Category Archives: Braykov’s Column

Well, I am not sure I know the answer to this question.

But I can try to break it down into a number of derivative questions and observations to shape the landscape for that answer.

What I can only offer in the next few minutes is a part of the Balkan perspective on these issues. I will try to articulate the discreet concerns of some of my Balkan colleagues- that means I will try to translate to you the whisper of the fish from my pond so that you understand us better. Whether a drop of that pond reflects the whole ocean is up to you to decide. And I do hope for a degree of a cultural handshake.

I gladly accept and enjoy the new horizons that high-tech has brought into our business. But the crucial defining question here is Who is in the center of our professional universe: is it still the simple man on the street or is it the big corporations and the financial markets – just because the big money is there? We cannot avoid that crucial starting dilemma- it is as important as having a compass of values. I am not saying our universe has only a center but we should remember who is on the top. In my view it is not the richest client. And our priority should not be to look professionally sexy to that rich client- at any price and by all means.

My next assertion is that the social function of our profession has significantly changed in the last 20 years.

We are living in a deluge, in a flood of law provisions, in a so called lex-slide (not a mudslide but a lex-slide) which has overwhelmed the simple man on the street and that simple man has given up hope to understand the law. He is looking for guidance at us. From his perspective we have become the initial voice of law. He does not read the Official Paper. We are his oxygen mask through which he breathes his rights and obligations. For the ordinary citizen we have become a crucial part of his judgment capacity for good and bad, like the Apple tree in the Garden of Eden. We are the traffic lights for his social movements. This is a major change in the social function of our profession.

Long gone in the history books are the values of a single universal law-like the great European codes of the 19th century. Since we are in Vienna may I recall that in 1896 a famous Austrian lawyer Dr. August Pleschner transformed the Austrian Civil Code of 1811 into poetic verses so that it became understandable to the common people. Today this legal poem sounds like a fairy tale. Can you put in verses for example the recent General Data Protection Regulation? That would be a big fun, wouldn’t it?

Yet much has not changed in the last 20 years. The confidence between client and lawyer remains a confidence between human beings. Professional trust is still addressed to humans only. If we forget that simple truth, our guess game on legal high tech will look like the king’s new clothes.

Another observation of mine is that The high-tech role in our profession has its limits and its shadow.

Yes, high-tech is a premise for the adequate office environment. Yes, high-tech does facilitate access to information, to communication, to research and reference, even analysis and decision making, but it also carries its shadow of additional cost. I can hardly see why the high-tech component of our work should be translated into cheaper fees.

The magic of our profession is still that seed of creativity, that mental blitz of association and that unexpected counter-point in the court room. To put it short: There is no Spiritus Sanctus in our high-tech equipment. A cognitive Watson computer is not a substitute for fair judgement and common sense. Our service is no parallel to the high-tech industry machines which make the product cheaper.

Yet we should not be uneasy to discuss openly our fees.

Our fees should be fair, transparent and justified leaving no frustration residue in the client. Services and fees are not a part of a poker game in a casino. Here is the fine difference b/n making money and taking money. The client should not be reminded of that famous Shakespeare quote from Henry VI where the rebels call: First Let us kill all the lawyers!

To sum it up: There is no simple and single answer to the issues of my topic. May be the truth is among the following factors:

To start with the obvious: Our profession remains a delicate balance between a competitive trade and a social mission. We should not devalue our efforts by charging absurd and dumping fees. But we are also conscious of our vocation and responsibility to help the ordinary man survive the legal avalanche. Hence we should probably consider stepping up our free of charge service to society like popular newsletters, media interventions, early warnings or simply free advice.

But we should also send alarm signals to governments that due to their sheer overdose, the legal provisions are turning from medicine into poison. And high-tech is not the antidote. First the contamination should stop.

And we are confronted with some challenges where high-tech is not the answer: We should not be afraid to concede that there is no solution for all. No place for everybody in the high-tech sky. We cannot be all sky-walkers. Some of us will not survive the competition and will drop out of the market. We should be spiritually prepared for a dignified retreat. A precious human skill is the management of one’s own sunset. I mean that art of soft landing due to fuel exhaustion. But that is not easy to achieve in a professional life which is often marked by a noisy loneliness.

Of course we cannot be prepared for everything that will come. We should save at least 10% of our spiritual capacity and resilience as a reserve to meet the unpredictable future. Especially now when it seems that the winners of the cold war are losing the cold peace.

