Decision No. 4 of 26 March 2012 on Constitutional Case No. 14/2011
The proceedings conform to Art. 149, para 1, item 2 read in combination with Art. 150, para 2 of the Constitution of the Republic of Bulgaria.
A three-member panel of Supreme Administrative Court filed a challenge of the constitutionality of Art. 25, item 3 of the Access to and Disclosure of the Documents and Announcing the Affiliation of Bulgarian Citizens with the State Security Service and the Intelligence Services of the Bulgarian People’s Army Act (ADDAABCSSSISBPA) in the part “documents written by his/her immediate superior salaried or non-salaried officer, as well as by the available data on this person in the reference data bases (registration journals and card indexes), in the protocols for destruction of documents or on other information carriers.”
The Constitutional Court judged the motives in the challenge, the positions as expressed by the stakeholders and the written evidence admitted on the case and ruled as follows:
The ADDAABCSSSISBPA is an expression of the consensual will of all political parties with members in the 40th National Assembly to achieve, to a maximum degree, the disclosure of all documents and the annunciation of the affiliation of all persons who occupied or occupy public offices or performed or perform public activities in the sense of this Act (Art. 3, paras 1 and 2).
The purpose of the ADDAABCSSSISBPA is to arrange the procedure of access to, and disclosure, use and storage of the documents of the State Security and the intelligence services of the Bulgarian People’s Army in the period from 9 September 1944 to 16 July 1991 and to disclose the affiliation of Bulgarian citizens who occupy public posts or perform public activities with Art. 1, para 1 of the Act. Affiliation is established according to Art. 24 of the Act whenever a person has served as a salaried or non-salaried officer or an asset of the services as per Art. 1. The fact is established on the basis of documents contained in the data arrays which differ for a salaried officer, unsalaried officer and an asset and are listed respectively in items 1, 2 and 3 of Art. 25 of the Act. According to the challenged Art. 25, item 3 of the ADDAABCSSSISBPA facts under Art. 24 of the activity of an asset are established with handwritten documents or personally signed documents and with the following documents contained in the data arrays – “documents written by his/her immediate superior salaried or non-salaried officer, as well as by the available data on this person in the reference data bases (registration journals and card indexes), in the protocols for destruction of documents or on other information carriers”.
Premising on a National Assembly’s decision data about the organization, methods and instruments in the fulfillment of the specific assignments of the State Security services in the period prior to 13 October 1991 or associated with that period, a state secret does not extend in the sense of points 19 and 20 of the List of Facts, Data and Matters that Constitute a State Secret in the Republic of Bulgaria. In contrast to the abolished Act on Access to the Documents of the Ex State Security and the Ex Intelligence Agency of the General Staff, the philosophy of the ADDAABCSSSISBPA, as evident from its content, from the support for adoption and from the speeches during the debate for adoption, is intended to open the said documents of the State Security and the intelligence services of the Bulgarian People’s Army and to disclose affiliation with the said services of all persons pursuant to Art. 3 of the Act except for the persons under Art. 30, para 1 and Art. 32, para 1 of the Act. An essential aspect that sometime is not recognized is that the ADDAABCSSSISBPA operates with public documents which can be freely accessed by the persons who are identified in Art. 31 of the Act. Given that the disclosure of the names of persons who have been affiliated with the State Security and the intelligence services of the Bulgarian People’s Army may be couched in forms other than that, it is correct and proper to leave the exposure of affiliation to an independent State institution.
The Act (Art. 3) provides for the exposure of affiliation with the State Security and the intelligence services of the Bulgarian People’s Army, but not of the real concrete activities performed by these persons in favor of the mentioned services. The lawmaker uses the notion “affiliation” which means “to be part of something”. The lawmaker does not delegate to the Commission a power to make an assessment of the persons whose affiliation is to be detected during the examination of the available documents. The Commission will not judge who worked for the national security or for the fight against terrorism and who engaged in an activity to supply other kind of data.
The movants do not dispute the philosophy or the fundamentals of the Act; they challenge only one part of the provision of Art. 25, item 3 of the ADDAABCSSSISBPA as while they claim it to be anticonstitutional as it is not consistent with Arts. 56 and 57 of the Constitution, they do not indicate the specific paragraphs.
