DECISION No 4 OF 18 APRIL 2006 ON CONSTITUTIONAL CASE No 11/2005
The case is based on Art. 149 para 1 subpara 2 of the Constitution.
The case was admitted on 7 December 2005 following a challenge of the General Prosecutor of the Republic of Bulgaria of the constitutionality of Art. 132d, para 3 of the Law on Serving Sentences (LSS) created by § 85 of the Law on the Amendment to the Law on Serving Sentences (DV, No 62/2002). The challenge of the constitutionality of Art. 132d, para 3 of the LSS is based on the claim of the noncompliance of the provisions with Art. 34, para 1, Art. 32, para 1 and Art. 30, para 5 of the Constitution.
To rule on the compliance with the Constitution of Art. 132d, para 3 of the LSS that prescribes the procedure of the exchange of communications, the Constitutional Court decided thus:
І. On the claim that Art. 132d, para 3 of the LSS is noncompliant with Art. 34 of the Constitution.
Art. 34, para 1 of the Constitution proclaims that the freedom and confidentiality of correspondence is a fundamental human right, however, the inviolability of correspondence is not absolute. Individual privacy and public life are not absolutely independent; the principle of the rule of law presupposes that the State must use its regulatory powers to protect and balance individual freedom which is not to be used against the freedom and security of other citizens and the public interest in a civil society. Understandably, the need to strike the balance in the protection of the freedom of all legal entities and the security of society as a whole does not condition the possibility to impose arbitrary restrictions on the inviolability of correspondence by the authorities. Therefore Art. 34, para 2 of the Constitution defines the circumstances under which and the procedure by which the freedom of correspondence can be restricted whereas the normal development of democratic society is not affected. The text in question reads that it is only when the information in exchanged communications may help discover or prevent grave crimes can the content of such letters be disclosed, providing a permission has been obtained from the judicial authorities. It should be noted that the Constitution allows an exception to this provision in yet another case of curtailment of this fundamental human right but solely in a situation of constitution pathology when emergency measures are needed to safeguard constitutional democracy. Remembering that freedom and the confidentiality of correspondence are not counted among the fundamental rights that shall never be derogated (Art. 57, para 3) per argumentum a contrario in status belli or martial law, a law can temporarily restrict the right that Art. 34, para 1 of the Constitution provides for.
Is the disclosure of the content of communications sent or received by the accused or detainee as per Art. 132d, para 1 of the LSS consistent with Art. 34, para 1 and with the acceptable restrictions as defined in Art. 34, para 2 of the Constitution?
The Constitution explicitly and amply provides for two cumulative requirements that make it possible to restrict the freedom and disregard the confidentiality of correspondence. Any exception which allows disclosing the content of communications to persons other than the receivers will need permission from the judicial authorities. Second, the restriction of the inviolability of correspondence is not and cannot be unconditional. It can be done solely for the purpose of discovering or preventing grave crimes, as provided for by Art. 34, para 2 of the Constitution.
The legislator believes that the compliance of Art. 132d, para 3 of the LSS with the Constitution rests on two premises:
1. the detention presupposes that judicial authorities have the right to allow the disclosure of the content of the personal communications;
2. any piece of communication contains information that will help discover or prevent a grave crime.
Art. 132d, para 3 of the LSS does not provide for tacit judicial sanction to disclose the personal communications of detainees. The detention that the judicial authority rules affects the freedom of the individual and is unrelated to the inviolability of correspondence. To be compliant with the Constitution, the law should explicitly provide that the court decision by which the content of communications can be disclosed should be issued parallel with the order for detention or after the detention. Concerning the second hypothesis, the modern technologies offer adequate ways and means to learn the content without any need to open the letters of detainees without a permission from the court and as a pretext to disclose the information in the correspondence.
II. On the alleged noncompliance of Art. 132d, para 3. of the LSS with Art. 32, para 1 of the Constitution.
The Constitutional Court did not find Art. 132d, para 3 of the LSS to be noncompliant with the Constitution. The inviolability of privacy is proclaimed in Art. 30, para 1 of the Constitution. The scope of this right is significantly broader than the confidentiality of correspondence. Indeed, socially and philosophically freedom has an integral nature and the violation of any of the fundamental rights of an individual or of a group of individuals affects, indirectly though, the rest of their rights. In terms of constitutional law, as the inviolability of private life and the confidentiality of correspondence are treated separately, unlike the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHRFF), the compliance of Art. 132d, para 3 of the LSS should be analyzed from the perspective of the relevant Constitution text.
ІІІ. On the alleged noncompliance of Art. 132d, para 3. of the LSS with Art. 30, para 5 of the Constitution.
The challenged Art. 132d, para 3 of the LSS is noncompliant with Art. 30, para 5 of the Constitution providing that everyone is entitled to meet his legal counsel in private and that the confidentiality of such communication shall be inviolable. The Constitution norm does not boil down to the communication between the legal counsel and the accused when they meet; it covers all forms of the exchange of information between them. Therefore the Constitutional Court found Art. 132d, para 3 of the LSS to be noncompliant with Art. 30, para 5 of the Constitution. In this particular case there is partial incongruity between the requirements of the LSS and of the Constitution inasmuch as the confidentiality of correspondence, apart from the contacts between the legal counsel and the accused, is not guaranteed, as provided for in Art. 30, para 5, the second sentence, of the Constitution.
In some of the positions presented on the case, the pros and cons regarding the constitutionality of Art. 132d, para 3 of the LSS is based, among other things, on the literal reproduction or interpretation of Art. 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms and also on the relevant jurisprudence of the European Court of Human Rights (ECHR). Therefore the Constitutional Court found it necessary to clarify the correlation between Art. 132d, para 3 of the LSS, Art. 8 of the ECHRFF and Art. 34 of the Constitution. The text of Art. 8 of the ECHRFF and the ECHR jurisprudence do not treat the confidentiality and inviolability of correspondence as an absolute right. According to the said text the interference of public authorities in the freedom of correspondence is justified given two cumulative preconditions: 1. the interference must be codified (the French version of the Convention explicitly reads that the limitations of the freedom of correspondence must be prescribed by law); and 2. the interference must be necessary in a democratic society, in the interests of national security or public safety, the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The passage of Art. 132d, para 3 of the Bulgarian Law on Serving Sentences meets the ECHRFF requirement that the limitation of the inviolability of correspondence should be prescribed by law. This is a necessary but not a sufficient condition to justify the inspection and control of the correspondence of detainees without any sanction from court.
The Constitutional Court found the Bulgarian Constitution provides for an easier procedure for the protection of the freedom of correspondence by making it subject to a separate provision. Along with that the Constitution of the Republic of Bulgaria creates more reliable guarantees against the violation of the confidentiality of correspondence by providing for a more restrictive process concerning the possible reasons and procedures to limit the right. This mismatch between the Convention and the Constitution must not be interpreted as incongruity vis-à-vis the inviolability of correspondence but as provision of a more favorable regime to protect the fundamental right. Therefore the Constitutional Court found that in order to be in compliance with the Constitution, the disclosure of correspondence must be fully in line with the requirements for the limitation of the right as prescribed by Art. 34, para 2 of the Constitution of the Republic of Bulgaria.
On the basis of the above-stated judgments and of Art. 149, para 1, subpara 2 of the Constitution the Constitutional Court ruled on the non-compliance with the Constitution of Art. 132d, para 3 of the Law on Serving Sentences created by § 85 of the Law on the Amendment to the Law on Serving Sentences (DV, No 62/2002).
Председател: Неделчо Беронов