Mediapool Weekly: October 5 – October 11, 2019

Jock Palfreeman is held in custody against the law: official position of panel of judges, who granted parole, Consecutive protest against unopposed candidate for Prosecutor General Ivan Geshev

A reality check for the PM: Who is the referee and what is their job?

Jock Palfreeman is still under custody in Bulgaria. He is being held in a detention center for refugees, even though the court decided to grant him parole. The decision is final, although contested by Prosecutor General Sotir Tsatsarov. Regardless, there is no legal basis at the current time for Palfreeman’s continued detention. The authorities, which keep him in custody give out questionable justifications for their actions: that Palfreeman has no personal documents. The police detained him right after his release as an illegal alien (i.e. foreigner with no ID) and sent him to the Busmantsi detention center. But the Australian authorities said they had issued all the necessary personal documents to Palfreeman. The Bulgarian authorities in turn said that Palfreeman will not receive his documents before the Supreme Court of Cassations rules on Tsatsarov’s request to revoke the parole ruling. In effect, the police is countering the court’s ruling on account of the Prosecutor General’s disagreement with it.

The problem is that under Bulgarian law the decision for parole is final and even if the Supreme Court revokes it, until and if this happens the only legal reality regarding Palfreeman’s case is that he is free. It is straight forward enough: parole is granted, parole must be implemented. Under the law, Bulgarian authorities have no right to hold Palfreeman, period. Actually, they seem to be aware of this, as the official reason to hold him now is that he doesn’t have personal documents with him. But these documents – in a sense – are also hold by the same authorities. It’s a catch-22: they hold Palfreeman’s documents and keep him in custody for not possessing said documents.

But otherwise the law is clear. This is not a complicated and tangled case that calls for interpretation; there are no loopholes, which invite much debate. What does complicate the situation is not the law itself. It is the fact that Bulgaria does not function unconditionally under the rule of law. Which means, it doesn’t at all: if rule of law is subject to exceptions then the country is not one of rule of law, instead it merely provides it as an option.

The panel of judges, who granted Palfreeman parole issued a written position that keeping Palfreeman’s in any sort of custody is unlawful, as the court’s decision on the matter is to be executed immediately after being made. But the judges’ position in the case – tragically – is treated as no more than a regular opinion on the matter: baring no more legitimacy or footing as anyone else’s.

But this is only part of the problem. The more substantial and crucial element here is not the cracks in the legal process themselves, but who controls them. In other words, who decides whether to follow the law or not. And the answer is frightfully unambiguous: The Prosecutor General. Both by design and by virtue of his ambition to practice the power of his office over the whole of the country, the Prosecutor General is proving himself more and more a kind of an Executive General Overlord with a canyon of a void separating him from the next body or position of power in the country. All-powerful, unaccountable and untouchable.

Just a few days ago PM Boyko Borissov, actually admitted to the fact that Bulgaria is on a clear path to becoming a prosecutorial state. This is something, which all those critical of his governments and their consistent resistance to reform the office of the prosecution, have repeatedly stated and warned over the years. The PM declared this in a rather touching effort to express a critical position of the way the prosecution has conducted itself over the past decade. His criticism was – naturally – presented through a sports metaphor. That the prosecution has expanded its power from being the arbiter in the match to deciding the outcome altogether. The journalist opposite Borissov in this interview did not have a follow up to the disturbing revelation that the PM of over 12 years is unaware of one of the simplest of principles in any legal process.

Which leads to the other important point. If the prosecution is the cancer of Bulgarian governance, its sugar is undoubtedly most of the press. Apart from several exceptions, which make up the marginal group of independent journalism, the rest of the press is either a full-blown propaganda machine, too afraid or downright incapable of asking questions. Otherwise maybe one of the best-known news TV hosts in Bulgarian television might have followed up and asked whether the PM is aware that the prosecution is by definition a side in a dispute, not the arbiter. Let alone, one to expand on such a role. Maybe even go so far as to educate the PM that the role of arbiter is in fact fulfilled by the court, represented by judges.

But as per usual, the PM’s mistakes are such only on paper, in reality they ring painfully true. The Prosecutor General and his subordinates have unlimited and unaccountable power in Bulgaria. Borissov, in all his years in office, refused to change that. And this overly powerful Prosecutor General, who decided he doesn’t like a decision by a court, is practically reversing it outside the court and no one can do anything about it. The fact is Palfreeman is in custody regardless of the court ruling otherwise, and that is that. We might have laws, which constitute a rule of law, but the reality is different. The rule of law applies only if the Prosecutor General doesn’t decide otherwise. In this scenario the so-called rule of law principle in the case of Bulgaria is not so much a rule, as it is a null hypothesis in the context of the contesting sides not between prosecution and defense but between the Prosecutor General and the court.

Of course, the case of Palfreeman will inevitably land in the European Court for Human Rights, as have a disturbingly large number of others; Bulgaria will be sued, likely be accused and the taxpayers will pay the consecutive fine for the Prosecutor’s Office wrongdoings. No one from the Prosecutor’s Office worries about this and why should they? Their jobs and the office as a whole are entirely unaffected by these rulings. They could not care less.

To put it into terms the PM could grasp, one of the teams seized the referee, took over the position, used its powers to go after the opposing team throwing around yellow and red cards like a maniac, silenced the reporters covering the wrongdoings, sent teammates to take over the play-by-play announcers at the booth. This is roughly the state of the disbalance of power in the country, but it did not happen overnight. The PM’s three (!) governments ignored urges from the liberal right opposition to reform the justice system in order to make the Prosecutor General (at least) accountable. He also ignored the consistent criticism and recommendations to do the same by Bulgaria’s European partners.

