Decision No 2 of 31 March 2011 on Constitutional Case no 2/2011
Proceedings have been instituted on a petition received from the Ombudsman of the Republic of Bulgaria requesting that the Constitutional Court rules declares Article 75(5) and (6) of the Bulgarian Identity Documents Act (ZBLD) anti-constitutional.
The petitioner maintains that the provisions concerned unjustifiably infringe upon the fundamental right of citizens to travel abroad freely, which they enjoy under the first sentence of Article 35(1) of the Constitution. This is so because the enacted amendment introduces restrictions that are incompatible with the conditions exhaustively stipulated in the second sentence of Article 35(2) in conjunction with Article 57(1) and (2) of the Constitution.
The Constitutional Court finds the petition requesting it to declare the contested provisions anti-constitutional meritorious on the following grounds:
According to the amended Article 75(5) ZBLD where a party has incurred an unsecured debt of more than 5 000 BGN, including the principal and interest due, the Minister of Internal Affairs or a duly authorised representative thereof is to restrict the right of the debtor or, in the case of a legal entity, the rights of the members of its managing or supervisory bodies to travel abroad freely, where this has been requested by a creditor or a bailiff.
Article 75(6) ZBLD lays down an imperative prohibition to “travel abroad freely where a person has failed to comply with an enforceable court order providing for the payment of a debt in a significant amount owed to Bulgarian or international natural or legal persons unless sufficient and adequate security is provided.”
The cited provisions undoubtedly limit the possibilities available to citizens to exercise their fundamental right to travel freely outside of Bulgaria (first sentence of Article 35(1) of the Constitution). Albeit not absolute, this right is unalienable (Article 57(1) and (3) of the Constitution) and it may only be restricted in the cases envisaged in the second sentence of Article 35(2) of the fundamental law, i.e. when their right to do so is restricted by a law that seeks to achieve adequate and proportionate protection of certain values enshrined in the Constitution such as national security, public health and the rights and freedoms of other citizens. Hence the outcome of the case brought before the Constitutional Court will depend on the conclusive answers to two questions: firstly, whether the aim that the law seeks to achieve by means of the contested provisions is legitimate in principle in light of the national Constitution; and, secondly, whether the restriction is a necessary, appropriate and proportionate legal instrument for the achievement of the outcome envisaged in the Constitution in a democratic society striving to protect the rights and freedoms of all its members in a balanced manner.
In the case at hand, paragraphs 5 and 6 of Article 75 lay down provisions that facilitate the recovery of public debt in a significant amount owed to the central government and municipalities (outstanding tax bills, fees, social and health insurance contributions, customs duties etc. in an amount exceeding 5 000 BGN) and of outstanding debts recognised by orders issued by a court of law. The aim that the law seeks to achieve is a swifter and more efficient settlement of certain debts whose significance and scope may not be objectively linked to any considerations relating to the need to protect the life, health and wellbeing of society. It may be argued that the timely settlement of a debt could, in extremely rare or unconventional cases, help to overcome or prevent an imminent threat to national security or public health within the constitutional meaning of the two concepts replicated and reiterated in a number of Parliamentary acts (cf. §1(1) and (2) of the transitional and final provisions of the State Agency for National Security Act; paragraph 20 of the National Security Concept of the Republic of Bulgaria; Article 2 of the Public Health Act etc.).
In any case, the enacted restriction set out in Article 75(5) and (6) ZBLD is admissible insofar as it purportedly seeks to safeguard the rights and freedoms of other citizens. Even where it does not present a serious threat to national security and public health, the failure to pay outstanding liabilities to the budget of the central or local government undermines the economic foundations of the welfare State and jeopardizes the ability to make payments and provide basic public services in a timely manner in line with the Constitution in a number of areas such as social and health insurance, free healthcare and education, benefits and other statutory entitlements, health and safety etc. On the other hand, the failure to enforce court orders providing for the collection of outstanding debts of private parties in significant amounts infringes upon the constitutionally recognised right of natural and legal persons to enjoy private property as a fundamental right within the meaning of Article 17 of the Constitution and compromises their ability to govern their affairs responsibly by freely disposing of legally acquired property, including any liabilities owed to them by debtors (cf. inter alia, Judgments Nos 15 in Case No 9/2010; 7 in Case No 1/2001; 17 in Case No 14/1999; 22 in Case No 1996 on the record of the Constitutional Court). Hence the Constitutional Court finds that the two contested provisions seek to achieve a legitimate aim within the meaning of the second sentence of Article 35(1) of the Constitution.
However, Article 75(5) and (6) ZBLD is not in line with the principle of proportionality. Undisputed public and private debt should be settled by means of an efficient and swift procedure whose main aim is not to penalize the debtor as an individual but identify any property owned by that individual that may be confiscated and sold so that an outstanding debt can be repaid. Indeed, a debtor acting knowingly and in bad faith may attempt to obstruct the normal course of collection proceedings by refusing to accept subpoenas and notices, grant access to property that may be inspected by law, provide information or explanations, conceal property etc. In such cases the temporary limitation of the fundamental right of a citizen to travel freely may indeed be justified in light of the overriding need to satisfy the claim of a public or private debtor.
