(A journalistic signal)

Bivol reprintes Galina Girginova’s article from the site “Court Reports” and agrees with the analysis of our colleague.

In a habitual prosecutorial demeanor, the end of noisy investigations usually marks the peak of the summer holidays and relies on the short memory of society. Following the established tradition, the Public Prosecution discontinued the investigation that gained notoriety as “Hello Vanyo” on July 30 this year. We learned about the termination decree of the Sofia City Prosecutor’s Office 20 days later, when one protagonist in the leaked recordings, Vanyo Tanov, headed again the Customs Agency and the other – the leader of the party Citizens for European Development of Bulgaria (GERB), Boyko Borisov, already started preparing to be prime minister again. As an exception, in response to criticism that the Public Prosecution serves the new- old rulers (at the same time, another investigation – in the death of Todor Dimov AKA Chakara – also associated with the future Prime Minister, was terminated as well), the Prosecution’ site published a decree of an unknown prosecutor (his name was deleted) for the termination of the criminal proceedings.

(The so-called “Misho the Beer” scandal erupted at the beginning of 2011, after recordings of Tanov’s phone conversations leaked to the media. In one of them, former Prime Minister, Boyko Borisov is heard ordering Tanov – currently reappointed at the same post – to stop a Customs probe.)

Unlike the case of the death of Todor Dimov, in which there are citizens (heirs) who have the right to appeal the termination, and this ensures that the issue is not over and will enter the Court, formally, under the Penal Code (PC), there are no victims of the investigated crime in the case “Hello Vanyo”. This means that no one could appeal it. Only at first glance, however, it appears that Boyko Borisov can finally take a deep breath. The PC provides that a decision to discontinue criminal proceedings which has not been challenged in Court, may always (until the expiration of the limitation period) be revoked by the superior prosecution – in this case, the Sofia Appellate Prosecutor’s Office (SAPO), under article 243, paragraph 9. So, after talking with lawyers and prosecutors, “Court Reports” presents to the attention of SAPO some objections about the termination of the so-called case “Hello Vanyo”. To make sure that they have reached the recipient, we will send the text directly to the Prosecution.

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Lackluster Investigation

The decree shows that all the possibilities for collecting evidence have not been exhausted and the analysis of the prosecution is wrong and does not shed light on the most relevant aspects of the case. Prosecutors, with whom “Court Reports” talked, explained that the decree of the Sofia City Prosecutor may be waived even on formal grounds – it lacks real legal analysis of the evidence; does not indicate at all what evidence is valued and what not and why, and there are contradictions in the argumentation. In reality, there is enumeration, but no assessment of what is true and why. The prosecutor has also shyly spared quoting the obscene calls – they are labeled only for duration, time of incoming and outgoing calls, but not for content.

To Pretend that You Cannot See What Constitutes a Crime

The investigation was wrong since the very beginning – it was launched and led for a crime under PC article 357 – disclosure of State secrets. This is one reason why the collection of evidence is subject to the improper purpose. In this context, the prosecutor’s investigation has taken the wrong direction – prosecutors shifted the core of the case. Rather than explore data of abuse of office by Vanyo Tanov and Boyko Borisov, they directed the investigation first to whether there was a disclosure of State secrets over the leaking of the recordings in the media, and second – whether the recordings, published in the media, were manipulated. In other words – instead of investigating whether there is abuse of power by Boyko Borisov to harm (the State) or to generate benefits (for companies associated with the so-called Misho the Beer), i.e. classic abuse of office, the prosecution showed concern mostly over the leak of information that can expose corruption.

Three main leads of the investigation can be derived from the decree – tracking facts in the Customs probe in the “Ledenika” brewery, study of the records, and interviewing witnesses who are “helplessly” listed, without saying whether prosecutors believe them or not. We understand that background relations between the Customs and the “Ledenika” manufacturer have been established in the case. Three inspections were carried out in the brewery in 2009 and 2010, and the last was prompted by an anonymous call, made on March 13, 2010, and it was established that it took place between 8 pm and 12 am. This is the time when conversations between Tanov, Borisov, Simeon Djankov (then Finance Minister) and Anthony Strandzev (then Deputy Chief of the Customs) took place. While the Customs officer, who conducted the sudden probe, has been questioned, nowhere in the decision to discontinue the case is his testimony cited and it is not clear whether he provided some information about pressure being exerted on him. More important, however, is the fact that the prosecution did not see him as particularly important in establishing if there was abuse of office or not.

