Translation from Bulgarian language

RULING
No. 8132
City of Sofia, 22 December 2015
IN THE NAME OF THE PEOPLE
THE SOFIA-CITY ADMINISTRATIVE COURT, second division, 22nd
panel, in an open-doors session held on 27 November 2015, the panel consisting
of:
JUDGE: Desislava Kornezova
with the participation of the secretary, Iliyana Todorova, having reviewed case
No. 7621 under the docket for 2015 as reported by the judge, in order to make a
ruling, took the following into consideration:
The proceeding is under the procedure of Art. 145 et seq. of the Administrative
Procedure Code (APC).
It was initiated further to a petition by K. D. G. against a Resolution under
Protocol No. 4 from 5 June 2015 under It. 4,5 by the Governing Board of the
Bulgarian Chess Federation (the GB of the BCF).
The petition was grounded on a claim that the required form for issue of said
resolution has not been complied with, there is a conflict with the substantive law
and a violation of the administrative procedure rules. A claim was filed for a
repeal of the resolution and an order for the expenses incurred in connection with
the case and the written notes attached to the case on 7 December 2015 contain
detailed arguments on the unlawfulness of the resolution.
The respondent, the GB of the BCF, was represented for the case by attorney-atlaw B. I., who claimed in his written response from 22 December 2015 that the
petition should not be allowed from a procedural standpoint and that the

procedural rules and the substantive legal regulations of the Articles of

Association and Code of Ethics of the BCF have not been violated. The
respondent requested from the court to deny the filed petition as groundless and
also claims a ruling for the court expenses with argumentation which was
additionally provided in written notes from 11 December 2015.
The Sofia City Prosecutors Office was duly notified, did not send a
representative and did not issue an opinion on the matter.
THE SOFIA CITY ADMINISTRATIVE COURT, having discussed the
arguments of the parties and having considered under the procedure of Art. 168,
Para. 1 and in connection with Art. 146 of the APC the evidence collected and
accepted for the case and the legality of the disputed administrative decision in
general, established the following facts and legal circumstances:
With an invitation with ref. No. 1-077-126/21 May 2015, the President of the
BCF convened a regular meeting of the GB of the BCF on 5 June 2015 and the
agenda contained It. 4.5 a discussion of committed violations of the
federations articles and code of ethics.
With the disputed Resolution under Protocol No. 4 from 5 June 2015 under It.
4.5 by the Governing Board of the Bulgarian Chess Federation (the GB of the
BCF), it revoked all rights as competitors, arbiters, organizers, club players and
coaches in the BCFs system of the individuals Metodi S. for a period of 3 years,
S. S. for a period of 5 years and K. D. G. for a period of 3 years. Regarding the
petitioner, 10 of the GBs members voted yes and 2 of the organisations
members abstained.
The resolution states the following motives for its issue: in connection with the
public, wilful, targeted and coordinated actions and statements of these persons
aiming to damage the reputation of the BCF, to sabotage its activities and to
discredit its management by bringing to the public attention untrue, unproven and
slanderous allegations of corruption and misuse (at a press conference in B on 28
May 2015, in social networks, etc.), as well as to damage the reputation of the
Minister of Youth and Sport, the Ministry of Youth and Sport and professionals
who work there through slander and lies, the GB of the BCF judges their actions