In other news:

Consecutive protest against unopposed candidate for Prosecutor General Ivan Geshev

The consecutive protest against the unopposed candidacy for next Prosecutor General took place this week in front in the Sofia Court House. The protesters lit hundreds of lights and sang a popular song by the Bulgarian blues band Poduene Blues Band, whose title translates to Let There Be Light. The protesters demanded transparency in the procedure for electing current Prosecutor General Sotir Tsatsarov’s successor.

The Prosecutor’s Office has been on the top of the list of recommendations for justice reform by Bulgaria’s European partners, especially through the Cooperation and Verification Mechanism. Just as the next evaluation report is expected to be published by the European Commission, Justice Minister Danail Kirilov confirmed his pledge from a while ago to resign if the report does not lead to the conclusion of the mechanism. There is no realistic reason for this report to state anything different than those before, as for its 12 years, the Cooperation and Verification Mechanism has not seen any improvement in the most problematic areas: namely the unaccountable position of the Prosecutor General and overall failure in the fight against high level corruption and organized crime.

Opposers of the nomination of Geshev, who is Tstsarov’s right-hand man, say Geshev is the nominee of the mafia and pledged that if elected, they will formally inform the new European Chief Prosecutor Laura Kövesi, the Bulgarian National Radio reports. Tsatsarov personally nominated Geshev to take over the next seven-year term, which itself is a clear message that the Prosecutor’s Office is not planning any reform or changes in the increasingly alarming ways it operates.

The protesters point out that the problems with this nomination are many, not just Geshev himself. For one of the most powerful – arguable most powerful – position in the country, the procedure for electing a Prosecutor General is not transparent enough, is very far from any citizen control, and the position cannot have only one candidate. In their view, not only should the candidacy be withdrawn, but the whole procedure for electing a Prosecutor General should be reformed.

The next protest is scheduled for October 23: a day before the Supreme Judicial Council – the body, which elects the Prosecutor General – will vote Geshev’s nomination.

National Audit Office deleted key information from its audit of the National Revenue Agency

The audit of the National Revenue Agency by the National Audit Office, which took about two years, discovered a number of disturbing facts. In 2016 the NRA had pardoned 10 billion leva in outstanding taxes. By the end of 2016 the total amount of outstanding debts to the NRA amounted to almost 30 billion leva. 85% of those are either impossible to collect or extremely hard to collect, according to the NRA’s own estimates. The agency has assessed that only 3,8 billion of the nearly 30 are either partly collectable or fully collectable.

The audit report was released about a month ago but covers a period from January, 2013 until December 2016. Around the time the audit was taking place, in 2016, the agency managed to succeed in lobbying for an amendment to the law, which allowed it to pardon 10 billion of the debts, thus producing a more favorable statistic in the future.

Another important conclusion from the audit stated that the agency is the only tax authority in the EU, which does not conduct estimates of projected tax collection vs the actual amount of taxes collected for any given fiscal year.

But now Mediapool discovered that most of the tables with the most important information, which reveal the effectiveness of the tax authority in collecting taxes is deleted from the official report. Mediapool asked the National Audit Office to explain the reason for deleting the information. The office cited tax and confidentiality, although the statistics and other data, which were revealed in the audit report when it was presented a month ago did not contain any personal information, which is the only scenario where the issue of confidentiality is relevant.

Sofia Mayor Yordanka Fandakova narrowly leads opponent Maya Manolova: poll

According to pollster agency Alpha Research current mayor of Sofia Yordanka Fandakova is leading narrowly former national ombudsman Maya Manolova among Sofia voters. The poll was conducted between October 3-7 and estimates a turnout of 45,3%, which is about 4% more than the turnout in the last elections in 2015. According to Alpha Research, the turnout will be even higher, given the strong candidacies in the campaign.

Among the respondents, who declare they will vote for sure, 36,3 support Fandakova and 34,6 – Manolova. Third in the poll in the candidate from the non-parliamentary liberal opposition Democratic Bulgaria, Borislav Ignatov with 10,7. Alpha asserts he has potential to grow further his support, as at the time the poll was conducted, he was not as well known. Fourth with 6,9% is far-right candidate and former MEP Angel Dzhambazki, followed by the independent candidate from the NGO Save Sofia, Boris Bonev.

Far-right candidate for Sofia mayor challenged another far-right candidate to a fight

Far-right nationalist Volen Siderov, famous for his provocative stunts especially during election campaigns, challenged a fellow far-right nationalist from a different party to a fist fight. Siderov is the leader of ATAKA, one of GERB’s coalition partners, which was recently excluded from the nationalist coalition the United Patriots. Another party in this group is VMRO, whose candidate for Sofia mayor is Angel Dzhambaski.

Siderov wrote on Facebook that he invites Dzhambaski, “whenever and wherever he wishes” to a “physical fight with any means and consequences stemming from that” and to answer “why he wrote reports against me all year in the European Parliament, and also to declare if he is homosexual”.

Last week Siderov and Dzhambazki took part in a debate as mayoral candidates in the Bulgarian National Television. Then Siderov seized the debate and continuously shouted over the moderator and eventually had to be taken out by security. He shouted at Dzhambazki that he is gay. The Sofia Pride organization issued a letter of support to Dzhambazki the next day, encouraging him to be himself and not be ashamed of his sexual preference. Both Siderov and Dzhambazki are openly homophobic and regularly call for the banning of Sofia Pride.

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