JUDGMENT No 9 OF 4 OCTOBER 2011 IN CASE No 7/2011 ON THE RECORD OF THE CONSTITUTIONAL COURT
The obligation for the bodies of the judiciary to disclose confidential information and documents relating to criminal investigations constitutes an unlawful intervention on the part of the legislature in the work of the judiciary and undermines its independence (Article 117(2) of the Constitution).
The protection of the confidentiality of information relating to criminal investigations is an essential part of justice administration and a standing duty of the bodies of the judiciary who carry out their functions independently. Hence it follows that the requests for the judiciary to disclose confidential information or documents to the legislature is a matter that goes to the very core of the principle of separation of powers. Such requests may prejudice the judgment of the bodies conducting an investigation as an expression of interest undoubtedly raises doubts as to their impartiality and hinders the normal functioning of public institutions.
Proceedings were instituted under Article 149(1)(2) of the Constitution on 22 March 2011 on a petition received from the Prosecutor General of the Republic of Bulgaria. The petition sets out a request for Article 100 of the Rules of Procedure of the National Assembly (PODNS) (promulgated in the State Gazette (SG) No 58 of 27 July 2009; last amended SG No 43 of 8 June 2010) to be declared anti-constitutional on the grounds of Article 149(1)(2) of the Constitution. The petitioner argues that the provision concerned is anti-constitutional as it obligates citizens and officials working for central and local government authorities to disclose confidential information and documents relating to criminal investigations in breach of Articles 8 and 117(2) of the Constitution.
The Rules of Procedure of the National Assembly belong to a special category of statutory acts, which despite not conforming to the definition of a law, are enacted pursuant to express provisions laid down in the Constitution (Judgment No 7/2010 in Case No 5/2010 on the record of the Constitutional Court). As they are enacted by Parliament they are subject to constitutional review pursuant to Article 149(1) of the Constitution with a view to determining solely whether they complies with the imperative provisions laid down in the fundamental law. By enacting the cited provision, the Parliament obligated all public bodies, officials and citizens to disclose any requested information and documents even where they are confidential in light of ongoing criminal investigations.
The interests of citizens and society call for an independent judiciary to be structured in line with the principle of separation of powers proclaimed in the Constitution. According to the Prosecutor General Article 100 PODNS contravenes Article 8 of the Constitution proclaiming the separation of powers and Article 117(2) setting out safeguards that protect the independence of the judiciary. The petitioner argues that the contested provision essentially subordinates criminal investigations and the administration of justice in criminal cases to the legislature in breach of the Constitution.
It is further alleged that Article 100 PODNS obligates all public bodies at central and local level, their officials and citizens disclose any information and documents relating to interviews, the subject matter of surveys, studies and hearings although such information or documents may be confidential in light of ongoing criminal investigations. The Prosecutor General further argues that the contested part of the provision does not conform to the Bulgarian Constitution and exemplifies an attempt on the part of the legislature to unlawfully intervene in the work and proceedings of the judiciary.
The Constitutional Court, having examined the arguments set forth in the petition, including the opinions submitted by the interested parties and with a view to ruling on the matter in hand, considered the following:
The interests of citizens and society call for an independent judiciary structured in line with the principle of separation of powers proclaimed in Article 8 of the Constitution. The safeguards of fundamental rights and the constitutionality of the manner in which the judiciary discharges its functions are directly linked to judicial independence. According to Article 117(2) of the Constitution the judiciary is independent and the sole imperative underlying the manner in which judges, jurors, prosecutors and magistrates discharge their professional duties is the law. Any reliance or dependence on guidelines, instructions or the judgment of representatives of the legislature or the executive power and/or on other public institutions or officials constitutes a breach of the firm constitutional imperative laid down in Article 117(2) of the Constitution.
The constitutionality of Article 100 must first be examined in light of the principle of separation of powers. A breach of the principle proclaimed in Article 8 of the Constitution is unlawful. According to the imperative provision laid down in Article 100 PODNS all government bodies and public officials are obligated to disclose information and documents although they may be confidential in light of ongoing criminal investigations. The principle of separation of powers means that the legislature may not encroach on the area of competence of the other two branches of power as defined in the Constitution as it has done in the case at hand. It should also be noted that Article 8 of the Constitution lays down a fundamental provision insofar as State power manifests itself in three areas, which are governed by systems of institutions that are relatively independent yet carry out their functions in an environment that is common to all three. In other words, in the capacity of being a manifestation of State power each interacts with the other two. The separation of powers should not foster isolation but instead encourage cooperation between them. A proper understanding of the notions of democracy and a State based on the rule of law are inextricably linked to the rule laid down in Article 8 of the Constitution. As a fundamental premise and requirement for the normal functioning of society the theories of “separation of powers”, “checks and balances” and “collaboration and cooperation” have evolved from historical traditions and subjective attitudes and present ideas, which to varying degrees have failed to be translated into specific pieces of legislation. Hence, in different countries and periods in history they have been construed and applied as multitudinous and diverse forms of government.
