20 years together

March 2012

31 March 2012

Decision No 1 of March 1, 2012 by the Constitutional Court of the Republic of Bulgaria*

The Constitutional Court of the Republic of Bulgaria (CC) considered a constitutional case for ascertainment of anti-constitutionality of Art. 189, Para 13 of the Road Traffic Act (RTA), pursuant to which:

“Penal orders and electronic tickets which impose penalties of up to BGN 50, inclusive, are not subject to appeal.”

In order to judge on the requisition for ascertainment of anti-constitutionality, the CC took into consideration the following:

The penal orders under Art. 189, Para13 of the RTA are not administrative acts and given their nature they represent judicial acts, even though they are issued by an administrative authority and they set administrative penalties. The administration of justice is an activity conferred to the courts by the Constitution and it cannot be realized without the involvement of the court. The restriction to appeal penal orders, allowing the administration of justice without guaranteed opportunity for access to court, defeats Art. 119 of the Constitution. The same should apply to electronic tickets since they are given by law the same status as penal orders (Art. 189, Para 11 RTA).

In so far as the imposition of penalties in connection with executed administrative violations is criminal by nature, the right of protection under Art. 56 of the Constitution, interpreted in the light of Art. 6, Para 1 of the Convention for Protection of Human Rights and Fundamental Freedoms, includes compulsory access to justice in all cases where administrative penalties are imposed on citizens. As to the amount of the penalty, it should not be regarded either when assessing the admissibility or the refusal of admission of a court appeal.

Some of the opinions on the case associate the inapplicability of the judicial review under Art. 189, Para 13 of the RTA with the little significance of the violation. However, the presence of legal provisions for the little significance never restricts rights and never worsens the legal position of the offender. The qualification of a particular administrative violation as a case of little significance itself should not exclude the judicial review. There is no obstacle for holding a dispute whether the executed violation is a case of little significance or not but it has to be ruled by a court. Therefore, the association of the restriction of the judicial review set by law with the consideration that the violation is a case of little significance is unacceptable as it is based on a wrong understanding of the functions of this institute.

Some of the opinions state the small amount of the imposed penalty as a reason for the denial of access to court appeal under Art. 189, Para 13 of the RTA. This amount may look minor within the framework of the whole system of sanctions imposed for violations of the road traffic rules but it is not minor at all with a view to other objective criteria, such as minimum wage, medium wage, etc.

In view of the considerations above, the CC declares Art. 189, Para 13 of the Road Traffic Act to be anti-constitutional.

* It is believed that this Decision of the CC shall give rise to requisitions for ascertainment of anti-constitutionality of provisions of yet other laws which set unappealable amounts of penalties.

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Act for Amendment and Supplement to the Entering, Residing and Leaving the Republic of Bulgaria of European Union Citizens and Members of their Families (AASERLRBEUCMF)

The AASERLRBEUCMF was promulgated in the State Gazette, issue 21 from March 13, 2012. It introduces a number of amendments, regarding different procedures, various terminology changes, and new competences of different state authorities.

Art. 4 changes the statute of family members of EU citizens, who are not citizens of the Union.

Everywhere in the legislative act the words “identity card and passport” are replaced by “valid identity card or valid passport”.

Art. 13, concerning the procedure for issuing a certificate or a card for continuous residence of a family member of an EU citizen, gives а new power to the Directorate “Migration – Ministry of Interior”. It may require from the competent authorities of the state of origin of the person or from another state an opinion of whether this person represents a threat to the national security or public order.

Art. 17a is created.

Art. 19 regulates the term, for which a family member must have resided in Bulgaria in order to be eligible for legal residence. The AASERLRBEUCMF amends the way of establishing the identity of such persons, as well as the procedure for issuance of identity documents.

The act is also amended in its part concerning the compulsory administrative measures imposed on such persons.

The transitional and final provisions deal with the amendments to the Foreigners in the Republic of Bulgaria Act, relating to scientific workers who reside continuously, long-term or permanently in Bulgaria.

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Regulation for Amendment and Supplement to the Regulation for the Structure, Activity and Operational Organization of the Communications Regulation Commission and the Structure of its Administration

The Regulation for Amendment and Supplement to the Regulation for the Structure, Activity and Operational Organization of the Communications Regulation Commission and the Structure of its Administration was promulgated in the State Gazette, issue 23 of March 20, 2012 .

According to the amendments to Art. 3, Para 2, item 1 the commission members are Bulgarian citizens with a professional qualification in the field of communications, media, economics or law; they are now no longer required to hold a masters degree.

Several alterations regarding the operational organization of the commission have been made. By virtue of Art. 10, Para 2 prior to a session the commission publishes a draft agenda on its official internet website. The minutes from the sessions and the commission decisions are also published on its website, excluding the information protected by law. As prescribed by the newly created Para 2of Art. 10 the draft agenda is proposed by the chairman of the commission and it is approved by voting at the beginning of each session. The amendments also provide that the commission has the right to hold a closed session only when lawfully protected information is required for the decision.

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