Decision No. 8 of 11 October 2013 on Constitutional Case No. 6/2013
The proceedings conform to Art. 149, para 1, item 2 and item 4 of the Constitution.
A total of 57 Members of the 41st National Assembly challenged the constitutionality of Art. 26, item 3 and Art. 59, para 2, item 3 of the Radio and Television Act (RTA) (DV, No. 138/24.11.1998, last amendment, DV, No. 27/15.3.2013), and insisted that these were inconsistent with universally recognized international law standards and with the international instruments to which Bulgaria is a party.
The MPs who approached the Constitutional Court challenged the texts of Art. 26, item 3 and Art. 59, para 2, item 3 of the RTA as dissonant with the principle of the state committed to the rule of law – Art. 4, para 1 of the Constitution, the principle of the primacy of the Constitution – Art. 5, para 1 of the Constitution, the principle of the equality of citizens – Art. 6, para 2 of the Constitution, and as restrictive on the freedom of choice of an occupation and thus in conflict with Art. 47, para 3 of the Constitution. The MPs insisted that the RTA texts that they challenged lock certain public offices against a specific category of persons who had certain affiliations in the past. Considering that, the MPs claimed that to have belonged to the State Security structures cannot give a reason for the curtailment of Constitution-proclaimed rights and for the mentioned exclusion from certain public offices since the exclusion under consideration is tantamount to discrimination.
In addition, the MPs claimed that the RTA texts that they challenged are noncompliant, inter alia, with the universally recognized international law standards and with the international instruments to which Bulgaria is a party as they constitute non-proportional curtailment of human rights in the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF). The MPs believe the texts under consideration are noncompliant with Art. 14 of the CPHRFF; Art. 2, para 2 and Art. 5 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Art. 25, ”с” and Art. 26 of the International Covenant on Civil and Political Rights (ICCPR); Art. 1, item 1 and item 2, Art. 2 and Art. 3, “b” of Convention No. 111 (Convention Concerning Discrimination in Respect of Employment and Occupation); Art. 20 and Art. 21 of the Charter of Fundamental Rights of the European Union; the European Social Charter; and the Universal Declaration of Human Rights. Hence their plea that the Constitutional Court pronounce Art. 26, item 3 and Art. 59, para 2, item 3 of the RTA unconstitutional and noncompliant with the international instruments to which Bulgaria is a party.
Having discussed the argumentation and considerations as set forth in the positions of the parties concerned, the Constitutional Court, mindful of the following ruled thus:
The codified exclusion of Bulgarian citizens from membership in the Council for Electronic Media (Art. 26, item 3 of the RTA) and from appointment to the managing boards of the Bulgarian National Television and the Bulgarian National Radio if they have been full-time or part-time informers of the former State Security conflicts with the principle of the state committed to the rule of law (Art. 6, para 2 of the Constitution) and with the principle of the equality of citizens (Art. 4, para 1 of the Constitution) and constitutes codified discrimination. The provisions challenged amount to lustration as they lock certain public offices against a specific category of persons who had certain affiliations in the past. These texts disqualify persons whose affiliation with the totalitarian state’s secret services has been proven from election to the Council for Electronic Media or from appointment to the BNR and BNT managing boards.
The Constitutional Court holds the view that the disapproval of what the totalitarian state’s secret services were involved in should not impinge on the exercise of the citizens’ Constitution-enshrined rights in a modern democratic society. It is inadmissible to let this social feeling of resentment against the past become a reason to justify the curtailment of the Bulgarian citizens’ rights as proclaimed by the country’s democratic Constitution of 1991.
The provisions challenged are constitutionally intolerable inasmuch are they amount to discrimination in the sense of Art. 6, para 2 of the Constitution. Moreover, there exists no law that bars public office to applicants who have been affiliated with the totalitarian secret services. The RTA curtailment is valid solely for members of the CEM and of the BNT and BNT managing boards while senior positions within the central government or the local authorities and administrations are free of it.
The challenged lustration texts codify, in a way that is not to be tolerated, an indiscriminative collective guilt. The Constitutional Court’s Decision No. 10/1997 postulates that doing so infringes on the citizens’ dignity and rights that are “Constitution-enshrined values”.