On the other hand, the prosecution apparently unconditionally trusts Borisov’s words that he called Tanov to find out information on why the Customs were again checking the brewery, provided that three days earlier the Court stopped the preliminary execution of the decision to revoke the license of the company (it is a quite separate issue whether, at the time of the call, Borisov knew about this rule- an issue that also remained outside the attention of the prosecutor). This lead in the investigation ends there, though, later, in an interview for the website “Voices”, Anthony Strandzev declared that neither he nor Tanov knew about the Court’s decision as it was received five days after the sudden check at the brewery. A longtime employee of the Customs, with whom “Court Reports” talked, said that the Court rule do not bind the Customs and does not strip them of their powers to conduct unannounced inspections on tipoffs. Furthermore, Borisov cannot act as “post-trial supervision”, and if he did, it could also be abuse of power in serving private interest (i.e., abuse of office).

Either way, Borisov’s account that he was interested in the probe in connection with his duties as PM and was checking why Customs officials entered the brewery despite the Court’s decision, with which they are not bound, remained unverified. This is sufficient, even if they weren’t other deficiencies, to reopen the case. In this regard, the prosecution should also include the protocol from the Customs inspection at the brewery, which was published by the site “Bivol.” It shows that the action of the Customs group in the “Ledenika” shop and warehouse in Mezdra was really hindered because Customs officers had written in it that “the collection of explanations was hampered by…”, but later the name of the person who prevented the probe was covered with whiteout and it still remains unclear who obstructed the State authority in fulfilling its obligations. The prosecution’s decree does not mention this protocol at all. The participants in the probe have been questioned, but the prosecution does not cite them in the termination decree, nor uses their accounts while trying to analyze the evidence. So, in general, it is not clear what evidence Customs employees provided.

The flash discs received in January 2011 in the editorial office of “Galeria” weekly, with recorded converstaions between Tanov and Borisov, Strandzev and Djankov, which were given to the prosecution, are the second line in the investigation. The prosecutor’s decree shows that several actions were executed in their regard – records were requested from mobile operators, which established both that calls were made on this date, after 8 pm., when the Customs probe began, and their initial hour. It is said that the length of the calls differs by 20-30 seconds from that of the recordings obtained by “Galeria” – a fact that is not analyzed. Several technical and phonoscope expert researches were assigned, which indicate that the recordings were rerecording of the originals; were “manipulated in amplitude, frequency and other basic parameters” and that “it was possible that parts of the recordings have been added or removed after the original creation of the recordings in the audio files.” The expertise also found that the recording of the conversation between Borisov and Tanov was of the worst quality.

The private expertise of the recordings, made by the French laboratory “Lipsadon” on the request of “Galeria” editor Yavor Dachkov, was attached to the case. Its conclusion shows that the call is “homogeneous, linear and connected,” without evidence of manipulation and that a thorough test of the parameters of the final recording cannot be conducted, but the totality of analyzes shows “homogeneity of the connection”. The comment on the contradiction between the French expertise and the findings of the prosecution’s expertise is limited to the following – “the conclusion (of “Lipsadon” – editor’s note) for lack of manipulation is still not absolutely definite”. Here, one can see the clear misinterpretation of the prosecutor, because the French expertise shows with high degree of probability that the files were not assembled and were real conversations.

The prosecutor correctly pointed out that the French expertise cannot be used as prima facie evidence because it was not appointed by a State authority, but failed to note that it is a strong indicator of the need to check the reliability of the expert reports in the case. There are several possibilities for the latter – reappoint new or additional expertise in the case; determine whether portions of the recordings were added or explore and “formalize” the methodology of the French laboratory that concluded that nothing suggests forgery.

