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Anti-Corruption in Bulgaria: the Role of Judiciary and the Law Enforcement Institutions
 

 SPEECH OF JUDGE EVA JOLY


I would like first to say that the fight against corruption and money laundering is very difficult in all countries, not only in the new democracies, but also in countries with old democracies and stable institutions like France, Italy and even Norway, because all criminal law systems since the Code of Hammurabi were built up to track thieves and were not oriented towards the elite. The testimony which is very important in the American, the Anglo-Saxon and the Roman law was made to tell "I saw the thief stealing" while in the economic crimes there are not testimonies nor witnesses because it is a secret, hidden criminality.

That is why it is indispensable to inverse the burden of proof in economic crime matters. This would mean that if one person is suspected of corruption or any other economic crime s/he should be able to explain where the money comes from and this will make prosecution much more easier. In case that the person cannot prove where the resources come from they are to be confiscated. This is not a violation of human rights, because the role of the testimony in the economic crime is not the same as if a simple theft is concerned.

France introduced a change in the burden of proof as regards organized crime 18 months ago because it applies new economic regulations. At present, the French prosecutors only have to prove that a person is related to the organized crime. If this is proven, the person has to explain where the money comes from.

Norway has a similar provision according to article 317 of its Penal Code which says that if a person is convicted of a serious offence, for example s/he is accused of corruption for embezzling 1 million francs and s/he is sentenced of that crime, and s/he also owns significant assets, the person has to justify their origin. When legal origin of assets cannot be proven they are considered to be of a criminal origin and could be confiscated. This is one of the very efficient measures that could be undertaken in order to make the work of the investigation more efficient as regards to this type of criminality.

I would also like to focus on the importance of the image of Bulgaria as to economic crime. Bulgaria was among the first countries to sign the OECD Convention on Fighting Bribery of Foreign Officials in International Business Transactions and has adopted new laws, correspondent to the European legislation, but it is also true that implementation of these laws is not good enough. It is also known from the work that is being done by the Center for the Study of Democracy and Coalition 2000 that the perception of the problem is very important and that 82% of the Bulgarians think that they live in a very corrupt country. International investors would not take their decisions based on these numbers but would ask for the opinion of the international business community, i.e. Bulgaria has an important problem with its image and it has to do even more to demonstrate that it fights against corruption and is becoming a transparent country.

There are also other measures that have to be undertaken in order to increase transparency. The revenues and the fortune of all politicians and decision-makers should be declared and made accessible by the public. In Norway the revenues of all citizens are made public in Internet and everybody could check what the income of the others is.

It is also important to apply preventive measures. For instance, in the privatization process there were scandals about some of the privatization deals. Therefore, more transparent procedures should be introduced. A better functioning of the stock exchange is crucial for the Bulgarian economic future. A good system of monitoring is also needed.

In order to prove that you are doing something against corruption you have to take measures in your judicial system. I think that the first thing to do is to improve its budget because your budget is only 1/10 of the normal European level. In Bulgaria it is 0.3 % of the GDP, in Norway - 3 %, in France - 1.6%. With such a small budget allocated to the judiciary it is not capable of carrying out the difficult tasks facing it. It is also very important to have good policemen making the investigation, good prosecutors and good judges because it does not make sense to have good investigations if you cannot rely on the judges at the end.

More transparency, more means to the justice system and legislative changes making the proof of economic crime easier - I think that these things can be done simultaneously, they are not expensive and they would make life easier for your prosecutors.

Question by Mr. Vassil Kirov, Director, Financial Intelligence Bureau:

Recently, the Minister of Interior of Bulgaria presented the Draft Law on Asset Forfeiture. One of the major problems that we faced during the elaboration of this law was related to the proof of the criminal origin of the property, subject to confiscation. My question comes after the statement of Judge Joly that if a prosecutor proves that a person has a connection with organized crime this would be evidence enough for this person to be compelled to prove the legal origin of his/her property and, consequently, if s/he cannot prove this, the property could be confiscated. How can a prosecutor prove that a person has a connection with the organized crime - should s/he prove that the person has been involved in a particular crime or should any special investigation techniques be used or other procedures?


