If my 10 year old daughter boards a plane and the security check find in her hand luggage a kitchen knife it will be immediately taken away and the knife shall not be admitted on board. It makes no difference that the child cannot handle it and that it is in fact a kitchen tool and not a crime weapon. The security criterion is not the obvious design of the knife or the undisputed innocence of its holder but only the consideration how this tool could be used by criminal hands. Only the assumption itself of the possible abuse of the kitchen knife invalidates all other objections.
The law in practice is like a plane in flight. It cannot be repaired by the pilots who fly it. A defected plane can only make an emergency landing or crash and the responsibility for the disaster and is casualties lies with those who let it fly.
What brings us here together is the common and sincere concern for the shocking deficit of justice and fairness in Bulgaria in the last 20 years which inspires the common Bulgarian with disgust against the so called “wild capitalism” and nostalgia for communism. We are simply walking over ill buried corpses of failed justice.
What divides us today is the frontline of this concern. This frontline is not between the champions of popular justice and the lawyers of devil but between the obsessed creators of an alleged medicine an those who want a reasonable advanced examination of its dose and side effects. Just to make sure that it is a medicine and not a poison.
The search for justice is a communication with the past. Mankind knows two types of such a communication: either through a final punishment or though an initial pardon. Time transforms the unrealized punishment into an inevitable pardon in order to avoid the bigger evil- the wrong punishment which in itself is a new crime. No one is greater than this ancient law for pardon and oblivion as a consequence of a missed retribution. That is where the time bar and the new beginning come from.
The Bill for Confiscation of Illegal Income (the Bill) is exactly such an attempt for a replay of a missed punishment as a result of failed justice. The Bill tries to go around 20 years of justice bankruptcy through a new type of a retroactive redress- the confiscation of assets.
The philosophical axis of the Bill is a fiction in its art. 75 s.2 which defines as criminal every income whose legality in the last 20 years cannot be proven. The Bill frames up an undisputed causal link between the incapacity of the individual to prove smg to the authorities and the hard conclusion that this incapacity means criminal assets. The citizen is burdened with a retroactive obligation for an evidence readiness of his income in all the years since 1990 without any previous notification to him that in 2011 such an obligation would be imposed on him. It comes out of the blue that in the last 20 years a precise and ample annual accounting for circumstances where the state does not keep even a five year record. Who has ever warned me to keep and collect them and how should I find them today? The retroactive force of such an obligation is hardly compatible with legal civilization.
Art.75 s.2 of the Bill surprisingly copies the principle of art.34 Chapter III of the Law for Property of Citizens of Todor Jivkov of 1973. I would like someone to explain to me in clear and simple terms: How does our market democracy of 21st century fall back to a law from the developed socialism? I am the witness how the 20 year implementation in the court rooms of that communist law brought only revenge to political suspects but preserved the communist oligarchy till this very day!
The second wheel of the Bill is that it is not interested in the specific criminal activity whose income it confiscates. The Bill does not require any specification or even a reference to the criminal deed which reasons the confiscation of personal assets. It makes absolutely no difference whether you are a spy, a thief, a blackmailer, a tax evader, a counterfeiter or a murderer. You are simply a criminal, no matter exactly what the crime is. This construction is also unprecedented.
The third wheel of the Bill is the statement in art.2 s.2 that illegal assets “represent unlawful enrichment at the account of society and therefore the title on these assets shall be returned to the state”. But this is a clear and sincere nationalization of damages from unlawful enrichment which damages belong to the respective victims. The simplest illustration of the absurdity is the case where after confiscation the crime is exposed. Can the criminal object: I have given back the stolen property to the state under the Confiscation law so I do not owe it to the specific victim, there is nothing with me so you should not try me? Who invented this strange “amnesty”?
Bulgaria has over 1 million emigrants all over the world who annually send back to their relatives up to E 1 billion to make them survive. A huge part of this billion arrives in cash without bank transfers especially within EU where the allowed cross-border cash is E 10 000. For 20 years the aggregate of such cash imports is no less that E 10 billon. And all of it constitutes an illegal criminal income for its local receivers because they have no documents to prove its legal origin. These receivers are tens if not hundreds of thousands and they all are potential targets of the Bill. I ask the Bill’s sponsors: Aren’t they your electorate? Why do you commit a political suicide?
Another tumor in the Bill’s skeleton is the faith of the third parties. Under art.77 past transactions wit illegal assets shall be deemed null and void in regard to the state and the consideration of both parties shall be confiscated. It is assumed that those third parties have known the criminal origin of the assets. I ignore these hallucinations of Actio Pauliana from art.135 Law on Obligation and Contracts because here the protected obligation s created post factum with retroactive effect. What matters is the following: In the last 20 years of construction boom there were no less than 30 000 new homes, houses, offices and holiday estates built every year. No mention of the land plots. The huge majority of these new built constructions were sold through notaries on their tax evaluation but under the real market prices. This is still the practice at the moment in neighboring Greece. All these sales are criminal incomes for both parties. It means that over one million sellers and buyers to those deals shall be perfect defendants under the Confiscation Bill and the joint consideration should be taken by the state. But among them you have thousands of foreign buyers of holiday homes from EU member countries. In those years when prosecution and police were singing together with the Mafia: ”A young lamb started crying” these foreign buyers should have supposed that 10-15 years later their seller would turn to be a criminal asset holder?
