The case relates to Art. 149, para 1, subpara 2 of the Constitution.
The proceedings were instituted on 22 December 2006 following a challenge of the Ombudsman of the Republic of Bulgaria of the constitutionality of Art.143, para 4 and Art. 186, para 1 of the Administrative Procedure Code (APC) (DV, No 30 of 11 April 2006).
The Ombudsman of the Republic of Bulgaria thinks that the cited APC texts are noncompliant with Art. 4, para 1 of the Constitution which proclaims the principle of the state committed to the rule of law and reads that it shall be governed by the Constitution and the laws. The Ombudsman states that the challenged texts are dissonant with Art. 56 of the Constitution (adopted in 1991) of the Republic of Bulgaria, viz. the right to legal defense and with Art. 120, para 2 of the Constitution, viz. that citizens and corporate entities shall be free to challenge any administrative act.
I. On the compliance of Art. 143, para 4 of the Administrative Procedure Code with the Constitution
Art. 143, para 4 of the Administrative Procedure Code reads that when the court rejects the contestation or the appellant withdraws the complaint, the sender of the complaint shall pay all the expenses made upon the case, including the minimal remuneration for one lawyer, if the Government institution whose act is contested has used such one.
The Constitutional Court found that the arguments adduced to support the challenge of the Ombudsman and of some other parties do not indicate that the APC challenged text is inconsistent with the Constitution.
The principle of the state committed to the rule of law as proclaimed by Art. 4, para 1 of the Constitution makes it binding on the state institutions to issue law-abiding acts. There can be no doubt that in addition to the function to be a guarantee against any violation of rights, the right to legal defense is also a tool of control on the legality of administrative acts. However, these indisputable premises do not invite the conclusion that if the court proceedings are free of charge, the right to legal defense and the state committed to the rule of law are guaranteed in the way that Art. 4, para 1 and Art. 56 of the Constitution provide for. The inequality of the individual and of the State in real terms does not call for the implantation of legal inequality between the parties to a lawsuit. Understandably, the actual inequality between the individual and the State in the contestation process could be limited if the fee requirement upon the lodging of a complaint is abolished rather than by action for which the complainer “pays nothing” but whose costs after all are defrayed by the taxpayers. Whenever the court finds that the act, which is administratively contested, is irregular, the individual or the corporate entity is granted legal defense by the court and the institution that has issued the irregular act pays the costs. In keeping with the principle of social justice, the lawmaker decreed that whenever the contestation is rejected and the administrative act is lawful, or the appellant chooses to proceed, it is the appellant and not the state institution that shall bear the expenses of the court. Otherwise, it appears that the principle of social justice is compromised for in any case, even when the acts issued are lawful, it is the state institutions that are to bear the expenses of the court, in the event of contestation. In this context, the exemption that seemingly “guarantees” the right to legal defense is counterpoised by the curtailment of the freedom of the rest of citizens who in the long run bear the contestation-related costs as taxpayers who contribute to the budget from which allocations are made to finance the institutions of the State, the Judiciary included. In addition, it must be remembered that Art. 22 of the Legal Support Act (DV, No 79 of 4 October 2005) reads that the legal defense costs for the socially vulnerable shall be borne by the National Budget.
To confirm the above statement, it is worth noting that the Ombudsman did not challenge Art. 144 of the APC, which provides for subsidiary application of the Civil Procedure Code, that is, for the equality of the parties vis-à-vis the costs.
In keeping with the Constitutional Court's Decision № 4 of 18 April 2006 (DV, No 36 of 2 May 2006) and in the context of its integral nature, freedom is realized through the citizens' fundamental rights, freedoms and responsibilities. Rights are interdependent and one right shall not curtail other rights. Furthermore, rights are exercised within the domain of law. From that perspective, the right to legal defense of a person of law shall not be detrimental to the rights of all other individuals or corporate entities.
