Access to Information Programme
Legal Statement on the constitutionality of a provision regulating the announcement of affiliation of high public officials to the former State Security and Intelligence services
20/02/2012
On February 20, 2012 AIP submitted an amicus curiae brief (in Bulgarian) to the Constitutional court on Constitutional case No.14/2011. A question of constitutionality was brought to the Constitutional court by the Supreme Administrative Court. The Constitutional court has to scrutinize the constitutionality of a provision of Access and Disclosure of Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and the Intelligence Services of the Bulgarian National Armed Services Act. The provision whose constitutionality is questioned in this instance is Art. 25, item 3 of the Act which provides that affiliation to the State Security and Intelligence Services may be announced based on data for the person in reference documents (registration diaries and card indexes).
 
AIP stands that the referral is unlawful and the provision is consistent with the Constitution. AIP adduced the following arguments:
-          the Act provides for announcement of affiliation only of public figures, not all citizens (Art. 3 of the Act);
-          According to constant European and national case law public figures shall bear greater degree of scrutiny and publicity, therefore the interference with their private life is proportionate;
-          The right to seek, receive and impart information outweighs the right to privacy in this instance; 
-          There is a consensus that the society shall have information whether current public figures, politicians, policy makers etc. have collaborated to the former State Security services;  
-          At international level there is a commonly shared understanding, reflected in different international instruments (Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems; Recommendation No. R (2000) 13 of the Committee of Ministers on a European policy on access to archives; European Parliament resolution on European conscience and totalitarianism) that people shall be entitled to access this kind of documents;
-          The challenged provision was adopted in 2006 after vivid parliamentary debate with important majority, and none vote “against”;
-          The Act gives substantial procedural guarantees to affected persons as it provides for judicial review by two instances;
-          The affiliation is established by an independent Committee, whose members are appointed by the Parliament (all parliamentary groups shall be represented but none can have a majority); 
-          There is well established case law pursuant to the Act – the Supreme Administrative Court has considered 38 cases challenging the Committee’s decisions and the plaintiffs did not succeed.   
 
With a decision No. 4 as of March 26, 2012 the Constitutional court rejected the referral of the SAC to establish unconstitutionality of the challenged provision. The Court completely agrees with the arguments put forward by Alexander Kashumov, Head of AIP Legal team. 

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