Do you know what the greatest mistake was which some Balkan lawyers made in the 1990s (myself included)? That mistake was that we rushed to look western. We forgot the first Columbus rule that He who goes too far to the west will certainly turn up in the east. So we made the full circle and found ourselves back into our eastern shoes. Let us be what we are and what God has made us to be. There is merit in staying a bit behind and learning from the mistakes of the front runners. But not too far behind

We remember well that great generation of western lawyers of the 1990s who fascinated us and baptized us in the IBA standards. For example I can recall the legal team of a major multinational corporation who went for a team building on an expedition to the North Pole! Yes, to the North Pole. Now their successors do their team building on the Caribbean Islands. Higher tech does not always mean harder characters.

The International Bar Association is a network of mutual understanding and of champions of freedom. We should not take these benefits for granted but we should constantly strive for them. Together.

Yet I do not perceive the International Bar Association as a brass band marching on a victory parade. From time to time we should speak about failure, defeat and disappointment and how we handle them in professional and human terms, not in high-tech terms.

Of course there are things beyond our control which we cannot impact. But to that end I would recall the most famous refrain of that famous Johann Strauss operetta The Bat = Die Fledermaus which sings:

Happy is the one who forgets
what he cannot change.

Gluecklich ist wer vergisst
was doch nicht zu aendern ist.

DANKE!

1.Exactly 40 years ago in that distant 1977 our beloved Roman law professor Michail Andreev suggested to me that I should address my roman-law curiosity to the famous sentence by Paul in D.2.4.5.

Pater… is est quem nuptiae demonstrant.
The father is the one whom the marriage points to.

Following his advice I published in the Bulgarian journal “Legal Thought” Issue 5/1979 my first article ”The Presumption of Paternity in Classical Roman Law”. In the following 40 years I have noted and collected some interesting findings on that topic which I feel I should share today.

2. It is tricky and risky to research the law of a disappeared world because of the temptation to transplant our contemporary assumptions to a very different age which has sunk into eternity.

3. I should not repeat the references to books and authors which I have quoted in my first article. I should only quote the publications containing new references.

4. The main arguments for perceiving Paul’s sentence as a presumption for paternity are well known in the Roman law literature.

It is the clear message that the sentence carries and its relation to the previous statement concerning the origin from the mother: Mater semper certa est, etiam si volgo conceperit.

It is also the fact that Paul is considered the author of the presumption of innocence in D.22.3.2.: Ei incumbit probation qui dicit, non qui negat. Why should not he author a presumption of paternity?

5.However there are substantial objections by Roman scholars that Paul’s sentence is a presumption of paternity.

It is Fritz Schulz, Classical Roman Law, Oxford 1954, p. 142.

It is also the fact that this sentence is missing in its most appropriate chapters in the Digest: D.22.3. De probationibus et prasesumptionibus and D.25.3.: De agnoscendis et alendis liberis.

There are also competing and very different regulations on the same subject such as Senatusconsultum Plancianum in D.25.3. and another Senatusconsultum from the time of emperor Hadrian in D.25.3.3.1 both quoted by Ulpian. The existence of these regulations is incompatible with the alleged function of such a presumption of paternity. Also the ancient habit of tollere liberos does not imply the existence of a binding evidence rule related only to the marriage.

6. Yet what is the meaning and relevance of the famous Paul’s sentence if it is not a presumption for paternity?

We think most convincing is the explanation by G.Donatuti, Max Kaser and Rolf Knutel who consider that sentence as a praesumptio voluntatis and as an interpretation rule of the opinion of the husband whether he considers himself the father of the new-born. If the marriage continues to exist after the child’s birth, it was clear for the Roman jurists that the husband acknowledges the child as his own and they simply interpret that implied recognition of the father and note it. But it is not that the father was obliged to recognize the child as his own through the fact of the marriage- which is the meaning of the contemporary presumption.

7. But then how was Paul’s sentence in D.2.4.5 transformed into a presumption of paternity in the modern world? I.e. who is the father of the presumption for paternity?

7.1. It may not be true that the assumption for family origin of the children born throughout the marriage comes from Rome. Plato formulated it in Ancient Greece in the year 380 BC i.e. six centuries before Paul and nine centuries before the Digest.

