Access to information, related to the proposals for the Chief Prosecutor's resignition

Dimitar Dimitrov and Plamen Simeonov vs. The Chief Prosecutor’s Office of the Republic of Bulgaria

First Instance – administrative case No. 4119/2003, Sofia City Court, Administrative Division, Panel III-E
Second Instance – administrative case No. 12016/2005, Supreme Administrative Court, Fifth Division

Request:
The beginning of this case was marked by the publication of an open letter by Mr. Edwin Sugarev in the media as of November 5, 2002. In the letter, Sugarev accused the Chief Prosecutor of misuse of power, fighting with his subordinates, pressure on the media, etc. As a result of these public accusations, the Supreme Judicial Council (SJC) collected evidence and investigated the case in the end of 2002. As a result, the SJC adopted a decision that ascertained the violations committed by the Chief Prosecutor. As part of their decision, the SJC proposed that the Chief Prosecutor resign from his position. Subsequently, in the beginning of 2003, thirty-one citizens submitted a petition demanding that the Chief Prosecutor Nikola Filchev comply with the SJC’s proposal and resign from his position. The petition was registered with the Record Management Department at the Supreme Cassation Prosecutor’s Office. When the petition was submitted, a prosecutor informed the citizens that a case file would be established and a decision would be made “within the legally prescribed period of 20 days.” Three months passed, yet the citizens did not receive any information about the fate of the case file. All the citizens’ attempts to obtain such information were unsuccessful. In May 2003, two of these 31 citizens, Mr. Dimitar Dimitrov and Mr. Plamen Simeonov, submitted a request for access to public information under the procedures of the APIA to the Chief Prosecutor. They demanded access to information, which was specified in five points. Four of these points requested access to information related to the proposals for Filchev’s resignation set forth by the citizens’ petition and the decision of the SJC, while the fifth requested a copy of the Rules for Organization and Activities, as well as Record Management, at the Chief Prosecutor’s Office Administration.

Refusal:
The Chief Prosecutor’s silent refusal followed the submission of the request.

Complaint:
A complaint against the silent refusal of the Chief Prosecutor was submitted. The complaint was submitted through the Chief Prosecutor’s Office (pursuant to the Administrative Procedures Act) to the Sofia City Court. Instead of sending the complain to the court, the Prosecutor’s Office returned it to the complainants notifying them that the information requested did not fall in the scope of the Access to Public Information Act. That necessitated the sending of a letter with the attached request, the complaint, and the refusal of the Prosecutor’s Office to send the case file to the court. Only then did the SCC start proceedings.

Developments in the Court of First Instance:
At the first hearing of the case by a panel of SCC judges stayed the proceedings and sent the case to the Supreme Administrative Court (SAC), arguing that it fell under the SAC’s jurisdiction. Several months passed before the SAC heard the case and returned it to the jurisdiction of the SCC, as was correct, since the decisions of the Chief Prosecutor are subject to the SCC (Ruling No. 4492 of May 18, 2004, administrative case No. 160/2004, SAC, Fifth Division).

The SCC stayed the proceedings again with the argument that the silent refusal was not subject to appeal under the APIA, since such appeals against silent refusals were not explicitly provided for by a special law, namely, the APIA. The ruling to stay the proceedings was appealed before the SAC. Several court decisions by SAC panels had concluded that silent refusals were subject to appeal, the Administrative Proceedings Act (APA) being analogically applied in such cases. The APA provided for the possibility of such an appeal. The fact that a special provision concerning silent refusal was missing could not result in citizens’ deprivation of access to justice, since such a hypothesis would have made the existence of the APIA pointless. The SAC again repealed the SCC’s ruling to stay the proceedings and returned the case for a hearing on its merit (Ruling No. 9942 of November 29, 2004, administrative case No. 9884/2004, SAC, Fifth Division).

On May 17, 2005, the SCC heard the case during a closed session (arguing that “this was necessary due to the nature of the case”) and scheduled it for judgment.

Court Decision:
With a decision on June 12, 2005, a panel of the SCC dismissed the complaint. The court panel assumed that the information requested in four of the points specified in the request (which asked when the Chief Prosecutor received the proposal for his resignation from the Supreme Judicial Council and the citizens’ petition and what his response was to these proposals) did not constitute public information under the APIA and instead affected personal data, which fell within the scope of the Personal Data Protection Act (PDPA). With regard to the request for the rules for the organization and activities of the Prosecutor’s Office, the decision stated that the provision of Art. 12 of the APIA had to be applied and complainants could obtain access through the promulgation of the requested documents. The fact that such rules had not been promulgated at the moment of the submission of the request, nor at the moment of the delivery of the court decision was not even mentioned.

Court Appeal:
The decision of the SCC was appealed before the SAC. The appeal argued that the information requested and specified in the four points had been related to the Chief Prosecutor in his capacity as a judicial body (pursuant to Art. 126 of the Constitution of the Republic of Bulgaria and Section VII of the Judicial Power Act) and not as a physical person, i.e. Mr. Nikola Filchev. Pursuant to Art.1, Para. 1 of the PDPA, the law provided for the protection of the rights of individuals with regard to the processing of their personal data, as well as the access to these data. It was emphasized that the purpose of the PDPA was completely different – namely, to guarantee the right of privacy.

Developments in the Court of Second Instance:
The case was heard in an open session in April 2006 and scheduled for judgment.

In written notes to the court, the complainant pointed out that the Rules for Organization and Activities at the Chief Prosecutor’s Office Administration had been published in issue 7 of the State Gazette as of 2006. These circumstances did not support the prosecutor’s claim that the rules for organization and activities of the prosecutor’s office had not yet been issued at the moment of the request’s submission. Furthermore, such a claim did not have the characteristics of an official statement from the Prosecutor’s Office. It was made as part of an argument in the context of the defense of a particular case. In this regard, the promulgation of the prosecutor’s office rules in the State Gazette only proved that the rules were public and that no grounds for refusal of access to information existed. Consequently, the complainant had the right to receive a copy of the rules for the activities of the Prosecutor’s Office at the time of the request’s submission. In the case that those rules did not exist at the time of the request’s submission, the complainant had the right to receive a relevant response.

Court Decision:
With decision No. 8412 of July 31, 2006, a SAC panel upheld the decision of the Sofia City Court, endorsing its judgment entirely. The conclusion of the justices was: “The information demanded with the request for access does not constitute information related to public life. Its provision would allow citizens to form their own opinion about the way the Chief Prosecutor acts by his personal assessment, although indirectly related to the fulfillment of his official duties.”