The challenged lustration texts in the RTA can be examined in the context of the Access to and Disclosure of the Documents and Announcing the Affiliation of Bulgarian Citizens with the State Security Service and the Intelligence Services of the Bulgarian People’s Army Act (ADDA….) of 2006. According to its Art. 3, para 1, item 19 the affiliation of Bulgarian citizens with the ex State Security shall be announced if they are to hold public posts or perform public activities as members of the Council for Electronic Media or of the managing boards of the Bulgarian National Television and the Bulgarian National Radio. The affiliation of Bulgarian citizens as salaried or non-salaried employees of the ex State Security shall be announced under terms and according to a procedure stipulated in the said Act which gives a full list of the public posts and the public activities that are subject to announcement of affiliation with the State Security Service and the Intelligence Services of the Bulgarian People’s Army. That Act was passed solely to enable public access to information about the past of public office holders as per Art. 3, para 1, item 19 and not to prejudge their eligibility or ineligibility for appointment to or for holding the listed public posts. Since the ADDA… does not give any moral or political assessment of the past of a certain category of persons, it does not solve the problems concerning appointment to public posts nor does it put restrictions on appointment. Once the law-established criteria regarding ascertainment and announcement of affiliation with the totalitarian regime’s secret services have been met, there can be no dispute about whether affiliation with the ex State Security Service in the past correlates with “social status” (Art. 6, para 2 of the Constitution) of the persons under consideration. No doubt, the fact of making this affiliation known to the public today imparts to it a public dimension. This circumstance which is important to the general public and which is given publicity is definitely an element of the citizens’ social status.
The criterion that the RTA resorts to in order to curtail rights concerns the citizens’ personal and social status. It is one of the criteria that the Constitution excludes from the range of restrictions on rights of citizens, including the right to occupy a public post. This discriminating measure strips a definite category of individuals of the opportunity to be CEM members or members of the BNR and BNT managing boards though they may otherwise be fully eligible to occupy these posts as they meet all law-set requirements. It is unacceptable to let affiliation with the ex State Security Service be a peculiar extra element in specifying the legal requirements of eligibility for a job.
Affiliation with the totalitarian state’s secret services is assessed as a social factor that shall not be referred to to justify the curtailment of Constitution-proclaimed rights as long as it leads to discrimination which impinges on Art. 6, para 2 of the Constitution. “Affiliation” with the State Security Services and with the Intelligence Services of the Bulgarian People’s Army has already been judged as “lustration” and “discrimination” (Constitutional Court’s Decision No. 8/1992; Decision No. 11/ 1992; Decision No. 2/1999; Decision No. 11/2011; and Decision No. 11/2012). Acting on these premises the Constitutional Court adopted these decisions by which it declared unconstitutional certain texts in the Banking and Lending Act, the Pensions Act, the Administration Act, the Diplomatic Service Act and the Bulgarian News Agency Act.
The challenged RTA texts impinge on the principle of equality before the law (Art. 6, para 2 of the Constitution). The equality of all citizens before the law is formulated in the Constitution as a constitutional principle that is inherent to any democratic society. Equality is proclaimed as a universal human value and is equally relevant to the opportunity to hold public posts. The equality of citizens includes their nondiscriminatory treatment by the authorities. Affiliation with the totalitarian state’s secret services resulted in “codified activities whose immorality could only be implied providing the legislation in force at that time had been declared unconstitutional” (Decision No. 10/1997 of the Constitutional Court). In that sense inasmuch as any lustration is an extraordinary and onetime legal tool to curtail rights on the basis of facts from the life in the past of groups of people, it is unacceptable by virtue of Art. 6, para 2 of the Constitution of the Republic of Bulgaria.
