DECISION № 7 OF 29 SEPTEMBER 2009 ON CONSTITUTIONAL CASE № 11/2009
The case was filed on 29 July 2009 as the Ombudsman of the Republic of Bulgaria challenged the constitutionality of Art. 113, paras 1, 2 and 3 of the Cultural Heritage Act (CHA), promulgated, DV, No 19/ 2009, and of § 5, paras 2 and 3 of the CHA Transitional and Concluding Provisions.
In order to rule, the Constitutional Court considered:
1. The prescription in Art. 113, para 1 of the CHA, viz. that p aid transfer deals with movable cultural valuables shall be performed only if they have been identified and registered, as provided by this law, in no way infringes on the right to private ownership. This requirement was inspired by the specifics of that category of possessions that are as precious as any other important valuables as referred to in Art. 23, sentence 2 and Art. 54, para 1 of the Constitution.
The former text reads that the State shall see to the protection of cultural heritage; the latter text reads that citizens shall have the right to develop their cultural needs as they avail themselves of the national and universal human and national cultural valu ables. It is in this context that the balance of the interests of collectors of movable cultural valuables and of the universal right of citizens to access these valuables must be struck. This implies that the right to possess movable cultural valuables cannot be treated, as in the general case, as a property right with a certain monetary equivalent which is an absolute possession of the proprietor as it relates to the exercise of the cultural rights of each individual citizen and to the guarantee of these rights by the public legal obligation of the State to protect cultural heritage.
Privately owned cultural valuables have an additional dimension to the monetary one, namely, science, knowledge, aesthetics, and for that reason they are not an ordinary possession item for their owner. That specific aspect of these items determines why it is in the public interest to establish a legal frame for their protection by the State.
To term a movable piece as a ,,cultural valuable” it must have been subject to an appropriate identification procedure. Without such identification, an item cannot be treated a priori as a ,,cultural valuable” and cannot be covered by the CHA-extended protection.
If the identification is requested by natural and legal persons who possess items, which may be determined as cultural valuables and who are willing to have proofs of the cultural value and importance of the item possessed – Art. 97, paras 3 and 4 of the CHA, then the compulsory identification that the challenged Art. 113, para 1 of the CHA provides for is justified with the security of civil turnover which covers p aid transfer deals with movable cultural valuables. This will minimize the risk for the purchaser of such an item who might be misled about its being a ,,cultural valuable” and about its market price.
The same raison d'être holds true of the obligation to register movable cultural valuables as provided in the challenged text. Owing to the nature of the protected non-profit goods that satisfy the citizens' cultural needs, similarly to the other cases of protection of fundamental civil rights like life, health and social security (for instance, given the required advance registration of vehicles, medicines, weapons), the said requirement in Art. 113, para 1 of the CHA cannot be treated as an anticonstitutional curtailment of the right to private ownership of movable cultural valuables.
The identification and registration of movable cultural valuables directly correlates with the obligation of the State to protect cultural heritage for in that way the valuables are catalogued and conserved in order to get cultural gains from them regardless of the kind and form of ownership of such items.
The mentioned methods of conservation and inventory are motivated also by the characteristics of the cultural valuables that Art. 113, para 1 of the CHA describes. That characteristics determines their mobility unlike immovable property, hence the risk of being freely moved around and hidden. The risk can be avoided if the identification and registration procedure for movable cultural valuables is enforced.
The challenged Art. 113, para 1 of the CHA must also be discussed in the context of Art. 113, para 2 as the two relate. If the obligation to have movable cultural valuables identified and registered is withdrawn, the State will have difficulties in the acquisition of the items that are put up for paid transfer deals as these items are national wealth by the exercise of the potestative right of first purchaser in order to save these items in its cultural domain.
In conclusion, the challenged Art. 113, para 1 of the CHA is not in contravention to Art. 17, para 1 and para 3 of the Constitution. The text does not infringe on the right to property or on its inviolability as the owner of a movable cultural valuable is not disinvested. The owner is free to bargain the transfer once he has complied with the requirement of identification and registration of the valuable as part of the State-protected cultural heritage and by doing so has proved the legitimacy of the purchase. Therefore, the State interference that the challenged text provides for, inspired by the necessity to protect the cultural rights of the rest of the citizens cannot be treated as a constitutionally intolerable curtailment of the right to keep a movable cultural valuable as a piece of private property.
Given the considerations so far, Art. 113, para 3 of the CHA is not anticonstitutional either as it relates to para 1 of the same CHA article.
2. Art. 113, para 2 of the CHA vests the State with the right to be the first buyer in p aid transfer deals with movable cultural valuables – national wealth. The State enjoys the right of first buyer by virtue of the CHA but also by virtue of other pieces of legislation.
The legal nature of the right of first buyer characterizes the State as a potential party to a civil law transaction in which public interest must be satisfied as the State becomes the owner and conserves a cultural valuable of extreme importance which is the reason to declare it national wealth.
In that context the requirement of a written notification to the Minister of Culture before the paid transfer deal with a cultural valuable – national wealth, which is private property is not posed to a participant in an administrative procedure but has the nature of an offer to conclude a contract in the civil law meaning. According to Art. 113, para 2 of the CHA the State has the right to acquire a cultural valuable – national wealth – a s the first buyer through the Minister of Culture under the conditions it is offered by the owner to the rest of prospective buyers, i.e. it is not the State that dictates the terms of the deal, it is the owner who does it within the perimeter of his right to freely dispose of his property. Moreover, the State has the right to acquire the item as the first buyer within seven days reckoned from the notification. If the State has not exercised its right within the specified period, the deal may be done with another person.
