Author Archives: Valentin Braykov

• At the eve of the Athens Olympics BBC Panorama broadcast a film on Olympic corruption extracts of which were shown on some international news channels like Euronews. The extracts featured the president of the Bulgarian Olympic Committee (BOC) and member of the International Olympic Committee (IOC) Mr. Ivan Slavkov attending a meeting where he entered into negotiations for remunerating his lobbying efforts in favor of London’s candidature for hosting the Summer Olympics. The “businessmen” initiating the meeting and offering the bribe turned out to be BBC journalists recording the exchange on a hidden video camera. Slavkov left in the middle of the meeting to attend a funeral leaving one of his aides. No money was given or taken. After the sensational BBC pictures went around the globe Mr. Slavkov’s IOC status was suspended and he was banned to attend the Athens Olympics- till IOC Ethics Commissions decides the case later in the year. Yet Slavkov’s version of events is that he had notified in advance a deputy IOC president and went on that meeting only with the aim to identify, disclose and discredit the bribers.

• Mr.Ivan Slavkov (64) was the son in low of the former Bulgarian communist dictator Mr. Todor Jivkov. He became BOC president and IOC member in the 1980s. Before that he was allegedly the most successful director of Bulgarian national TV. Now he chairs the Bulgarian Football Union too. Since 1970s till today Slavkov has been successfully surfing within the high society miraculously unaffected by communism’s collapse. His playboy and whisky-addict life style has earned him many fans and much envy. He enjoyed showing publicly how he had cheated an Islamic embassy reception with a flat whisky bottle in his jacket. He had no restraints to speak loud against the Iraq war- recalled “Trud”, Bulgaria’s biggest daily. His fans call him “a favourite pet of destiny” and his enemies- “Bulgaria’s shame”. But he is mostly known as “The Big Brother” though the vast majority of poor Bulgarians view him as a shiny movie character with whom they have little in common.

• Surprisingly enough the BBC sensational disclosures left mixed if not sour feelings with the Bulgarian public. It seems the BBC team has broken two criminal code and one constitutional provisions. The provocation to bribe and the unauthorised use of special technical means for collection of evidence are public crimes in Bulgaria punishable with prison sentences- art. 307 and art. 339a of the Criminal code. And no one can be voice or video recorded unless by his own consent or by law authorisation- art. 32/2/ of Constitution. Evidence collected by public crime is null, void and irrelevant. This explains why Bg prosecution is still reluctant to open a case against Mr. Slavkov while leaving the BBC team legally intact. Someone could have done his advance homework better to ensure respect for local law and order.

• But the big question of substance which puzzles the Bulgarian public is why the bribe game against Slavkov was not finalised ? Why was not he given the negotiated bribe money to prove that he takes ? Why was local law enforcement not involved to collect the evidence in a proper way and to send Slavkov to hell ? Was it because they did not believe Slavkov would really take or was it because the sensation had to break before the Athens Olympics subject to a different agenda ? Whatever it is, from Bulgarian legal perspective the truth has been aborted leaving behind a feeling of a welcome incompleteness.

• The scandal recalled some ghosts from Bulgaria’s recent past. The 1981 assassination attempt on the Pope was loudly assigned by western media to Bulgaria- how many remember now that the Bulgarian defendants at the Italian “Pope’s” trial have been unconditionally acquitted ? In late 1970s a Bulgarian defector working for BBC Mr. George Markov was murdered at London’s Waterloo bridge by a poison umbrella. Almost all believed he was killed by Bulgarian KGB agents. 15 years after communist collapse in Bulgaria (a NATO country) there is no conviction on George Markov’s assassination. But the Bulgarian umbrella story stays. Alleged Bulgarian breaches of international arms embargoes prop up loudly in world media from time to time- yet not so loud are the verified refutations. No wonder this nation has developed a sense of tiredness to be the convenient and handy “demon on duty”. And now Olympic corruption has found its comfortable Bulgarian home. One wonders how many of the 150 IOC members would have stood the same financial striptease better than Ivan Slavkov.