According to former Sofia Appellate Prosecutor, Ivan Petrov, (his opinion was published by the site “Affair”), the prosecution could easily determine whether the re-recordings were made from others, done with Special Surveillance Devices (SSDs), on the base of specific “beeps” that are heard at intervals during the conversations. These are sounds that are intended precisely to create guarantees that the original entry will not be cut, rearranged, or other parts will be added to it. The comparison of the beeps in these recordings with another SSD, recorded with the same technique, could provide an answer to the question whether there was tempering and, ultimately, to clarify whether these conversations were legally wiretapped. All other hypotheses – for “private” wiretapping, according to Petrov, are unlikely because of the extreme complexity of their execution – the distance between the wiretapped persons, hitting the exact time, acquiring the necessary equipment and others. The review of the decree shows that the prosecutor, who terminated the investigation, did not even think of a comparison of the “specific beeps”. This was an absolute must because he, himself, has noted that in the same period Tanov has been legally wiretapped by the use of SSDs.

However, the decree shows that the prosecution has not at all examined at all whether these were re-recordings from legitimate SSDs. It is stated that between March 10 and July 6, 2010, legal SSDs were used for Vanyo Tanov, applied by the employee of Bulgaria’s National Agency for State Security (DANS), Rosen Marinov. A month later, part of the recordings were destroyed because material evidence was not prepared from them. In particular, those from March 13 were destroyed, and those of from March 14, 17, 20, 22 and March 26 were included in the investigation as evidence against Tanov. The coincidence that precisely the ones from March 13, which are of interest in the case “Hello Vanyo”, were destroyed may create difficulties, but they are not insurmountable. The decree does not make it clear if the second recording, which should be kept in the Sofia City Court was sought, and how the prosecutors evaluated the testimony of officer Marinov, who applied the SSDs.

DANS employee Rosen Marinov was questioned and he confirmed that he had listened to the recording of Tanov’s conversations. Then the enigmatic “he believes the content of the talks, the subject of this investigation, corresponds to what was published in the media” was recorded in the decree. According to the prosecutor, Marinov has recognized that the content of the intercepted conversations is the same as the one that has been published in the media. Thus, his testimony is direct proof of the authenticity of the calls as he heard them first hand. Marinov also says that he has prepared reports on the SSDs. The decree literally says that “data obtained from the application of SSDs have been reported to the department and sector chiefs to consider what to include in the report”. Marinov insists that he has termed the conversation between Borisov and Tanov as a work-related call, without describing its contents. The prosecution, however, failed to question the two supervisors to whom Marinov reported and who were judging what exactly should be listed in the report – namely, they are the witnesses who could shed additional light on what their employee heard; confirm his words and explain why the recording from March 13 were deleted.

The testimony of the participants in the conversations – Tanov, Borisov, Strandzev and Djankov – falls in the third group of evidence. According to prosecutors in the case, it has been clearly established that the communication between the four happened, but it was not proven what they talked about. In the questioning, Simeon Djankov and Anthony Strandzev have confirmed the authenticity of the conversations, while Borisov and Tanov claimed that the recordings were tempered with, and the former Customs Head said that they were “a compilation of different conversations in one part” and confirmed the rest. The termination decree, however, does not say what according Tanov was true; what was compiled and what was the meaning of the conversations that were compiled. It is clear that Tanov was never asked whether Borisov has tried to interfere in the Customs probe and if he ordered him to stop it. Even if he was asked, his answer is not been discussed in the decree. Similar to Tanov’s statement is that of the former Prime Minister, who alleges that he had spoken to the Customs Head about the probe in “Ledenika”, but the reason for this was “the need for information, in his capacity as Prime Minister, as to why another check has been conducted in the warehouse in the presence of a Court decision, which stopped the act of the Customs for the revocation of the license of the company”.

Prosecutors, however, entirely ignored Djankov’s and Strandzev’s testimony in which they insist that such conversations took place, while they must have compared them with the testimony of the interested in a favorable outcome of the case, Borisov and Tanov. In addition, there is sufficient evidence that these parts that speak of abuse of office were not manipulated. This is because the conversation between Borisov and Tanov is retold in the phone calls between the Customs Head with his Deputy and with the Finance Minister.

Vanyo Tanov (VT): Hello? Hello?

Antony Strandzhev (AS): I hear you.

VT: Toni, the Prime Minister called me. This Misho had called him.

AS: OK

VT: He told me “What did I tell you. I am not Parvanov. When I make a commitment to someone… So, pull the people out. Call Misho tomorrow and reach an agreement with him. I say: “What agreement? He agreed with the Minister. I leave for Macedonia tomorrow, I say. Everything they did as reports, he says, should not be filed until you return and then we will talk. Call the Minister since I have said so.” I will call him, I say, but what if he does not pick up…

VT: I suppose he will elaborate because he said: “What did I tell you? I have made a commitment. I am not like the PM, pardon the President, to back out.”