The law-established requirement that paid transfer deals with cultural valuables – national wealth should be subject to a written notification to the Minister of Culture and the option for the State to be the first buyer through the Minister of Culture under the same conditions does not infringe on the right to private property nor does it impede the owner to freely dispose of his property. In that sense Art. 113, para 2 is not discordant with Art. 17, paras 1 and 3 of the Constitution.
3. Paragraph 5, subpara 2 of the CHA Transitional and Concluding Provisions reads that in the identification and registration of the movable cultural valuables – national wealth, the right to ownership shall be established but by an official document, where the persons which have established factual hold over movable archaeological objects or movable archaeological monuments of culture prior to the enforcement of this law shall be obliged to request their identification and registration as movable archaeological cultural valuables and may not call upon expired acquired prescription.
Paragraph 5, para 2 of the CHATCP virtually eliminates a wide range of inherited items and prescribes the acquisition of an official document to certify the possession in this hypothesis. In default of public trade subject to State regulations in cultural valuables for decades back, the requirement to hold an official document is more often than not an unrealizable condition and appears as a deliberately put up legal obstacle to the fulfillment of the identification procedure for the said movable cultural valuables – national wealth. In any case the acquisition of movables in a deal which is not subject to any preset legal form cannot obtain an official document; the document obtained can be a private one. Thus the said legal text which sets a provision that more often than not is unrealizable as a precondition to recognize the right to ownership of movable cultural valuables – national wealth , violates the principle of the state committed to the rule of law, the inviolability of private property and the obligation to extend law-established guarantees and protection in private property. This conflicts with Art. 4, para 1, Art . 17, paras 1 and 3 and Art . 57, para 1 of the Constitution.
Paragraph 5, para 2 of the CHA TCP conflicts with Art. 4, para 1, Art . 17, paras 1 and 3 and Art. 57, para 1 of the Bulgarian Constitution because of the restriction in proving the right to ownership of movable cultural valuables – national wealth. The restriction precludes a reference to expired acquired prescription so as to prove rightful ownership.
The expired acquired prescription has been existing in Bulgarian civil law for decades regardless of the constitutional norms existing in different periods and changing social systems. Prescription was used and continues to be accepted by the Bulgarian law as an important tool to acquire ownership on real assets and goods and chattels. Amendments were passed in 1998 to the State Property Act (promulgated, DV, No 44 / 21 May 1996 , last amended, DV, No 41 / 2 June 2009), by virtue of which the legal status of cultural monuments of national and world significance was changed and they ceased to be public state property and were transformed into private state property. The quoted amendments eliminated the ban on the acquired prescription for movable archeological monuments of culture. On the other hand, the Constitution of the Republic of Bulgaria does not place the movable archaeological monuments of culture in the list of exclusive state property as per its Art. 18, para 1. Moreover, the content of the notion “archeological reserve” used in the cited Constitution text is defined by a law and the movable archaeological monuments of culture cannot be considered an element of the reserve by virtue of the very constitutional text. Therefore, anyone who possesses movable archaeological monuments legitimately can be considered to have acquired them through prescription with continuous possession for five years, as provided by Art. 80, para 1 of the Act on the Ownership. Yet whoever acquires the possession of a movable piece of property through a crime cannot acquire the ownership by prescription – Art. 80, para 2 of the Act on the Ownership .
It is constitutionally inadmissible in the context of the principle of the state committed to the rule of law for the legislating authority to decree unfavorable consequences for legal entities that have acted absolutely in conformance with the existing legislation. Once a law provides for an option of prescription as a way of acquisition of a definite category of objects – movable archaeological cultural valuables – it is inadmissible to pass a subsequent law that provides that prescription shall not apply in the establishment of rightful ownership of these valuables.
Legal persons must have trust in the law-established procedure and act in accordance with the law-established rules. The provision of § 5, para 2 of the CHA TCP contravenes Art. 4, para 1 and Art. 17, paras 1 and 3 of the Constitution as it affects rights that have already been acquired by virtue of the existing legislation – in this case the right to ownership that derives from expired acquired prescription. A legal text that disregards the preceding and the existing legislation constitutes a drastic infringement on the inviolability of private property. The legal consequences that the challenged CHA text provides for are tantamount to nationalization of private property outside the hypothesis of forcible expropriation that Art. 17, para 5 of the Constitution provides for .
Paragraph 5, para 3 of the CHA TCP reads that persons who have asked for identification and registration but have not established their right to ownership of movable archaeological cultural valuables – national wealth – shall be considered their holders while the Minister of Culture shall issue a certificate to certify the factual hold. Thus the challenged CHA text introduces the fiction that a claimant who has not established his right in the procedure of the preceding paragraph of § 5 от CHA TCP shall be considered a holder of the movable archaeological cultural valuables – national wealth.
That part of the CHA ignores the circumstance that the dividing criterion between an owner and a holder is the intention of keeping the item: the owner keeps it as his own property by himself or through the agency of another person whereas the holder keeps it by himself but for the sake of someone else. The lawmaker made the unfounded assumption that if the ownership is not established, the act of holding is for no one else but for the State and for that reason passed a procedure for the Minister of Culture to issue certificates. Concurrently, a physical person can act as a holder on behalf of another physical person or legal entity. The codified presumption that whenever the ownership is not established in the procedure of § 5 of the CHA TCP, it is always the State that shall prevail, is contrary to what Art. 17, paras 1 and 3 of the Constitution provide for.
Disrespect for expired prescription as a mode to establish rightful ownership and the codified fiction that a person who has not established rightful ownership by virtue of an official document shall be considered a holder of the movable archaeological cultural valuables – national wealth – constitutes an infringement on the inviolability of private property that Art. 17, para 3 of the Constitution proclaims .
Председател: Румен Янков