Bulgarian Helsinki Watch Committee Association vs. Chief Prosecutor's Office

Facts:
In the beginning of September (30 August 2000) the Bulgarian Helsinki Watch Committee Association (through Mr. Krassimir Kunev) served an application in writing, which had been prepared by the AIP lawyers, to the Chief Prosecutor's Office pursuant to Art. 24, para 3 in conjunction with para 1 of APIA with the request to obtain information about the number of reports and complaints of ethnic discrimination that the prosecutor's offices had registered over the renet years (were there any reports and complaints at all, how many, which ethnic groups and what measures were undertaken by the prosecutor's office). On 11 October 2000, Mr. Kunev served a second application to the Chief Prosecutor's Office, repeating the request for obtaining access to the said information.

On 16 October 2000, the Chief Prosecutor's Office sent a notice that it had referred the application to the Socia City Prosecutor's Office of Appeal that sent no reply.

Within the time limits prescribed by law, Mr. Kunev, as advised by AIP, submitted an appeal to the Supreme Administrative Court (SAC) pursuant to Art. 40, para 1 of APIA in conjunction with Art. 33 of the Administrative Procedure Act (APA).

Court Judgement:
The arguments in the appeal were that decisions on the refusal to grant access to information had to be given in writing with reasons attached and that there were no grounds for refusal to grant access to such information. After the appeal was served, the Chief Prosecutor's Office sent a letter stating that it did not collect such information. After the talks between the Bulgarian Helsinki Watch Committee and representatives of the Chief Prosecutor's Office an out-of-court settlement was reached and the appeal was withdrawn.

Arguments of the Parties:
The arguments in the appeal are as follows: violation of procedural law (Art. 15 of APA), i.e. the law requires the relevant authority to issue a decision with reasons attached thereof where an administrative act is issued or refused (Art. 15, para 1 of APA). There was obviously no such decision. The imperative provisions of Art. 15, para 2 of APA require that the act or refusal be given in writing. The written form of the refusal is prescribed also by the provisions of the special law, i.e. Arts. 38 and 39 of APIA. The decision to refuse to grant access has to specify the legal and factual grounds for the refusal. All those statutory requirements were ignored, which was a material breach of procedural law.

Secondly, the information requested by the Helsinki Watch Committee is public information within the meaning of Art. 2, para 1 of APIA because it relates to public life in the Republic of Bulgaria and, if provided, it would help get an idea of the work of prosecution authorities. The existence of reports and complaints concerning any discrimination on racial or ethnic basis, their number and the other information requested in the application relate to facts of violation of fundamental human rights within the territory of the whole country and to the activities of the prosecution authorities for protection of these rights. Furthermore, the requested information is created and kept by the prosecution authorities and particularly the Chief Prosecutor in compliance with his law enforcement powers pursuant to Arts. 111 to 115 of the Judiciary Act, including the right and obligation to draw up annual reports on the activities of prosecution authorities (Art. 114, para 6 of the Judiciary Act).

Important Issue:
The implied refusal of the Chief Prosecutor is a material breach of the law.

Conclusions:
The failure to issue a decision within the prescribed time limits (implied refusal within the meaning of Art. 14 of APA) of the Chief Prosecutor is a material breach of the procedural and substantive law.

The refusal violates the provisions of substantive law because the requested information had to be granted access to because it is public within the meaning of APIA, it is generated and kept by prosecution authorities and the Chief Prosecutor in particular, and it does not fall within the scope of the restrictions on the right of access to information prescribed by law (Art. 7, Art. 13, para 2, Art. 2, para 3 of APIA).

Pursuant to Art. 6 of APIA the opnness of public information is the principle, whereas pursuant to Art. 7 of APIA restrictions are the exceptions to the rule. Therefore restrictions on the right of access to information are irrelevant in this case.
Hence this is a case of non-performance within the meaning of APIA and this is a government authority assigned with the crucial task of ensuring the rule of law in society.

As far as implied refusals are concerned, there is already a ruling of a five-member panel of SAC on a case, in which the defence was represented by Alexander Kashamov, AIP lawyer (Case 7, CILA v.s MLSP), i.e. Ruling No. 8645 of 16 November 2001. The ruling gives a positive answer as to the issue whether an implied refusal to grant access to public information can exist.