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June 2013

30 June 2013

Decision No. 2 of the Constitutional Court of Republic of Bulgaria on Constitutional File No. 1 from 2013

Decision № 2 from 2013 of the Constitutional Court was promulgated in the State Gazette (SG), issue 50 dated June 7, 2013. The Court was approached upon the request of 58 members of the Parliament to declare the unconstitutionality of several provisions of the effective Illegal Assets Forfeiture Act (IAFA). Among them is Art. 11, Para. 5, which provides that all decisions of the Commission for Forfeiture of Illegal Assets (“the Commission”) are subject to appeal under the Administrative Procedure Code.

According to the petitioners the challenged texts violate the principle of rule of law established in Art. 4, Para. 1 of the Constitution.

The Court ruled that Art. 11, Para. 5 of the IAFA is unconstitutional and is in conflict with Art. 4, Para. 1 of the Constitution establishing the principle of rule of law. The main motives of the Court are as follows:

The Constitutional Court found that the provision of Art. 11, Para. 5 of the IAFA does not establish additional guarantees for protection of the rights of citizens due to the possibility for judicial review of the Commission’s decisions by the common courts. The judicial review for legitimacy within the meaning of Art. 120 of the Constitution could be also performed by a civil court. If a Commission’s decision affects the rights of a particular person and those rights have not been protected during proceedings before the common courts, that person in all cases is entitled to appeal this decision before the administrative court.

The main contradiction to the rule of law arises in cases where the application of Art. 11, Para. 5 of the IAFA could result in contradictory and mutually exclusive decisions of the administrative and the common courts. The opportunity to appeal decisions related to initiation of a procedure under the IAFA, decisions for disclosure of a bank secret, decisions for establishment, alteration and termination of employment relations with officials, who do not have the status of civil servants, constitutes only a part of the examples where a conflict in law enforcement may arise. In practice, these decisions can be appealed before the administrative courts after the regional, respectively, the district court has already ruled on their legitimacy. Thus, the challenged provision of Art. 11, Para. 5 of the IAFA causes legal uncertainty which undermines the rule of law, as outlined by numerous decisions of the Constitutional Court.

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