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THE BULGARIAN LEGAL MYSTERY – FROM TOMATO REPUBLIC TO CODEX-STAN

  • This is an insider look into the so called Bulgarian Legal Mystery. By Legal Mystery we mean the shocking headlines of 65 unresolved assassinations, billions of public assets abused and unpunished, not a single drug baron or corrupt politician behind bars, the president of a major court driving a stolen car, journalists cheating a notary in a mock-sale of the official limousine of chief prosecutor and four policemen kicking to death a handcuffed detainee but cleared by prosecution. And all this in a country which 15 years ago was so uneventful and even boring where one was anxious to see fiction movies featuring such actions. Now reality seems to have overrun the fiction. We simply want to show that “Although it is madness, there is system in it”.
  • Perhaps the explanation should start from the outlook of the Sofia Palace of Justice. There is a kind of a double sphinx there allegedly holding the key to the mystery. These are two statues of lions, two majestically walking lions on both flanks of the palace of justice. But when you throw a second glance on the two marble animal kings you may notice that they walk in a totally different way. The right lion has stepped in a symmetric way with both right legs moving forward whereas the left lion has stepped in an asymmetric way-like a man does when creeping on four limbs. One of the two lions steps the wrong way, they are obviously from different battalions with different marsh music. So the symbol of discrepancy in law enforcement can hardly be more conspicuous.

There are some explanations for this regretful status-quo and we can list five of them:

  • The first factor is the impossible speed by which Bulgaria was forced in recent years to adopt new laws. It was almost like changing a plane in the air.
  • Reception of foreign legal models is not new in Bulgarian history.
  • First time it happened back in the 9th century when our kingdom had to adopt new Christian laws. It took us more than 100 years to accommodate those new provisions and at that time nobody asked us whether we were ready or not for accession to Christianity. Bulgaria put the legal questions and Constantinople and Rome competed with the answers. The responses of the Vatican to the Bulgarian legal questions made up the famous document of early Catholic law called “Responsa Papae Nicolai I ad Consulta Bulgarorum” in November 866. But it took another 100 years to fully adopt and enforce that ancient Christian Acquis.
  • The second time Bulgaria was confronted with massive reception of foreign laws was after the liberation from Turkey in 1878 till World War I. These were nearly 40 years for transplantation of the continental legal system to Bulgaria. It started with the Constuitution. The Russian administration was clear that the only way to perperuate Russian influence was to bet on the gratitude of wide popular masses and hence to opt for a democratic constitution.That is how the Belgian constitution was chosen as a model for Bulgaria. But this second wave of legal adoption took about 40 years and with no rush.
  • The third campaign of drastic legislation import was after World War II between 1945 and 1955 when Bulgaria was traded, betrayed and sacrificed to the Stalinist tiger though we never fought the allies and we saved our Jews from concentration camps. In those 10 years Soviet legal models were injected all over Bulgarian law. However it is fair to concede that at the climax of Stalinist terror, that is between 1948 and 1952, Bulgaria passed its 4 best civil laws : Law of Inhertitance, Law of Obligations and Contracts, Law of Property and the Civil Procedure Code. All those communist civil laws, though slightly amended, are still in force today. Yet it was a matter of 10 or more years to make the legal transition to a state guided economy.
  • Now we are having the fourth historic influx of foreign laws- those of the European Union. Unlike previous receptions this time the arriving European laws are like a legal slide- biggest in numbers, within the shortest term of 3 to 5 years and changing the whole panorama. Even with the best will the country has no absorption time for so many new laws, the system has been overwhelmed and crushed. It is like pumping water into the mouth of a drowned man. The Biblical flood of water is now reappearing as a flood of norms- totally incomprehensible for the normal human being i.e. law becomes less humane. For this reason law ceases to guide the behavior of the ordinary man- since he cannot grasp it he blindly relies on others’ interpretations and executive instructions. But this is not the shield and lance of individual liberties as it was designed to be by the Great Revolutions. Depriving common people of the clarity and simplicity of the Ten Commands and turning law into a mystery puzzle for a few modern high priests takes us back to most ancient times when Jus was Fas. As if law destroys itself by its own overweight. This is the first and main reason for the current Bulgarian legal drama.
  • The second grave factor out of control is the sharp discrepancy between the amount of legal provisions and the capacity of the state to enforce them. The equasion between laws and enforcement capacity is not a part of the local government culture. Laws are being passed and published like printing money without value. Bulgaria has a monetary board but it needs more a legislative board to stop printing laws without enforcement cover. And as every common sense restriction to power this one too it is not welcome on the top.
  • The third negative legal factor is the worldwide contradiction between the speed of entering into a contract- electronically it takes just a second to sign plus days to deliver and the years needed to complete a court dispute on same contract. The economy does not tolerate such a crisis disparity between a business relation and its remedy and that is why short cuts are looked for.
  • The next three stumbling blocks to legal efficiency were home made. The system of courts was changed from two instance to three instance. The adjustment and tuning of this major operation took about 10 years. To contrast communism, judiciary was made so independent that some magistrates started thinking division of powers meant shares in power. We painfully rediscovered the Columbus rule that he who goes too far to the west will certainly turn up in the east.
  • Another home-made blow to the judicial system was opening in 1991 the access to the bar for any law graduate. No special requirements, no entry exams. As a result within a few years the profession grew in numbers from 2000 to over 12000 i.e. a six fold increase. The legal profession was deliberately turned into a dumping ground for failed politicians, former magistrates and dismissed civil servants. The Open door policy ended up as a No walls reality.
  • And the cherry on the cake was that in five years the number of law faculties in Bulgaria grew from one to ten. Ten law faculties in a country which has academic assets for just one. Every year of the ‘90s those ten law faculties pumped into the system over a thousand law graduates, a poorly educated legal militia which fiercely attacked the positions in courts, prosecution, investigation, notaries and administration. The results are widely known, they make the headlines we mentioned at the start.
  • Having hit the rock bottom there is a sense of stress and shame in the nation to rush back to the right track of European legal standards. The recovery has already started though it is not all visible on the surface.
  • First, the number of law faculties has been reduced from 10 to 3 with uniform programs and teaching staff. The educational source of pollutrion has been largely switched off. Yet a number of fresh-ranked professors from the proliferated and then redundant law faculties turned into free-lancers available for great deeds within politics, administration and justice. Almost no law graduate in government without an academic title- as many as the generals in the former communist army.
  • Then, under the new law of the legal profession, applicants to the bar must pass quite harsh written and oral exams to make sure no amateurs join the guild. This last November 70% of the candidates failed at the admission exams of the bar. Same approach is relevant for notaries and junior judges- which is good news. Yet recently too many newly appointed junior magistrates turned out to be the children of top politicians and of legal academics.
  • Draft amendments of the Constitution have just been lodged providing for a 2/3 parliamentary majority to remove from office supreme prosecutor and supreme courts presidents thus pressing them into efficiency.
  • Our frank opinion is that the so called judicial reform has to start outside the legal system. To cut the influence of political establishment on the judiciary. This is the source of poison- the political pressure on institutions of justice. The priority of every ruling team is to ensure immunity and irreversibility of its major discretions, deals and decisions related to money. So it is their basic instinct to turn justice from a watch-dog into a watch-pet.
  • Who invented the fiction that politicians are good but judiciary-bad? This dualism between the fox and its tail carries an extremely comfortable and opportunistic message that the political elite is in order and only a judicial reform is needed. The constant repetition of that message tries to veil the simple truth that it is the parliamentary majority i.e. the ruling elite which deliberately creates the inefficient structure of judiciary and the confusing substantive and procedure norms. If one looks at the political establishment as a partner to major crime then the puzzle is quickly fixed because it then becomes visibly logical that crime will never create an efficient mechanism against its own self. The ruling political establishment cannot be the source of solution if it is the major part of the problem. The status-quo is based on the internal calculation that the nature of Bulgarian people is the almost endless patience before a protest eruption and that keeping their living standard at existence-minimum makes survival but not justice their priority. Surviving in this extremely assets-rich country! And the external calculation is to offer to the respective Big Brother (whoever he is at the time) a foreign policy obedience for closed eyes on domestic corruption- “we steal the bonus from our own people, not from you, so you talk reforms and we play our game”. Traders cannot kick themselves out of the temple- someone else has to.
  • Words do not count as much as they used to. One of democracy’s rationals was to create a bloodless and non-violent formula for imposition of one group’s will over another group’s will. It was assumed from experience that 10 swords were more likely to win battle against 9 swords and so votes instead of swords should define victory. I.e. playing a battle by words and votes rather than fighting it by real arms. One man=one sword=one word/vote. (“Sword” and “Word” are so close in spelling). Modern arms and money question that ancient formula as an element of democracy. Today one special sword can beat thousands of others and the man who holds it would hardly accept equal relevance of the weaker thousands. Taxes rather than votes keep the state together.
  • It is a tragicomic vanity show to watch how many codexes are being legislated in Bulgaria. There is an extreme shortage of experts to draft a simple law but there are plenty of intellectual giants to author a codex and nothing less. Only in 2005 four codexes have been legislated: Code of International Private law, Criminal Procedure Code, Insurance Code, Tax and Social Security Procedure Code. Four more are in the pipeline to the chamber. This grotesque prompted the name “CODEX-stan” (from Turkish-“Bulgaristan”), replacing an earlier “Tomato republic”. And it happens in a parliament where MPs are at ease to vote with their colleagues’ cards so that 20 attendees produce more than 120 votes- to the extent that in December 2005 a journalist managed to enter the chamber and to deliver a vote on a law with a deserted MP’s card on the bench. The real dimensions of the show would become visible if at the end of a parliament’s term MPs pass a written exam on the major laws they have voted.
  • However we are firmly convinced that the above drama (not all Bulgarian made) should NOT reason Bulgaria’s EU accession to be delayed from 2007 to 2008. Such a postponement may turn a tragic mistake. Almost nothing can be improved within a year. It makes no sense keeping a patient for one more hour outside the emergency room hoping he will get fitter for treatment. On the contrary, treatment may become harder and costlier. The one thing Bulgarian Mafia deadly fears is not EU laws or judicial reform but European officers at Bulgarian customs check points. Mafia loves the safeguard clause and its implied accession delay. It is as simple as that:

Whose reinforcements will come first?

Valentin Braykov

January 2006 – Braykov’s Legal Office