to be intolerable, extremely reprehensible and in violation of the Articles and

Code of Ethics of the federation.
In his testimony, the witness V. N. I. claims that the meeting held on 5 June 2015
was not attended by the members of the GB of the BCF V. T., N. Y. and V. A.
and they did not participate through a conference or telephone call.
I. About the admissibility of the dispute:
In accordance with the definition of Art. 21, Para. 1 of the APC, the express
statement of will of the administrative body or another body or organisation
empowered by law which affects the rights, freedom of lawful interests of
individual citizens with an individual administrative decision. (sic!) The BCF has
been registered in accordance with the regulations of the Non-Profit Legal
Entities Act (certificate from 15 April 2015 under company file No. 11591/1991
of the Sofia City Court), which means the federation is an organisation within the
meaning of Art. 1, Para. 2 of the Additional Regulations of the APC.
The Governing Board of the BCF, in accordance with the regulations of Art. 23,
Para. 2 of the Non-Profit Legal Entities Act (NPLEA), is a governing body of an
organisation. In this case, the GB manages the operating activity of the BCF (Art.
28, Para. 1 of the Articles) and, in accordance with Art. 29, Para. 13 of the
Articles, the Governing Board is empowered to impose the sanctions set forth in
the Articles for behaviour of members, competitors and other practitioners which
is incompatible with sports moral. This means that the powers delegated to the
BCF with the regulation of Art. 19 of the NPLEA are exercised by its governing
body, which is the GB.
Therefore, the GB of the BCF is an administrative body within the meaning of
Art. 1, It. 2 of the Additional Regulations of the APC as a governing body of an
organisation empowered by the law to impose sanctions on sportspersons
(Decision No. 12299/25 September 2013 under administrative case No.
12032/2013 and ruling No. 1471/10 February 2015 under administrative case No.
7600/2014 of the Supreme Administrative Court of the Republic of Bulgaria, 6th
division).

With the appealed resolution, the GB of the BCF imposed a sanction on K. D. G.

which without a doubt affects his rights and interests since it restricts his
participation in competitions and can also be classified as an individual
administrative decision. The Supreme Administrative Court of the Republic of
Bulgaria, 6th division has established that the regulations of the Administrative
Procedure Code are applicable to such decisions as the NPLEA does not contain
an express prohibition on the disputing of resolutions of the GB before the court
despite the stipulation of Art. 25, Para. 1, It. 12 of the NPLEA which grants
powers to the General Meeting to resolve in connection with disputed resolutions
of the organisation which have been adopted in violation of the law, the articles
or a previous resolution of the general meeting.
Therefore, the regulation of Art. 2, Para. 1, It. 12 of the NPLEA does not exclude
disputing of the administrative decision before the court in view of the regulation
of Art. 148 of the APC which allows such decisions to be disputed before the
court without prejudice to the right to dispute them with an administrative
procedure unless the AAPC or other special acts have other provisions. In this
case, neither the Physical Education and Sports Act (PESA), nor the NPLEA
have other provisions.
II. In essence about the dispute:
In accordance with Art. 14, Para. 1 and Para. 4 of the PESA, sports federations
are voluntary associations of sports clubs in one or several similar sports which
coordinate the development, practice and administration of the respective sports
on a national level in the country and represent them before the state and
international sports organisations and they are registered as non-profit legal
entities for performance of activities in the public benefit. By virtue of Art. 17,
Para. 1 of the PESA, the Minister of Youth and Sport issues, renews, refuses and
revokes licenses to sports federations and national sports organisations in
accordance with the conditions of said act and following a procedure determined
with a regulation issued by the Minister. The legislator has determined in the
regulations of Art. 19, Para. 1, It. 11 of the PESA that sports federations who
have been granted a license are entitled to grant, terminate and cancel
competitive rights to sportspersons and hold the rights for advertising, television

