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LEX PETKANIA* OR THE SLIDE OF GOOD INTENTIONS

* 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