VT: The question is, I don’t know the Prime Minister has promised and not to say that I have deliberately sent them to inspect, and have no way out.

This conversation fully confirms what is had heard in the conversation Tanov – Borisov, in which the former Prime Minister says: “Hello, Hello. This one, Misho the Beer, called me again.”; “Some people have entered his factory, customs agents, tax agents, I don’t know… They are confiscating cell phones, are conduction some action…”; “OK, take them out of there; we made a commitment.”; “OK, you call now; take them out of there; we will talk more in person.”; “Good, if needed, call him right now and tell him what we agreed on, because I made a commitment; I am not Parvanov. When I promised to not touch him, it means I would not touch him”.

As we noted, however, the prosecution did not cite the content of the conversations and did not compare witness testimony. To summarize – the prosecution has three witnesses (Strandzev, Djankov and Marinov), who say that such conversations (with just this content) were conducted. Mobile operators’ records show that talks between the mentioned protagonists have been conducted and precisely at the time of the Customs probe; their duration is the same with negligible deviations. There is a Customs protocol reflecting that the probe has been prevented.

In addition, on July 9, 2012, Boyko Borisov, in an interview for politikat.net, says that some of his words have been deleted, not added (he subsequently continues to maintain before the media this version – that in the beginning of his conversation with Tanov there was a curse that is missing), and former President Georgi Parvanov called him because the Customs were doing outrageous things. But Borisov also makes the following confession: “I do not think is right; I should not have done it. But this is how I am – everyone makes mistakes, I reacted and called. And I called knowing very well that Tanov’s phone was wiretapped.” According to Borisov, he received a public slap in the face “because he interfered in something where he had to react as the President called him and asked him”. In the official file in the case, however, Borisov says something else – he wanted to see whether the Court decision has been observed. Prosecutors are not at all discussing Borisov’s interview and give the appearance that they have not noticed the contradiction in his words. In the prosecutor’s termination decree, however, there is not a single sentence to provide a motive why Borisov’ testimony is trusted.

The legal deduction of the prosecution is that voice and written evidence does not justify a conclusion “to define an offense under article 282-283 of the Penal Code” – criminal abuse of an official in office, and “the evidence in the case shows that the Customs inspection was not hindered, but rather it has been conducted as provided by law, and at the time it ended with final and effective judicial act of the Sofia City Administrative Court”. Lawyers, whom “Court Reports” consulted, however explained that the crimes in office – Articles 282 * and 283** of the Penal Code, under which the former Customs Head and Boyko Borisov could be respectively indicted, do not require results from the act. To have a crime, it is sufficient to prove the purpose of the official and his/her attempt to exert influence. However, assessing whether they have committed a crime and what it exactly is, could be made once all surrounding circumstances are cleared, which the prosecution failed to do.

The end of the decree contains another contradiction – the prosecutor considers that there has not been a disclosure of State secret, as “the analysis of the content of all telephone conversations between the referred above officials does not provide such facts and circumstances”. It turns out that, on one hand, the prosecutor says he cannot analyze the recordings because it is not proven that their content is authentic, but then relies on them to justify the conclusion that there is no crime.

In order to close the case, the prosecution notes with a cliché that “all involved witnesses have been questioned; all necessary evidence has been included and all procedural rules for the collection of evidence have been exhausted”. We exhibited only some of the arguments that show that this is not true.

The decree shows unacceptable negligence and honest desire for replacement of facts and issues important to the investigation. Thus, it can be concluded that the Public Prosecution has crushed the investigation because it is a case involving senior officials – the Customs Head, the Finance Minister, and above all – the future Prime Minister. Therefore, the Sofia Appellate Prosecutor’s Office should automatically reopen the investigation (even without our “journalistic signal”) to test the legality of the termination.

*Article 282 of the Penal Code – An official who violates or fails to perform his/her duties, or exceeds his/her authority or rights for the purpose of obtaining benefits for himself or for another person or of causing damage to another individual and when this can cause major adverse effects, shall be punished with imprisonment of up to five years.

**Article 283 of the Penal Code – An official who uses his official position to obtain for himself or for another person unlawful benefit shall be punished by imprisonment of up to three years.

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