DECISION No 3 OF 4 MAY 2011 ON CONSTITUTIONAL CASE No 19/2010
Misdemeanor is an offence against public order, which carries a criminal charge within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF). As such it requires qualification because of the severity of the potential punishment to be imposed, i.e. detention by the services of the Ministry of Internal Affairs (MVR), which is equivalent to imprisonment.
Limiting the right of a defendant to contest the court order by which they were detained by lodging an appeal with a higher tribunal is excessive vis-à-vis the achievement of the legitimate aims of justice although the order may be issued in administrative and penal proceedings. This constitutes a violation the right to a fair trial of a detainee under Article 31(4) of the Constitution and Article 6(1) CPHRFF.
Proceedings have been instituted on the grounds of Article 149(1)(2) of the Constitution on a petition received from a panel of three judges of the Supreme Administrative Court. The petition was lodged in accordance with Article 150(2) of the Constitution and sets out a request for the first sentence of Article 7 of Decree No 904 of 28 December 1963 on countering malfeasance offences (UBDH) (promulgated in the State Gazette (SG) No 102/1963; last amended SG No 27/2007) to be declared anti-constitutional. According to the provision concerned “the decision of the district judge shall not be subject to appeal and shall enter into force without delay”.
According to the petition the punishment “detention by the services of the Ministry of Internal Affairs (MVR)” is equivalent to “imprisonment” and the prohibition laid down in the first sentence of Article 7 UBDH to appeal the detention contravenes Article 31(4) of the Constitution and Article 2(1) of Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms (CPHRFF). It is emphasized that the person against whom charges are brought has been deprived of their liberty – a heavy punishment, which in itself warrants a conclusion that their conduct carries a criminal charge in the meaning of Article 6 CPHRFF. The petitioners maintain that the right to appeal the order of the district court should be recognised because on the grounds of Article 5(4) of the Constitution the CPHRFF (an international treaty) should supersede any provisions to the contrary laid down in national law. The three-judge panel of the Supreme Administrative Court requests that the Constitutional Court appraises and declares the first sentence of Article 7 UBDH anti-constitutional with a view to precluding a possibility for inconsistent court rulings on the grounds of the provision concerned.
The Constitutional Court, having appraised and deliberated on the arguments set out in the petition and the opinions received from the interested parties, ruled as follows:
The punitive measure “detention by the services of the Ministry of Internal Affairs” was introduced into the body of national law following the enactment of the Decree on countering malfeasance offences in 1963 whilst on the grounds of Article 9(2) thereof a Regulation on the implementation of Decree No 904 on countering malfeasance offences was also enacted (SG No 106 of 3 December 2004). The same administrative punishment “detention in custody on the premises of a service under the jurisdiction of the MVR” for up to 25 days is envisaged in Article 22(1)(1) of the Protection of Public Order during Sports Events Act (SG No 96 of 29 October 2004).
As an alternative to that punishment a fine of BGN 100 to BGN 500 may be levied for anti-social behaviour (malfeasance), which is defined in Article 1(2) UBDH as “an act of indecency such as the use of rude or offensive language and swearing in public, conduct that is demeaning to other citizens, the representatives of law enforcement bodies or the public or engaging in rows, fights and other similar acts that disturb public order that, on the basis of presenting a minor threat to society, do not constitute a criminal offence under Article 325 of the Criminal Code (NK)”.
According to the Decree on countering malfeasance offences the punishment “detention in custody on the premises of a service under the jurisdiction of the Ministry of Internal Affairs” is an administrative sanction that may, as an alternative, be commuted to the levying of a fine.
The provisions on levying administrative penalties are in line with the general principles of national criminal law policy but contain certain specificities that set them apart from the provisions on criminal liability. Essentially, administrative sanctions have adverse material or moral consequences. They are imposed in accordance with the procedure laid down by law for committed administrative offences. The burden of imposing and enforcing an administrative penalty is placed on the public administration, respectively the court in certain cases envisaged by law, as opposed to cases where the criminal liability of a person is engaged and penalties may be imposed only by a court of law. It is essential that administrative liability, which carries a penalty (including under UBDH) be engaged efficiently and in a timely manner.
Regardless of whether the case concerns an administrative or a criminal offence, the matter at hand stems from the failure to ensure that a person detained under the Decree on countering malfeasance offences has the right to appeal the decision by which a district judge has ordered detention in custody.
