- The clandestine February 2010 amendment to art.519 of the Civil Procedure Code (CPC) abolished the executive enforcement of monetary claims against municipalities. In this way municipalities were put on same footing as the state which since Roman time has been excluded as the target of enforcement because its is impossible for the state to enforce against itself and because it would be absurd for the state not to comply voluntarily with its own law and with the decisions of its own court. The opposite would imply its split into an enforcing part and a subjected to enforcement part i.e. some kind of a constitutional schizophrenia. But now this logical privilege has been extended to municipalities which means that a court awarded claim against a municipality cannot be collected by an executive judge through a lien, freeze, public sale or withdrawal from a municipal bank account. You will have to wait for the payment to be provided in this or next municipal budget without any guarantees or sanctions that this will happen. Thus the law declares the municipalities as financially immortal which is a way to announce their early death because the immortals are never really and truly alive.
- There is no longer a mayor who is afraid of or embarrassed by a municipal default on any contract or legal commitment. Just as the state does not pay the outstanding BGN 2 bln for valid and performed contracts so the municipalities go into the same gravity-free orbit.
- Does it come to anyone’s mind what the disastrous reaction would be: no investor (local or foreign) will believe in a contractual promise by a municipality. They all would ask for a full advance payment since there is no mechanism for a subsequent enforcement. One could hardly find a normal lawyer to advise otherwise or to take up the defense of a municipality without fully prepaid fees.
- If a common citizen or a private company tries to put off its payment of local taxes “for the next budget” they will be smashed by the state machine which allows exactly the same to the municipality in regard to them. No one will let you set off your local taxes against your payment court order to the municipality. The constitutional romance for equality of ownership types (state, municipal, private) has little in common with the actual state-law sex.
- The immunity of municipalities against the ultimate chapter of civil justice- the executive enforcement- is a shameless state aide to them but on the account and from the pocket of private business. This is nothing less than a pure moratorium on municipal payments. We understand the prime minister’s revelation that the finance crisis is a war but political wisdom implied the imposition of this war-time moratorium to be limited with a fixed term- for the duration of the war. But not once and for all to proclaim municipalities as state institutions. The Roman logical formula has been transformed and extended into a discretionary privilege which will attract other candidates.
- If the previous administration has concluded damaging contracts on behalf of municipalities, the guilty persons can be subjected to full criminal responsibility with full compensation from their personal assets. The solution cannot be their de facto amnesty at the expense of the basic sacred principle of a lawful state that a contract is a law for its parties and that all are equal before the law. The mercy of the debtor is as fatal to the order of law as the mercy of the creditor because they both act as stone smashing the confidence- regardless from which side of the window that stone comes.
- The perversity of political representation in distinction to the legal one is that if in normal life I authorize you to buy me a car but you bring me a bike, your delivery is irrelevant to me. Yet if 20 thousand voters elect one person to represent them in parliament and there he acts on their behalf but against their will, they shall be obliged not only to accept the bike but to buy the MP a bonus cake. That is why free citizens around the world protest with the slogan ”Not in my name!”.
- I can guarantee you that none of he institutions that can start a case before the Constitutional court will do so against art.519 CPC. It seems there is in parliament a nymph dance of secretive night time advisors, a “Group of Brutals” whispering wisdom in the ruling ears. The result is that if in criminal justice we come across an Octopus, in civil justice we confront a Crocodile. Art.519 CPC is one of that Crocodile’s bites- through tears.
- The municipal immunity against executive enforcement is incompatible with the European idea for municipal self rule because there are no real rights if there is no real responsibility. To those who “in the night” vote art.519 CPC and “in the day” loudly praise the European Union I would recall a saying by Prophet Isaiah which was repeated by three evangelists:
“These people honor Me with their lips but their hearts are far from Me.”
March 2010
Valentin Braykov