "Steal a little and they put you in jail, steal a lot and they make you king."
In addition to the sense of justice being seen to be done, the new Illegal Assets Forfeiture Act may gradually restore the Bulgarians' confidence in the democratic system and the sort of values that their current government says it is upholding.
Of course, there will be pitfalls.
The main problem is this. None of the legislation passed in Bulgaria since 1990 was bad in itself. In fact, many of the laws are excellent by European standards. The trouble starts when corrupt and incompetent officials are responsible for enforcing them.
The examples are many and varied. Tax probes have repeatedly been used as a way of harassing competitors and political opponents. Some of these have resulted in ruined businesses. The thought of initiating and conducting a legal case will make the overwhelming majority of Bulgarians wince: the time and money it takes for justice to work can be an extreme discouragement. Then comes the issue of the police. Despite the police "victories" being trumpeted by the current political establishment, whose most senior members come from a background in the police forces and their predecessor, the Communist-era militsiya, the Bulgarian law enforcement agencies have spectacularly failed to solve even petty crime. The recent case of a murder in Pernik and its subsequent handling by the police indicate that Bulgaria's law enforcement still has a long way to go before it reaches any normal European standard.
So what guarantees do ordinary citizens have that the new Illegal Assets Forfeiture Act will not be used arbitrarily?
I think that in the Western ambassadors, lined up as they were to champion the new law, ordinary Bulgarians have an ally to protect them against their own government.
I am convinced that to ensure that the bill is enacted properly and no "collateral damage" is incurred along the way, the EU and the American ambassadors will make sure they are as meticulous about supervising the implementation of the law as they were when they pressed Bulgaria to adopt it.
A good place to start with the new law will perhaps be GERB's senior leadership and their formal and informal associates. There are at least a dozen senior GERB functionaries that the new law might find "operatively interesting." If GERB really want to leave their mark and consolidate their image as fearless opponents of corruption and organised crime, they should start at the head of the fish rather than at its tail.
In case there are any concerns that for any reason GERB may want to apply the new legislation selectively, then the EU and American ambassadors should again line themselves up in a concerted effort to supervise and, if need be, direct the implementation of the Illegal Assets Forfeiture Act.
If they don't, it will turn out that their show of support for Boyko Borisov was no more than a gesture. For its part, this new law could then cease to be a blessing in disguise and become a certain curse.