20 years together

July 2013

31 July 2013

Decision No. 6 of the Constitutional Court of Republic of Bulgaria on Constitutional File No. 5 from 2013

Decision № 6 from 2013 of the Constitutional Court was promulgated in the State Gazette (SG), issue 65 dated July 23, 2013. The Court was approached upon the request of the Ombudsman of the Republic of Bulgaria to declare the unconstitutionality of several provisions of the effective State Property Act (SPA) and Municipal Property Act (MPA), which regulate the compulsory appropriation of private property for public needs.

According to the petitioner the challenged texts violate the principle of rule of law (Art. 4, Para. 1 of the Constitution), the principle of primacy of the Constitution (Art. 5, Para. 1), the principle of inviolability of the private property (Art. 17, Para. 3), Art. 17, Para. 5 and Art. 56 of the Constitution, as well as Art. 6, Para. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court ruled that the challenged texts of the SPA and the MPA are unconstitutional, and some of them are also inconsistent with the international treaties to which Bulgaria is a party. The main motives of the Court are as follows:

The appropriation of private property for state or municipal needs is provided for in the Constitution of the Republic of Bulgaria as an exception to the principle of inviolability of the private property. In exceptional cases and only on the grounds of a legislative act, there is an opportunity the right of private property to be affected through compulsory appropriation for state or municipal needs, which cannot be otherwise met.

The challenged Art. 38, Para. 1 and Para. 2 of the SPA and Art. 27, Para. 1 of the MPA provide that the owners would not be notified about the appropriation act through service of the individual administrative acts, but the latter to be promulgated in the State Gazette. The cited provisions impose duties to the citizens and the legal entities to monitor any issue of the State Gazette in order to exercise their right of protection against the compulsory appropriation, since the respective state or municipal body is not obliged to communicate with the owner neither the intention of the state and the municipalities for appropriation of the property, nor the act of the appropriation itself. Such an approach which facilitates only the activities of the state and the municipalities at the expense of the limitation of the right of protection of the citizens and the legal entities is constitutionally inadmissible.

The Constitutional Court ruled further that the compensation for appropriation of private property cannot be considered as prior if it has not been definitely specified in its amount. Therefore, Art. 28, Para. 3 and Art. 29, Para. 1, sentence 2 of the SPA actually allow the withdrawal of the right of ownership without fulfilment of one of the constitutional prerequisites, i.e. the prior and fair compensation to the owner. The provision of Art. 29, Para. 3, item 1 of the MPA allows appropriation before the court has given its final judicial decision on the disputed by the owner amount of the compensation. Such an approach by the legislator violates Art. 17, Para. 5 of the Constitution, as well as the rule of law (Art. 4, Para. 1 of the Constitution).

The regulations set in Section II of Chapter Three of the SPA and Art. 30 of the MPA entitles a third party, without the consent of the owner and prior to completion of the appropriation, to possess and use the property of the owner against compensation which does not represent compensation for appropriation of the property within the meaning of Art. 17, Para. 5 of the Constitution. Furthermore, the owner is required by law to tolerate such behaviour. By enabling an investor to take possession of the private property and to commence construction works before the administrative act for appropriation has entered into force, the state and the municipalities violate the inviolability of private property. The Constitutional Court is unconditional in its understanding that “there is no rule of law in the world where its constitutional or civil legislation allows for disposal with another’s property or for its ungrounded use against the will of the owner”.

The Decision has been signed with dissenting opinion by some of the judges.

« Previous  Next »