Supreme Administrative Court declared null and void parts of caretaker cabinet resolution related to Global Magnitsky Act

Two different three-judge panels of the Supreme Administrative Court declared null and void parts of the resolution of the Council of Ministers related to the sanctions under the Magnitsky Act in two administrative cases initiated on appeals by Irena Krasteva and Internews 98 OOD with partners Elena Dineva and "Nove Internal” EOOD.

The points in question are the ones that regulate the creation and maintenance of a list of persons who fall and could potentially fall within the scope of sanctions imposed by the Office of Foreign Assets Control (OFAC) of the US Treasury Department, as well as the termination of the economic relations of the state and municipal administration with these persons.

US Treasury Dept. sanctions 3 Bulgarians, including gambling tycoon Vassil Bozhkov and former MP Delyan Peevski

The reasoning of the decisions assumes that the Global "Magnitsky" act can be used as the basis for swift and timely action from the national authorities, but a national law must exist to this end. As this is not the case here, the Global Magnitsky Act has no direct application on Bulgarian territory

The Court also refers to a European regulation, according to which EU member states are obliged not to comply with legislation with extraterritorial application. This means that a decision issued by a body of a third country and based on the provisions of the legislation of that third country with extraterritorial application will not be recognized in the EU, added the Supreme Administrative Court.

Apart from the lack of competence, the disputed Resolution № 441 of the Council of Ministers was adopted in obvious violation of the right to protection of persons, insofar as during or after their inclusion in the lists, the latter not being provided with any information, the Supreme Administrative Court said.

The resolution of the Council of Ministers and the subsequently prepared lists to it do not provide for a procedure for notification of the facts and circumstances that justify the inclusion of the names of the interested persons in the lists.

There is no procedure for hearing of those affected.

There are no data that allow to assume that the Council of Ministers informed the complainants about the facts and circumstances accepted against them, justifying the initial inclusion of their names in the lists and the imposition of the restrictive measures envisaged by it.

Following the approach of the Court of Justice in Luxembourg, SAC consider that the adoption of such measures should indeed be surprising and should be implemented immediately, but they should again be in the context of Union law.

The Court of Justice has explicitly emphasized that interference with fundamental rights may be legitimate, but should be proportionate, ie. in compliance with the right to defence, the right to participate and information of the persons about the measures that will be taken against them and on what grounds.

Decisions in both administrative cases may be appealed to five-member panels of the Supreme Administrative Court within 14 days of notification to the parties.

A total of 62 cases have been filed in the Supreme Administrative Court on complaints of affected persons from the measures under the Magnitsky Act.

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