Decision No. 7 of 21 June 2016 on Constitutional Case No. 8/2015
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the President of the Republic of Bulgaria seeking a declaration of unconstitutionality, as well as a ruling on the compatibility with international treaties to which the Republic of Bulgaria is a party, of the provisions of Article 40, paragraph 1, item 5 of the Classified Information Protection Act (CIPA) and Article 165, item 7 of the Defence and Armed Forces of the Republic of Bulgaria Act (DAFRBA), in the part reading: “in the event of refusal to grant, or revocation of, clearance for access to classified information, or...”
Summary of the Court’s Reasoning
On the request for a declaration of unconstitutionality of Article 40, paragraph 1, item 5 of the Classified Information Protection Act (CIPA)
The provision of Article 40, paragraph 1, item 5 of the Classified Information Protection Act regulates one of the requirements for granting clearance for access to classified information, namely that no pre-trial or judicial criminal proceedings for an offence of a general nature are pending against the person concerned.
The deciding authority is not vested with discretion to assess whether and to what extent the existence of a specific pending criminal proceeding against the person would affect his or her reliability for access to classified information.
The legislative formulation of the requirements for granting clearance equates the existence of a conviction for an intentional offence of a general nature, irrespective of rehabilitation (Article 40, paragraph 1, item 4 CIPA), with the existence of pending criminal proceedings - whether at the pre-trial or judicial stage - for such an offence (Article 40, paragraph 1, item 5 CIPA), treating them as entirely equivalent. While it is lawful for a person with a prior conviction to bear the adverse consequences associated with that conviction, this position cannot be mechanically extended to those applicants against whom criminal proceedings have been initiated but who have not been convicted. In respect of the latter, no criminal offence has been established (Article 303, paragraph 2 of the Criminal Procedure Code), and therefore they should not bear the consequences which the law attaches to a conviction.
The issue, in this context, lies in the absence of any possibility for reconsideration of the case upon a change in the relevant circumstances, including in the event of an acquittal or the termination of the criminal proceedings that served as the basis for refusing to grant or for revoking the clearance.
The restriction is disproportionate, as the objectives of the Classified Information Protection Act - namely, the protection of classified information from unauthorized access, as well as the safeguarding of national and international security - can be effectively achieved without the impugned limitation.
The same reasoning applies to the interference with the right to work of a specific category of employees. While this right may be subject to limitations, such limitations must always comply with the criteria applicable to any restriction of constitutional rights.
Notwithstanding the existence of a statutory basis and a legitimate aim, the application of the contested provision also results in the termination of a contract for military service without notice in cases of refusal to grant, or revocation of, clearance for access to classified information (Article 165, item 7 of the Defence and Armed Forces of the Republic of Bulgaria Act), where criminal proceedings - either at the pre-trial or judicial stage - have been initiated. Under Article 158, paragraph 2 of the DAFRBA, where criminal proceedings against a servicemember are discontinued, the person is acquitted, or is convicted of a negligent (unintentional) offence of a general nature, he or she is reinstated in the position, the period of suspension is counted as length of service, and compensation is due for that period. However, in cases of refusal to grant or revocation of clearance for access to classified information - where the underlying condition is likewise the existence of pending criminal proceedings - a favourable outcome of the proceedings for the accused (defendant) is not provided as a ground for reinstatement. Under these circumstances, the existing legal framework is also contrary to the principle of the rule of law as enshrined in the Preamble and Article 4, paragraph 1 of the Constitution.
On the request for a declaration of unconstitutionality of Article 165, item 7 of the Defence and Armed Forces of the Republic of Bulgaria Act (DAFRBA), in the part reading: “in the event of refusal to grant, or revocation of, clearance for access to classified information, or …”
The grounds for refusing to grant, or for revoking, clearance for access to classified information, which justify the application of Article 165, item 7 of the DAFRBA, are not limited to the hypothesis under Article 40, paragraph 1, item 5 of the CIPA, since Article 40, paragraph 1, items 1-3 and items 6-8 of the CIPA contain numerous other grounds, for which there is no basis to consider them unconstitutional, nor are such allegations advanced.
The declaration of Article 40, paragraph 1, item 5 of the CIPA as unconstitutional precludes its application from the date of entry into force of the Court’s decision. Accordingly, from that moment, it is excluded from the valid grounds for termination of a contract for military service under Article 165, item 7 of the DAFRBA.
A restriction of the right to work would be disproportionate where it is based on criteria that are contrary to constitutional principles. The present case is not such, as the underlying ground is a constitutionally protected value - namely, the interests of national security.
With the exception of the ground under Article 40, paragraph 1, item 5 of the CIPA, which is contrary to the Constitution, the contested part of Article 165, item 7 of the DAFRBA does not contravene the Constitution or the international instruments to which the Republic of Bulgaria is a party.
Unlike the act of the State Commission on Information Security, the order terminating the contract for military service and discharging the servicemember is subject to appeal under the Administrative Procedure Code, pursuant to Article 171, paragraph 1 of the DAFRBA. In this way, the right of defence under Article 56 of the Constitution is ensured.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 (the competence to rule on requests for a declaration of unconstitutionality of laws) and item 4 (the competence to rule on requests for establishing the conformity of laws with generally recognized norms of international law and with international treaties to which Bulgaria is a party) of the Constitution, in conjunction with Article 22, paragraph 1 of the Constitutional Court Act, the Constitutional Court declares unconstitutional the provision of Article 40, paragraph 1, item 5 of the Classified Information Protection Act, and rejects the request for a declaration of unconstitutionality and inconsistency with international treaties to which the Republic of Bulgaria is a party of the provision of Article 165, item 7 of the Defence and Armed Forces of the Republic of Bulgaria Act, in the part reading: “in the event of refusal to grant, or revocation of, clearance for access to classified information, or ...”