Decision No. 1 of 1 March 2012 on Constitutional Case No. 10/2011
The Ombudsman of the Republic of Bulgaria challenged the constitutionality of Art. 189, para 13 of the Road Traffic Code – RTC (DV, No 20/1999; last amended, DV, No 19/2011). The Ombudsman insisted that the provision he challenged curtails the right as enshrined in Art. 36 of the Constitution as it reads that penal orders and electronic tickets with which fines up to and including BGN 50 are imposed shall not be subject to appeal. The Ombudsman claimed that such a curtailment disagrees with Art. 6, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) as it strips citizens of their right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Further the Ombudsman referred to a disagreement with Art. 4, para 1 of the Constitution for the principle of the rule of law requires that the measures that concern the citizens’ fundamental right be a subject of adversary proceedings in a court which exercises control on the justice of the imposition of sanctions, including administrative penalties and also on the relevant proofs. The Ombudsman found that the provision in question unjustifiably extends the option that the Constitution allows, by way of exception, to curtail the citizens’ right to appeal against the administrative acts and ignored the interpretation that the Constitutional Court has already provided of Art. 120, para 1 and para 2 of the Constitution.
The Constitutional Court admitted the challenge on the basis of the following reasons:
Judicial control on the legitimacy of the administrative acts and actions as provided by Art. 120, para 1 of the Constitution is an inherent feature of any state that is committed to the rule of law and a specific manifestation of the principle of separation of powers. Being institutions of the State the courts exercise control on the legitimacy of the administrative bodies’ acts and actions and thus guarantee the rule of law (Art. 4, para 1 of the Constitution) and protect the rights and legitimate interests of citizens, corporate entities and the State (Art. 117, para 1 of the Constitution). It is only in a law-abiding state that real dispensation of administrative justice exists as one of the key factors that guarantee the balance and control between powers and the rule of law. As an essential element of the state committed to the rule of law and the principle of the separation of powers, judiciary control on legitimacy preconditions the requirement that recourse to justice should always exist. The Constitution vests the administration of justice into the courts as it postulates that they shall protect the rights and legitimate interests of citizens, corporate entities and the State (Art. 117, para 1). Therefore the recourse to court, both as an alternative and necessity, is a vitally important condition for the normal functioning of a state committed to the rule of law and the separation of powers. Viewed from the perspective of its substance, the requirement to have recourse to court involves a broad range of issues whereas specifically in the dispensation of administrative justice it is the appeal against the administration’s acts and actions that is in the foreground.
Seeking to advance the principles of the state committed to the rule of law and of the separation of powers, the Constitution advances the idea of judicial control on the legitimacy of the administration’s acts and actions by the provision of an umbrella text that deals with the appeal by citizens and corporate entities of any administrative act that concerns them. The Constitutional Court has repeatedly emphasized the importance of Art. 120, para 2 of the Constitution and its underlying significance as a guarantee in the advancement of the principle of the state committed to the rule of law, the separation of powers and the abidance of the Executive and the Judiciary by the law. The text of Art. 120, para 2 of the Constitution does not provide specifically for an appeal in court, yet there should be no doubt that the Constitution implies it inasmuch as it shall not be seen as unrelated to Art. 120, para 1 of the Constitution and to its systematic position within the Chapter on the Judiciary. Therefore, the umbrella provision that this text contains is dedicated exactly to the appeal in court.
Given the role and significance of the umbrella text the Constitutional Court has always restrictively interpreted the option to exclude administrative acts from the appeal procedure that Art. 120, para 2 in fine of the Constitution allows. Exception to this rule may be justified solely with particularly important interest on the part of citizens and society and may relate to individual (therefore few) administrative acts that are beyond the domain of fundamental rights or the principle of the state committed to the rule of law. When the proscription on appeal covers administrative acts that concern fundamental rights, the Constitutional Court has previously ruled that it shall be allowed only if the value to be protected is in a priority order.
The Constitutional Court thinks that argumentation to support the case in question cannot be drawn from Art. 120, para 2 in fine of the Constitution. The text deals with administrative acts. However, penal orders as per Art. 189, para 13 of the RTC are not administrative acts; given their nature, they are equivalent to judicial acts though they are issued by an administrative body and impose administrative penalties. The purpose of administrative penalties is to impose an administrative penalty and some add-on secondary sanctions in order to resolve the judicial disputes in keeping with definite adversary proceedings. The penal order that is issued by the administrative penalizing authority, given its nature and requisites, has the attributes of a judicial act. Conversely, Art. 120, para 2 of the Constitution covers all administrative acts – individual, general and statutory. The text will not permit a broader interpretation and therefore cannot be a constitutional pillar to accommodate an exception of the umbrella text of judicial control specially on the penal orders that impose administrative penalties.
