Less Rights for Citizens
Bulgaria’s civil society celebrated a major victory for nature protection and the rule of law when the country’s Supreme Administrative Court ultimately rejected an environmental permit for a new nuclear-waste storage facility at the site of the Kozloduy Nuclear Power Plant. This was back in June 2014. Today such a victory would no longer be possible. Not after Bulgaria’s Parliament changed the law to significantly hamper citizens’ access to administrative justice in September 2018.
The recent amendments to Bulgaria’s Administrative-Procedural Code (APC) were passed by a great majority of MPs. These changes now tie the hands of NGOs and undermine the rule of law and access to justice, legal experts warn. The controversial legislation was passed in spite of a presidential veto and numerous pleas by local and international advocates of civil society and democracy. National Ombudsman Maya Manolova, Bulgaria’s President Rumen Radev and a group of MPs have since challenged the amendments at the Constitutional Court, claiming that they are unconstitutional and inconsistent with international treaties to which Bulgaria is a party. “Legality is not a service, offered to citizens by rule of law, but a precondition for its existence”, Radev stated.
A 150 year-old civic right abolished
Bulgarians have enjoyed access to second instance jurisdiction since 1868 when this was introduced by the Ottoman authorities. Exactly 150 years later, amendments to the APC, adopted initially on 25 July, 2018, now deny citizens access to second instance in certain types of cases, particularly where projects of “national interest” and those of high priority to the government are concerned. Under the new law, state fees are calculated as fractional material interest and court fees for cassation have been increased 14 times for natural and legal persons—74 times for nonprofit legal entities.
This is the first time in the history of administrative justice that state fees will be collected as a percentage of the material interest, and citizens seeking protection in these cases will be charged up to 4500 BGN (2250 EUR). The possibility of closed sessions has also been introduced. And control over the legality of certain acts of government has been transferred to local administrative courts as well.
“Unloading” supreme court judges from “excessive” burden along with “abuse by certain NGOs” have both been quoted as justifications for the new law by legislators who initiated it. The chair of the Parliament’s Legal Commission, Danail Kirilov, argued that they allow courts to “move smoothly from the presumption of silent denial to the rule of silent consent”. He presented the new legal provisions as a “first step of the commitment to reduce bureaucratic burden on citizens and business”.
Hamid Hamid of the opposition party Movement for Rights and Freedoms told Parliament that the changes are aimed at a group of environmental NGOs, known as “the green octopus”, a term frequently used by pro-investor media and political spokespersons to bash nature-protecting activists.
Over 50 civic organisations, including Evromegdan’s publisher BlueLink, called in an open letter for the President to veto the amendments to the APC back in September. Bulgaria’s Access to Information Program (AIP) was the main initiator of the request. AIP has been campaigning for citizens’ rights to access information for 22 years.
Its letter points at the exceptional opacity and procedural violations in the bill’s adoption. There has been no study and assessment of the capacity of the courts and possible problems with abuse of complaints, as stated in the statement of reasons. And no answer has been provided as to why, with a reduced number of cases compared to five or six years ago and an increased number of judges, the schedule of cases in the SAC is now much slower, says the document.
According to lawyer Alexander Kashumov, head of the legal department of the Access to Information Program, these changes have dealt the most serious blow to citizens’ rights in over 20 years. “It is a matter of judicial control on which fundamental human rights are based – taxes, permits, sketches, etc.”, he says.
“In the administrative courts, key violations of human rights, as well as many corruption schemes, have been stopped”, Kashumov stated, pointing to various cases, including the one against the radioactive waste repository Kozloduy NPP. He also highlighted the main problem in the reasoning of “low fees” in administrative justice. Administrative justice has to work with minimal fees because here the subject who works is acting in the public interest—thus controlling the lawfulness. At the same time, NGOs act in the public interest; they do not generate profits from these cases. “There are citizens who receive 200 lev per month. (Those who) died in the blast in Gorni Lom received such wages”, said Kashumov who is a lawyer on this case as well as many other cases defending the public interest. He is referencing the horrific explosion at a former ammunition factory on 1 October, 2014, that left 15 dead. All these cases are too abusive, the lawyer stated to Kapital, one of the biggest newspapers in Bulgaria.
