Decision No. 14 of 4 November 2014 on Constitutional Case No. 12/2014

 

    The subject of the action is the request of a group of Members of Parliament for a binding interpretation of Art. 120, para 2 read in combination with Art. 56 and Art. 57 of the Constitution. The Constitutional Court admitted the case at issue upon its merits to answer the question: Are there any Constitution restrictions upon the Legislature in the passage of legislation that makes administrative acts unappealable?

The submission insists that the freedom that the Legislature enjoys under Art. 120, para 2 of the Constitution to pass legislation that will make administrative acts unappealable is fictitious. Sublime values like defense of the national security and of the sovereignty of the State keep a tight rein on this freedom as does the requirement that fundamental human rights should not be infringed on and that rights concerning privacy and property should not be ignored out of proportion. Accordingly, the request filed expected as a feedback the legally permissible parameters of the Legislature’s power to enact such unappealability.

To provide the interpretation requested the Constitutional Court proceeded as follows:

Art. 120, para of the Constitution was not subject to a content analysis at the time the Constitution was adopted; it was just its systemic position that was debated. The fact that the text under discussion was incorporated in Chapter Six of the Constitution – Judicial Power – and that it is pertinent to Paragraph 1 of Art. 120 of the Constitution reading that the courts shall supervise the legality of the acts and actions of the administrative bodies give reasons to make a conclusion that the possibility of unappealability as provided for shall apply to an appeal through the court only and shall not pertain to administrative acts to which an administrative appeal procedure is applied.

The answer to the interpretative question discussed is organically linked to the need that stems from the Constitution to find an efficient tool to counter infringements on the rights and legitimate interests of individuals and corporate entities. Art. 56 of the Constitution reads that the right to legal defense is a fundamental right that enables anyone within the national jurisdiction to resort to individual energetic actions so as to parry any possible violation of or threat to their legal privacy. This is a universal procedural right that is intended to be a guarantee that all other fundamental rights and Constitution-recognized interests of individuals and corporate entities will be exercised.

The right to legal defense is more than just a tool to enforce all other fundamental civil rights. It is a standalone right that has a value of its own and its exercise seeks to really maintain human dignity. The right to legal defense discourages infringements upon privacy by the authorities and subjects of law. In that context the right to legal defense, apart from being a common universal right, is an individual civil right that enables the materialization of the Constitution-recognized rights and interests and of rights and interests that stem from any other law.

The right to legal defense makes it binding on all state authorities, within their competence, to help an individual whose rights have been infringed on to cope with the consequences of the infringement, respectively of the threat. Definitively the central government and local authorities are under the obligation to act so. However, sometime the citizen-administration procedural relationship fails to have the due legal redress effect. Hence the need to maintain clear the path to the independent court and justice. In adversary trial and transparency the court finds the truth and properly enforces the law. It is at trial alone where the injured party faces offenders as an equal. This is worded in Art. 121, para 2 of the Constitution that proclaims the principle of the equality of parties in adversary proceedings involving the complainant and the respective administration over the demand for legal defense may turn out to be wishful thinking without the chance to have recourse to court. That is why although the right to legal defense is not explicitly formulated in the Constitution, even so, within the general wording of its Art. 56, it should be regarded as a principle of the state committed to the rule of law.

The problem that the Judiciary is facing is in what cases and under what circumstances restraints may be put on the right to have recourse to an independent and impartial tribunal established by law. While the Constitution proclaims that the fundamental rights shall be irrevocable, it goes on to say that they shall not be abused nor shall they be exercised to the detriment of the rights or the legitimate interests of others (Art. 57, paras 1 and 2).

The hypotheses of abuse of the right to legal defense in terms of recourse to court or the exercise of the said right to the detriment of others are untenable. In a democratic law-governed state the integrity of the court as a Constitution-established unbiased authority to arbitrate is unchallenged. Further, the tenets of justice rule out the risk of a judicial act decreed to the detriment of the rights and legitimate interests of persons who are deprived of the chance to be parties in proceedings.

