Decision No. 4 of 16 March 2017 on Constitutional Case No. 16/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Prosecutor General of the Republic of Bulgaria. The subject matter of the case concerns the constitutionality of the provisions of Article 84, paragraphs 6 and 8 of the Ministry of the Interior Act (MIA). The request advances arguments of unconstitutionality on the grounds of inconsistency with Article 4, Article 56, Article 120, and Article 127 of the Constitution, as well as with Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
Summary of the Court’s Reasoning
The Constitutional Court considers that the essential issue is to determine whether the prosecutorial power under the challenged provisions of Article 84 of the Ministry of the Interior Act falls within the functions of the prosecution service under Article 127 of the Constitution, and in particular whether the functions under Article 127, item 4 and item 5 of the Constitution - namely to exercise supervision in the implementation of penal and other coercive measures and to take action for the annulment of unlawful acts - may be exercised through the challenged prosecutorial power under Article 84 of the MIA.
The act of the prosecutor under Article 84, paragraph 6 of the MIA does not constitute the exercise of supervisory powers under Article 127, item 4 of the Constitution. The prosecutor is a participant in an administrative procedure in which the approval of the protocol drawn up by the police authority completes the factual composition giving rise to the final legal effect of the seizure. The prosecutor does not exercise supervision over the implementation of a coercive measure imposed by another authority; in substance, he or she participates in its adoption.
The voluntary surrender of items recorded in the Schengen Information System (SIS) or in the INTERPOL databases does not have a coercive character and cannot be qualified as a coercive measure. Therefore, the prosecutor’s power to approve the protocol on voluntary surrender does not in any way constitute supervision over the implementation of a coercive measure.
Article 84 of the MIA confers on the prosecutor control powers over acts of the executive branch which are not envisaged under Article 127, item 5 of the Constitution.
The Court holds that Article 84, paragraph 6, first sentence, contradicts Article 127 of the Constitution, as its application does not give effect to any of the constitutional functions of the prosecution service. The same reasoning applies to Article 84, paragraph 8 of the MIA, insofar as it provides for “within a 5-day period, by a decision of the regional prosecutor’s office at the place of surrender or seizure of the item”.
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 declares unconstitutional the provision of Article 84, paragraph 6, first sentence of the Ministry of the Interior Act, as well as Article 84, paragraph 8 of the same Act in its part reading: “within a 5-day period, by a decision of the regional prosecutor’s office at the place of surrender or seizure of the item”, on the grounds of their inconsistency with Article 127 of the Constitution. The Constitutional Court rejects the request in respect of the remainder of Article 84, paragraph 8 of the Ministry of the Interior Act.
The decision was signed with one dissenting opinion.