• Bulgarian government TV rushed helpfully to re-broadcast the BBC film in prime time so that “all parties are heard”. Yet it does not plan likewise to hear all parties on Iraq’s war via Michael Moore’s “9/11”. Knowing the political corruption within Bulgarian elite, the BBC team could have made a much easier bingo shot by putting together a documentary “To Buy An Ally”- with some Oscar chances, instead of spending so much talent on Slavkov.

• At the just finished magnificent Athens Olympics the Bulgarian sportsman in rings gymnastics was given the silver medal. While the medal awards ceremony was running, the bronze winner went to the silver Bulgarian pointedly raising his hand as the real champion. Non-Bulgarian papers later showed comparative photos of the silver rings prevailing over the gold ones. In those days for the ordinary Bulgarians before TV screens the symbol of Olympic corruption was not Ivan Slavkov.

• There are no indications that the affair has affected the hard core of BBC fans in Bulgaria and especially those of the pre-1989 generation who nicknamed their radio antennas for BBC transmissions in those days as “the oxygen tubes in the marsh”.

• In the Olympic month of August 2004 Bulgarian archeologists in a Thracian royal tomb of 5th century BC came across a 700 gr. ancient golden mask together with a 15 gr. golden ring with the image of an Olympic sportsman. They do not rival the world oldest gold treasure in Bulgaria of five thousand years BC. But the precious findings show how old the Olympic tradition on this land is and still ask:

“What is the real face behind the golden mask ?”

September 2004

Braykov’s Legal Office

• Reality can be more absurd than imagination. Crime is better organised and more efficient than its hunter- the law enforcement. Desperate cynics have suggested that law enforcement should learn organizational skills from crime and even should ask criminal bosses to lecture at judicial seminars or why not manage the justice system for some time in order to upgrade it – as external producers. This shocking suggestion aims to quake the falling asleep with the 15 years of disturbing status-quo which is a provocation against any moral compass. Like a Himalayan climber who is giving up for the sake of fatal dreams and needs some hard shaking.

• The reshuffle of top magistrates by new supreme judicial council as spear head of justice system reform is almost over. But whose heads are in the guillotine basket ? Are these only the opponents of today’s judicial superiors ? Is there a single demotion case in that reshuffle reasoned by corruption allegations ? Wasn’t it judicial corruption that triggered EU to impose Bulgarian constitution amendments ? And not a single conviction yet ? Have things improved or have only corruption estates been consolidated ? Such questions may infuriate some high priests but they should remember there is no independent deck on a sinking ship.

• There is a very simple and clear criterion whether judicial reform has worked or not : Do foreign investors choose Bulgarian law and courts in their contracts or they still run to foreign law and jurisdictions ? The answer is too obvious and very bitter. It kills the enthusiasm and excitement of a whole generation of young, inspired and most professional magistrates who sincerely want to make a difference but are not welcome to the steering deck.

• Division of powers does not mean a fair sharing of the political cake. Judiciary should look how the army functions politically neutral. Magistrates can repeal acts of the executive, constitutional court can repeal acts of legislature but neither government nor parliament can repeal judicial acts. Laws and regulations could be subsequently amended but not final court awards. Magistrates command what makes a law- the sanction, by directing its fire and switching it off and on. The privilege is clear but it may turn into a sweet poison- unlike legislature and executive, magistrates are neither democratically elected not subjected to democratic control. Their selection and recall are the most indirect- hence most independent from popular discontent. It is like the air condition of a car ventilating only the internal air.

• A most recent example shows that not all problems of Bulgarian justice come from within. The new Bulgarian Law on the Bar (June 2004) in its art. 5 (4) reads : “Members of parliament, teachers of law science in high schools and research fellows of law in academic institutions shall be registered as bar members and shall perform the legal profession without leaving their job or position”. We wonder whether that should ring anyone’s bell because:

1. It means ACTING LEGISLATORS shall plead to the court and shall argue what exactly the law means- i.e. what they have meant when voting it. Who can oppose them and will that be fair justice ?

2. Those acting legislators vote the judicial budget in parliament as well as 11 out of 25 of the Supreme judicial council members plus the minister of justice with disciplinary powers over magistrates.

3. One could only imagine the effect of a front bench MP defending a grave criminal at police, prosecution or court. Is that not an incest of the divided powers ?

