Resolution No. 2 of 8 May 2025 on Constitutional Case No. 3/2025
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the 16th panel of the Sofia City Court in connection with Criminal Case No. 369/2021 pending before it. The request was submitted by a subject vested with the right of initiative pursuant to Article 150, paragraph 2 of the Constitution - a court (judicial panel) in relation to a specific case under its consideration.
The subject matter of the constitutional case is the provision of Article 105, paragraph 2 of the Criminal Procedure Code (promulgated in State Gazette, No. 86 of 2005; last amended and supplemented, No. 39 of 2024; hereinafter “CPC”), which is alleged to be contrary to Article 122, paragraph 1 of the Constitution of the Republic of Bulgaria.
Summary of the Court’s Reasoning
The referring court maintains that, in the specific factual circumstances of the case, the application of Article 105, paragraph 2 of the Criminal Procedure Code leads to the exclusion of evidentiary materials (records of search and seizure, video recordings, audio recordings, etc.) which, according to the defence, are favourable to the defendants and support their defence thesis. Emphasis is placed on the fact that the defendants knowingly and voluntarily wish to rely on these pieces of evidence, although they were collected in violation of procedural rules, and that their exclusion would affect their right of defence and the establishment of the objective truth.
The request concerns the same legal issue as that raised in Constitutional Case No. 20/2024, which was dismissed by the Constitutional Court as inadmissible by Ruling No. 7/2024. The Court underlines that, although upon a new request it makes an independent assessment of admissibility, a renewed referral concerning the same subject matter is admissible only if it raises a new legal issue. The different stages or phases of the proceedings in a single judicial case do not give rise to a subsequent possibility to refer the same subject matter to the Constitutional Court, unless a new legal issue is presented.
The Constitutional Court characterizes the present request as relating to the same legal issue as in Constitutional Case No. 20/2024. The alleged unconstitutionality is derived from unlawful actions of lawenforcement authorities in the collection of evidence and from the consequences thereof for the specific criminal proceedings. The arguments of the referring court that the defendants should be able to “informedly waive” the protection (if Article 105, paragraph 2 of the Criminal Procedure Code constitutes an expression thereof) are not derived from constitutional provisions. Furthermore, the Constitutional Court notes that rules such as Article 105 of the Criminal Procedure Code are found in numerous democratic criminal justice systems and that the “intensity” of the exclusion of evidence is a matter falling within the legislature’s discretion.
The Court expressly rejects the thesis that, since a judicial panel is empowered to refer a matter to it pursuant to Article 150, paragraph 2 of the Constitution, it must examine the issue “in the context of that case and that specific application of the contested law.” The Constitutional Court states that constitutional review is abstract in nature, including where it is initiated by a judicial panel in connection with a specific pending case, and that it cannot result in a finding of unconstitutionality “only for the particular case,” in view of the generally binding force of the acts of the Constitutional Court. The extension of access to constitutional jurisdiction through the amendment to Article 150, paragraph 2 of the Constitution does not alter the nature of normative constitutional review.
The Court further emphasizes that the change in the invoked ground of conflict with the Constitution (reliance solely on Article 122, paragraph 1, instead of also on Article 121, paragraph 2) does not render the subject matter new, since constitutional adjudication is not limited by the specific grounds of unconstitutionality advanced by the referring authority.
For the foregoing reasons, the Court finds that the request shall be dismissed as inadmissible due to the identity of the legal issue raised therein with that addressed in Constitutional Case No. 20/2024.
Grounds for the Ruling and Disposition
Pursuant to Article 13 of the Constitutional Court Act (the Constitutional Court shall determine whether a matter referred to it falls within its jurisdiction) and Article 25, paragraph 1 and Article 26, paragraph 1 of the Rules of Procedure of the Constitutional Court, the request of the 16th panel of the Sofia City Court to establish the unconstitutionality of the provision of Article 105, paragraph 2 of the Criminal Procedure Code (promulgated in State Gazette, No. 86 of 2005; last amended and supplemented, No. 39 of 2024) is dismissed.
Председател: Павлина Панова