Decision No. 9 of 24 July 2025 on Constitutional Case No. 38/2024
Referring Authority and Subject Matter of the Case
The Constitutional Court was seized with a request by 55 Members of Parliament of the 51st National Assembly, registered as Constitutional Case No. 38/2024; a request by 53 Members of Parliament of the 51st National Assembly, registered as Constitutional Case No. 39/2024; and a request by the President of the Republic of Bulgaria, registered as Constitutional Case No. 40/2024, for the establishment of the unconstitutionality of Article 64, paragraph 2 (In the event of war, military, or other extraordinary circumstances occurring during the mandate of the National Assembly, the term of its powers shall be extended until such circumstances cease), paragraph 3 (Elections for a new National Assembly shall be held no later than one month before the expiration of the mandate of the sitting National Assembly), and paragraph 4 (Upon taking the oath by newly elected Members of Parliament, the mandate of the previous National Assembly shall terminate); Article 65, paragraph 1, second sentence (A Bulgarian citizen who also holds another citizenship may be elected as a Member of Parliament if they have resided in the country for the last eighteen months); Article 99, paragraph 5 (If no agreement is reached to form a government, the President, following consultations with the parliamentary groups and upon proposal by the candidate for caretaker Prime Minister, shall appoint a caretaker government and schedule new elections within two months. The caretaker Prime Minister shall be appointed from among the Chairperson of the National Assembly, the Governor or Deputy Governor of the Bulgarian National Bank, the Chairperson or Deputy Chairperson of the Audit Office, or the Ombudsman or their deputy); and the repeal of Article 102, paragraph 3, item 3, as introduced by §§2, 3, 7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution of the Republic of Bulgaria. By the rulings of 19 December 2024, the Constitutional Court admitted the requests for consideration on the merits and joined constitutional cases No. 39/2024 and No. 40/2024 to case No. 38/2024 for joint examination and adjudication. The requests for establishing unconstitutionality were motivated by the applicants with claims of violations of the principles of popular sovereignty, the rule of law, separation of powers, procedural irregularities in the adoption of the contested provisions, and impermissible encroachment upon the competences of the Grand National Assembly.
The Constitutional Court had previously considered requests on the same subject matter and, by Decision No. 13 of 26 July 2024 on Constitutional Case No. 1/2024, dismissed them due to the failure to achieve the required majority under Article 151, paragraph 1 of the Constitution.
Summary of the Court’s Reasoning
The Court did not reach the majority required under Article 151, paragraph 1 of the Constitution to issue a decision regarding the amendments to Articles 64, paragraphs 2, 3 and 4; Article 65, paragraph 1, second sentence; Article 99, paragraph 5; and Article 102, paragraph 3, item 3, as introduced by §§2, 3, 7, item 1, and §8 of the Law on the Amendments and Supplements to the Constitution.
Judges Borislav Belazelkov, Galina Toneva, and Orlin Kolev consider all three requests inadmissible. They argue that the view according to which a decision, in respect of which the majority required under Article 151(1) of the Constitution (seven judges) has not been attained and which is necessary for its adoption, cannot constitute a source of law or produce legal effect, is untenable. They further submit that, in such circumstances, no will to reject the request has been duly formed and no reasoning has been adopted. According to them, the content of Article 151, paragraph 3 of the Constitution shows that the Constitution does not require an explicit dispositive for declaring the contested law constitutional or for dismissing the request. Under this provision, only a positive decision of the Constitutional Court has constitutive effect and can change the legal reality. Under the Constitution, an explicit dismissive operative part is not required in order to preserve the existing legal order unchanged.
Judges Pavlina Panova, Nadezhda Dzhelepova, Atanas Semov, Krasimir Vlahov, Yanaki Stoilov, Sonya Yankulova, Sasho Penov, and Nevin Feti consider the requests admissible and present reasoning on the merits of the requests.
Regarding the amendments to Article 64, paragraphs 2, 3 and 4 (new), as introduced by §2 of the Law on Amendments and Supplements to the Constitution
According to Judges Pavlina Panova, Atanas Semov, Yanaki Stoilov, Sonya Yankulova, Sasho Penov, and Nevin Feti, the request is well-founded; therefore, the amendments to Article 64, paragraphs 2, 3 and 4 (new), as introduced by §2 of the Law on Amendments and Supplements to the Constitution, should be declared unconstitutional as invalid.
Judges Pavlina Panova, Atanas Semov, Yanaki Stoilov, and Sonya Yankulova, taking into account the identical starting position and the identity of the provisions at issue in the present Constitutional Case and in Constitutional Case No. 1/2024, reaffirm the reasoning set out in Section II.A of Decision No. 13/2024 on Constitutional Case No. 1/2024 concerning the contested provision of §2 of the Law on Amendments and Supplements to the Constitution, by which the amendments to Article 64, paragraphs 2, 3 and 4 (new) of the Constitution were introduced.