4. It is striking that Bulgarian legislators have so well mastered their main duty of drafting laws to have time to defend cases in court throughout their parliamentary working days ?

• Is that EU and NATO in action ? Where is the reaction of the Bulgarian Bar Association, of the International Bar Association, of the American Bar Association etc. ? Have the watch dogs turned into pets ?

• Yet there is much to celebrate. Our sincere admiration goes to the vast majority of middle rank and middle age magistrates who are never in the lime light, who are inhumanly overwhelmed with cases, who are first in the morning and last in the evening to drive in and out their third hand cars but who managed to preserve their integrity in communist and democratic times. It is their eyes that we chase to meet in the court corridors for a simple head-nod. They still hold the flag flying- high and clean.

July 2004 Braykov’s Legal Office

* the name of the Bulgarian minister of interior and main sponsor of the bill
is Mr. George Petkanov which name sounds like Friday in Bulgarian.

• Lawyers call the Bill for Confiscation by state of property acquired through criminal activity, with the Latin name: “Lex Petkania” in order to avoid associations with Robinson Crusoe’s assistant such as “Friday’s law”. However, the sense of humor as a panacea for survival is a weak weapon against the insolence in legislation. Few people think that it concerns everyone. Not a few overlook it in order to keep their daily rhythm or peace undisturbed.

• Professors, associate professors and lecturers in law that fill up the parliament benches by concurrence of circumstances remain silent. The science conscience has turned into a MP’s conscience. Obviously the debt to Alma Mater cannot successfully compete with the amusements of the MP’s way of life.

• The shiny law firms who pay for their ads in foreign directories also remain silent. Part of them are European graduates, aren’t they? Have they learned the “stand-by” in the Western universities? Haven’t they heard that “when you keep silent about the truth, the silence becomes a lie”? Why do you hold your peace while law principles are being tormented by passers-by in legislation? Maybe because the secretaries of ministers and of ambassadors won’t discretely offer your cards after meetings with investors – as “government related” lawyers? Or because some high ruler won’t attend a matinee of yours? Or maybe the preventive fear of the law – “not to be spot targeted”, is already working ?

• Legal defense gives legitimacy to every case. Is there a point to engage with cases where the lawyers’ function is just to witness a property’s execution?

• Actually serious specific reproaches could be addressed to the Bill for Confiscation by state of property acquired through criminal activity before its spirit jumps out of the bottle. We hereby attach just a small set of questions and commentaries:

1. How can one be responsible for criminal activity since no criminal has been sentenced? The presumption for innocence demands that until a sentence has come into force, there is no criminal nor there is criminal activity. It is a total nonsense to separate the activity from the acting person.
According to police chiefs and supreme public prosecutors, big criminal bosses fall every day into the hands of the criminal law. Why is then this Bill being put forward?

2. Which civilization admits the introduction of a presumption for justification of a civil claim, which presumption the defendant has to disprove? (art. 3/2, art. 9 and art. 10).

3. Why is the defendant in this Bill being apriori demonized? In order to deify the state-claimant? The middle age fire stakes, the Bolshevist terror, the concentration camps were created by demonization of the victims. Since the opponents to the inquisition were devil’s allies, can the opponents to the Bill be mafia’s allies? Is this the reason for silence by public and party functionaries ?

4. Since the Bill’s sponsors expect 100 million levs annual income in the budget from the law, and at average 100 thousand levs from each convicted person, this means that the guillotine must slay 1000 heads per year. If the sponsors believe their own calculations, they should go to some bank with the Bill and ask for an advance payment of 50 thousand levs for the “assured” annual income of 100 million levs. We would be delighted to attend such an appointment.

5. Bulgarian emigrants send through banks to their relatives in the country about 500 million Euro every year. At least another 500 mln enter the country unaccounted because everyone is allowed to carry 4 thousand euro of undeclared cash.
This one billion finances the people’s patience towards the dance of the political elite around the democratic pylon. A big part of this money has been made “on the black market” (no taxes paid ), and the local recipients by hand do not pay taxes for that money here too. These are assets “acquired through criminal activity” . Especially if the money has been invested in something tangible. Somebody wants to stop this money stream and to chase it away?