Art. 56, para 1 of the Constitution guarantees that everyone shall have the right to legal defense whenever his rights or legitimate interests are endangered. The right to legal defense pursuant to Art. 56 of the Constitution is a personal, fundamental and universal right of citizens. It is an individual constitutional right and essentially a procedural right as it serves as a guarantee for the substantive fundamental rights and legitimate interests that precede it in the Constitution. Though the right to legal defense is a fundamental individual right of each citizen, Art. 56 of the Constitution usually plays simultaneously with other Constitution texts. Art. 56 of the Constitution is violated whenever another constitutional right or legitimate interests are infringed upon. The movants did not indicate what other constitutional right had been violated by the challenged legal text. Thus the Constitutional Court will have to deduce it from circumstances as given in the challenge.
The challenge does not make it specifically clear which part of Art. 57 of the Constitution the text challenged disagrees with: is it paragraph 1 which proclaims the irrevocability of fundamental rights; is it paragraph 2 which proscribes the abuse of rights or the exercise of rights when and if this affects the legitimate interests of others; or is it paragraph 3 which is devoted to the hypotheses of short-term curtailment of rights. In the opinion of the Constitutional Court which premises on the circumstances part of the challenge that maintains inconsistency with Art. 57, paras 1 and 2 of the Constitution these rights exist concomitantly with other specific fundamental rights of citizens.
Specific rights that may be violated or endangered by the application of Art. 25, item 3 of the ADDAABCSSSISBPA – the challenged part – are the rights proclaimed in Art. 32 of the Constitution – the right to protection against encroachments on the dignity and reputation of citizens and the right to privacy which shall be inviolable.
The Constitutional Court judged that the right to protection against interference in private life and encroachments on the honor, dignity and reputation of citizens as per Art. 32, para 1 of the Constitution is not violated when true facts are disclosed of certain persons’ affiliation with State agencies.
The entitlement to obtain information as proclaimed in Art. 41 of the Constitution is a fundamental constitutional right. The Constitutional Court has previously judged that the right to seek, obtain and disseminate information in keeping with Art. 41, para 1 of the Constitution is a right enjoyed by all individuals and legal entities and protects their interest to be informed. This right encompasses the press and the other mass media. Then again Art. 41, para 2 of the Constitution guarantees the citizens’ access to information to be provided by a state institution or agency on matters that are of legitimate interest to them. This right is not absolute nor is the Constitution-enshrined right to the protection of privacy as prescribed by Art. 32 of the Constitution. The mentioned two fundamental rights are in collision in this case but since they are not absolute, they can be subject to curtailment providing the principle of proportionality is abided by. The law-sanctioned curtailment that the Constitution will tolerate of citizens’ individual rights must be pressed down by a ceiling that will guarantee the Constitution-enshrined exercise of the right to obtain information in line with Art. 41, para 1. The right to information of individual citizens is extremely important if they are to make informed choices. At the same time this fundamental right is not absolute and can be subject to curtailment in the cases that are mentioned in Art. 41, paras 1 and 2 of the Constitution: this right shall not infringe on the rights or tarnish the reputation of other citizens nor shall it undermine the national security, public order, public health and decency while the information that falls under paragraph 2 shall not be a state secret or other law-guarded classified information and shall not be detrimental to the rights of other individuals or entities.
In the Constitutional Court’s opinion Art. 25, item 3 of the ADDAABCSSSISBPA – in its challenged part – does not make the provision anticonstitutional for it does not conflict with the constitutional principles or specific Constitution texts. It is not in contravention of the Constitution to establish the affiliation of persons with a community, agency, government institution, organization and suchlike except when the national security is endangered. It is not in contravention of the Constitution for this affiliation to be established by a certain agency drawing on a law-prescribed procedure on the basis of different kinds of documents as a source of information. The lawmaker deems it appropriate to codify the disclosure of affiliation with the State Security and the intelligence services of the Bulgarian People’s Army of the persons who occupy definite posts or perform definite activities. The lawmaker has the legislative discretion not just to let access to the documents of the ex State Security and the intelligence services of the Bulgarian People’s Army but is also free in the choice of admissible evidence. Within the framework of legislative discretion the Parliament has deemed it appropriate that, given the destruction of a great part of the assets’ personal and operational dossiers, affiliation with the mentioned services can be verified by any kind of documents from these services’ archive libraries while guarantees are provided for the rights of the persons implicated. § 1, item 1 of the Supplementary Provision of the ADDAABCSSSISBPA reads that “document” shall mean any recorded information regardless of its tangible carrier, including the information in automated and complex information systems and data bases.
