Documents related to the restitution of forest lands in the Rila Mountains by the former prime minister, Mr. Simeon Saxe-Coburg-Gotha
Trud Daily vs. the Ministry of Agriculture and Forestry
First Instance–administrative court case No. 5776/2006, Supreme Administrative Court, Fifth Division
Request:
The facts of the case study are the following: The Land Commission in the town of Samokov refused to provide information following an oral request by a journalist from Trud Daily. Subsequently, the Editor-in-Chief of the newspaper, Mr. Tosho Toshev, submitted a written request under the procedures of the Access to Public Information Act (APIA) to the Minister of Agriculture and Forestry. He demanded access to the documents (decisions, requests, and annexed documents that certify the right of property and inheritance) related to the restitution of forest lands in the Rila Mountains by the former prime minister, Mr. Simeon Saxe-Coburg-Gotha.
Refusal:
With a letter from April 2006, the Minister of Agriculture and Forestry refused access to the requested information. Art. 37, Para. 1, Item 2 of the APIA was stated as grounds for the refusal: disclosure of the requested information would affect a third party's interests. It was pointed out that Mr. Simeon Saxe-Coburg-Gotha's consent for the disclosure of the information had been requested with a letter as of March 28, 2006. The refusal further stated that no response from Mr. Saxe-Coburg-Gotha had been received by the Record Management Department of the Ministry of Agriculture and Forestry within the time frame stipulated by Art. 31, Para. 1 of the APIA (regarding Art. 28, Para.1 of the APIA).
Complaint:
The refusal was challenged before the Supreme Administrative Court (SAC) with the argument that the requested documents constituted decisions of a state body (the Land Commission), thus a private person's interests were not involved, even in an administrative decision that contained a statement of the recognition of the property rights of a particular person (Mr. Saxe-Coburg-Gotha in this particular case). Consequently, the decisions requested were public information, thus keeping them secret was inadmissible. The decision concerned an action by a state body; such action is subject to civil evaluation according to Art. 2, Para, 1 of the APIA. The argument that protected personal data were affected was also inadmissible since according to the Personal Data Protection Act (PDPA), if the requested data were part of a public register, the consent of the individual these data related to was not required. Pursuant to Art. 29, Para. 1 of the Forestry Act (FA), the National Forestry Directory kept a register of all forest lands; this register contained data about the proprietors, the area of the land, the type of the forest, as well as any changes in these. Pursuant to Art. 2 of the FA, the register was public. The complaint emphasized that data about the property and income of Mr. Saxe-Coburg-Gotha for the period 2001 – 2005, during his term as Prime Minister, were also public according to the Public Disclosure of Property Owned by High Government Officials Act.
The complaint also stated that the information requested was not simply related to Mr. Saxe-Coburg-Gotha personally, but involved the public issue regarding the lawfulness of the procedure of the recognition of property rights on forests. This issue was undoubtedly of great public importance, especially since a special Parliamentary Commission had been established to address this issue. Consequently, the provision of all the information about the case would give the public opportunity to form their own opinion about the way the law had been respected during the restitution process, as well as about the extent to which the Parliamentary Commission worked on the issues raised by these documents.
Developments in the Court of First Instance:
At the October 2006 court session, the representative of the Minister of Agriculture and Forestry objected that the complaint had been overdue, regardless of the fact that the obligation for collecting and submitting the administrative documents about the case fell upon the administrative body. The court postponed the proceedings and gave the complainant an opportunity to present evidence of the date of submission of the complaint.
Meanwhile, the complainant claimed in a formal letter that the complaint had been submitted by post as of May 3, 2006, which was within the legally prescribed time frame. The receipt note of delivery was attached as evidence. The representative of the complainant requested that the court sue the Ministry to pay for additional court fees as a sanction for its unscrupulous behaviour during the proceedings, since the representative of the defendant had caused the postponement of the proceedings by undue presentation of facts and evidence.
At the next court session, on December 19, 2006, the SAC imposed a sanction on the Minister of Agriculture and Forestry according to Art. 65, Para.1 of the Civil Procedures Code for the amount of 100 BGN (50 Euro). The justices assumed that the minister had not fulfilled his obligation to submit to the court the complete file of the case and had intentionally caused the postponement of the proceedings with his request to certify whether the complaint had been submitted in time. The case was heard and scheduled for judgment during the same court session.
Court Decision:
With decision No. 2845 of March 19, 2007, a panel of the SAC declared the Minister of Agriculture and Forestry’s refusal null and void and resubmitted the request for reconsideration in compliance with the instructions given by the court. In their judgment, the justices emphasized that the requested information had been held by the Municipal Service of Agriculture and Forestry in the town of Samokov. The purpose of the submitted request had been to obtain access to primary documents related to the restitution of Mr. Saxe-Coburg-Gotha’s property rights. The case file created by the Land Commission in Samokov in relation to the requests submitted by Mr. Saxe-Coburg-Gotha for the restitution of the right of property over forests and lands from the forestry fund, as well as supporting documents for the verification of the right being claimed, were not information that had been created or held by the Ministry of Agriculture and Forestry. According to the court panel, the Minister of Agriculture and Forestry was not the competent body to decide on the request for access to information pursuant to Art. 3, Para. 1 of the APIA. The Minister had to comply with the provision of Art. 32, Para. 1 of the APIA, which stipulated that in the cases when the body did not possess the requested information, but was aware of its location, it was obliged to transfer the request within 14 days of its receipt and notify the requestor of the transfer.
Through his actions, the Minister of Agriculture and Forestry, despite his superior position in the administrative structure, had unlawfully usurped the authority of the Municipal Service of Agriculture and Forestry at Samokov and had issued a refusal. Thus, the refusal was found to be null and void. Considering the above-stated findings, the court assumed that the refusal should be declared null and void and that the request should be returned to the Minister of Agriculture and Forestry for reconsideration in compliance with Art. 31, Para. 1 of the APIA.
The decision was not appealed and came into effect. The issuing of a new decision by the Municipal Service of Agriculture and Forestry at Samokov is pending.
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