Ruling No. 17 of 19 December 2024 on Constitutional Case No. 42/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by 56 Members of Parliament from the 51st National Assembly for a binding interpretation of §23, paragraph 2 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (TFP of the LAS of the Constitution) and of Article 129, paragraph 2 of the Constitution “in the light of” the provisions of Article 4, Article 5, paragraphs 1 and 2, Article 8, and Article 117, paragraph 2 of the Constitution, as well as for a ruling on the compatibility of Article 30, paragraph 2, item 6 of the Judicial System Act with Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in view of the following questions:
„1. How should §23, paragraph 2 of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (SG No. 106/2023) be applied with respect to pending or forthcoming procedures for the election of senior officials of the bodies under Article 129, paragraph 2 of the Constitution of the Republic of Bulgaria, in light of the principles of the rule of law (Article 4 of the Constitution), the supremacy of the Constitution (Article 5, paragraphs 1 and 2 of the Constitution), the separation of powers (Article 8 of the Constitution), and the independence of the judiciary (Article 117, paragraph 2; Article 129, paragraph 2; and Article 130, paragraph 4 of the Constitution)?
2. Is it permissible for the Plenum of the Supreme Judicial Council to exercise the essential constitutional functions under Article 129, paragraph 2 of the Constitution of the Republic of Bulgaria when the following situations are present: (a) the mandate of its elected members expired more than two years ago; (b) it systematically convenes in an incomplete composition due to the resignation or dismissal of one-fifth of its members, including members from the professional quota, which results in a disproportionately high influence of the parliamentary quota and in the politicisation of its functions, in view of the principles of the rule of law (Article 4 of the Constitution), the supremacy of the Constitution (Article 5, paragraphs 1 and 2 of the Constitution), the separation of powers (Article 8), and the independence of the judiciary (Article 117, paragraph 2; Article 129, paragraph 2; and Article 130, paragraph 4 of the Constitution)?”
3. Is it permissible for the Supreme Judicial Council to exercise the essential constitutional functions under Article 129, paragraph 2 of the Constitution of the Republic of Bulgaria when its mandate has expired and one-fifth of its members, who are elected by the judicial authorities, have not been replenished, in light of the obligations under Article 4, paragraph 3 of the Constitution concerning participation in the construction and development of the European Union?
4. Is the power of the Supreme Judicial Council under Article 30, paragraph 2, item 6 of the Judicial System Act - to make a proposal to the President of the Republic of Bulgaria for the appointment and dismissal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General - compatible with the international treaties to which the Republic of Bulgaria is a party, namely Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, when the mandate of the Council has expired and one-fifth of its members, who are elected by the judicial authorities, have not been replenished?”
Summary of the Court’s Reasoning
I. Admissibility of the request concerning the first interpretative question
The question concerning “the application” of §23, paragraph 2 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution has already been examined by the Court as part of the subject matter of constitutional case No. 41/2024.
In addition, the Constitutional Court has already had the opportunity to address the question raised in the reasoning of Decision No. 13/2024 on Constitutional Case No. 1/2024, which states: "In §22 and §23, the constitutional legislator establishes transitional and final provisions. These provisions, in view of their subject matter – to continue the effect of rules repealed by the law, to regulate their application to pending legal relationships, and to postpone the effect of rules established by the law – have no legal effect beyond the legal effect of the law itself."
The Constitutional Court, on the grounds set out above, finds that the request for a binding interpretation of §23, para. 2 of the Transitional and Final Provisions of the Constitutional Amendment Act is inadmissible.
II. Admissibility of the request concerning the second and third interpretative questions
The creators of the current Bulgarian Constitution, believing and relying on the understanding that the National Assembly, as the body through which the sovereign exercises its power (Article 1, paragraph 2 of the Constitution), and which, in its capacity as such, exercises constitutive competence in relation to the other powers (in particular the judiciary), would not violate the constitutionally established term of office of the members of the respective body (in particular the Supreme Judicial Council), and, relying on the good faith of each specific member of that body, they have not provided for a corrective mechanism in the event of failure by the National Assembly to constitute a new composition of the Supreme Judicial Council within the constitutionally established time limit.
Under this constitutional framework and given the ongoing failure of the National Assembly to exercise its constitutive powers, the Constitutional Court cannot replace the constitutional legislator or create a constitutional mechanism to guarantee the supremacy of the Constitution in the exercise of the constitutionally established constitutive powers of the National Assembly. In the factual situation “such as the one present in the current case (where the National Assembly does not form a political will to elect members of the Supreme Judicial Council in accordance with constitutional requirements)” (Ruling No. 7/2023 on Constitutional Case No. 9/2023), which as such lies outside the Constitutional Court’s assessment because the Court does not rule on factual circumstances (including on a persistently established factual state of affairs, as it has no such powers, unlike certain other constitutional courts), the only action available to the Court is, within its interpretative competence under Article 149, paragraph 1, item 1 of the Constitution, to give priority protection to one of the two supreme values - fixed mandates or institutional continuity - in order to guarantee the functioning of the constitutional state bodies (Ruling No. 7/2023 on Constitutional Case No. 9/2023).
On the questions raised by the petitioner, the Constitutional Court has already had the opportunity to rule in Ruling No. 7/2023 on Constitutional Case No. 9/2023.
III. Admissibility of the request concerning the forth interpretative question
The provision of Article 30, paragraph 2, item 6 of the Judicial System Act reads: “The Plenum of the Supreme Judicial Council shall consist of all its members and shall have the following powers: […] 6. to submit a proposal to the President of the Republic of Bulgaria for the appointment and dismissal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General.” As formulated, this provision substantively reproduces the content of Article 129, paragraph 2 of the Constitution, which provides: “The President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General shall be appointed and dismissed by the President of the Republic upon a proposal of the Plenum of the Supreme Judicial Council….” Consequently, Article 30, paragraph 2, item 6 of the Judicial System Act is a statutory text that merely reproduces a constitutional provision and, for this reason, cannot be subject to review for compliance with an international treaty. The opposite, however, is true: under Article 149, paragraph 1, item 4, first sentence of the Constitution, the Court rules on the compliance of an international treaty with the Constitution prior to its ratification.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 1 (competence to provide binding interpretations of the Constitution) and item 4 (competence to rule on the compliance of laws with generally recognized norms of international law and with international treaties to which Bulgaria is a party) of the Constitution, and Article 19, paragraph 1 of the Constitutional Court Act (ruling on submitted requests by means of a ruling), the Constitutional Court dismisses the request of 56 Members of Parliament from the 51st National Assembly for a binding interpretation on the questions set out in the request concerning §23, paragraph 2 of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106/2023) and Article 129, paragraph 2 of the Constitution of the Republic of Bulgaria in conjunction with Article 4 (rule of law), Article 5, paragraphs 1 and 2 (supremacy and direct effect of the Constitution), Article 8 (separation of powers), and Article 117, paragraph 2 (independence of the judiciary) of the Constitution, as well as for a ruling on the compliance of Article 30, paragraph 2, item 6 of the Judicial System Act with Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The ruling was signed with dissenting opinion by two judges and separate opinion of the reasoning by three judges.
Председател: Павлина Панова