The Constitutional Court declared unconstitutional the provisions for amending the Administrative Code

13 Jun 2019

With the judgment №5 of 19 April, 2019 of the Constitutional Court of the Republic of Bulgaria of the constitutional case №12/2018 the introducing of closed sessions instead of open ones in the cassation proceedings in administrative cases is declared unconstitutional – article 217, second and third subparapraph in the part, “When this Code or a special act provides the case to be heard in open session or when the Court decides to hear it in an open session”, fourth paragraph of the Administrative Code, as well as § 149, second subparagraph, first sentence in the part “closed sessions” of the transitional and concluding provisions of the law amending the Administrative code. When the Supreme Administrative Court hears a case as a cassation instance, sitting with three judges, the case is heard in a closed session without the participation of the parties. This is introduced with the change. The possible exceptions leading to a public session are two: when the judge-rapporteur decides the case to be heard in a public session and when one of the parties requires the case to be heard in a public session in the cassation proceedings at the latest or as an answer to further appeal in a cassation proceeding. There is another exception – when the Supreme Administrative Court hears a case sitting with five judges as a cassation instance and the case has already been heard by the Court as a first instance. According to the judges the publicity in the public actions of the legal proceedings is a guarantee of impartiality and lawfulness of the court, as well as the veracity of the parties’ factual claims. It is the foundation of trust in justice and a means of its educational impact. The requirement of public session of the case is one of the requirements for justice in the lawsuit. The right for public session in court can be subject of restrictions on the condition that the core of the right is preserved. The restriction would not be compatible with the European values if it doesn’t pursue a legitimate aim and if it is not in proportion to this aim. In the light of the specificities of the cassation proceedings in which only the requirement of legality is examined, the right of publicity can be restricted on the condition that other major characteristics of the due process are not affected. The provision in paragraph 111 with which subparagraph 12 of article 99 of Law of environmental protection is created, is also declared unconstitutional.  According to this subparagraph, the cassation proceedings fee for further appeal of the decision of EIA is determined in the Administrative code on defined material interest. It is also accepted that an unclear and significant financial threshold for access to the Supreme Administrative Code is created by introducing the fee. The procedure of EIA starts at the earliest stage of the investment offer. The value of this offer is not a criterion for the environmental impact assessment as long as it is not part of the required information which the contracting authority is obliged to provide when initiating the EIA procedure and because of the fact that it can be changed in the course of the project implementation. The acceptance of this value for a “defined material interest”, on the basis of which the cassation appeal fee is calculated, creates an uncertainty in the potential complainants for the amount of the fee which can be raised by the contracting authority in such a way as to prevent complaints from the public concerned. In this way access to justice becomes practically impossible or extremely difficult. The Constitutional Court acknowledges the environment as a good of the highest order which cannot be evaluated. The impact on the environment in an unfavorable aspect as a result of implementing the investment intention may have different manifestations - human health, air and water purity, different ecosystems, and so on. Therefore, there is no economic mechanism to give a reliable assessment of this effect, even more that in most cases it may not have one-off effect and a material dimension.