Judge Eva Joly:

In Norway it is possible to seize the entire property of a person when s/he is convicted of a serious crime. This is a new law in Norway, we have now a training program for prosecutors to apply it and we can use it in investigations against foreign citizens as well. That's a very efficient idea, it's the idea that if you're caught once for one criminal act we will inverse the burden of the proof for the rest of your property. If you're caught for having got money just before a bankruptcy, we could use that saying "You have to tell us where the other money comes from". It is linked to the judgment - you have to be convicted of only one offence, but when you are convicted then the situation changes.

In France there is a law which states that it is enough to prove that a person has been in relationship with other people who have been convicted for a crime/corruption to require that person to provide evidence of the origin his/her money.

I would like to promote for the idea that in the area of economic crime in Bulgaria you should think in a new way. You can say that you've got this very serious problem with too many rich people that became rich through procedures that you don't approve and this affects your social contract. Your will to live together is affected by these few people stealing from the wealth of the whole country. And they're also compromising the future because they are frightening investors to come. So, give yourself legal means to take the money, focus less on the guilt - it is less important that the criminals are going to jail for years - and have their money back.

I think that you have to bear in mind that when you start working on these problems very strong forces will be against these rules and people will tell you that this is against human rights and that these are old fashioned socialist rules. You shouldn't believe that. You should think that people saying so are people interested in saying so. Stick to the problem that you have too much corruption, you have image to redress and this should be known all over the world.

Question by Mr. Petar Petkov, Prosecutor, Supreme Prosecution of Cassation:

Following the statement of Ms. Koutzkova, I would also like to emphasize the need to solve the major problem of our penal process, namely its speed. I also think that fixed deadlines for all proceedings in the penal process should be introduced - deadlines for the investigation, the pretrial proceedings, the court proceedings etc.
I would like to ask Ms. Joly whether there are cases when magistrates - prosecutors or judges - have been accused of crimes of corruption and, more generally, how are the magistrates in France and Norway usually investigated?


Judge Eva Joly:

In France we have had, to my knowledge, one case of corruption in the judiciary which was discovered by chance because the telephone conversations of a criminal network were tapped and when the police were listening to the tape they found out that a prosecutor was involved in the affair. Then we started a separate investigation on him and at the end he was deprived of his rights as a prosecutor until his retirement which is a very serious sanction. This was a "petite" corruption, because it was only about a car. In the cases of corruption which I saw in my dossiers, however, it is a question of hundreds of millions of francs. So, this prosecutor took an incredible risk for his career for a small benefit.

But in France and in Norway nobody thinks and says that the judiciary is generally corrupt.

I would like, in my turn, to pose a few questions to you. We have in Europe very bad experience when fixed deadlines were introduced in a system that is overcharged and is not sufficiently equipped. If you introduce such imperative deadlines this would have an excellent amnestying effect. So, you should introduce them when the judiciary becomes able to meet them.

I will give you an example from Italy: in order to respect the deadline according to art. 6 of the European Convention on Human Rights the Italian magistrates had to organize a procedure of appeal in a certain period of time and they had to set free an assassin because they were not able to organize the appeal by that deadline. This is a situation that should be avoided.

You've just said that there were 80 people convicted of corruption last year and there are many pre-trial investigation going on similar cases. Could you please tell us what is the amount of money that you have confiscated from the persons that you have convicted? Are these persons convicted of large scale corruption cases and have you managed to restitute the funds and confiscate the property of all these persons?


Petar Petkov:

Unfortunately, I cannot state a concrete amount that has been seized but according to the Penal Code in all cases when a person is convicted of a crime of corruption, when s/he tried to offer a bribe, his/her property is to be confiscated by the state.

 
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