The logical conclusion is that the recourse to court as a standalone fundamental right should not be confined solely to cases where a supreme public interest that the Constitution recognizes is abused. First, a legitimate reason to resort to the restraint should be seen in the necessity to defend the very foundation of the constitutional system inclusive of state sovereignty, separation of powers, form of government and state organization. Second, restrained recourse to court would be justified, if need be, to prevent abuse of other public interests of particular importance such as national defense and national security or foreign policy objectives and principles. In any of these circumstances the restraint should conform to the principle of proportionality, i.e. it should be needed for the defense of the above-mentioned category of public interests and it should be the most appropriate and the softest possible tool to efficiently achieve the constitutionally justified goal.

The above stated principles are fully relatable to the interpretation of Art. 120, para 2 of the Constitution. The underlying guiding principle that the text referred to formulates is the freedom to contest in court any administrative act indiscriminate of the authority that has issued it – the central government or local authorities – and of its nature – individual, general or legal act – whenever such an act is detrimental to the rights and legitimate interests of individuals or corporate entities. Alongside, the text referred to provides for the neglect of this principle as it allows, by way of exception, to enact legislation that will make some administrative acts unappealable but does not explicitly explain on what grounds it may be proceeded with. In this way the Constitution implies a possible curtailment of a fundamental right, in the case at issue, the right to legal defense through the right to have recourse to court.

Beyond the judicial control as per Art. 120, paras 1 and 2 of the Constitution, is the appropriate competence that, within the framework of the powers that it is vested with, controls any administrative body that issues an act. The Constitution empowers the court to supervise only the legality of the acts and actions of the administrative bodies while it disallows the courts to pass judgment on the free exercise of discretion that the administration is duly vested with.

The exception under Art. 120, para 2 of the Constitution does not cover administrative sanctions that administrative bodies impose and that are in essence jurisdictional acts and as such shall be subject to judicial control all the time.

The existence of legal interest conditioned by the direct involvement of the rights and legitimate interests of individuals and corporate entities is necessary and sufficient justification to place the State under the obligation to ensure adequate legal defense. Contrariwise, if the purposes and contents of a definite category of administrative acts (for instance, in-house acts) do not involve the individual legal domain of subjects of law, the introduction of unappealability does not bind it.

The Constitutional Court can refer to its case-law for the clear definitions it has given of the nature of the problem that relates to the interpretative matter under consideration, namely, the answer to the question: What is the constitutional measure of the exception under Art. 120, para 2 of the Constitution? In particular, is the Legislature free to make judicially unappealable, as it sees appropriate, a definite range of administrative acts at its own discretion or shall the Legislature’s action be confined to criteria that are not explicitly set forth in the Constitution but stem from the spirit and the underlying principles of the Constitution?

There is no reason to retreat from the understanding that when the recourse to legal defense for definite administrative acts is suppressed, legislative appropriateness is constricted in the sense that unappealability shall not be an obstruction to the exercise of the fundamental rights and freedoms of the citizen unless the protection of supreme Constitution-enshrined values that pertain to public interests of particular importance calls for. For instance, for the sake of the defense of the national security it may appear to be justified to restrict the appeal in court against administrative acts that directly involve the country’s defense capability or relations with other states.

However, it is an unacceptable thesis that a law shall be allowed to provide for departure from the principle of appealability only against administrative acts whose contents and consequences do not infringe on the citizens’ fundamental rights. As noted above, the blanket regulation that derives from the Constitution and that is the basis on which a proportionate and reasonable curtailment of various kinds of rights, fundamental rights included, shall be the applicable regulation.

So far the Constitutional Court has given predominantly restrictive interpretations of the possibility to remove the appeal procedure for administrative acts established by law. In principle, the Court assumed that such an exception to the general rule of Art. 120, para 2 of the Constitution may be justified by particularly important public interests and only within narrow confines that implicate specific rather than generally referred acts that don’t irremediably undermine the exercise of the fundamental rights of citizens and the principle of the state committed to the rule of law. For instance, the Legislature shall not make administrative acts unappelable on the basis of the authority that issues them (an administration or a particular group of administrations) while it ignores the substance of the acts. The Court has agreed and is agreeing with these views.

