Decision No. 6 of 5 June 2025 on Constitutional Case No. 28/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the Supreme Bar Council for the establishment of the unconstitutionality of Article 120, paragraph 2 of the Social Insurance Code (SIC). In its wording in force as of 1 August 2023, the contested provision stipulates that, in administrative appeal proceedings, the appellant shall not be entitled to reimbursement of the remuneration paid for legal representation by an attorney.
According to the referring body, Article 120, paragraph 2 of the SIC is contrary to Article 4, paragraph 1 (the principle of the rule of law) of the Constitution, as it constitutes an “unjust regulation which is also internally inconsistent”, in view of its conflict with Article 7 (state liability for damages) of the Constitution, insofar as it “permits the State not to be liable for damages caused by unlawful acts or actions of its authorities and officials”. Arguments are also advanced that the provision is inconsistent with Article 56 (right to defence) of the Constitution, “as it hinders and discourages persons whose rights or lawful interests have been adversely affected from seeking legal assistance”.
Summary of the Court’s Reasoning
The right to defence under Article 56 of the Constitution requires that not only access to a court - which, as a rule, must always be ensured - should not be obstructed, but also that effective legal protection of the persons concerned be guaranteed already within the framework of the administrative proceedings, particularly where such proceedings are mandatory and the failure to pursue them precludes judicial review.
By virtue of the adopted legislative amendment, an excessive burden of self-organization of their defence is imposed on the persons concerned, which may discourage them from exercising a constitutional right of their own.
For the foregoing reasons, Article 120, paragraph 2 of the Social Insurance Code is contrary to Article 56 of the Constitution.
The liability of the State for damages under Article 7 of the Constitution cannot be excluded by statute, as Article 7 does not permit exceptions to such liability. The principle of due compensation does not allow limitations either with respect to the categories of persons towards whom the State is liable for damages, or with respect to the legal facts capable of giving rise to harmful consequences for legal subjects.
Constitutional protection against damages resulting from unlawful acts, including acts that have been annulled as unlawful after their compulsory enforcement, is guaranteed by Article 7 of the Constitution (Decision №2/2000 on Constitutional Case №2/2000). It is precisely the liability of the State for damages caused by acts or actions of its authorities and officials declared unlawful that constitutes a key component of legal certainty and a guarantee of the rule of law in the exercise of powers by state authorities and officials.
Through the amendments to Article 120, paragraph 2 of the Social Insurance Code, the liability of the State for damages arising from unlawful acts and actions of the social insurance authority, in so far as they relate to the remuneration for engaging legal representation in the administrative appeal proceedings under Article 117 of the Social Insurance Code, is excluded. This amounts to a constitutionally impermissible restriction of the subjective right deriving from the constitutional principle enshrined in Article 7.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (empowering the Constitutional Court to rule on requests for the establishment of the unconstitutionality of laws), the Constitutional Court declares unconstitutional the provision of Article 120, paragraph 2 of the Social Insurance Code.
Председател: Павлина Панова