Information newsletter
Issue 5(17), May 2005

From the courtroom: A two-year long lawsuit against a tacit refusal of the Chief Prosecutor was finally considered on the merit by the Sofia City Court

On May 17, 2005 the Sofia City Court (SCC) heard in closed chambers the lawsuit against a tacit refusal of the Chief Prosecutor (administrative court case ¹ 4119/2003 SCC administrative panel, III-Å tribunal). The complaint - filed with the assistance of AIP - was against a deemed refusal to provide a copy of the internal rules regulating the work and document handling procedures of the Chief Prosecution Office. Although the complaint was filed in the summer of 2003, the unwillingness of the Prosecution Office to obey the law, and later the reluctance of the SCC to hear the case on the merit, led to a postponement of the case for over a year and a half. The city court judges issued two rulings, trying to cease the proceedings, but the Supreme Administrative Court (SAC) reversed both of them, and the case was finally heard on the merit. We are expecting a decision within the legally defined term of 30 days.

The history of this lawsuit goes back to November 5, 2002, when the former MP Edwin Sugarev published an open letter, accusing the Chief Prosecutor of misuse of power, maltreatment of officials, exerting pressure on the media, and etc. As a reaction to this letter, the Supreme Judicial Counsel (SJC) examined the case, collected evidence, and adopted a decision affirming that there were some violations by the Chief Prosecutor.

Consequently, in the beginning of 2003, a group of 31 citizens signed a petition requesting that the Chief Prosecutor, Nikola Filchev, comply with the decision of the SJC and resign. The petition had been filed in the registry of the Supreme Prosecution of Appeals, and a prosecutor had assured the citizens that the case would be heard within 20 days. Three months passed without anyone informing the petitioners of the development of the case. The attempts of the citizens to learn any useful facts were also in vain.

The silence of the prosecution incited two of these citizens – Mr. Plamen Simeonov and Mr. Dimiter Dimitrov – to make use of the Access to Public Information Act and file an application containing five information requests with the Chief Prosecutor. Four of the requests concerned the petition of the citizens and the decision of the SJC suggesting for the resignation of Mr. Filchev. The last request was for a copy of the internal rules regulating the work and document handling procedures of the Chief Prosecution Office.

What followed was a tacit refusal of the Chief Executive, which brought the two requestors to the office of Access to Information Programme (AIP) and turned them into appellants against the deemed refusal of Mr. Nikola Filchev. The complaint was filed within the legally prescribed terms (in July 2003) to the Prosecution Office, which was obliged by Bulgarian law to forward it to the Sofia City Court. Instead, the Prosecution Office returned the complaint to the requestors, notifying them that the requested information did not fall within the scope of APIA. This forced the two citizens to file the complaints and all enclosed documents directly to the SCC, finally initiating the court proceedings.

But this was not nearly the end of the saga – after the first hearing, the SCC decided that this case was not within its jurisdiction, ceased the proceedings, and forwarded the file to the SAC. Several months later the case was heard by the SAC and referred to the SCC for reconsideration. This decision was quite appropriate, since the decisions of the Chief Prosecutors are indeed within the jurisdiction of the SCC (in accordance with Ruling ¹ 4492/18.05.2004 on administrative lawsuit ¹ 160/2004 of the SAC, Fifth tribunal).

The SCC ceased the court proceedings yet again, arguing that tacit refusals could not appealed on the grounds of APIA, because no procedure had been established in the specific legislation - the very same Access to Public Information Act. A new appeal meant that the court file was held for a few more months at the SAC. While, two years ago, the Supreme Court had established in a number of decisions that tacit refusals can be appealed by analogy with the Administrative Procedures Act, and that the lack of a relevant provision in the lex specialis cannot lead to lack of justice. Moreover, if the opposite were true, this would nullify the purpose of the APIA. Following the same reasoning, the Supreme Court reversed the decision of SCC once again and returned the file for reconsideration. (Ruling ¹ 9942/29.11.2004 on administrative lawsuit ¹ 9884/2004 of SAC, Fifth tribunal).

After all of this, City judges finally heard the case in closed chambers on May 17, 2005 and announced that a decision will be taken within the legally provided term of 30 days.