and radio broadcasting of sports competitions organized by them by providing

with an agreement a percentage of the proceeds to the clubs participating in the
respective competition.
The disputed resolution from 5 June 2015 has been adopted by a competent
body, the Governing Board of the BCF, within the scope of its powers granted
with Art. 29, Para. 13 of the Articles of the BCF. The resolution has been
adopted with a simple majority in accordance with the provisions of Art. 32,
Para. 1 of the Articles. However, it has not been executed by the members of the
GB I. G., N. N., V. A., Zh. Zh. and by the President of the federation, S. D. In
accordance with Art. 58, Para. 2, It. 8 of the APC, if the body is a collective one,
the resolution shall be executed by its chairperson or a deputy.
Secondly, the disputed resolution has been issued in violation of the legal
requirements for its form and contents under Art. 59, Para. 2 of the APC. The
result of the proceedings has been recorded in writing in the disputed Resolution
under It. 4.5 which specifies the name of the body which issued it, contains an
operative part, but does not specify how the resolution can be appealed, before
which authority and within what period. On grounds of the collected and
accepted evidence, the pertaining facts cannot be ascertained without a doubt and
cannot be interpreted in specific legal grounds for issuing of the decision for
revocation of K. D. G.s competitive rights. It is a firmly established court
practice for the factual circumstances to be related to the respective act which is
applicable by time, place and persons for each specific case. The lack of
correspondence of the facts under the case with the legal regulations is always a
violation significant enough to lead to a restriction of the petitioners right of
remedies. In accordance with Interpretation Decision No. 4/22 April 2004 under
case No. -4/2002 of the Supreme Administrative Court, which is mandatory
within the meaning of Art. 130, Para. 2 of the Legislature Act, the necessity and
mandatory requirement to state grounds for issuing of a decision of the
administrative body has been regulated with Art. 15, Para. 1 and Part. 2, It. 3 of
the law. This allows the recipient of the decision and the interested parties to
learn the facts on which the administrative body resolved to apply the respective
legal regulation. This explanation of the reasoning allows the supreme
administrative body and the court to verify the legality of the decision. The only
exception to this principle is set forth in the cases under Art. 15, Para. 3 of the

law: when the decision satisfies entirely the submitted requests and does not
affect rights or legal interests of other citizens of organisations, as well as if the
matter is related to protection of classified information which is state or
professional secret. In these instances, only the legal grounds for issue of the
decision shall be specified. Therefore, if the reasons are not specified, this always
constitutes grounds for a revocation of the issued administrative decision. If the
administrative body acts in accordance with its statutory obligations, the
conditions specified in the legislation are for substantive legality of the
administrative decision. If the conditions are present, the body is obligated to
issue the decision. If the body is acting within the limits of its operational
independence, the provided statutory conditions are also mandatory. A discussion
of the objections and explanations of the interested citizens and organisations
which are directly affected by the issue settled by the administrative decision is a
mandatory requirement in accordance with Art. 11, Para. 3 of the law which does
not provide different modes of operation for different types of competence of the
body. Despite the right of action under operational independence granted by the
law, the lack of stated motives explaining why one of several possible lawful
options has been chosen and/or a lack of discussion of the objections and
explanations of the interested citizens and organisations directly affected by the
issue settled by the administrative decision is a material breach of the
administrative procedure rules and constitute grounds for revocation of the
decision. It is subject to a court inspection for statutory compliance and this
inspections, besides an assessment if the body has breached various statutory
frameworks, includes an answer to the question if the body has abused its granted
right of operational independence and if the adopted resolution is in compliance
with the aims of the law.
If the factual circumstances are present, this constitutes grounds for issue of the
administrative decision and a statement about the subsequent legal rights and/or
obligations arising for the interested persons. Interpretation Decision No. 16/31
March 1975 of the General Assembly of Civil Panels of the Supreme Court states
that it is not necessary for the motives to coincide during the issue of the
administrative decision or the refusal and the statement of grounds on which the
administrative body reached a resolution. It is possible for the motives to precede
the issue of the decision and to be contained in another document compiled in
view of the pending issue of the administrative decision. There is also no reason