Like many other terms used in law the notion of separation of powers is a blanket term imbued with a rich content, which is still in use today largely on account of a tradition moulded by certain historical and political factors. The legal and political meaning of the notion of separation of powers denotes the three principal functions of State power, i.e. it allocates certain competencies to the three distinct groups of institutions and does not mean that three power groups vie for dominance over the others in the course of governing the affairs of the modern State. In other words, the separation of powers may be defined as an instrument that enables the functioning of State power and a means of preventing the constituent institutions of the other two branches of government from acting arbitrarily.
It should be also be noted that Bulgaria is a State based on the principles of the rule of law and separation of the legislature, judiciary and the executive branches of power, which are enshrined in the fundamental law and hence are the ultimate rationale underlying State governance. Each is required to consistently cooperate with the others and the legislature is called upon to create mechanisms that ease and balance relations between them. Yet that cooperation should not be understood in absolutist terms. In light of the above, the provision laid down in Article 100 PODNS constitutes a breach of the principle of separation of powers and undermines the independence of the judiciary. The principal safeguard of that independence is the possibility available to all bodies within the judiciary to act out of inner conviction. The Constitutional Court finds that the work of the judiciary may not be monitored or supervised by the legislature as this constitutes a breach of one of the fundamental principles enshrined in the Constitution. Hence the provision concerned is anti-constitutional as it obligates the representatives and officials of public institutions and citizens to disclose to the legislature information and documents that are confidential in light of ongoing criminal investigations.
The Constitution decrees that the judiciary is independent. By Constitution the lawmaker is called upon to balance the relations between the three branches of government by creating functioning mechanisms that preclude any possibility for intervention on the part of the legislature in the statutory functions discharged by the judiciary. It should also be noted that by Constitution the judiciary is called upon to serve and protect the rights of citizens. Hence within the system of judicial remedies and safeguards guaranteeing the protection of citizens’ rights and interests the judiciary has the highest ranking because it administers justice independently obeying only the letter and spirit of the law.
The independence of the judiciary is proclaimed in the second sentence of Article 117(2) of the Constitution according to which in discharging their functions judges, jurors, prosecutors and investigating magistrates obey only the law. No institution, including the National Assembly, its committees and the Members of Parliament, may usurp the powers vested in the other branches of power by Constitution. Justice may be administered only by the judiciary. Vesting such powers in any of the other two branches of government is tantamount to changing the established form of government.
The Parliament may not detract from or usurp any of the functions of the judiciary because this distorts the balance established by the Constitution between institutions, which exercise functions delegated to the judiciary. In the case at hand, the Parliament has exceeded the remit of its competence and powers as defined in Articles 84 and 85 of the Constitution and the enacted provision constitutes an attempt to seize powers, which by Constitution are vested in the judiciary. In this sense, Article 100 PODNS is anti-constitutional.
The judiciary is structurally and functionally independent. Its principal function is to administer justice on behalf of the State hence the need for safeguards that guarantee and protect its independence. The first sentence of Article 117(2) of the Constitution proclaims the independence of the judiciary as one of the three branches of State power. According to the second sentence of the cited Article 117(2) the judges, jurors, prosecutors and investigating magistrates discharge their functions obeying only the law. This safeguards the independence of the parties involved in the administration of justice and the independence of the system as a whole to which the parties concerned belong. As clearly stated in the judgments of the Constitutional Court in which Article 8 of the Constitution has been evoked and deliberated, the three branches of government are equal and independent and interact within a certain established pattern.
The body of national law does not lay down a definition of “confidential information relating to ongoing criminal investigations”. Yet, it is abundantly clear that such information relates to the actions taken by the competent investigative bodies during the pretrial phase. The disclosure of gathered evidence is prohibited by law. It carries a criminal charge under Article 360 of the Penal Code. The disclosure of such information or documents may be allowed solely in exigent circumstances by prosecutorial writ in accordance with the procedure under Article 198(1) NPK. The protection of sensitive or confidential information relating to ongoing criminal investigations is an essential function of the bodies of the judiciary, which discharge their functions independently. Therefore, requesting that such information be disclosed goes to the very core of the principle of separation of powers and has direct implications for the independence of the judiciary. Such requests may prejudice the judgment of investigative bodies and give rise to doubts as to their objectivity and impartiality.
In their capacity as public institutions the prosecutorial and investigative services must not disclose any information or documents that are of a sensitive or confidential nature in light of ongoing criminal investigations to MPs. To reiterate this point, the disclosure of any such information or documents is strictly prohibited. Confidentiality applies equally to all, including the Members of Parliament. There are plentiful reasons as to why an investigation and all information relating to it should remain confidential. Amongst others, these include the chance that the perpetrator may abscond; that witnesses may be intimidated; that the reputation of a suspect may be unreasonably tarnished, particularly where insufficient evidence has been gathered etc. The information gathered during a criminal investigation serves no other purpose than allowing the court to establish and appraise the facts of a case.