In a state committed to the rule of law whenever dispensation of justice is involved, the recourse to court should always be available. Dispensation of justice is an activity that the Constitution (Art. 119) grants to courts. The constraint on the appeal procedure for penal orders and thus the acceptance of dispensation of justice while the recourse to the Judiciary is not guaranteed conflicts with Art. 119 of the Constitution. The same should hold good of the electronic tickets inasmuch as the law makes them as effective as penal orders (Art. 189, para 11, RTC). In general, sanctions in the form of penal orders as per Art. 189, para 13 of the RTC is dispensation of justice while the elimination of the recourse to the Judiciary whereon the court pronounces a final ruling that is discordant with the principle of the state committed to the rule of law and the principle of the separation of powers inasmuch as it relieves the Executive of judicial control on matters that bear on the citizens’ rights. In that context it should be specifically emphasized that dispensation of justice correlates with the freedom to appeal in court. Whenever a certain activity has characteristics of dispensation of justice, the protection that the law shall extend to citizens is not to boil down to an appeal with an administrative body. Such an option is to be associated with nothing but contestation of administrative acts and that by way of exception only.
Another text that is discussed in the challenge and in the position on the case as a justification to pronounce Art. 189, para 13 of the RTC anticonstitutional is Art. 56 of the Constitution. This article reads that every citizen shall have the right to legal defense whenever his rights or legitimate interests are violated or endangered. The Constitutional Court has pronounced several rulings to the effect that a fundamental universal right is at stake. While the right to legal defense has differing aspects depending on its substance, it is primarily a right to active reaction by any citizen whenever his rights are violated or his legitimate interests are infringed upon. Strictly interpreted, the text shows that the right to defense does not boil down to legal defense. If the defense is ensured by an administrative procedure, the letter and the spirit of the legal text will be abided by (an argument arising from Art. 56, sentence 2 of the Constitution). In the opinion of the Constitutional Court Art. 56 of the Constitution allows for one form or another of the right to defense and does not take a position on the question whether a form might be counted out to give privilege to another. Answers to these questions may be found only if compared to other Constitution texts. The joint interpretation of Art. 56 of the Constitution when read in combination with Art. 117 and Art. 119 of the Constitution leads to the conclusion that legal defense is primarily the basic form of defense in a law-abiding state. This is normal for legal defense constitutes complete possible defense of rights violated or legitimate interests infringed upon. The possibility to obtain administrative defense only concerns solely the hypothesis in Art. 120, para 2 in fine of the Constitution and the Constitutional Court’s interpretation of it. Therefore the interpretation of Art. 56 of the Constitution read in combination with Arts. 117, 119 and 120 of the Constitution advances the idea that in a law-abiding state legal defense of rights is the determining form of defense. Whenever dispensation of justice is implicated, and administrative penalty is dispensation of justice, the legal defense shall always exist as an option and there shall be no justification to rule it out providing the courts are the institutions that have Constitution-granted powers to dispense justice. To meet this requirement, it will be sufficient if the final adjudication of the dispute is left to the relevant court.
The Ombudsman’s challenge draws, inter alia, on Art. 6, § 1 of the Convention (CPHRFF) as a criterion to determine the substance of the right to legal defense as per Art. 56 of the Constitution. As the mechanism of Art. 5, para 4 of the Constitution has incorporated this text into the domestic legislation of the Republic of Bulgaria, some courts refer to this text in their practices in order to eliminate the prescription of Art. 189, para 13 of the RTC and to pronounce judgments on this type of cases. The Constitutional Court has already had the chance to underscore that the interpretation of the Constitution texts that concern fundamental rights should conform to the CPHRFF standards. In the Constitutional Court’s understanding such a conforming interpretation is in line with the ECHR universal compulsory jurisdiction to which Bulgaria subscribes and which concerns the CPHRFF interpretation and enforcement. The question arises as to how Art. 189, para 13 of the RTC relates to Art. 56 of the Constitution interpreted in the light of Art. 6, § 1 of the CPHRFF. Art. 6, § 1 of the CPHRFF provides that anyone facing criminal charges shall be free to turn to court. On its part, the European Court of Human Rights (ECHR) has already pointed out that it is necessary to define the scope of Art. 6, § 1 of the CPHRFF on the basis of definite criteria like the determination of the nature of the offense in terms of the national legislation and of the nature and the severity of the fine (Engel and others v. The Netherlands; Ozturk v. Germany; Gradinger v. Austria; Lauko v. Slovakia).