Also the Constitutional Court thought that by the enactment of unappelability under Art. 120, para 2 of the Constitution the Legislature shall not rule out the possibility of judicial defense against void administrative acts whenever the infringement on lawfulness undermines the very foundation of the set of administrative procedures that the Constitution establishes and that the existing legislation develops further (for instance, whenever the issuing authority is not vested with the legal competence or the form that the law prescribes is not observed). Individuals who suffer from such acts shall all the time be free to take legal action in reaction to distortions of the acts by severe and drastic violations of the legal procedure that makes the acts invalid. This is the way to follow if the wronged individuals are to possess an efficient tool to eliminate the constitutive effect of the fundamentally vitiated administrative act and to be compensated, as appropriate, for the damage suffered in consequence of the act’s application. The opposite would be tantamount to a flagrant violation of the principles of the state committed to the rule of law in the sense of Art. 4 of the Constitution.

Whatever the case may be, the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution calls for proportionality of the codified restriction. That is to say, the restriction shall be appropriate, the softest possible and, in parallel, an amply sufficient tool to reach the constitutionally warranted goal. The endeavor to find the exact measure in restriction of legal defense within the margins of Art. 120, para 2 of the Constitution is a serious legislative problem. Consideration for “the prohibition of excessiveness” as a consolidated component of the law-governed state relates to the case-law of the European Court of Human Rights (ECHR) under the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) and to the prescriptions for recourse to court by virtue of the international instruments that the country has ratified, promulgated and enacted and that supersede any domestic legislation stipulating otherwise (Art. 5, para 4, sentence 2 of the Constitution). The issue under consideration correlates to Art. 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) and Art. 6 (1) of the CPHRFF read in combination with Art. 6 (2) of the Treaty on European Union. Further the ECHR judgments should likewise be taken into account (see Terra Voningen B.V. v. Netherlands, Chevrol v. France, Klass and others v. Germany, I.D. v. Bulgaria, Mihailov v. Bulgaria, „Capital Bank“ AD v. Bulgaria, Fazliiski v. Bulgaria, etc). It is inadmissible to let the exception that Art. 120, para 2 of the Constitution allows to conflict with the country’s international duty to ensure that any person shall have recourse to independent and impartial court in the determination of his or her rights and obligations.

The deviation from the general principle of appealability of an administrative act is admissible within the margins as set by Art. 120, para 2 of the Constitution but in practical terms consolidates the constitutive effect of the respective category of acts. This is fully sufficient to achieve the Constitution-justified goal that seeks to protect public interests of special importance. However, it would be excessive and unjustified to let unappealability curtail and furthermore, deny altogether the individual his or her civil right to recourse to court. Therefore when unappealability is codified to meet the requirement of proportion and in particular, the international standards of recourse to the law, the Lawmaker shall consider the option of indirect judicial control whereon the respective administrative act shall give rise to the intended legal effects while the injured parties shall enjoy the right to take parallel legal action against the wrongful act in all its aspects and to sue for damages inflicted. Otherwise the text of Art. 7 of the Constitution concerning the liability of the State for any damages caused by illegitimate acts on the part of its agencies would become an unfounded statement.

Premising on the above dispositive facts the Constitutional Court formulated, in general terms, a summary conclusion to the effect that respect for the requirement of proportionality may allow for the codification of the no-appeal with a court of an expressly named category of administrative acts on the condition that the no-appeal is needed to safeguard the very foundation of the constitutional order or of other public interests of particular importance such as the national defense and security or the principles and objectives of the country’s foreign policy. The rules of recourse to legal defense under Art. 14 (1) of the ICCPR and Art. 6 (1) of the CPHRFF shall, all the time, be seen as an element of proportionality. The exception under Art. 120, para 2 of the Constitution shall not thwart the chance for wronged individuals to plea in court that the administrative act that has injured them should be considered null and void.