The petition to declare Article 100 PODNS anti-constitutional is meritorious. The provision concerned obligates the bodies of the judiciary to disclose information and make documents available to the legislature regardless of such information or documents being confidential in light of ongoing criminal investigations. The attempted subordination of the judiciary on the part of the legislature by creating an obligation that clearly violates one of its most essential duties constitutes an unlawful intervention in its work. The judiciary is independent and that independence, particularly from arbitrary conduct of other branches of government (ad hoc the National Assembly) is a manifest breach of the Constitution. For this reason the Constitutional Court finds that the contested provision should be declared anti-constitutional on the grounds of being unlawful. By attempting to intervene and detract from the powers vested in the judiciary by the Constitution the legislature has breached essential principles laid down in the fundamental law.
The contested part of Article 100 PODNS contravenes the Bulgarian Constitution insofar as it constitutes an unlawful encroachment on the part of the legislature in the sovereign domain of the judiciary as defined in the Constitution. The legislative power may not usurp executive powers vested in the judiciary. The prosecutorial and investigative services are constituent parts of the judiciary. Their constitutional status may neither be undermined nor may their work be hindered by imposing requirements, which obligate the bodies of the judiciary to disclose confidential information relating to ongoing criminal investigations.
The National Assembly may not encroach on the sovereign territory and detract from the functions of the judiciary as this has a strongly prejudicial effect on the interinstitutional balance. On the other hand, the intervention on the part of the legislature into the work and functioning of the judiciary by attempting to seize its executive powers is unlawful. Handling information that is confidential in light of ongoing criminal investigations is within the exclusive remit of competence of the judiciary. Hence, by seizing functions and powers vested in the judiciary, the Parliament effectively redesigns the balance of power between the institutions established by the Constitution. In the case at hand the Parliament has exceeded its constitutional powers and has exercised ones that are vested in the judiciary. Article 100 PODNS affects the functioning of bodies established in accordance with the Constitution and hinders their work. It contravenes Article 117(2) of the Constitution and does not allow public institutions to function properly. The constitutional status of the bodies of the judiciary may not be undermined nor may their work be hindered by legislating to force them to disclose information that is confidential in light of ongoing criminal investigations as this compromises their ability to perform their duties and responsibilities. The usurpation by the Parliament of constitutional functions delegated to the judiciary is a blatant violation of the principles of separation of powers and independence of the judiciary.
In connection to the statements of objections received from the Supreme Bar Association and the National Assembly, a parallel should be drawn between “a public institution” and a “public official”. In functional and structural terms, public (State) institutions are designed to discharge public power within the remit of their competence and the powers vested in them. In terms of the objectified remit of competence each public institution is different. The government apparatus essentially comprises the entire system of State institutions, which carry out executive functions relating to public governance.
A public institution (body) is not equivalent to a public official. The concept of a public institution (body) does not include the officials or employees of a specific institution. Conversely, the concept of a public official applies to specific persons holding a public office and discharging functions or powers relating to public governance. The two concepts lie in different planes. In terms of public institutions, it is essential to ascertain the powers a particular institution exercises vis-a-vis other subjects of law, notably other institutions, public organisations and citizens. In terms of public officials, it is essential to ascertain what powers they exercise or obligations and responsibilities they have by virtue of holding a particular public office. Despite the functions of “public bodies” being discharged by natural persons, the two should not be equated without taking into consideration whether the body concerned is a collegiate one or the powers vested in it are discharged on a stand-alone basis. The concept of a public official denotes the position held by an individual within the structure of government, their status and their legal relations with the State depending on the nature of the public office held.
The Constitutional Court finds that the petition received from the Prosecutor General should also be appraised in light of Article 80 of the Constitution. According to the provision concerned public officials and citizens are required to disclose information or documents before parliamentary committees when requested to do so. The cited provision does not apply to public institutions, such as prosecutors and investigating magistrates amongst others. This warrants the conclusion that the lawmaker has restricted the category of persons required to appear before parliamentary committees and disclose information and documents available to them, including information that is confidential in light of ongoing criminal investigations. In this sense, Article 100 PODNS contravenes Article 80 of the Constitution.
The Constitutional Court finds that the provision laid down in Article 100 PODNS contravenes Articles 8 and 117 of the Constitution, which proclaim the principles of separation of powers and independence of the judiciary, respectively. On the grounds set forth above, Article 100 of the Procedural Rules of the National Assembly (promulgated SG No 58 of 27 July 2009; last amended SG No 43 of 8 June 2010) is hereby declared anti-constitutional.