The text challenged is a component of the procedure to expose affiliation on the basis of documents in the data information book stocks. The text cites, by way of example and alternatively, the documents in the sense of this Act that may be used to verify an asset’s operations and permits to resort to documents other than the mentioned ones in the sense of this Act. As a result of this legislative solution, affiliation with the authorities under Art. 1 may be established by documents that the asset has “touched”: by a handwritten or signed declaration for collaboration; handwritten ferreted out intelligence information; documents for remuneration received; handwritten or signed documents contained in the case dossiers and also by documents that were not produced by the asset or do not bear the asset’s signature. The lawmaker’s idea was to resort to the challenged documents whenever personal and operational dossiers and the asset’s handwritten documents that they contain have been destroyed as it is a generally acknowledged fact that the dossiers of some assets have been destroyed. Adding the challenged documents to the evidence to establish affiliation, the lawmaker sought to prevent unequal treatment of citizens who had collaborated with the State Security and the intelligence services of the Bulgarian People’s Army and to prevent the privileged position of persons whose documents had been destroyed for one reason or another.
The ADDAABCSSSISBPA does not call cumulatively for the availability of documents in terms of number and type to be able to establish and announce a person’s affiliation with the agencies that Art. 1 of the Act names. Conversely, the Act qualifies absolutely all documents in the sense of § 1, item 1 of the ADDAABCSSSISBPA Supplementary Provision as documents that are valid evidence to establish affiliation and that have the same evidentiary force.
The Constitutional Court judged that proportionality had been observed in drawing the demarcation line between the two fundamental rights in collision – the rights under Art. 32 and the right under Art. 41 of the Constitution since the ADDAABCSSSISBPA provides sufficient guarantees to protect the right to honor and dignity and the right to protection of the personal data of the persons concerned.
First, the establishment of affiliation and the announcement of affiliation is made by a Commission which is an independent State body. The independence of the Commission derives from Art. 4, para 1 of the Act and further, in view of its membership as per Art. 5, paras 1 and 2 of the Act about the appointment of its members who are nominated by the parliamentary groups and are elected by the Members of Parliament so that none of the political parties and coalitions in Parliament will have a majority.
The Commission establishes affiliation in centralized archives of the documents of the services in Art. 1 of the Act and to enable the work of the Commission the services that are referred to in Art. 16 of the Act are bound to assemble and submit to the Commission the archive dossiers and the reference apparatus (Art. 17 of the Act). This will preclude the concealment or forgery of documents.
The documents that are kept in the Commission’s centralized archives and on the basis of which a person’s affiliation with the special services is established are public.
A significant part of the Act is devoted to the procedures by which affiliation is established and announced. The procedures of the Commission’s modus operandi are detailed in primary, not in secondary legislation.
The disclosure of affiliation with the State Security bodies and the Bulgarian People’s Army intelligence services shall not cover all citizens who have collaborated with these bodies and services. The Act provides for disclosure only for persons who occupy or occupied the enumerated public posts or who performed or perform the mentioned public activities. Infringement on the right to protection of personal data will affect only persons occupying public posts or performing public activities in the meaning of Art. 3 of the Act as “the state authorities in general and public figures and civil servants in particular may be subject to public criticism at a level higher than the level that is applicable to individuals in private capacity”.
A special guarantee is provided to protect the rights of the exposed persons whose names and aliases were included in the reference card indexes or registration journals of the respective services and the disclosure of affiliation is based on these documents. According to Art. 29, para 3 of the Act the persons shall be disclosed by the Commission by explicitly stating that there is no other evidence under Art. 25, item 3.
The person who was found to have affiliation shall have the right to acquaint himself/herself with the documents contained in his/her personal and operative dossier (Art. 31, para 8 of the Act).