Plato, Republic, Book V, 461D:

But how will they know who are fathers, daughters and so on?
They will never know. The way will be this:- dating from
the day of the hymeneal, the bridegroom who was then married
will call all the male children who are born in the seventh
and tenth month afterwards his sons, and the female children
his daughters, and they will call him father,
and he will call their children his grandchildren,
and they will call the elder generation grandfathers and grandmothers.
All who were begotten at the time when their fathers and mothers
came together will be called their brothers and sisters…

7.2. In 1625 Hugo Grotius published in Paris his famous work “On the Law of War and Peace”. Here is what he writes in Book II, Chapter VII, p.VIII 1-3 (from the German version):

Es musste deshalb eine Vermuthung
fϋr die Vaterschaft aufgestellt werden.
Eine solche ist die Ehe im natϋrlichen Sinne,
d.h. eine Gemeinschaft wo die Frau
unter der Aufsicht des Mannes steht.

Therefore one has to create an assumption for paternity.
Such an assumption is the marriage in its natural sense,
i.e. a community where a woman is under the supervision of a man.

The above quote shows that in 1625 there was no presumption of paternity in Europe and only then Hugo Grotius suggested its drafting in law. He did not refer to Paul’s sentence as such a presumption.

7.3. In 1721 in Amsterdam were published Lettres Persanes by the 32 year old Charles de Montesquieu. This is what he writes in the last but one paragraph of Letter 84/86 through his character Rica:

Par la loi qui y est observée,
tout enfant né pendant le mariage,
est censé être au mari;
il a beau avoir de bonnes raisons pour ne le pas croire,
la loi le croit pour lui,
et le soulage de l’examen et des scrupules.

According to the law which is followed here,
any child born of marriage is assumed to be the husband’s;
whatever good reasons he may adduce for not believing
the child is his, those reasons are unavailing;
the law believes for him,
and relieves him of both enquiry and scruples.

Something must have happen b/n 1625 when Hugo Grotius suggests a paternity presumption should be created and 1721 when Montesquieu reports it in his Lettres Persanes. I am not aware of any earlier reference to such a presumption than the above Montesquieu quote of 1721.

7.4. But that is not the end of the story. The legendary French lawyer Mathieu Marais (1664-1737) writes in his diary Journal et Mémoires de Mathieu Marais, Avocat au Parlement de Paris, sur la Regence et le Regne de Louis XV, tome troisieme, p.191:

31 mars 1724
… la loi: pater is est quem nuptiae demonstrant,
est le triomphe des femmes galantes et la honte des pauvres maris.
Avec cette loi, on donnera des enfants à qui on voudra
et à qui n’en aura point fait.

…the law : pater is est quem nuptiae demonstrant
is a triumph for the fancy ladies and a shame for the poor husbands.
By this law we shall give children to those who want
but also to those who do not want.

This is the first direct reference to Paul’s sentence as an acting law in France in 1724. One can feel the thin irony and indignation of avocat Mathieu Marais who suspected that Paul’s sentence would be used as a legal alibi for royal lewdness. But the important thing is that he refers to Paul’s sentence as acting law in 1724. That law must have been adopted by Louis XIV since Louis XV was born in 1710 i.e. in 1721 he was only 11 and in 1724 only 14 years old. Probably that law-rule was included in one of the Ordonnances of Louis XIV and it was possibly drafted by his great minister Jean-Baptiste Colbert.

But this is the limit of how far I can reach as an amateur into this Roman law and European law matter. With sympathy and a deep bow I pass over the legal baton to the next eager colleague wishing him the best of luck on this intriguing path.

January 2017                                                                                                      Valentin Braykov

European squares are seething with emotion over the forthcoming signing or failure of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada. It is the younger brother of the Transatlantic Trade and Investment Partnership (TTIP), a similar agreement meant to be entered into by and between the EU and the US. Both have been scheduled to be signed by the end of 2016, but negotiations for the TTIP have been frozen due to strong European objections and for now only CETA remains headed for the finish line. This in turn has caused its recent emergence from the shadows and fall into critical focus. It has become a hot thread in Internet forums, and last weekend tens of thousands took to the streets of European capitals to express their view of CETA as a Trojan horse.

I do not envy the Bulgarian government for the difficult choice they will have to make: to support CETA or reject it. I believe, however, that the hard-pressed Bulgarian citizens deserve a consistent and logical, albeit modest explanation of this European political match, because when making a choice it is not what you get that matters, but what you lose.

1. The main objective of the 1598-page draft of CETA is to achieve complete elimination of all tariff barriers between Canada and the EU Member States and to establish a common area of free trade and unrestricted investments with the differences between investor and host country fading away.

The advantages of this concept need not be justified as they have been subject of discussion since Adam Smith. Free trade, free competition and protected private initiative investments are what we might call the Tablets of Testimony of capitalist civilization.