We find especially shocking the injunction securities at the beginning of the procedure when all assets of the defendant and his family shall be frozen. Please pay attention to the following wonder: under art.50 s.1 p.7 after the injunction freeze of the defendant’s assets only the court shall authorize “payment of expenses related to the procedure of this law”. In simple language it means that the court shall assess and decide what legal fees and to how many lawyers one should pay! Have you heard of this elsewhere? And this is the court of the state which state wants to confiscate your assets and this court shall finance your defense with your money against his principal!
In the normal states the sanction of a civil case is its final decision. In the procedure under this law the procedure itself is the sanction, punishment and repression even if after a few year the claim is rejected. The defendant’s victory in such a case is senseless because it shall not redress the devastating damages by the procedure itself. Art.115 for the liability for illegal actions under the law is a Byzantine wording because the damage itself is allowed by the law and has been declared legal. To avoid amending the Civil Procedure Code the Bill’s sponsors have stuffed the material law with evidence rules to avoid a competitive trial before court. Thus the cases shall become property executions ordered by the Commission which is a part of the executive administration and stamped by a court seal. There is no point for lawyers to grant legitimacy to these procedure executions.
The fear of helplessness of the potential defendants under the law shall create in society a panic for corruption terrorism. The frightened citizen is of low moral and this is the real hidden aim of the Bill. There is a risk that the Commission shall turn into a new centre of repressive power with its own network of reporting agents- to save themselves by anonymous signals against others. A new Property “ChK”- “Cherezvichainaya Kommisssia” (the KGB mother) led by a new Felix Edmundovich Dzerjinski with a “cool brain, hot heart and clean hands”. How can it be that from Brussel’s viewpoint the Bulgarian administration is corrupt from top to bottom but this property ChK shall work in a virgin vacuum? Let us wait for corruption to be reduced to acceptable EU levels and then to proceed with such a law. Have you noticed that the law does not provide for control over the selection of signals to be investigated or to be ignored. The public register under art.103 refers only to already commenced proceedings and their security injunctions but there is no public register of the initial signals and their discretionary selection- where the real sweet power is.
And one more peculiarity. Art.93 allows the court to disregard the presumptions of the law if there is a serious risk of injustice. Without commenting this fig leaf I would like to understand what presumptions they mean. In the Bill there is only one presumption in art.78 s.2 (the assumed knowledge for damage by relatives) and only one fiction in art.75 s.2- that the unproven legality of an asset qualifies it as s criminal asset. It means that the possible disregard of a presumption through art.93 does not affect the basic fiction, the real blade of the law, under art.75. Obviously art.93 has been drafted by accidental passers-by in law.
This Bill does not frighten the oligarchy. Mostly it can cause some emigration of assets abroad. By Internet banking distance makes no difference. I am absolutely sure that not a single Bulgarian billionaire or multi-millionaire shall be tried under this law. As I am sure that the Confiscation commission shall never sue a parliamentary party for its election expenses in the last 20 years which outrageously exceed the party’s declared legal income. But really NEVER.
And let us not forget that the money of those who robbed Bulgaria in the last 20 years is mostly in Western banks!
I know that the Bill has its chance in the inherent envy of the Bulgarian against the rich and successful person and in the temptation to hurt him by an anonymous signal. Communism took such deep and stable roots in Bulgaria because it is the ideology, the religion of envy. But we should not allow the security of the successful Bulgarian to become- in the words of Rudolph von Jhering- “the security of the game still unspotted by the hunter”. And we should remember the concept of Bonaparte that the right of private property is the territorial sovereignty of the individual and only the sum of these individual sovereignties build up the united national sovereignty.
Before which international commission should a Bulgarian complain against a criminal state which robbed the pension funds of the previous generations, sold at bottom price billions of national assets and nationalize the health service? Who and where shall start a procedure for this criminal income of the state?
Тhe failed justice against a dozen loose criminals should not be paid by the insecurity of a whole nation- it should be paid by those who failed the justice process!
For the sake of a few wolves you should not cover the whole forest with traps to kill every passing animal. Or to present as a whaling ship an ordinary poacher’s speed boat for all the fish.
If such a law is necessary for Bulgaria- let it act for the future, “ex nunc” so that people know what is required from them and observe it. But past crimes should be handled by the respective law enforcement which is financed by the tax payer. Most of these crimes are not time barred.
Within the debate on this Bill two false allegations were frequently made: that the Bill is not interested in punishing crimes but only in the criminal assets and that the Venice commission had unreservedly approved the Bill. To these two jokes I shall reply by a quote of Shylock from Shakespeare’s Merchant of Venice, Act IV, Scene I, in the Court room of Palazzo Duccale in Venice:
“Nay, take my life and all; pardon not that:
You take my house when you do take the prop
That doth sustain my house; you take my life
When you do take the means whereby I live”.
20.01.2011 Valentin Braykov