Ruling No. 7 of 27 June 2024 on Constitutional Case No. 20/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a panel of the Sofia City Court (SCC) seeking the establishment of the unconstitutionality of Article 105, paragraph 2 of the Criminal Procedure Code, on the grounds of an alleged conflict with Article 121, paragraph 2 and Article 122, paragraph 1 of the Constitution. The petitioner maintains that it “is faced with a situation in which part of the evidence in the case [in the criminal case of a general nature pending before the SCC] was collected in violation of the defendants’ private sphere - specifically as a result of the use of special intelligence-gathering measures against them and searches and seizures carried out in their offices, homes, and in the vehicle of one of them.” The petitioner points out that, for carrying out some of these investigative actions, the legislator provided for prior judicial control, but that control “was not duly exercised. Although prior judicial authorisation had been granted for the use of special intelligence-gathering measures, this authorisation did not meet the requirements of Article 174, paragraph 4 of the Criminal Procedure Code, insofar as it lacked reasoning. Even though subsequent approval by a judge was granted for the searches and seizures, they still did not comply with Article 161, paragraph 2 of the Criminal Procedure Code, as the situation was not urgent.”
Summary of the Court’s Reasoning
According to the Constitutional Court’s case law regarding the application of Article 18, paragraph 3 of the Rules of Procedure of the Constitutional Court (RPCC) in the context of the new wording of Article 150, paragraph 2 of the Constitution, a mandatory requirement for the admissibility of a request submitted under Article 150, paragraph 2 of the Constitution is that the statutory provision contested before the Court be relevant to the outcome of the specific judicial proceedings, i.e., to the resolution of the particular legal dispute or case.
The contested provision of the Criminal Procedure Code reads: “Evidence that has not been collected or prepared in accordance with the conditions and procedures set out in this Code shall not be admissible.” Its purpose is to preclude the use in criminal proceedings of evidence that has been obtained or prepared in violation of the mandatory rules provided in the Criminal Procedure Code. This general provision, which applies to all types of evidence provided for in the Code, is consistent with the fundamental principles applied in criminal procedural law regarding the taking of evidence, and in particular with Article 13, paragraph 2 of the Criminal Procedure Code, according to which the objective truth is revealed in accordance with the procedures and by the means provided in this Code. In a request submitted pursuant to Article 150, paragraph 2 of the Constitution, the referring court cannot expect the Constitutional Court to rule on matters within the competence of the referring authority itself, nor to substitute the legislator’s discretion with its own decision, or to give guidance to the National Assembly on the legal framework it should enact. The petitioner has emphasized that, if Article 105, paragraph 2 of the Criminal Procedure Code is applied to evidence collected or prepared in violation of the procedures established in the Code, this exclusion, in his view, would lead to difficulties or impede the establishment of the objective truth and would have implications for the rights of the accused/citizen. This understanding of the referring court is blanket in nature and is not supported by any constitutional reasoning. In the introductory part of the request, the petitioner emphasized that, if Article 105, paragraph 2 of the Criminal Procedure Code is applied to evidence collected or prepared in violation of the procedures set out in the Code, such exclusion, in his view, would lead to difficulties or impede the establishment of the objective truth and would affect the rights of the accused/citizen. This understanding of the referring court is blanket and is not supported by any constitutional reasoning. The specific referral cannot achieve the objective under Article 150, paragraph 2 of the Constitution, namely the effective cooperation between the referring court and the Constitutional Court with a view to resolving the case pending before the first-instance court in accordance with the rulings of the constitutional jurisdiction. The purpose of the constitutional amendment carried out is the rule of law, aiming to strengthen cooperation in the process of constitutional justice between the constitutional jurisdiction and the general courts of all instances, which, by the nature of the powers exercised, constitute the most appropriate forum for the protection of human rights.
Grounds for the Ruling and Disposition
Pursuant to Article 13 (the Constitutional Court itself determines whether the question referred to it falls within its jurisdiction) and Article 19 (the Court rules on the admissibility of the request) of the Constitutional Court Act, the Constitutional Court dismisses the request submitted by a panel of the Sofia City Court seeking the establishment of the unconstitutionality of Article 105, paragraph 2 of the Criminal Procedure Code.
Председател: Павлина Панова