II. On the compliance of Art. 186, para 1 of the Administrative Procedure Code with the Constitution
Art. 186, para 1 of the Administrative Procedure Code reads thus: ,, Right to contest a by-law shall have the citizens, the organisations and the bodies, whose rights, freedoms or legitimate interests have been affected or may be affected by it or for which it raises obligations.”
The Ombudsman thinks that the requirement that a person of law should demonstrate infringement on his rights or legitimate interests by a bylaw or that that a bylaw raises obligations is dissonant with the provision for the state committed to the rule of law as per Art. 4, para 1 and Art. 120, para 2 of the Constitution. The Ombudsman, the Association of European Integration and Human Rights, the Bulgarian Lawyers for Human Rights Society and the Supreme Bar maintain that Art. 186, para 1 of the APC is noncompliant with the Constitution for in a state committed to the rule of law as per Art. 4, para 1, Art. 56 and Art. 120, para 2 of the Constitution, it is in the interest of each person of law to have a law-abiding government which is realized, inter alia, by means of the secondary legislation. In that sense the Ombudsman thinks that Art. 186, para 1 of the APC is discordant with the Constitution inasmuch as it constricts the circle of persons who have the right to contest administrative bylaws because of the requirement that they should prove their legal interest in doing so.
Thus, the safeguard function of law vis-à-vis violated or endangered rights becomes devoid of meaning, as the right to legal defense is made dependent on the presumed interest of each person of law to have a law-governed state which is taken for granted.
Individuals and corporate entities are free to contest any administrative act, including in-house acts, whenever these violate or endanger their rights or legitimate interests and as long as there exists no law provision to make them incontestable. The Constitutional Court did not see any reason to withdraw from this understanding in its Decision No 21 of 26 October 1995, the more so that with the passage of Art. 186, para 1 of the APC the lawmaker conformed to the requirements of the Constitution of the Republic of Bulgaria, specifically its Art. 120, para 2, Art. 56 and Art. 4, para. 1 and to the Constitutional Court jurisprudence.
The Constitutional Court concluded that whenever citizens contest individual, general or statutory administrative acts they must prove to the jury that their rights or legitimate interests are affected. By the latter hypothesis in Art. 186, para 1 of the APC that provides for the likelihood that rights or legitimate interests are affected or that obligations may arise as a prerequisite for contestation, the Bulgarian lawmaker transposed the modern democratic standards in the development of procedural legitimacy in the exercise of the right to legal defense especially if there exists a menace to public, community or individual interests because of the administration's bad lawmaking.
In principle, the administrative statutory act covers a wide circle of citizens whose legitimate interests are affected or may be affected. Hence the provision of the APC's Art. 186, para 1 that the right to contest shall be a right of persons who might be affected by this provision. In the sense of Art. 186, para 1 of the APC all the citizens that it covers might be affected by it. If the statutory administrative act covers a limited circle of individuals or corporate entities, it is just those whose rights the act affects or might affect that can be rightful appellants.
The Constitutional Court finds that the provision that there should no need to prove legitimate interest in the contestation of statutory administrative acts is unacceptable. It would be difficult to share the position, even given the broadest possible understanding of legitimate interest that includes the need of law-conforming activity on the part of the Executive that this interest is not be explicated in the exercise of the right to legal defense in court. The Constitutional Court concluded that interest must be explicated whenever individuals or corporate entities contest acts of the Executive in a court process. This derives from the requirement of legal security, which is the major component of the principle of the state committed to the rule of law (Constitutional Court Decision No 1 of 2005 on Constitutional Case No 8/2004).
The Constitutional Court ruled on the active legitimacy of all persons of law whenever a bylaw directly affects their rights or legitimate interests or whenever obligations arise that they must fulfill. However, Art. 186, para 1 of the APC allows individuals or corporate entities to contest whenever the administrative act may violate their rights or legitimate interests or whenever obligations arise that they must fulfill. The progressive nature of the legitimacy as per Art. 186, para 1 of the APC lies in the possibility to contest the administration's statutory acts if and when rights are directly infringed on or might be infringed on.