In the understanding of the Constitutional Court provisions concerning administrative penalties constitute such a “criminal charge” in the sense of Art. 6, § 1 of the CPHRFF. Generally, the genesis of provisions that deal with administrative breach and penalty is to be found in criminal law. Administrative penalty adopts different institutions of criminal and criminal procedural law. As a rule in general the principles of administrative penalty follow the principles of the penal policy. The specifics of the legislation on administrative penalty is usually drawn by way of comparison with the respective rules in criminal and criminal procedural law. Naturally, administrative penalty is specific, however, its specifics is not of a nature to sever the organic link with substantive and criminal procedural law. On the contrary, it justifies, in a number of cases, the subsidiary application of their rules. The fact that fines under Art. 189, para 13 of the RTC do not seek to redress damage caused and seek to penalize the offender and to discourage him to further commit such offences is also a proof in favor of its determination as “criminal charges” in the sense of Art. 6, § 1 of the CPHRFF. Despite the specifics of the administrative penalty termed “fine” in comparison to the fines under the Criminal Code, the consequences are analogous as they constitute a measure that affects a citizen’s pecuniary circumstances following a command from a competent State authority with the purpose to deter and warn such non-abiding citizen. This fact likewise confirms the conclusion that proceedings instituted to enforce administrative penalties are essentially criminal proceedings.
Given that, inasmuch as the imposition of fines for administrative offenses is essentially criminal proceedings, the right to legal defense as per Art. 56 of the Constitution interpreted in the light of Art. 6, § 1 of the CPHRFF shall include a recourse to court whenever administrative fines are imposed on citizens. Regarding the amount of the fine, it should be irrelevant to the admission or decline of an appeal. A conclusion to the contrary would be tantamount to untenable constriction of the right to legal defense though neither Art. 6, § 1 of the CPHRFF nor Art. 56 of the Constitution provide any justification for such an approach nor do they provide any prescriptions of a possible differentiation in the legislation on the basis of appropriateness. Standards concerning the right to have a recourse to court as part of the right to legal defense as applied in Bulgaria shall not be lesser than the recognized international standards. Therefore inasmuch as Art. 189, para 13 of the RTC is relevant to administrative penalty which essentially is dispensation of justice under the criminal law, it won’t be justified to explore the nature of the activity to obtain a rationale to constrict the recourse to court whenever the administrative penalty termed “fine” is imposed.
Some of the positions on the case see the insignificance of the case as the reason for the non-exercise of control in keeping with Art. 189, para 13 of the RTC. Wherever an appropriate legislation exists, the idea is always one: an insignificant item leads to the transformation of the respective conduct as a fact that is irrelevant to the law or to its redefinition, respectively, to the exclusion or elimination of various legal consequences. In any case the insignificance does not curtail rights and does not weaken the doer’s legal situation. Therefore, it is not in the doer’s interest to challenge the legal consequences that relate to the insignificance. Accordingly, the determination of the nature of a certain administrative breach as an insignificant case should not provoke consequences in a direction which is reverse to that in the challenged text as in fact The Administrative Violations and Sanctions Act does. As a result, the consequences of the administrative violation should not provoke the injured party to proceed with an appeal and in that context it seems useless to disallow the appeal action. At the same time, the determination of whether an administrative violation per se is an insignificant case should not preclude judicial control. There is nothing to discourage a dispute about whether the violation committed is an insignificant doing or not and the case should be brought to court to resolve it. Therefore, it is unacceptable to connect a law-prescribed constriction of the appeal action on the grounds that the violence is an insignificant doing, for this is inspired by a distorted understanding of the functions that this institute has.