for the motives not to be stated in addition after the issue of the administrative
decision as far as it achieves the legislators purpose in the requirement for a
statement of motives of individual administrative decisions and refusals for their
issue. The motivation of the decision can also be stated in addition to the
decision itself and if this has not been done to a sufficient extent to protect the
rights, freedoms and legal interests of the parties (note by the author), this shall
lead to a breach of the legally required form of the disputed administrative
decision. (Ruling No. 7882/17 December 2014 under administrative case No.
9791/2014 of the Sofia-City Administrative Court, Sixth Division). In this case,
the procedure for issue of the decision has not been complied with, the interested
parties right to give their opinions and provide statements has been limited and
the admissible, necessary and relevant to the dispute evidence has not been
supplied. By failing to provide evidence of the objective factual circumstances,
the GB of the BCF also issued its decision in breach of the requirements for
motivation of the decision in accordance with Art. 59, Para. 2, It. 4 of the APC.
This prevents the court from performing an assessment for legality of the
decision regarding compliance with the relevant substantive law (Art. 146, Para.
4 of the APC) and its purpose (Art. 146, It. 5 o the APC). Even if it is assumed
that there are some stated motives, they have not been presented in an official
and clear manner and they are not specifically connected to the facts about the
dispute and their certifying written evidence. No written evidence has been
submitted and it is unclear with which specific actions and statements of will K.
D. G. on 28 May 2015 damaged the reputation of the BCF, sabotaged its
activities and discredited its management by bringing to the public attention
untrue, unproven and slanderous allegations of corruption and misuse, as well as
damaged the reputation of the Minister of Youth and Sport, the Ministry of
Youth and Sport and professionals who work there. It is also unclear what
violation and of which regulations of the Articles of the BCF and the Code of
Ethics has been committed by K. D. G. No specific regulations from these deeds
of the federation has been specified which, according to the respondent, have
been violated to such an extent as to necessitate a suspension of competitive
rights. The court panel also thinks that the way the BCFs resolution is
formulated provides no reason to assume that the dispute is about well-known
facts which are not subject to proof. The events, which are of interest to a certain
circle of chess experts and a lot of hobbyists, cannot be defined as well-known
facts which are not subject to proof within the meaning of Art. 155 of the Civil

Procedure Code (CPC) and in connection with Art. 144 of the APC. It should
also be specifically said that allegations and statements in this regard have not
been made by the respondent in order to expressly satisfy the mandatory
interpretation under Art. 155 of the Civil Procedure Code. The court does not
allow the collection of oral evidence requested by the respondent in the opendoors court session on 27 November 2015 because evidence can be collected
only for establishment of disputed facts about the case, it cannot be collected just
on general principle.
Thirdly, despite the lack of stated legal grounds for the resolution, the court, to
ensure the completeness of its motives, will also review its compliance with the
substantive legislation (Art. 146, It. 4 of the APC) and the administrative
procedure rules (Art. 146, It. 3 of the APC).
In accordance with Art. 29, It. 13 of the Articles, the GB of the BCF may impose
the following sanctions for actions incompatible with sports moral:
1. Warning for expulsion from the BCF.
2. Revocation of sports titles and distinctions of competitors.
3. Temporary suspension from participation in competitions of competitors and
practitioners.
4. Expulsion from the BCF of clubs, arbiters, coaches and competitors further to
the BCFs own motives or by proposal of the respective club.
The petitioner K. D. G. was subjected to the penalty revocation of rights as a
competitor, arbiter, organizer, club player and coach in the system of the BCF for
a period of 3 years. Such a penalty is not provided for in the BCFs Articles.
Sanctions cannot be imposed by analogy and they must observe the principle of
legal basis. Under the conditions of this clause from the organisations Articles,
sanctions may be imposed for actions incompatible with sports moral, and in
the case at hand the sanction was imposed for public, wilful, targeted and
coordinated actions and statements of these persons aiming to damage the
reputation of the BCF, to sabotage its activities and to discredit its management
by bringing to the public attention untrue, unproven and slanderous allegations of
corruption and misuse, as well as to damage the reputation of the Minister of
Youth and Sport, the Ministry of Youth and Sport and professionals who work