Kashumov is convinced that most of the gaffes and corruption scandals of the government from 2017 to 2018 are nothing compared to the changes in the APC. “They are a slap for citizens, small and medium businesses, the rule of law, and the little protection of the rights that our society has achieved for three decades”, he added.
The President of Bulgaria Rumen Radev supports the need to improve the Administrative Procedure Code (APC) because “the justice deficit is felt most clearly in the relations of the citizens and the legal entities with the state bodies“.
President Radev disagrees with the new provisions for closed court cases. According to the head of state, the principle of public court hearings has a dual meaning. On one hand, it is a guarantee of a fair trial in which parties are entitled to not only personally participate, but also to be protected against the administration of justice in the dark without any public observation. On the other hand, this principle is a guarantee for the right of citizens to receive and disseminate information.
In his veto’s justification, Radev also expressed his fears that raising fees will significantly limit procedural opportunities for the full protection of citizens and legal persons against unlawful acts of the administration. He is also particularly worried by the fact that the fee of a cassation appeal for a decision made on an environmental impact assessment is now left entirely to the discretion of the court. The introduction of a proportional fee will make these proceedings inaccessibly expensive as well. This last also does not correspond to Article 9 of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Bulgaria has ratified Article 9.
The legislators’ decision to drop the cassation contestation of judgements related to access to public information has also been criticised. The President reminded people that, as well as being constitutionally recognised, this right is part of the rights under the Charter of Fundamental Rights of the European Union (Article 11) and the International Covenant on Civil and Political Rights.
The National Assembly overthrew Radev’s veto on 13 September by a large majority. With 146 votes in favour, 69 against and no abstentions, MEPs largely supported the amendments. Opposition representatives from the Bulgarian Socialist Party said immediately afterwards that they have prepared a complaint to the Constitutional Court.
Commenting on the new provisions, Kashumov warned that local administrations will now more easily defeat ordinary citizens. “There are places in Bulgaria where the municipality seizes property by simple inclusion in the cadastral map, which results in an increase in local corruption and the feudalisation of the country”, the prominent lawyer said. He believes that the increased fees for cassation appeals, the removal of the cassation instance in other cases and the closed hearings will serve one purpose—to allow for administrative arbitrariness and management under the conditions of tyranny. As for business, these changes are a clear message that the distribution of large pieces of goods under the control of the authority cannot be performed under the conditions of justice. And there is no point in looking for such justice, Kashumov said.
As one of the most consistent opponents of this bill, the lawyer predicts a wave of lawsuits at the Human Rights Court in Strasbourg as soon as the law enters into force. In view of the fact that the Supreme Administrative Court has about 20,000 cases per year, his question is, “Who pays the bill?”
At a hearing before the Legal Commission, he called for a case to be monitored regarding a complaint by the Ecoglasnost National Association against Bulgaria, which was given priority consideration. The organisation was ordered to pay court costs of BGN 12,000 after the Supreme Administrative Court decided that there was no need to have an EIA for the continuation of the operation of Units 5 and 6 of Kozloduy NPP.
Already in 2017 representatives of the civil sector in Bulgaria, as an Access to Information Program (AIP), were against the changes in the Administrative Procedure Code. They continue to support the view that this decision will have a lasting negative impact on the rule of law in the country. We will closely monitor what will be their next steps and who will be paying the bill.
More BlueLink stories about civil organisations and activists under pressure.
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This article was published as a part of the project “Remembering Europe: Civil Society Under Pressure Again”, implemented by the BlueLink Foundation with co-funding from the EU’s Europe for Citizens Programme. No responsibility for the content of this article should in any way be attributed to the Education, Audiovisual and Culture Executive Agency and the European Commission. All responsibility for the content lies with the BlueLink Foundation.