Decision No. 11 of 4 October 2016 on Constitutional Case No. 7/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a five-member panel of the Supreme Administrative Court seeking a declaration of unconstitutionality of Article 37 of the Act on Combating Anti-Social Behaviour of Minors and Juveniles (ACASBMJ - promulgated in the State Gazette, issue No. 13 of 1958, last amended in issue No. 59 of 2016).
Summary of the Court’s Reasoning
The contested provision of Article 37 of the ACASBMJ is entirely procedural in nature. It provides that the temporary placement of minors and juveniles in institutions established for this purpose is carried out by an act of the competent authority of the Ministry of the Interior, but only for a period of up to 24 hours, and for a longer period only with the authorization of a prosecutor (up to 15 days in the general case, with the possibility of extension in exceptional circumstances for a maximum of up to 2 months). The constitutional review must focus on whether the established procedure provides affected persons with an effective opportunity to defend themselves against unlawful restrictions of their constitutional right to personal liberty and inviolability.
The Court finds that, by its legal nature, the prosecutor’s authorization to extend the stay in a temporary accommodation facility for minors and juveniles beyond 24 hours does not differ from the act of the competent specialized authority of the Ministry of the Interior ordering the initial placement. In both cases, a binding restriction on the personal liberty and inviolability of the affected person is imposed through an explicit act of a statutorily empowered state authority. In this respect, the prosecutor’s authorization meets all the characteristics of an individual administrative act within the meaning of Article 21, paragraph 1 of the Administrative Procedure Code.
The Constitution establishes as a general principle that all administrative acts are subject to judicial review, unless their appealability is expressly excluded by law (Article 120, paragraph 2 of the Constitution). In the present case, however, the law does not provide for such an exception, and therefore there is no need to assess the limits of admissibility of legislative solutions of this kind as outlined in Constitutional Court Interpretative Decision No. 14/2014. Access to court is ensured for all affected persons (Article 147, paragraph 1 of the Administrative Procedure Code), and the subject of judicial review includes both procedural and substantive legality (Article 145, paragraph 1 and Article 146 of the Administrative Procedure Code). The appeal suspends the execution of the act, while provisional enforcement is subject to judicial control (Articles 166 - 167 of the Administrative Procedure Code). It may therefore be concluded that there exists an adequate legal framework for the conduct of a fair, public, and adversarial judicial proceeding between equal parties.
The possibility of judicial review of the prosecutor’s authorization under Article 37 of the ACASBMJ does not impair any of the functions of the prosecution service conferred upon it by Article 127 of the Constitution. The order for placement in a specialized institution for minors and juveniles produces an immediate and direct effect on the rights and freedoms of the person concerned. There is no basis whatsoever for treating this act as an expression of prosecutorial supervision over the authorities and persons who, by law, are responsible for the proper execution of the coercive measure. Such supervision is exercised and owed by the prosecution’s office subsequently - from the imposition of the measure until the completion of its execution. The essential point in the present case is that judicial review of the lawfulness of the prosecutorial act issued under the provision subject to constitutional review not only does not exclude, but in no way restricts, the effective exercise of the power under Article 127, item 4 of the Constitution.
It should finally be noted that there is no contradiction between the fundamental principles adopted in the present decision and the judgment of the European Court of Human Rights in the case “A. and Others v. Bulgaria”. In this regard, it should be borne in mind that whereas constitutional review by the Constitutional Court is based on an abstract comparison between the content of the challenged statutory provision and the requirements of the Constitution, without the need to establish the applicable domestic law and the relevant practice in its application, the European Court of Human Rights bases its conclusions on the results of an adversarial procedure in which the national legal framework is also subject to proof, along with the acts and omissions of the States which infringe the rights and freedoms protected under the ECHR. Therefore, in the operative part of its judgment finding a violation of Article 5, paragraph 4 of the ECHR, the ECtHR indicated as the sole reason for the violation the fact that, as the respondent Government, it “failed to indicate an effective domestic remedy” providing the possibility of subsequent judicial review of the placement order in a specialized institution for minors and juveniles. Consequently, there is no basis to conclude that the present decision of the Constitutional Court leads to a lower standard of human rights protection under the Constitution compared to the standards established under the ECHR.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court rejects the request of a five-judge panel of the Supreme Administrative Court for a declaration of unconstitutionality of Article 37 of the Act on Combating Anti-Social Behaviour of Minors and Juveniles.