President refers texts of Administrative Procedure Code to Constitutional court

President Rumen Radev referred to the Constitutional Court a request for some provisions of the Law on amendments and supplements to the Administrative Procedure Code (APC), asking the court to declare them as unconstitutional and non-compliant with international treaties.

The publicity of court hearings is such an essential principle of justice that it is set out in Art. 121, para. 3 of the Constitution. The right of every person to public hearing is explicitly stated in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms. With the proposed changes, this basic principle of publicity and transparency becomes an exception. Therefore, § 55 of Law on amendment and supplement to the Administrative Procedure Code, which introduces the principle of closed hearings in cases adjudicated on three-member chambers of the Supreme Administrative Court as second instance, does not comply with the Constitution and the international treaties.

The head of state is challenging the rules introduced for generic and local jurisdiction in administrative matters. These rules create barriers to justice for citizens and organisations and do not provide easier, faster and cheaper access to justice. They therefore do not comply with the rule of law and the rights of the defense.

The request stresses that the type and amount of court fees are part of the guarantees of access to justice and the full realization of the rights of defense. The amounts of the fees under § 57, 61 and 67 of the Law on Amednments and supplement to the APC are not in compliance with Art. 60, para 1 of the Constitution, since they do not correspond to the social and economic conditions, the level of income and the inflation processes in the country. When comparing the amount of the fees before and after the adoption of the Law, it is identified that that the increase is 14 fold for individuals and legal entities and 74 fold for the non-profit legal entities. They will make it more difficult for individuals and legal entities to appeal against administrative acts, hence the constitutionally proclaimed right of defense.

The introduction, of proportional fees on "determined material interest" ( referred to in § 57 of the LAS to the APC in the cassation proceedings in administrative cases does not take into account the specificity of these cases. In administrative justice, the direct defense of violated lawfulness in the implementation of state governance is a priority, and not the material interest. Lawfulness is not a service that a rule of law confers upon citizens, but a prerequisite for its existence.

The right to challenging an administrative act, as well as the right to challenge fisrt instance court decisions at cassation courts, are means of protecting individuals and legal entities against a vicious state legal act. The removal of the cassation instance in court cases in administrative cases weakens this defense, which is unacceptable when it comes to constitutionally proclaimed rights. For these reasons, the request challenges the abolition of the cassation instance in the Access to Public Information Act, the Social Assistance Act, the Children's Family Assistance Act, the Social Security Code, the Law on Legal Aid, the Agricultural Land Conservation Act and the Tax and Social Insurance Procedure Code.

The full text of the President’s request to the Constitutional Court of the Republic of Bulgaria for the establishment of the unconstitutionality of provisions of the Law for amendments and supplement of the Administrative Procedure Code can be found on the website of the presidential institution.