The small amount of the sanction imposed is cited as the reason for the abandonment of appeal action as per Art. 189, para 13 of the RTC. However, the Constitutional Court finds this connection unacceptable. An administrative violation may constitute an “insignificant case” for reasons other than the fact that a low fine is imposed. Conversely, the fine, if at all, will be low for the violation is seen as an “insignificant case”. As the legislation shows the determination of violence as an insignificant case given other circumstances, primarily whether it is the first violation of the type in question and whether the ensuing damage, if any, is insignificant. Generally, a doing which is termed “violation” is an insignificant case when it insignificantly affects the values for the protection of which it is codified as criminally liable.
Insignificance as a reason to preclude legal defense was only recently incorporated in the Convention for the Protection of Human Rights and Fundamental Freedoms. Art. 35, § 3 (b) of the Convention reads that the Court may declare inadmissible any individual application if it considers that the applicant has not suffered a significant disadvantage and in addition, poses the requirement that the case should have been considered by a domestic tribunal. Evidently the Convention insists that the insignificance of a doing and the amount of the sanction should be irrelevant to the elimination of the recourse to court whenever fundamental rights are at stake, especially the right to legal defense. The more so given the fact that the preclusion as per Art. 189, para 13 of the RTC is so worded that it is absolutely irrelevant whether any damage has ensued from the committed administrative violation and if so, how big that damage is.
In the understanding of the Constitutional Court the small amount of the fine, i.e. the administrative violation, should not per se justify the abolition of the text which allowed the wrongdoer in a road accident to take appeal action against the administrative penalty. Such a small fine cannot be justified in the perspective of the injured party’s rights. Some positions on the case justify as appropriate the decision as per Art. 189, para 13 of the RTC: higher collection rate of fines, relief of the administration or less workload of the courts. However, such reasons do not have the weight equal to that of guarantying any fundamental right like the right to legal defense. While the possible curtailment of the right to take appeal action which exists in the civil procedural and administrative procedural appeal is the only barrier to be run over on the way to a certain court instance, it is not to be ruled out a priori.
In the understanding of the Constitutional Court the admissibility of the appeal action should be discussed primarily in the context of the fundamental right to legal defense. Therefore it is only considerations concerning the right to legal defense as a fundamental right to be enjoyed by citizens that can be relevant in that perspective, specifically it must be seen whether the wrongdoer claims he has done nothing wrong or whether he is willing to pay the fine imposed on the scene of the act. If this is the case, there is no violation of rights. However, if this is not the case and the citizen opposes, there should follow the complete proceedings that lead to an administrative penalty, i.e. legal defense shall not be declined. The small amount of the fine imposed inasmuch as it definitively and unequivocally presupposes these conditions and calls for no penal order can be a justification for the law to explicitly provide for an incontestable presumption and thus allow for inaction to approach an administrative body which imposes the administrative sanction by issuing a penal order. The limitation of the recourse to court under these hypotheses may be considered implied inasmuch as it does not affect its very nature of the right to defense and rests on freely expressed will. Conversely, it is inadmissible to make the removal of judicial control dependent solely on the legislating authority perception that the amount of the fine is small.
Still another interesting question is put: whenever a specific wrongdoing is video recorded and a controlling authority is not present on the scene, will it be treated as indisputable for therefore it will become needless to take the matter to court? The installation of cameras that automatically record administrative violations must abide by a definite procedure and conform to definite requirements (an argument from Art. 32, para 2 of the Constitution). A citizen shall not be divested of his right to challenge the respect of these requirements providing his rights are violated or his legitimate interests are infringed upon. Therefore, the option to bring the matter to court shall always be there. While recording equipment may ensure a high degree of reliability and provide important evidence as this will minimize the inclination to contest, it is not to be absolutely trusted. Mindful of that the claim that a penal order simply repeats the recorded fact and therefore it is useless to appeal against it in a court action is not to be agreed with. Hence the issue of the impossibility to appeal a penal order is seen as inadmissible. Generally, the idea that a recording device, given its nature and automatic operation, makes appeal action is not to be supported. It is evidence that is provided and there should be no obstacle to bring an appeal action in court. It is the citizen who is to decide how to proceed rather than leave the law decide on his stead, even when the law lessens the problem by a fine of a fixed minimum amount.
In conclusion, it is inadmissible to allow the elimination or reduction of fundamental rights or exercise thereof on grounds of appropriateness as this violates the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution) and tips the balance between the Executive and the Judiciary (Art. 8 of the Constitution) providing the Constitution cannot provide a pillar. It is only motives that relate directly to the right to legal defense that can be used to bring in some differentiations in the respective legal mode.
Председател: Евгени Танчев