The principal flaw of the contested provision is that it is indiscriminate, i.e. no differentiation has been made between a debtor who is objectively incapable of settling an outstanding debt without delay, regardless of whether it is public or private, but cooperates fully with the authorities and one who deliberately attempts to delay and obstruct proceedings. The enacted law envisages a possibility to restrict the right of free travel of any debtor who is not servicing an outstanding loan. This means that when the individual concerned is genuinely incapable of repaying the debt the measure is essentially designed to penalize them. In the latter case, the measure is neither an adequate safeguard against default nor it is an appropriate means of achieiving a goal that may find justification in the Constitution. Moreover, it may even be counterproductive, particularly where a possibility is objectively available to a debtor to find gainful employment in another country in view of the freedom of movement of workers in the European Union.
In the opinion of the Constitutional Court the repayment of pecuniary liabilities, regardless of whether a debt is public or private, does not take precedence nor does it weigh more heavily than conducting efficient and swift criminal proceedings within a reasonable timeframe. This analogy is warranted because an equivalent coercive measure (a prohibition to leave the territory of Bulgaria) a last resort in criminal proceedings when charges of an aggravated felony have been brought against a defendant (cf. Article 68 of the Criminal Procedure Code - NPK). The comparison between the two legal regimes is warranted because the case at hand calls for an appraisal of the extent to which the provision is an adequate and proportionate means of achieving a legitimate goal.
The conduct of persons who deliberately attempt to obstruct or delay the collection of public or private debt may to a small extent correspond to the elements of a general offence (cf. Articles 227(b) to 227(f), 255 and 255(a), 258, 270(1) and 296 of the Criminal Code). The offences incriminated under the cited articles carry criminal charges, which may warrant restricting a defendant’s right to travel outside of Bulgaria (the coercive measure envisaged in Article 68(1) NPK). The measure concerned is allowable in a relatively small number of cases of serious felonies and the comparison shows that the coercive measure resorted to in the framework of criminal proceedings is significantly lighter than the administrative one envisaged in Article 75(5) and (6) ZBLD. Firstly, in accordance with the NPK the right to travel outside of Bulgaria may only be restricted in cases of premeditated offences whilst for the purposes of the proceedings conducted under the ZBLD the form of culpability is irrelevant from a legal standpoint. Secondly, the restriction imposed under the NPK does not exclude the possibility, which is subject to judicial review, to leave the territory of Bulgaria in exigent circumstances whilst that enacted administrative prohibition on free travel abroad does not envisage such a possibility under any circumstances. Thirdly, unlike the restriction that may be imposed in criminal proceedings and lifted by a court when no longer necessary (Article 68(5) NPK), the administrative restriction is irrevocable until a percentage of the debt is repaid so that the outstanding portion drops to an amount that is below the threshold stipulated by law and regardless of the conduct of the debtor who may be assisting creditors and acting in good faith to ensure repayment of the outstanding debt.
The above warrants the conclusion that the provision contested by the Ombudsman of the Republic according to which the coercive administrative measure is applied automatically and for an indefinite period of time restricts the right of citizens to travel freely outside of Bulgaria and is therefore an excessive and inappropriate instrument for the achievement of a goal, which in principle is compatible with the Constitution. Hence the provisions deliberated in the framework of the review conducted to appraise their constitutionality are not in line with the second sentence of Article 35(1) of the Constitution.
The cited Article 35(1) and in Article 2 of Protocol 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms set out principles that are substantially the same. Hence, it is logical and reasonable for the Constitutional Court to declare the enacted amendment to the law contested by the Ombudsman unconstitutional, including in the light of certain sentencing judgments of the European Court of Human Rights (cf. Judgment of 23 May 2006 in Case Rinner vs. Bulgaria and Judgment of 26 November 2009 in the Case Gochev vs. Bulgaria).
Furthermore, Article 75(5) ZBLD violates the principles of the State based on the rule of law in the meaning of Article 4(1) of the Constitution. It envisages a possibility to restrict the fundamental right enjoyed under Article 35(1) of the Constitution by all members of the managing and supervisory boards of a legal entity that has an outstanding debt to the State budget, although such members may neither have the right to dispose of the property of the indebted undertaking, make payments or cash its assets nor discharge any representative or other functions in relation to debt recovery. This means that the conduct of third parties is effectively penalized in breach of the principle of personal liability, which the law recognises solely where collective liability is engaged to rectify a sustained damage (see the arguments set out in paragraph 15 of Judgment No 11 in Case 13/2010 on the record of the Constitutional Court).
Declaring Article 75(5) and (6) anti-constitutional will also ensure a more precise transposition into national law of Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, which allows the right of EU citizens and the members of their families to free movement to be restricted solely to protect public order, security and public health without infringing upon the rights and freedoms of other individuals. The Constitutional Court notes that the cited provision expressly prohibits imposing limitations for the purposes of achieving an economic goal.
Председател: Евгени Танчев