there through slander and lies. It is readily apparent from the formulation of
these actions that they are unrelated to K. D. Gs sports activities and it is a
sanction for his statement of opinion and position as a citizen whom the
constitution of the Republic of Bulgaria guarantees the right to express opinion
and to distribute it by words written or oral, by sounds, image or otherwise.
Freedom of conscience and thought and the right to express opinion and
distribute it by words, written or oral, are constitutional rights of each citizen and
no one is entitled, even more so an association incorporated to carry out activities
in the public benefit, to restrict and violate these rights. In accordance with Art.
10 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.
In accordance with Art. 9 of the BCFs Code of Ethics, violations shall be
established and sanctions shall be imposed with a resolution of the Ethics Board
with the BCF which consists of five people a chairperson and four members.
The board should be alerted with a petition within 21 days after the statutory
violation and the petition shall be accompanied by a document of proof that the
amount of BGN 100 has been paid (Art. 12). Within 20 days after receipt of such
a petition, the Ethics Board notifies in writing the person who has to submit
written evidence within a 10-day period after notification. The Ethics Board
adopts resolutions with a majority of its members within 20 days after expiry of
the deadline within which the affected person is entitled to provide explanations
about the alleged violation. The Ethics Board submits is opinion in writing to the
GB of the BCF which gives an opinion with a majority of all its members (Art.
14).
In its analysis of the written rules and the assumption that K. D. G. with his
actions and statements on 28 May 2015 has violated the Code of Ethics of the
federation, the administrative proceeding has committed a substantial breach of
the rules of procedure which always leads to revocation of the decision. K. D. G.
has not been notified on the initiation of the administrative procedure in
accordance with It. 13 of the BCFs Code of Ethics and in connection with Art.
26 of the APC by receiving an invitation within the 10-day period set forth by the
Code of Ethics in order to submit written evidence. The rules of Art. 26 of the

APC states obligation for notification and the same can be inferred from the
meaning of It. 13 of the Code of Ethics. This obligation has been introduced, on
one hand, in order to permit the interested parties to protect their interests in a
timely manner, and on the other to create grounds for updating of the file with
the fullest information about the facts and circumstances relevant for clarification
of the case (Art. 35 of the APC). The Ethics Board has not been alerted, it has not
adopted a resolution for a potential sanction of K. D. G. and such a resolution has
not been provided in writing in order to serve as grounds for the resolution of the
BCFs Governing Board from 5 June 2015.
In the performed official verification for statutory compliance performed in
accordance with Art. 168 and in connection with Art. 146 of the APC, the court
did not establish other grounds for revocation or invalidity of the disputed
decision apart from what has been set forth within the meaning of Art. 146, It. 2,
It. 3 and It. 4 of the APC. The petition was proven with the statements contained
in it and, when giving the final legal conclusion for illegality of Resolution
under Protocol No. 4 from 5 June 2015, under It. 4.5 of the Governing Board
of the Bulgarian Chess Federation (the GB of the BCF), the court applied the
rules for distribution of the weight of evidence in the proceeding within the
meaning of Art. 170, Para. 1 of the APC since the respondent failed to prove the
existence of factual grounds set forth in the decision and the compliance of the
statutory requirements which motivated the respondent to issue the decision and
bring forth the aimed unfavourable legal consequences for K. D. G.
In view of the result from the dispute and under Art. 143, Para. 1 of the APC, in
accordance with It. 11 of Interpretation Decision No. 6/6 November 2013 under
interpretation case No. 6/2012of the General Meeting of the Civil and
Commercial Divisions of the Supreme Court of Cassation which are mandatory
for all courts under Art. 130, Para. 2 of the Judiciary Act, the expenses incurred
under the case and proven to amount to BGN 465 shall be covered in favour of
the petitioner.
In compliance with the above motives and on grounds of Art. 172, Para. 2 of the
APC, THE SOFIA-CITY ADMINISTRATIVE COURT, 2ND DIVISION,
22ND PANEL

RULED:
THE COURT revokes, further to the petition by K. D. G. from [settlement],
[housing estate], [residential address], Resolution under Protocol No. 4 from 5
June 2015 under It. 4.5 by the Governing Board of the Bulgarian Chess
Federation (the GB of the BCF) with which K. D. G. has been stripped of rights
as a competitor, arbiter, organizer, club player and coach in the BCFs system for
a period of 3 years.
THE COURT SENTENCES the Bulgarian Chess Federation, with address:
[settlement], [street] to pay to K. D. G. from [settlement], [housing estate],
[residential address], the amount of BGN 465 (four hundred and sixty-five levs)
on grounds of Art. 143, Para. 1 of the APC.
THE RULING is subject to appeal with a cassation petition through the SofiaCity Administrative Court before the Supreme Administrative Court of the
Republic of Bulgaria within 14 days after it has been notified to the parties.
A COPY of the court decision to be sent to the parties on grounds of Art. 138 of
the APC.
Judge: