The Atlantic Club of Bulgaria held a virtual conversation on the rule of law in Bulgaria on 28th of January with the U.S. Embassy’s Resident Legal Advisor Ms. Jessica Kim. Ms. Kim was interviewed by the Vice-President of the Atlantic Club Ambassador Elena Poptodorova. We share with you some key outputs from the discussion.
Ms. Jessica Kim on her tasks and goals in Bulgaria
⇒ Bulgaria is one of the United States’ top allies. We enjoy a strong partnership in many areas, including our shared values on the principles of democracy, individual liberty, and the rule of law. These shared values make our countries stronger and more resilient to those who seek to threaten or divide us. The United States is committed to working with our allies to uphold our democratic commitments, including on rule of law and corruption. Strong rule of law is critical for economic growth and success, especially for foreign investment. President Biden has long recognized that corruption is a national security issue. For example, corruption makes countries more vulnerable to, among other things, foreign intervention. These principles (democracy, individual liberty, and the rule of law) are what drive my tasks and goals here in Bulgaria.
Comments on the European Commission’s 2020 Rule of Law Report for Bulgaria:
⇒ The 2020 rule of law report for Bulgaria found several challenges. The accountability and criminal liability of the prosecutor general was one of many rule of law challenges identified. Other challenges, included the composition and function of the Supreme judicial council, a lack of judicial independence, very low level of public trust in anti-corruption institutions, lack of independent media, and some checks and balances issues like limited public consultations in the legislative process and a narrowing space for civil society. I emphasize these because addressing just one challenge will not solve all of the rule of law issues. For reforms to be effective in any country, they must be comprehensive.
What elements of the US federal and state level prosecution set up could be a useful model for Bulgarian reforms?
⇒ I would recommend a fundamental shift in thinking about the roles of judges and prosecutors in order to increase judicial independence. So for example, creating separate councils for judges and prosecutors, rather than having one Supreme judicial council with the judge’s college and prosecutor’s college, would increase judicial independence. For practical reforms, I recommend two elements from the American system: first, give prosecutors and investigators the tools they need to build stronger cases. My understanding is that the Bulgarian criminal procedure code is from 1968, which means that it’s 53 years old. It is based on communist penal theory and practice, and it has to be modernized to reflect the democratic system. Second, increase cooperation between investigators and prosecutors to build stronger cases. I cannot stress the strength of a taskforce approach enough in which investigators and prosecutors from all services and all levels work together from the very beginning of a case. This type of approach builds strong cases that sustain convictions.
What are the main institutional and political challenges in tackling the “endemic corruption”?
⇒ Persistent rule of law challenges are hindering Bulgaria’s success. What’s missing is the security and confidence that Bulgarians will be treated fairly and predictably under the law. And this is exactly what foreign investors look for, too. Because despite Bulgaria’s natural riches, foreign direct investment remains a tiny fraction of the country’s GDP, all while those with connections grow wealthier and violate Bulgarian law with impunity. A significant lack of political integrity and insufficient levels of transparency at various levels of the political system have undermined rule of law over decades. Steps to undermine judicial independence have weakened Bulgaria’s ability to prosecute high-level corruption. Then you add in oligarchic influence, issues of conflicts of interest, abusive state resources, and a lack of media independence, and one understands why Bulgaria remains the EU’s highest-scoring country for corruption. For Bulgaria to reach its full potential Bulgarian leaders, no matter what party or level, must first respect the rule of law.
I think that accountability starts with Bulgaria’s leaders in every party and at every level to support the principle that no one is above the law, including themselves. Bulgaria’s leaders must then properly address their people’s demands for justice and rule of law to increase faith in its democratic system. They must ensure that reforms follow these principles, committing to a non-partisan functioning judicial system and effective anti-corruption mechanisms.
Ms. Jessica Kim’s assessment of the results of criminal investigations against senior government officials in Bulgaria for corruption-related crimes over the past five years?
⇒ Bulgaria is often criticized for its lack of high profile corruption convictions. The reasons for such results are outlined in the various international reports, including the European Commission’s annual rule of law report, the Venice Commission’s opinion, and the Council of Europe’s reports. These reports have identified the main political and institutional challenges that I mentioned before. Put simply, the judiciary is not independent. Steps to undermine judicial independence have weakened Bulgaria’s ability to prosecute high-level corruption. There’s a lack of political determination to tackle these issues. Bulgarian leaders at all levels know what is needed for real change, but there has been no meaningful change. All leaders of all parties and at all levels must be courageous to stand up for what is right, to invoke plans that will produce real results.
Comments on the US judiciary and rule-of-law system hardest test in the last presidential election.
⇒ No country is perfect, including us. When we speak out for important issues like human rights, media freedom, or judicial independence, it’s not because we’re perfect at home. We certainly have lessons to learn. But repairing democracy at home is not incompatible with standing up for democracy abroad, they are mutually reinforcing. It’s because we’re mindful of the work that we still need to do, and what is still needed to be done, and because our history has taught us that democracy must be defended if it is going to endure.
Main points from the discussion:
⇒ Bulgaria is one of the United States’ top allies and our Alliance is an Alliance grounded in our shared values. Bulgaria can become even stronger by upholding its democratic commitments, including on corruption and rule of law. Bulgarians can stop corruption. We’re here to help, but ultimately Bulgaria’s strength is our strength.