6. The allegation that the “fishing net” is designed only for “sharks” with more than 60 thousand levs “criminal property” is just a goodnight joke. Even property of 6 thousand levs will be confiscated as well. The only difference is that the file will be transferred from one department to another in the same Tax Office. The money will be confiscated according to the Tax Procedure Code, passed by the previous parliament. (when they passed it, the democratic community of tax law experts seems to have remained silent more than normal.)

7. Why is the Bill not going to apply to persons having immunity against criminal proceedings such as MPs ? They are practically immune to criminal proceedings while their temptations look irresistible.
Why is the Bill not going to apply to political parties that have spent for elections more than their lawful income?
To these two screaming questions the Bill demonstrates a good-natured absence of mind.

8. What kind of authority are the tax officers who investigate “criminal property” and prepare filing of the claim within their preliminary examination? Are not they a jurisdiction, since they can examine witnesses, appoint experts, seize documentation, take the person’s evidence, obligate all state authorities to assist them?
This made-up institution, which risks wrapping itself with corruptive spider web, forms the presumption for criminal assets in its capacity of a prosecutor and an examining body at the same time. This is the dreamed preliminary investigation without lawyer’s defense – as opposed to the penal Procedure Code and all international acts for human rights. An almighty, secret and irresponsible property police is being created.

9. Is the state liable for damages caused by abuse of the law’s procedure ?
Art. 35 of the Bill refers to the law for responsibility of the state for damages caused to citizens. But in this law however, the state’s liability is only for damages caused by authorities in criminal proceedings. And the Bill’s proceedings are alleged to be civil proceedings. They are not even administrative activity because they formally serve filing of a civil suit under a civil court jurisdiction.

Therefore the reference is shallow because the state has not the intended liability under that referenced law- in other words there is no responsibility for the Bill’s abuse. .

10. The court will determine how much money to grant you for lawyer’s defense – since all of your property has been blocked (art. 26/3/ item 6). It is not even about “defense costs”, but only about “paying the costs in relation to the proceedings to this law”.
Therefore, the state court will determine your resources for defense against the state civil claim! Why haven’t they provided for a state lawyer as well?
Another issue – the lifting of the blockage/ security injunction over the property will not be at the free and independent court discretion, but will be conditioned “by an act of the body for discovering property acquired through criminal activity”! (art. 27/1/).
The blocked defendant is like a helpless animal for slaughter – completely incapable to move and with a procedure ax over its head. Only high imagination can call this “a competitive start in a civil suit”. In the normal civil suit the sanction is the final decision itself – it determines who is right and who is wrong. In the submitted bill, the sanction (penalty) is the procedure itself – a repression from its beginning till its end.

11. Affected are not only the defendant, but the third parties as well. They are obligated within a three month deadline to file their claims against the blocked property – as opposed to all prescribed terms and privileges. If their claims are not satisfied, these third parties are threatened by a penalty of 3 to 30 thousand levs. In other words, they choose between two risks – the prescription of their own interest or face a huge fine if their own third party claim is not satisfied. The law treats such third parties as unwelcome competitors to the state’s prey in the specific suit.

12. Why have SDS of Kostov and NDSV of Simeon resorted to extraordinary laws during their last government year – Kostov’s disclosure of secret police files and “Lex Petkania”? Because this is exactly when they need a tear pre-election gas?

13. Why do they think that the one who cannot create and apply a simple law is capable to create and apply an extraordinary law? It is the same head, isn’t it?
Do the authorities really not know who the drug bosses in Bulgaria are?
Do they not know that drugs’ millions are laundered here.
Do the drugs fly over the frontier on a magic carpet?
In a country which has nothing to do with Bulgaria instead of a special law, an Agency for cutting off relations between authorities and organized crime was created. And the first task of the agency was to determine whether they talk intimately to each other in the dark.

14. Which administration and which court system are going to apply this law? Whenever possible foreign companies working in Bulgaria always choose foreign law and court. Why? Is the only explanation that they have been misled by a US State department report ?

15. History teaches that vulgarization of law is the end of law. This happens when incest between principles and institutions occurs. Every lawyer has to clearly realize that the submitted bill has nothing to do with civil law, defined in the past as “ars aequi et boni”. Remember the Little Red Riding Hood saying: “this long teeth creature in the bed is not my granny”
The magic key in the separation of powers as well as in a simple court case is the mutual initial balance between the parties. That is why the goddess of justice holds a pair of scales.

16. We appeal to the members of parliament to insist on an experts’ assessment of the Bill by the Council of Europe and by the European Union – as was the case with the Media bill. The unclear reference to alleged foreign precedents in Bill’s reasons sounds like a sweetener to help swallowing the main pill. Why do you fear such an European experts’ assessment of the Bill?
Another brilliant example is the legislative practice in the state of Illinois. A law passed there may go through a trial period of one year and then legislators may decide whether it is efficient enough. If it is, the law irreversible comes into force. The same trial period could be provided for the submitted bill as well. If within one year after its adoption three drug barons, three customs chiefs, three members of parliament and three political parties are convicted – then we say: “Let it be!”.

17. Finally – we do not believe at all that the bill is being rushed right now in order to blackmail criminals to make pre-elections donations against immunity under the law. This is a brutal slander! As it is equally untrue that being in power becomes a precondition for simple civil security.

• True are only the famous words of Montesquieu about despotism:

“When the savages in Louisiana want to pick up fruits, they axe off the tree from its trunk”

The lawyers:
Daniella Dokovska, Valentin Braykov, Kina Chuturkova, George Atanasov

• On April 16th 1879 Bulgaria adopted its first constitution and that date turned into the Easter of Bulgarian state resurrection. To call April 16th the gala day of the lawyers is the same as to call Christmas the gala day of the priesthood. The attribute “professional” cannot accommodate the nationwide thirst for justice and for state pride which will better suit to the joyful exclamation “It has resurrected indeed !”.

• Today we wholeheartedly welcome our youngest colleagues lawyers who bring in the most valuable assets to the profession : harmony of the young soul, common sense, simple justice and painful conscience which are the sacred source of law. They are the real columns of the temple and not the experienced perversity of some arrogant high priests who shine like fireflies in a sunny day. “The lawlessness in Babylon came from the senior judges”, says Prophet Daniel.

• The young colleagues are already looking into the eyes of the mystery sphinx of our profession. Law draws its compulsion from power. Morality shapes human behavior through conscience. The law of power wants to look moral while the morality of conscience wants to be binding. But power and politics imply alliance with the stronger while morality and religion advise alliance with the weaker. How to manage this tragic dualism, how to exchange conscience for power and force?

• The real lawyer cannot be a government’s friend. He is either a devoted lawyer or a devoted government friend but never both because vocation of justice is to restrict the stronger in favor of the weaker- unlike the jungle. That is why the fundament of state is justice and not only law. The daily battle for justice in the court rooms is a battle for national sovereignty. A weak justice in peace time is like a weak army at war. The crushed little man does not fight for the flag.

• There are a lot of masons and painters in Bulgarian legislation but hardly an architect. Almost every subject of regulation is proclaimed a branch of law, thus we have masons in “investment” law or in “public procurement” law. Almost every law has its own implementation regulation and its own procedure for settling disputes. Like a city without a plan and construction supervision where only legal twaddle is heard.

• Judiciary is faced with a mass grave of unexposed and unpunished crimes. And not all corpses have been decently buried. When an ill man does not feel pain but pain is for those around him and when an ill man alleges he is the victim of conspiracy just because of his best health- then the doctors conclude a mental disease. This massive grave of failed Bulgarian justice reminds of that ancient

• Greek field where from the drake’s teeth soldiers grew who killed each other. Law is also a kind of a social contract to argue by words and not by bullets. When words get perverted, the frank bullet comes back. And then follows what Alexis de Tocqueville said about the French revolution : “Instead of attacking only the bad laws, the people attacked all laws.”

• For the sake of the young colleagues’ high spirit we shall paraphrase Napoleon in our context: “Every magistrate carries in his bag a lawyer’s baton”.

• These are not the first hard times for the profession and they shall be overcome like the previous ones : by a powerful outburst of valour, courage and conscience or simply said- by a spiritual jump.

• No one has said it better than St. Mathew in the New Testament (24/12-13)

“Because of increased lawlessness, the love of most will grow cold,
but he who stands firm to the end will be saved”.

CONGRATULATONS FOR THIS GREAT DAY, DEAR COLLEAGUES !

16.04.2004 – Braykov’s Legal Office

• The relationship between trade, counterfeits and legal defense resemble the link between an organism, an illness and its cure. This is a reactive and adaptive chain where the illness (the counterfeits) adapt and implant themselves into the organism (the trade) and the cure (the legal remedy) adapts itself to the respective virus (the specific counterfeit). All three elements are in a constant development and in a mutual chase. As if the first one (the legal trade by marks) and the third one (the legal defense) are doomed to victory because they enjoy the state enforcement against the middle unit- the counterfeits. Unfortunately this is a skin-deep assumption for the balance of forces which does not consider the consumer’s motives to hand out for a counterfeit.

• The myth of the mislead buyer who confused the cheap counterfeit for the expensive original cannot explain an estimated annual trade with counterfeits for more than $ 500 bln. Have all those buyers been confused and mislead by the identical or similar mark on unauthentic goods and cannot see the difference or do not know from where to buy the secure original ? The answer is too obvious and bitter : they do it by free will, with the clear mind that they buy just the low quality copy of a famous brand and from an unknown producer.

• A key for understanding it is the high price of the original and the low price of the copy. While the mark on the authentic goods is a message to the buyer for an acknowledged origin and high quality, the same mark on the counterfeit is a message by its buyer to those around that he/she can afford the price of the original. A counterfeit Rolex on the arm or a false “Davidoff” on the table misleads not the one who carries or smokes them but those who watch and envy him.

• The intentional purchase of a counterfeit is a conscious simulation of a life standard, a solidarity in fiction between the counterfeit’s producer and its willing consumer against the expensive supplier of the original and its rich buyer. In this way the sale of counterfeits turns out to be a desired adultery between the thief of another’s mark and his vain client- a sin which not only hurts the brand owner but also teases the club of his solvent consumers. Seen from that aspect, the extermination of counterfeits is an utopia and a panacea against this epidemic is hardly possible. The realistic task is to push down its market share to an acceptable minimum which does not jeopardize the competition among branded goods.

• The top urgent legislative priorities to this modest end are as follows:

First: Production of counterfeits to be lawfully banned and to become a major case for civil, administrative and criminal liability. Not only trade and storage of counterfeits.

Second: Criminal liability should be introduced for similar and imitating signs, not only for identical ones.

Third: Counterfeits arrested within criminal proceedings should be destroyed by preliminary/police investigation authorities, in analogy with destruction of drugs under art.108 (5) Criminal procedure code, and only samples evidence should be preserved for court purposes.

Fourth: Transit immunity of counterfeits must be expressly abolished. In addition, declaring the primary origin should become a mandatory condition for granting a transit customs status to a consignment.

Fifth: Administrative liability under art. 81 Marks law should be extended to breaches of marks for services and sanctions “closure of shops” and “company striking off” should be introduced as an alternative to the witnessed destruction of counterfeits breaching marks for goods.

Sixth: though not being a mark’s breach, Bulgaria should restore a civil action remedy against the unlawful registration by court of a company name without the consent of its first holder. Duplication of a famous company name to invalidate the entity’s court registration.

06.02.2004 – Braykov’s Legal Office

Valentin Braykov

• 1 constitution, 9 codexes and 312 laws make the main frame of Bulgarian law. And these digits do not include ratified international treaties as well as thousands of executive regulations which enjoy the same binding effect to the extent that a total cross-reference in a data base checks not less than 20 000 normative acts.

• If you ask an ordinary Bulgarian on the street the first three things he is proud of he will most probably answer : nature, yogurt and children and he will certainly miss the laws. Not because he can critically assess them but because a) he does not see them enforced and b) a failed justice is always blamed on bad laws- not on bad executives or bad courts. The curse is on the product and not on the producer. Top Bulgarian politicians are easy to recognize at international forums by their standard reaction to legal criticism “We acknowledge the problem but a new law is being drafted to tackle it”.

• It appears to us that the technology of Bulgarian legislation suffers from two major defects:

– First : The country issues much more laws than it can enforce. There is no equation between the number of acting legal commands and the state’s capacity to enforce them, to cover them with actual sanctions. If a car battery can make 10 lamps light, not a single one will light if you connect to that same battery 100 lamps. It is like printing money without covering assets. Since 5 years Bulgaria is under a strict monetary board but it needs a new one – a legislative board to ban adoption of new laws if they are not secured by adequate enforcement. The enforcement deficit is nearing the point of enforcement bankruptcy. And no one cares because “…a new law is being drafted…”.

– Second : Many rules of law are no longer simple direct definitions for human behavior but are conditioned on discretion/ permission of administration. “You can carry so much cash abroad as the finance minister allows you to”. In this way the core of the law command, the will of the rule is transferred from parliament to government which erodes the separation of powers by this delegation of responsibilities. The actual disposition of the law norm is defined not by legislature but by executive. That is how most of the important Bulgarian laws cannot function without government regulations for implementation. The Ten God’s Commands of the Bible are still among the very few norms without such an executive crutch. The formulation of meaningful abstractions as norms of law is an obsessive and all-consuming vocation beyond the reach of passers-by in politics who hurry for a passionate rendezvous with the delights of power.

• We have not heard yet a reasonable explanation why the best acting Bulgarian laws : Law on Obligations and Contracts, Civil Procedure Code and Property law were adopted b/n 1950 –1952 i.e. in top Stalinist times and the Law on Normative Acts of 1973 in top totalitarian times.

06.01.2004 – Braykov’s Legal Office

Valentin Braykov

But has it amended hearts and minds of law enforcement?

• The Bulgarian parliament has voted in September to amend the Constitution in its Judiciary chapter. The amendments marched hurdle-free on all three readings to meet a EU deadline and to reason a favourable EU Commission’s report in November for Bulgaria’s accession progress- as it turned out to be the case.

• In substance and as a concept the constitutional amendments are aimed to cut down the untouchable status of magistrates granted to them by the 1991 constitution as a contrast reflex to their political dependency in communist times. I.e. these are constitutional provisions threatening judges and prosecutors with sanctions for professional failures.

• The actual effect of the amendments will be tested when the respective Judiciary law is changed accordingly and when the future Supreme judicial council starts using them as weapons against judicial corruption- namely against unreasoned discretion and inaction i.e. whether the cat starts catching mice. There is a legitimate concern that the future-oriented amendments will absolve cases of past judicial corruption and massive graves of failed justice will never be exhumed. Example one of too many : in 1994 Sofia’s water reserves were drained, allegedly used to produce export electricity. Six unforgettable months of misery. No indictment or conviction.

• Bulgarian president stated that other constitutional amendments related to the country’s EU accession will be considered AFTER the European constitution is adopted. This comment’s background goes to a number of “linkage issues” that political parties tried to trade for voting the above amendments such as sale of land to foreigners, legislative initiative for the president, reducing the number of MPs, minority rights etc. The EU pressure for immediate adoption of the amendments was the actual political scissors that amputated the linkage bargains from the urgent changes.

• Legal profession has also contributed to judiciary crisis by its 1991 law adopted in parallel to Constitution which introduced a registration pattern for admitting to the Bar thus turning the Bar into a dumping ground for some failed politicians, resigned magistrates and policemen or “microwave” graduates from the six new-born law faculties around the country. And Bulgaria has a teaching potential of European standard law professors just for a single law faculty. Logically the “open door policy” of the profession reached the stage of a “no walls policy”.

• But the ghost of judicial corruption is still haunting the palace of justice according to public opinion, EU and US reports. The judiciary deck of the Bulgarian state ship may be independent from the other decks and even from the captain but it is not independent from sinking with the whole ship should water break into the hull through judiciary deck.

• The constitutional amendments have only cleaned the wound but crucial surgery and treatment are still to come.

01.12.2003 – Braykov’s Legal Office

Valentin Braykov