According to Article 63(1) of the Administrative Offences and Penalties Act (ZANN) (SG No 30/2006) the decision of a district judge may be appealed before the Supreme Administrative Court on certain grounds envisaged in the Penal Procedure Code in accordance with the procedure laid down in Chapter XII of the Administrative Procedure Code. However, according to the first sentence of Article 7 UBDH the decision of a district judge whereby the heaviest administrative penalty “detention in custody on the premises of a service under the jurisdiction of the Ministry of Internal Affairs” is imposed may not be appealed before the highest instance tribunal. For this reason, relying on a logical, systematic and historical interpretation, in their jurisprudence general courts, including the Supreme Administrative Court, have consistently ruled that the decisions under the decree may not be appealed by reasoned petition; that the ZANN is a general law and the UBDH is a special law; and that the latter, by virtue of being a special statute, derogates the application of the general law. The Constitutional Court is compelled to take into account an important consideration – the administrative penalty under the Decree on countering malfeasance offences is not imposed by the administrative body whose sole responsibility is to draw up a decision (Article 2(1) UBDH) but by a district judge who is entitled to do so on the grounds of Article 47(1)(c) ZANN. This means that the decision to be adopted by a district judge, unlike those by which administrative penalties are imposed on the grounds of special laws, are not subject to judiciary review by a higher tribunal. The proceedings under Articles 2 to 6 UBDH bear the greatest similarity to that under Article 78a NK where under certain conditions a district judge may discharge a person from criminal liability and impose an administrative penalty in the form of a fine. Yet in accordance with Article 378(5) NPK that decision is subject to judicial review by the competent Supreme Court.
One of the fundamental principles underlying the Penal Procedure Code is that the court rulings by which a person is imprisoned or remanded in custody for a certain period are subject to appeal before a higher instance tribunal in accordance with the procedure laid down by law. According to Article 131 APK administrative proceedings are conducted before a court of first instance and may be appealed before a higher court whilst according to Article 63(1) the same arrangements apply to administrative proceedings where the liability of a defendant has been engaged.
According to interpretative Ruling No 89 adopted by the General Assembly of the Criminal Law Division of the Supreme Court in Criminal Case No 74/1982 “detention in custody on the premises of a service under the jurisdiction of the Ministry of Internal Affairs” is a heavy penalty and the legal status and rights of a detainee are the same as those of imprisoned persons. In the opinion of the Supreme Court a person detained on the premises of a service under the jurisdiction of the Ministry of Internal Affairs is a prisoner within the meaning of Article 297(3) NK (cf. interpretative Ruling No 29 in Criminal Case No 8/1988 of the General Assembly of the Criminal Law Division of the Supreme Court).
According to Article 31(4) of the Bulgarian Constitution the rights of a person against whom charges have been brought in a court of law may not be restricted beyond what is necessary for the purposes of a fair trial. The right to a fair trial “where a criminal charge had been brought against a defendant” is enshrined in Article 6(1) of the CPHRFF. According to Article 5(4) of the fundamental law the CPHRFF is a part of national law and is applied as a matter of precedence where a provision laid down in national law contravenes the international treaty. Hence the national courts are to apply the CPHRFF directly without there being a need for intervention on the part of the Constitutional Court. The provisions on fundamental rights laid down in the national Constitution should be interpreted in light of the underlying principles of the CPHRFF.
The arguments set forth in the petition are based on Article 2(1) of Protocol No 7 to the CPHRFF, according to which “everyone convicted of a criminal offence by a tribunal is entitled to have his conviction or sentence reviewed by a higher tribunal”. Bulgaria signed the cited Protocol on 3 November 1993 and following its ratification and enactment by a dedicated law (SG No 87/2000) it entered into force on 1 February 2001 although it has not been promulgated in the State Gazette. The Constitutional Court may not build its case on Protocol 7 to the CPHRFF because “the international treaties ratified by Bulgaria, which have entered into force but have not been promulgated in the State Gazette, are not a part of national law unless ratified before the entry into force of the current Constitution insofar as their promulgation was not required by law”. According to Article 5(4) of the Constitution prior to their promulgation such international treaties do not supersede the provision laid down in national law (see Judgment No 7/1992 in Case No 6/1992 on the record of the Constitutional Court).
In its jurisprudence the European Court of Human Rights (ECHR) has determined alternative criteria that allow criminal offences within the meaning of the Convention to be distinguished from infractions as defined and classified in national law depending on the type of proceedings and the nature and severity of the penalty imposed.
The Constitution Court finds that malfeasance (anti-social behaviour), which may be described as conduct that disturbs public order, carries a “criminal charge” in the meaning of the Convention. As such, and in view of the severity of the penalty it carries (detention in custody on the premises of a service under the jurisdiction of the Ministry of Internal Affairs), it is equivalent to “imprisonment”. An offence committed under Article 1(2) UBDH may not be regarded as a minor infraction because it carries the penalty “detention in custody on the premises of a service under the jurisdiction of the Ministry of Internal Affairs”.
Restricting the right of a defendant to appeal a court decision whereby they are to be detained in custody before a higher tribunal is beyond what is necessary for the purposes of a fair trial despite the decision being adopted in the framework of administrative proceedings in which the criminal liability of the defendant has been engaged. Depriving a defendant of the right to appeal the decision of the district judge before a higher tribunal constitutes a violation of the rights of a defendant, particularly where the heaviest penalty is imposed instead of a fine of BGN 100 up to BGN 500. Accelerated proceedings within criminal law do not constitute a violation of Article 6 CPHRFF per se. Nevertheless, the principle according to which courts are to rule within a reasonable timeframe and in a consistent manner should not prejudice the right of a defendant to judicial remedy. This warrants the conclusion that the first sentence of Article 7 of UBDH is prejudicial to the right of a defendant to a fair trial. Thus it contravenes Article 31(4) of the Constitution and should be revoked on those grounds.