The texts challenged curtail out of proportion human rights in the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (DV, No. 66/1992, effective in the Republic of Bulgaria from 07.09.1992) and the practices of the European Court of Human Rights in Strasbourg. The Strasbourg Court’s consistent practice sees lustrating legislation as a tool that is employed to curtail human rights that are enshrined in the European Convention. A number of Strasbourg Court decisions postulate that such measures may pursue a goal that the Convention advocates when “the situation of society calls for the creation of tools to protect democracy”. In the view of the Court the curtailment of some human rights by lustration is proportional in the post communist states in the period of transition from a totalitarian to a democratic system inasmuch as the transition faces serious risks. However, the extension of these measures over time makes them unproportional to the goals pursued. The Court upheld the view that lustration measures may be short-term measures only as long as a threat to the democratic system exists. If no such threat exists, lustration would be unproportional in the sense of the Convention. As the Strasbourg Court noted this is even more relevant to a EU member state. On such grounds the challenged legal texts are fully discordant with Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, inasmuch as this article reads that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground.
The RTA texts that were brought to the Constitutional Court are noncompliant with Art. 2, para 2 and Art. 5 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (DV, No. 43/28.05.1976, effective 23.03.1976). The States’ Parties to the Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. To bar certain public posts on the basis of affiliation with the State Security Service and the Intelligence Services of the Bulgarian People’s Army constitutes discrimination against such persons in the meaning of the quoted texts from the International Covenant on Economic, Social and Cultural Rights. The right to work is recognized as a fundamental human right of the so called second generation of human rights in the definition of Art. 6 of the Covenant. Along with, the text challenged disagrees with Art. 25, “с” of the International Covenant on Civil and Political Rights (DV, No. 43/28.05.1976) inasmuch as each State Party to the Covenant undertakes to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind and with access, on general terms of equality, to public service in the man’s country.
The Constitutional Court’s Decision No. 18/1997 concluded that while the Legislature shall be free to set concrete requirements of eligibility for certain posts and positions, such requirements shall not be perceived as a violation of the right to work and of the choice of occupation. The RTA texts that the MPs challenged don’t impose concrete requirements of eligibility for certain public posts but put up restrictions by outlawing the election of a certain category of persons to the CEM or to the BNT and BNR managing boards regardless of their professionalism, skills and experience. Thus the RTA texts discriminate against a group of Bulgarian citizens in contravention of Art. 6, para 2 of the Constitution.
The texts challenged disagree with Art. 1, item 1 and item 2, Art. 2 and Art. 3, “b” of Convention No. 111 Concerning Discrimination in Respect of Employment and Occupation (DV, No. 35/02.05.1997) of the International Labor Organization. While the Convention explicitly disallows discrimination in respect of employment and occupation, it provides that “any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination”. Restrictions to occupy certain public posts by Bulgarian citizens who are alleged to have been affiliated with the State Security Service or the Intelligence Services of the Bulgarian People’s Army are not related to any inherent requirements inasmuch as these enable the individual to do a job that suits the individual’s competence and experience. The restrictions as imposed by the challenged texts don’t draw on inherent requirements and are therefore discriminatory. The restrictions indirectly meddle with the free choice of an occupation and with the legitimate expectation that given the required professional experience and skills, such persons might be appointed to public posts providing they are fully eligible.
It is unacceptable to hold the view that the BNR and BNT, being national public media, should be guided by the principles of freedom of expression, the guaranteed right to obtain information and disseminate information in a balanced way while the CEM should be an independent media regulatory authority which is to be guided by the public interest and to defend the freedom and pluralism of speech and information, hence the need of the restrictive texts of Art. 26, item 3 and Art. 59, para 2, item 3 of the RTA. It is an unobjectionable assertion that the democratic information policy of the State must rest on transparency, openness and reliability of the sources of information and of the dissemination of information. It is unacceptable to assume that the operations of the ex secret services fuelled up on conspiracy and misinformation of the public and because of that stir explicable suspicions about loyalty to the principles of the new democratic policy of the State by a group of people who used to be affiliated with the ex State Security Service. The curtailment of Constitution-proclaimed rights on the basis of such “well-grounded suspicions” does not fit into the requirements that make up the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution).
It is even less acceptable to ascribe the curtailments to compliance with Art. 40, para 1 of the Constitution reading that the press and the other mass information media shall be free and shall not be subjected to censorship. It is inadmissible to a modern democratic state to guarantee any freedom by means of legislative curtailments of the citizens’ Constitution-proclaimed rights.