The legitimacy of legal defense of the rights of individuals and corporate entities against acts of the Executive that the Constitution provides for is open as wide as possible but is not unlimited. Here the lawmaker has conformed to Art. 120, para 2 of the Constitution and has not codified actio popularis or the possibility for all and everyone to contest acts of the Executive even when rights are not violated or potentially endangered.
Should the position that all and everyone shall be free to contest acts of the Executive on behalf of others and not just when their or his interests are not affected, but also when the rights and interests of others are not violated or endangered, then the right to legal defense becomes equivalent to the public function of control on legitimacy and to the law-enforcement function of state institutions. The fundamental difference between the right to legal defense against the Executive and the law-enforcement function of the state institutions is to be sought in the fact that these two forms of control on legality rest on different grounds, hence the codified possibility to contest bylaws. With the state institutions, the defense of legality derives from the mandate they get upon election or appointment and the powers they are vested with by the Constitution and the laws. The state institutions protect the rights of all and everyone without being stakeholders if these rights are violated or endangered by virtue of their prerogatives that derive from political representation. The right to legal defense and to contest statutory administrative acts for individuals or corporate entities arises solely if rights, liberties or legitimate interests are violated or endangered or if the individuals or corporate entities are burdened with obligations in default of a prerogative or mandate to protect the rights and legitimate interests or to parry the thrust of obligations on other people.
The concept that at all times everyone shall be free to contest acts of the Executive on behalf of others or on his own behalf even when his rights are not affected or endangered causes problems.
Inasmuch as it is evident that there is not a prerogative to contest an act of the Executive that covers a group of citizens other than that of which the appellant is a member, legitimacy without demonstrated legal interest might make the appellant appear a usurper. If an individual or a corporate entity could take legal action without the need to demonstrate interest or, as the Ombudsman claims, the protection of the rule of law and of the law-governed state is a sound reason for legitimacy, this might affect the rights of individuals or corporate entities. Unless legal interest is demonstrated and the appellant's rights are not violated or endangered, legitimacy might have an undesired impact on different persons of law – Bulgarian nationals, non-Bulgarian nationals with different legal status on the one hand, and Bulgarian and non-Bulgarian corporate entities on the other hand.
The Constitutional Court did not share the views that procedural legitimacy of the right to legal defense against an irregular piece of secondary legislation automatically derives from the principle of the sovereignty of the people, as some of the parties' positions insisted. The right to legal defense is not a public function and procedural legitimacy is not an institute of direct democracy by means of which the sovereignty of the people is exercised. Moreover, there exists no precedent in world jurisprudence when the enforcement of statutory acts of the Executive is made dependent on the direct sovereignty of the people that in the domain of lawmaking covers acts of the central or local legislative bodies. In that sense the popular veto, inasmuch as it exists in the system of the separation of powers, is associated with legislation whereas the right to legal defense even in the event of collective contestation of pieces of secondary legislation of the Executive is not a repetition of the popular veto by means of which the sovereignty of the people might be expressed. Unlike the state institutions citizens are bearers of rights and not holders of prerogatives by means of which the power of the State is realized. If the sovereignty of the people is exercised directly, it is indivisible between the individual citizens just as public ownership does not make them co-owners of public property. There exists no such requirement for the right to legal defense: there is no need that all whose rights are affected should exercise those rights all at the same time for a legal effect to arise from that right.
Other requirements of the law-governed state must also be considered in the expansion of procedural legitimacy. Broad as the limits of the right to defense may be, a balance must be maintained between this right and the other rights of the individual and between this right and the rights of all other individuals. If statutory administrative acts can be contested endlessly this might give rise to uncertainty and tension in the law domain for other individuals.
In view of the stated opinions, the APC challenged texts are not seen as discordant with the Constitution.