And finally, persons who were found to have affiliation shall have the right to legal defense and because of that the Constitutional Court disagreed with the reasons in the claim of infringement upon the right to legal defense. Unlike the Act on Access to the Documents of the Ex State Security and the Ex Intelligence Service of the General Staff (abolished) where there is no provision to allow a person screened to appeal against the Commission’s decisions in court under Art. 4, para 3 of the said Act, the existing ADDAABCSSSISBPA explicitly provides for a three-lane avenue for the person screened to appeal against the Commission’s decision drawing on a procedure that the Administrative Procedure Code (APC) provides for. The persons dissatisfied are free to contest a Commission’s decision with an administrative court and to approach a three-member panel of the Supreme Administrative Court (SAC) as they file an appeal against the administrative court’s decision.
The Commission under Art. 4 of the ADDAABCSSSISBPA is a collegiate administrative body and the decisions it decrees have the characteristics of individual administrative acts. The Commission’s decisions constitute declarations of intention that register rights and obligations which have already arisen and for that reason they are declarative administrative acts (Art. 21, para 2 of the APC). The way in which the administrative body takes a decision does not affect in any way the right to legal defense of the administrative acts’ “targets”. The Constitutional Court disagreed with the movants’ rationale, viz. that the ADDAABCSSSISBPA is applied by the Commission whereas the judicial supervision on the administrative act’s legitimacy is reduced solely to an examination of the decision-taking procedure. It is not just administrative bodies that apply the laws. Art. 119, para 1 of the Constitution reads that justice shall be administered by the Supreme Administrative Court while Art. 120, para 1 of the Constitution provides that the courts shall supervise the legality of the acts and actions of the administrative bodies. If the court checks nothing but the Commission’s decision-taking procedure, as the movants claim, then the court violates the fundamental requirement of administrative proceedings as per Art. 146 of the APC, viz. the verification of the five requirements of administrative acts legality that the court is bound to verify ex officio and without any complaints from the parties (Art. 168, para 1 of the APC). Any evidence that the Civil Procedure Code admits may be used (Art. 171, paras 1 and 2 of the APC) in the course of the proceedings by contestants to support their contestations.
Possibilities to abuse in the production of the ex State Security documents were minimized by the legal arrangement of its activities as evident from the admitted evidence on the case: Ordinance No. 3900/11.11.1974 of the Minister of Interior and Instruction on the State Security Activity Report No. І-20/20.01.1978 of the Ministry of Interior. Drawing on them an operational file was created for the assets as were a personal and operational dossier and a general register was maintained where registration abided by an established procedure and the assets had individual unique registration numbers. A centralized information array was maintained for all other assets and reference card indexes No. 4 and No. 5 and a statistical card index No. 6 was maintained in keeping with the relevant rules. In many cases the outcome of the meeting was entered into the operative report providing the data reported were operationally irrelevant and the assets did not commit them to writing (Art. 26 of the Ordinance). The use of contested documents, as the Act provides for, whenever personal and operational dossiers have been destroyed won’t infringe on the right to legal defense of the persons exposed as affiliated with the services under Art. 1 and does not violate the Constitution since the matter is reduced to the proper organization of legal defense.
Persons who have unlawfully been implicated of affiliation with the special services can get remedy in compliance with the provision of Art. 7 of the Constitution as they follow the procedure prescribed in Art. 1, para 1 of the Act on the Liability for Damage Incurred by the State and the Municipalities. Such persons may also get remedy under Art. 148, para 2 read in combination with Art. 161 of the Criminal Code.
Given the stated considerations the Constitutional Court judged that there exists no violation of the right to legal defense of persons whose affiliation with the services has been established under Art. 1 of the Act, hence Art. 25, item 3 of the ADDAABCSSSISBPA in its challenged part is not in conflict with Art. 56 and Art. 57 of the Constitution.
The third motif in the challenge is that when the Supreme Administrative Court hears complaints against the Commission’s decisions, all the time the parties quoted Decision No. 10 of 22 September 1997 on Constitutional Case No. 14/1997.
