The government has drawn up a list of 57 new measures against corruption and organised crime. Will they work?
Yet another new initiative to deal with old problems: this is what the 57 measures to continue the reform of the judiciary and the fight against corruption and organised crime adopted by Boyko Borisov's government at the beginning of September appear to be.
They are much needed. One of the reasons for the fall of the tripartite government was its total unwillingness to admit that Bulgaria had problems in its judicial system and, as a result, corruption and organised crime were thriving. Sergey Stanishev's cabinet chose to claim that such evils did not exist and the European Commission was simply incapable of understanding Bulgaria. His behaviour was like that of the teenager who says that his parents have grounded him for a month as a punishment, not because they caught him smoking, drinking and playing truant from school but because "they do not understand him."
Problem children sometimes make famous rock stars. Problem governments, like Sergey Stanishev's, lose elections and the countries they rule gradually become pariahs.
Will the 57 measures to reform the judiciary proposed by the new justice minister, Margarita Popova, succeed in turning a problem country like Bulgaria into an excellent student?
The document gets full marks for effort. On the one hand, it tries to respond literately to the latest European Commission report on the progress of Bulgaria in these areas. This is good. Finally, somebody has admitted that there is a problem, the first step on the way to finding a resolution. But it is just a first step.
On the other hand, the majority of Popova's measures involve changes in legislation. They are not yet set in stone, and at this stage it is hard to say whether they will really manage to change the status quo. What is evident, however, is that the authors of the programme clearly realise the importance of urgently curtailing corruption, and the extent to which organised crime influences political and economic life in Bulgaria. Her team apparently includes professionals who know what might work and what will not.
However, good will and knowledge alone are not enough. The success of the 57 measures depends on several factors.
The first is the extent to which the Supreme Judiciary Council will agree to cooperate with the government in the reforms and whether it will engage to implement the measures in the programme.
One of the oldest problems of the penal policy in Bulgaria is the division of responsibility. It is the government's responsibility to carry out reforms which will lead to a drop in corruption and organised crime. However, it can't pursue corrupt officials and gangland leaders. This is the responsibility of the judiciary and the Supreme Judicial Council, which can't be controlled in a democratic way because their members are not elected democratically.
The only way – in the past, now, and in the future – to make the judiciary fight organised crime and corruption is for the government to motivate it to do so.
There are a number of subtle and surreptitious ways to achieve this, but only two legal ones: manipulating budgets and making changes in the legislation.
"We have no money!" is a common complaint of those working in the judicial system and the police. The facts belie this. The penal and judicial systems in Bulgaria are over-funded and inefficient. The Interior Ministry and the prosecution service are over-staffed and receive a greater proportion of public funds than similar institutions in countries that have never had problems with organised crime.
The budget of the Interior Ministry and the prosecution service is a powerful lever that the government could use to implement their aims and exercise a measure of control.
At present, the so-called "programme budgeting" exists only on paper. It is of vital importance that it is put into action. The budget of the prosecution service and the police for 2010 should be tied to performance indicators showing that a higher percentage of serious economic crimes have been investigated. At present, Bulgarian taxpayers pay through the nose for a questionable service: the prisons are full of small fry. Most criminal cases that make it to court involve theft and – believe it or not – car accidents. This imbalance is at the very heart of the system. When the police and the prosecution service present the annual account of their work, they highlight the number of cases that went to court. To look important in the eyes of their countrymen, it is in their interest to report a large number of (minor) cases solved.
The productivity of these institutions can't be measured by these statistics, however. The increase in quantity (a lot of small cases) does not lead to changes in quality (greater security in Bulgaria). The police and the prosecution service must focus on fewer but more serious and dangerous crimes – and the 2010 budget could help them to do this.
Legislation, the second way the government can compel the judicial system to function properly, probably won't be a problem for the new cabinet. The necessary amendments to curb corruption and encourage the fight against organised crime will probably be passed easily with the help of the Order, Law and Justice party, Ataka and Blue Coalition MPs. All three political parties gained seats because of their anticorruption rhetoric.
There is a catch here, however. The government should not simply change the laws. It has to make the right changes.
The amendments to the procedural and material criminal laws will facilitate the work of the courts. But amendments alone can't motivate them to do their job better.
This is the remit of the Judicial System Act and the criteria that determine the career development of magistrates and judges. Staff policy is the main way to bring about changes. The Judicial System Act has to include sufficiently objective criteria for the evaluation of judges' work, and procedures guaranteeing that the Higher Judicial Council takes these criteria into account when deciding whom to promote and whom to punish.
Another area of the law where changes are essential involves guarantees that the executive and legislative powers conduct their business transparently.
At present, however, and this is particularly worrying, Minister Popova's programme does not include any guarantees that the parliament itself will not pass laws that serve private interests. The Citizens for European Development of Bulgaria, or GERB, government does have something to build on. Its predecessor adopted the basic principles of a new Statutory Instruments Act, which guarantees public access to the texts of all proposed bills, sufficient time for their public discussion and a compulsory preliminary impact assessment of the regulations by experts. These changes have to be introduced, not only in the Statutory Instruments Act, but also in the Rules of Organisation and Procedure of the National Assembly, which regulates the MPs' legislative initiative. Under previous governments, individual proposals by certain MPs could often drastically change the ideas behind any bill.
The new government has not stated clearly yet whether it will continue the reform of the legislative process itself. But its success in the fight against corruption largely depends on it.
The second major factor for making the 57 measures of the government a reality is Minister Popova's ability to combine the fight against corruption with that against organised crime. At present, the two activities, which are practically the two sides of the same coin, are separate. The strategy for fighting corruption, if anyone believes there is actually such a thing, is managed by the Council of Ministers and the former Ministry of State Administration. As for the strategy for fighting organised crime, it never existed. Since the Communist era, it has been a commonly held belief in Bulgaria that police work is a secret, the Interior Ministry knows its job best and there is no need for outsiders to mess in its affairs.
Corruption is only one of the ways in which organised crime exercises control over politicians and state officials. This is why the measures against them can't be treated as separate or parallel initiatives.
This is one of the strongest elements in the government programme: it finally stipulates the development of a common strategy. This means that the institutions which are responsible for the judiciary and those responsible for administrative reform will work together, led by the Ministry of Justice.
We will soon see whether it will all work. According to Popova, the first results from the attempt to turn the problem child Bulgaria into an A student have to be visible by the end of this year.
*Ivanka Ivanova is director of the Open Society Institute's Law Programme