2. Skeptics, however, believe that Europe is not ready for such competition, because European cost prices are encumbered with values that are missing in North America, and we are not talking about the American advantages in technology, genetically modified food or financial resources. Here is a simple example: how could a European and an American product compete if the energy component in the US product equals 50 per cent of the energy component in the European product. Compare the price of a liter of fuel at a US and European gas station. Will European governments be willing to give up VAT and excise duties on petrol / diesel to make their products competitive? Or maybe American products will flood Europe and lead to mass unemployment. Without Atlantic coordination on the most important taxes, this competition will be between unequals. We should also bear in mind the fact that the cost of Bulgarian production rises due to another factor, namely state and oligarchic racketeering. This is a factor uncommon for the United States and Canada as the access to weapons there is free.

3. Another acute problem is posed by Article 8.18 CETA, which gives visiting private investors the right to summon to court the host country for violations of the negotiated investment conditions. We are talking about international investment arbitration modelled after the Washington Convention of 1965 that allows a private individual, an investor, to sue an entire country for billions of dollars and to bring it to its knees. Yes, a corporation /private entity/ entitled to sue the host country, not a state entitled to sue another state or a private entity to sue another private individual. Bulgaria ratified the Washington Convention in 2001 and has already gathered the bitter fruits of this ratification.

This responsibility weighing on the state is really an irresistible temptation, as the state is the one debtor that is always liquid and solvent. A state cannot refuse payment or go bankrupt. It will simply burden future generations with taxes, or see its real estate abroad such as embassy buildings be cashed by gloating creditors.

Another delicacy of international investment arbitration is that the respondent State could be held responsible for imperfect acts of state courts because the judiciary system is part of the very State, its creation and responsibility. There can be no independent deck on the state ship for foreign investors. The State is always responsible as one entirety, including for its internal independent bodies.

Not surprisingly, the Union of German judges has requested a ruling from the EU on how such an investment arbitration is compatible with European legal order in the context of CETA.

4. In support of the above statements, I would like to recall the curious transgressions any host state may be held accountable for by foreign investors as laid out in Article 8.10.2:
(a) denial of justice in criminal, civil or administrative proceedings;
(b) fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings;
(c) manifest arbitrariness;
(d) targeted discrimination on manifestly wrongful grounds;
(e) abusive treatment of investors, such as coercion, duress and harassment; or
(f) a breach of any further elements of the fair and equitable treatment obligation.

Why does this list of sins sound so familiar?!

Do you understand what it means? It means that an international court will rule as a higher instance, or in other words will control the acts and omissions of the Bulgarian justice system and administration.

This may actually be not so bad, because if such an investor were to lose monies deposited in a bank like CCB and then witness how the only thing done in three years to remedy the situation is sitting and waiting for the birth of the new Sherlock Holmes expected to swoop in and find out who ran away with the whole nine yards, well, said investor will ensure that all that remains in the chicken farm is some feathers and a stuffed rooster head. CCB swallowed nearly 8 per cent of Bulgarian GDP like a black hole. This can only be defined as unprecedented plundering on a global scale. And yet none of the perpetrators of this heinous crime have been found! If this were the US, these 8 per cent would mean nearly 1,350 billion dollars and would be the spark igniting civil war.

5. In fact, CETA and TTIP would give Canada and the US free and unlimited access to European markets without being bound by the free acceptance of immigrants settling there. It is this asymmetry that is infinitely sexy in a commercial way for the US and Canada. This is also the BREXIT dream, access to the European market without correlated immigration. It is by no accident that the British government, being the master in foreign political poker it is, is waiting for CETA. CETA is to blaze the trail the British would then only follow.

6. There are many radical and cynical opinions against CETA and TTIP in European media and internet forums. I do not agree with them; I will only remark on them so as to measure the rising temperature of confrontation.

These opponents claim that the two free trade draft agreements are actually the cornerstones of a newly born trade NATO, the North Atlantic Trading Organization, because the military namesake was going down, and also that the US were in a hurry to occupy commercial Europe and to usurp its economic capacity for export to Russia, China, India and Japan. The easiest way to do this is through the EU door, which already resembles the Fourth German Reich and if you caught the shepherd, the flock would follow.

I think that CETA and TTIP could be the shock treatment Bulgaria needs to heal; however, our country would not be able to withstand such therapy. Trade cohesion of both sides of the Atlantic must be performed as precisely and carefully as spacecraft docking in order to avoid a catastrophe. Of course, there is a silver lining, but evil and its progress should never be underestimated.

Bulgarian Sleeping Beauty urgently needs to wake up and not wait for the awakening kiss of the trade prince, because he will hardly be satisfied by just a kiss.

Valentin Braykov

Madame Ambassador, Distinguished Guests, Ladies and Gentlemen,

If I am to put Magna Carta in one sentence that sentence would be:

Magna Carta is the North Star of modern legal civilization.

We Bulgarians are sincerely excited by the great events of European history. But our soul is easily disturbed by the memory that for quite some time we have been outside the main stream of history. That Bulgarian sense of main stream absence has turned into a discreet instinct for “adoption” of other nations’ great deeds. Magna Carta of 1215 is one of those adopted deeds in the Bg perception for European affiliation.

Last February I had the exceptional privilege to attend the Global Law Summit in London for the 800 anniversary of Magna Carta. I asked a prominent London lawyer to recommend a book on Magna Carta and without any hesitation he referred me to prof. David Carpenter’s famous research. This is how we accessed his English translation of Magna Carta from Latin and prof. Shurbanov made its wonderful Bg translation. That Bulgarian publication of Magna Carta was arranged and financed by the America for Bulgaria Foundation which I am proud to represent- especially in this hall 272 whose renovation was also financed by the foundation.

My shortest recommendation for David Carpenter’s book is that it is a real sleep-killer. One can hardly fall asleep holding it. And the style of the book is one of a witnessing reporter- as if he is broadcasting live from the early 13th century. This book is truly amazing.

As I just told you, there was a celebration of Magna Carta in London last February. Lord Peter Mandelson made an interesting presentation at that event. In his closing remarks Lord Mandelson said that modern opposition to Magna Carta was no longer express and direct but mainly through coordinated inaction. Even in Europe he said there were a couple of countries which badly needed judicial reform but he would not name them. I can easily guess what he meant.

The judicial reform and the rule of law is the Bulgarian Magna Carta still to come. The reform of Bulgarian justice can hardly come from the main consumers of its imperfections. We all need to learn from the courage of the English barons of 1215 on our peaceful way to the Bulgarian Runnymede. Britain is an example for the reward to a state which has and obeys such a Great Charter.

In that context let me quote the very last sentence of David Carpenter’s book: “Magna Carta was set on the long journey that would take it around the world”.

I can only add: In that long journey Magna Carta has finally reached Bulgaria and it is here to stay. Magna Carta has a new home in our hearts.

===================================================================
*Runnymede is a meadow near Windsor castle where Magna Carta was sealed on June 15th 1215

800 years ago, on June 15th 1215, a peace treaty known as Magna Carta was concluded at Runnymede meadow between Windsor castle, Staines and the Thames for the prevention of a bloody civil war. Its parties were King John himself (who sealed but did not sign it) and 36 noblemen and high church officials led by Archbishop Stephen Langton. The treaty comprised of 3550 words and 63 articles was in fact a declaration in which the king granted important rights and liberties to his subjects and announced drastic restrictions to his own power. The solemn royal promise shines to this day like an unshakable sword driven into the rock of the human thirst for dignity and justice.

The Charter was born in England not of some unique achievements of English legal thought and practice but, just the opposite, of the intolerable tyranny and arbitrary rule of the king. It was that despotism and cruelty which fired the volcano of the barons’ indignation and fury against King John that forced him to compromise at Runnymede. Out of the depth of that crater the flames of sacred individual liberties flared high up into the sky. Yet in that June day of 1215 it was to the credit of all parties that they chose victory by law over victory by arms.

Magna Carta is a peace achieved by the rule of law.

The Charter is the dawning of a new constitutional civilization because:

First, it proclaims the absolute power of law over everybody including the monarch. This is an express departure from Ulpian’s ancient Roman principle in Digesta 1.3.31: Princeps legibus solutus est = The monarch is not bound by laws. It is replaced by the majestic art.40 of the Charter: To no one will we sell, to no one deny or delay right or justice.

Second, art.39 solemnly pledges immunity to the free man and his property except by the lawful judgment of a lawful court.

Third, in art.61 the king accepts his violations of the Charter to be removed by the 25 barons-guardians even by force exercised against his own person. This was a contractual security by legitimate self-enforcement.

In 1215 Magna Carta did not proclaim power to the people because it addressed only the free man: church elite, barons, knights and other noblemen, i.e. 10 – 20% of the English population. The Charter did not affect the majority of dependent peasants and other feudal subjects. But it was the seed from which English democracy grew and it later became the cornerstone of the Commonwealth value system.

There is a curious coincidence in treating foreign merchants at times of peace and war between the Charter’s art.41 and art.9-10 of the Bulgarian Prince Ivanko’s Treaty with the Genoese in 1387.

English settlers in America used the Charter as a spiritual banner in their struggle for independence. That is why the US Constitution is sometimes called the Elder Daughter of Magna Carta, a kinship that explains and justifies its juxtaposition with the Charter in this the present publication.

Magna Carta is one of the reasons why the British Isles saw no revolution like the French one.

For the first time the Bulgarian reader is given the chance to read the Charter in Professor Alexander Shurbanov’s competent Bulgarian translation based on Professor David Carpenter’s English version with constant reference to the Latin original. This publication would have been impossible without the moral encouragement and financial support of the America for Bulgaria Foundation.

The past eight centuries have turned Magna Carta into a constitutional icon, a legend and a symbol of freedom by law. There still is a glow over the crater of 15th June1215 indicating that the volcano is only dozing and that really and truly “IN THE BEGINNING WAS THE WORD”.

15.06.2015                                                                                                                      Valentin Braykov

The Bg Marks Law (BgML)-1999 was amended in early 2010 and the amendment entered into force a year later on 10.03.2011. It took another year for the Bg Patent Office (BgPO) to set the tracks for implementing the new provisions. The latter had not been tested in courts yet to have judicial precedents.

These two pages deal only with amended oppositions procedure and its relevance for cancellation claims against identical or similar marks.

1. The BgML introduced in 2010 a sophisticated opposition procedure against marks applications which breach the similarity ban with earlier marks. Art.38 “b” provides that the owner of an earlier mark has the right to oppose the application of an identical/similar mark within the three months term when that application is published in the BgPO journal. Then a domino procedure develops b/n the owner of the earlier mark, the application title holder and the PO ending with a PO resolution on the opposition.

2. The problem is that any subsequent cancellation action against the identical or similar mark under art.26 can be launched only if there had been an earlier opposition under art. 38”b” while the mark was still being applied for- art.12 BgML.

In other words, if one has missed the three month term for opposing an application of a similar/identical mark he would not be allowed to launch a cancellation claim against that wrong mark after its registration.

So the opposition under art. 38”b” becomes an absolute litigation premise for fighting a breaching TM similarity.

3. The above implies the grave importance for all TM owners to follow and read carefully the BgPO Journal to be able to attack/oppose the embryo application of a breaching mark.

If one misses that publication and the respective opposition term and option, the breaching mark grows up safe.

It means the defense against a similar mark becomes relative and a function of the earlier mark owner’s discretion and/or vigilance. Such a failure to react is considered a tacit confirmation of the breaching application.

This is a resolute change from the law framework before 2010 when the similarity of an application was an absolute barrier for the PO to register the applied mark regardless of the earlier mark owner’s reaction- see the pre-2010 wording of art.12 BgML.

4. In its current wording art.12 still provides for an express consent of the earlier mark’s owner to the similar application implying that the rule for express consent still stays unchanged.

But that is just an appendicitis of the earlier wording since no one would need an express consent if the passive one has already been assumed- by failure to oppose the similar application within the three month term of the BgPO publication.

When you extinguish the remedy tool/the action against a similar application due to non-opposition, you do not need the express consent at all.

5. The above should be well realized by all holders of registered TMs in Bg and they should know that the defense of their interests against similar marks is no longer an official function of the BgPO but solely a function of their continuous vigilance on the Bg PO journal and the quick discretion to react.

We are well aware that this principle is not unique on international level but the local specific wording of the law may easily deteriorate into a practice that may turn Bulgaria into a new-type safe haven for TM pirates.

6. We know that the relative defense against similar/identical marks is usually assigned to the parties concerned but preconditioning that defense on a pre-registration opposition and that pre-registration opposition being pre-conditioned by an indefinite surveillance of the Bg PO journal makes this law framework outstanding. It reminds us of the fable where the stork and the fox hosted each other for dinner where the guest was deliberately unable to enjoy the host’s meal- the fox offered the stork a flat dish and the stork offered the fox a bottle.

The courts may well contribute to some corrective interpretation of the new wording but it will take no less than three to five years to push such a case from bottom to top of the judicial scale. And the effort should be of highest quality.

November 2012                                                                                                      Valentin Braykov

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