The Constitutional Court’s Decision on Constitutional Case No. 14/1997 found anticonstitutional § 1, item 3 of the Supplementary Provisions of the Act on Access to the Documents of the Ex State Security (abolished) where there was a legal definition of the notion “catalogued assets” – Bulgarian citizens whose names and aliases could be found in the reference card index and the registration journals of the ex State Security. The decision was complied with and the provision that was to be ruled against as unconstitutional was not applied prior to the abolition of the Act by § 37 of the Transitional and Concluding Provisions of the Classified Information Act.
The current proceedings see a contestation of some of the documents for the establishment of affiliation mentioned in Art. 25, item 3 of the ADDAABCSSSISBPA. Among them are the data about the person in the data arrays (registration journals and reference card indexes) by which affiliation is established of Bulgarian citizens who collaborated with the services as per Art. 1 and provided tacit assistance to the bodies referred to in Article 1 in the capacity of fixed post spies, agents, hosts of secret meeting places, hosts of secret (conspiratorial) safe houses, informants and confidants (§ 1, item 4 of the Supplementary Provision of the ADDAABCSSSISBPA).
Having made a comparative analysis the Constitutional Court found that the subject of this case was to check for compliance with the Constitution part of the effective provision of Art. 25, item 3 of the ADDAABCSSSISBPA which has a new substance and a new legal rationale and is therefore not identical with § 1, item 3 that was declared anticonstitutional of the Supplementary Provisions of the Act on Access to the Documents of the Ex State Security (abolished).
Though § 1, item 3 of the Supplementary Provisions of the Act on Access to the Documents of the Ex State Security (abolished) and Art. 25, item 3 of the ADDAABCSSSISBPA are not identical, the Constitutional Court found some coincidence in the meaning inasmuch as in the long run the final result is that with either text affiliation with the ex State Security could be and can be established on the basis of data from the registration journals and the reference card index of the State Security. In this particular case it is impossible to apply Art. 21, para 5 of the Constitutional Court Act which reads that when the Constitutional Court has ruled with a decision or with a resolution on the inadmissibility of a motion further motions on the same subject may not be presented since regarding the constitutionality of Art. 25, item 3 of the ADDAABCSSSISBPA the Constitutional Court was not approached and did not rule on that. Hence the question of whether the legal assessments in the motives to Decision No. 10/1997 on Constitutional Case No. 14/1997 are binding when this case is considered.
The Constitutional Court’s decisions are binding, as provided for by Art. 14, para 6 of the CCA, upon all state organs, juridical persons and citizens. Their legal force has, inter alia, a time limit and ends, if cases that are relevant to the decision undergo changes that were not effective as of the date on which the decision was pronounced. Having pronounced its decision the Constitutional Court shall not cancel it nor can it recognize as effective legal provisions that it had pronounced anticonstitutional. However, the Constitutional Court is not “chained” forever to its legal conceptions. Law evolution is an objective process that permits the interpretation of legal texts to be “open” to other concepts and also to take into account major changes that have meanwhile occurred in public life. The arguments of stability of judicial practice and of identical judgments on similar cases in the future don’t gain stronger credence compared to the law evolution considerations and any deviation from the practice so far must be substantiated and justified. Accordingly, whenever a public need arises, the Constitutional Court can conceive new ideas and new legal notions that are impacted by the evolutionary legal thought and by the assessment of the changed circumstances owing to which these considerations gain stronger credence.
The Constitutional Court concluded that the dispute under consideration is a dispute under a new, not under the previous abolished piece of legislation on which the Constitutional Court had ruled. Significant practical experience has been amassed by both law-enforcement agencies and the Judiciary in the enforcement of this Act. All citizens who occupy public posts or perform public activities in the sense of Art. 3 of the ADDAABCSSSISBPA who were affiliated with the services shall be treated on a par. To put it explicitly, the affiliation of both shall be announced – of citizens with existing dossiers and of citizens with destroyed dossiers. There shall be an identical attitude to all persons subject to exposure of affiliation – the persons whose affiliation has already been announced and the persons whose affiliation is about to be announced. A change of circumstances to be recognized is the existence of judicial review in the course of five years and the Supreme Administrative Court’s uncontroversial practice.
In view of the above considerations the Constitutional Court found the motion unsustainable and dismissed it.