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ARBITRATION AGAINST THE STATE

  • The jurisdiction of state courts on cases of citizens against the state contradicts common sense. At such cases the ordinary citizen stands before the court of his opponent. This is the court to which the state pays and whom it appoints. Could here be impartiality and equality? If two citizens go to court is it admissible that this court belongs to one of them?
  • The law itself created by the state (substantial or procedural) is designed to ensure its official victory on nearly every potential dispute with a citizen. Material law provisions, procedure terms, relief of court fees, presumptions and fictions, extended time bar limitations, qualified legal advice, means of evidence supplied by prosecution and police and much more are aimed to discourage the ordinary citizen even to consider litigating against the state. The sharpest form of this pathology are the tax disputes which remind of the famous movie “Two Half-times in Hell” where captives in a Nazi camp play a soccer match against their guards in order to impress International Red Cross monitors how nice it is to dwell there. Or the cases uner the so called Petkanov law with the Kushlev commission where the presumption of innocense has been transformed into a fiction for debt. Or the so called administrative justice where the court defends the state through a mystical formula for legal interest which in some instances is an interest and in others- a pure curiosity. Or when in award reasons the resрonsibility for the lost case is tranferred onto the smashed citizen who has failed to convince the court that a certain customs warehouse is properly licensed- but the crucial evidence for that is hidden in a bottomless and unaccessible customs locker. Or in post-privatization disputes with automatic prior security freezes check-mating the state opponent well before the first litigation hearing. The aim of this mechanism is to deter from resort to justice so that the ordinary citizen seeks a corruption settlement with the authorities. The settlement chances for a dispute reflect both parties’ common perception for the inevitable court decision. The ancient principle “In dubio pro reo”=”The doubt benefits the defendant” has become “In dubio pro imperio”=”The doubt benefits the state”.
  • In the Old Testament Prophet Jeremiah (12/1/) has the courage to challenge to justice even God The Lord Himself:

You are always righteous, O Lord,
When I bring a case before you.
Yet I would speak with you
about your justice.

  • We have heard private complaints by judges that after a rarely lost case by a state institution the president of the respective court receives a confidential reminder that judges’ salaries come exactly from that defeated institution.
  • The state will hardly ever allow an objective statistics for the cases it is a party to.
  • Judges who discreetly assist the state in such disputes with the above means to ensure for themselves a career are no different to the police punchers in the arrest. They are simply judicial punchers who kick their victims with judicial acts. On the other side we deeply bow before those judges who have the courage to decide against the state and in favor of the disadvantaged citizen. Sooner or later they quit the system but their valour does not remain unnoticed or forgotten.
  • The extent to which the above is true can be checked by the fierce rejection of the state that its disputes with citizens could be referred optionally to an arbitration court. Where the panel for the case is chosen among famous legal experts by both parties who also pay their fees and expenses. Thus the panel will be equally distanced from both parties to ensure a certain degree of impartiality and objectivity and to pre-empt a situation where one party enters the litigation hall with the self-confidence of host team or of a smiling Godzilla.
  • We suggest a discussion for such an arbitration on civil, commercial and administrative cases.

July 2008

Valentin Braykov