On 19 January 2018, a new Anti-corruption and Forfeiture of Assets Act (AFAA) entered into force in Bulgaria, replacing two existing pieces of legislation – the Prevention of Conflict of Interest Act, and the Forfeiture of Illegally Acquired Assets Act.
In addition, the AFAA creates a single commission to enforce the law from the various commissions that existed before.
Definition of corruption and anti-corruption measures
The AFAA is not criminal law, and does not supersede existing criminal law on bribery in the Criminal Code. Instead, the AFAA provides an autonomous definition of corruption, which defines it as abuse of power, breach of powers, or failure to exercise powers by any high-ranking public official whereby the official or another party receives, directly or indirectly, undue pecuniary or non-pecuniary gain.
The AFAA features a long and extensive list of governmental officials that should qualify as "high ranking official” under the AFAA, which include: president, prime minister, ministers, Members of Parliament, and members of all three branches of government, including judges, prosecutors, local administration, members of most executive agencies, National Revenue Agency, and various sector watchdogs, etc. The list covers most high-ranking officials in the country.
Corruption-prevention measures in the AFAA include requirements to declare both conflict of interest and property status, mandates to investigate conflict of interest, mandates to investigate property status, and oversight of the various competent bodies charged with seeking action, including the Prosecution Office and Revenue Agency.
Anti-corruption commission
The Anti-corruption and Forfeiture of Illegally Acquired Assets Commission has wide ranging powers under the AFAA. A collective body of five members appointed by parliament, the Commission is entitled to request assistance from the Prosecution Office, National Revenue Agency, Customs Office, Supreme Judicial Council, Ministry of the Interior, and various law enforcement bodies. Annual declarations by high-ranking officials of conflict of interest and property status are to be submitted to the Commission, which will be responsible for the following: overseeing all investigations issuing sanctions for conflict of interest, analysing and adopting new anti-corruption measures, and commencing proceedings for confiscation of illegally acquired assets.
In practice, the Commission enjoys wide-ranging powers of investigation, which can be launched at the behest of any third party, or on its own volition. Anonymous notices by third parties are not allowed. The whistle blowers providing information to the Commission will not be identified in public.
Conflict of interest
A high-ranking official is not allowed to represent the state or a municipality in cases where he or she has personal interests in a particular decision. In addition, high-ranking officials are not allowed to: vote in decisions where they hold private interests, or influence other authorities and third parties to promote their private interests, In these cases, ranking officials should recuse themselves from making such decisions, and should be restricted from entering into any contractual arrangements with third parties whom the official has been dealing with in his or her government capacity during the previous year. Any breaches to the rules on conflict of interest are subject to pecuniary sanctions from the Commission.
Forfeiture of Assets
The Commission is empowered to bring forfeiture proceedings for illegally acquired assets if it can be proven that certain assets were unlawfully acquired. Such a proceeding can take place if an investigation by the Commission establishes a significant discrepancy – that is to say, a discrepancy that exceeds BGN 150000 (EUR 75,000) – in the property status of an individual. The Commission is obliged to commence proceedings against a person if criminal prosecution has been launched against him for a wide range of crimes, including property and bribery crimes.
A procedure will also be launched if a person is sanctioned for an administrative violation where an asset of at least BGN 50 000 is gained. The Commission can request interim measures for property freezing, and any transfers to third parties aware of the illegal source of assets are not valid in the eyes of the Commission and may be annulled.
If you would like more information on how these amendments affect you, please contact – Assen Georgiev and Deyan Draguiev.
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