They emphasize that the termination of the mandate of the National Assembly, as provided for in the contested amendments - occurring upon the taking of the oath by the newly elected Members of Parliament - results in the simultaneous existence of two legislatures, thereby creating the potential for conflict between them due to the differing political representation within each. As the fundamental law, the Constitution should not contain provisions that generate such conflict; rather, it must include provisions that ensure the functioning of a democratic state governed by the rule of law.
In addition to these arguments, Judges Sasho Penov and Nevin Feti advance further considerations. According to Judge Sasho Penov, the amendments and supplements adopted are contrary to the principle of popular sovereignty as the legitimising principle of democratic constitutionalism. Furthermore, the possibility of conflicting interpretations of the newly established regulation, as well as its collision with other provisions of the Constitution, also results in a violation of the principle of the rule of law, repeatedly clarified in the jurisprudence of the Constitutional Court, through which the stability of the democratic legal order is guaranteed. According to Judge Nevin Feti, the amendments to Article 64 of the Constitution under consideration alter the duration of the mandate of the National Assembly by affecting the rules governing its determination and thereby encroach upon the competence of the Grand National Assembly to amend and supplement the Constitution under Article 158, item 3.
According to Judges Nadezhda Dzhelepova, Krasimir Vlahov, and Desislava Atanasova, the request for a declaration of unconstitutionality of the amendments to Article 64, paragraphs 2, 3 and 4 (new), as introduced by §2 of the Law on Amendments and Supplements to the Constitution, is unfounded, and the provisions are not unconstitutional. They do not consider it necessary to provide additional reasoning beyond that set out in Constitutional Case No. 1/2024, according to which the amendments - introducing continuity in the functioning of Parliament - are consistent with the principles and spirit of the Constitution and do not engage the competence of the Grand National Assembly under Article 158 of the Constitution as a ground for declaring them unconstitutional, notwithstanding the fact that they were adopted by an ordinary National Assembly.
Regarding the amendment to Article 65, paragraph 1, as introduced by §3 of the Law on Amendments and Supplements to the Constitution
According to Judges Pavlina Panova, Atanas Semov, Yanaki Stoilov, Sonya Yankulova, Sasho Penov, and Nevin Feti, the requests are well-founded; therefore, the amendment to Article 65, paragraph 1, as introduced by §3 of the Law on Amendments and Supplements to the Constitution, should be declared unconstitutional as invalid.
Judges Pavlina Panova, Atanas Semov, Yanaki Stoilov, Sonya Yankulova, and Sasho Penov, taking into account the identity of the provisions at issue in the present Constitutional Case and in Constitutional Case No. 1/2024, reaffirm the reasoning set out in Section III.A of Decision No. 13/2024 on Constitutional Case No. 1/2024 concerning the contested provision of §3 of the Law on Amendments and Supplements to the Constitution, by which the supplement to Article 65, paragraph 1, second sentence of the Constitution was introduced.
In addition to these arguments, Judge Nevin Feti advances further considerations, taking the view that the supplement to Article 65, paragraph 1 of the Constitution, introduced by §3 of the Law on Amendments and Supplements to the Constitution, affects state unity as proclaimed in the Preamble, the principle of popular sovereignty enshrined in Article 1, paragraph 2 of the Constitution, and alters the conditions for eligibility of Members of Parliament, thereby impacting the system of state institutions established by the Grand National Assembly.
According to Judges Nadezhda Dzhelepova, Krasimir Vlahov, and Desislava Atanasova, the requests are unfounded, since the amendment to Article 65, paragraph 1, second sentence of the Constitution, as introduced by §3 of the Law on Amendments and Supplements to the Constitution, is not unconstitutional on the ground that it was adopted by an ordinary National Assembly pursuant to Article 155 of the Constitution. They maintain the position expressed in the examination of Constitutional Case No. 1/2024, according to which the amendments to Article 65, paragraph 1, second sentence of the Constitution do not engage the competence of the Grand National Assembly under Article 158 of the Constitution. In their view, the conclusion as to the constitutionality of the amendment must be based solely on that assessment and must not reflect the Constitutional Court panel’s views regarding the usefulness or expediency of the newly introduced regulation, as such considerations fall exclusively within the competence of the national representative body.
Regarding the amendments to Article 99, paragraph 5, and Article 102, paragraph 3, item 3, as introduced by §7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution
Judges Pavlina Panova, Atanas Semov, Yanaki Stoilov, and Sonya Yankulova, taking into account the identity of the provisions at issue in the present Constitutional Case and in Constitutional Case No. 1/2024, reaffirm the reasoning set out in Section V.A of Decision No. 13/2024 on Constitutional Case No. 1/2024 concerning the contested provisions of §7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution, by which the amendments to Article 99, paragraph 5, and Article 102, paragraph 3, item 3 of the Constitution were introduced.
They emphasize that, in the proceedings in Constitutional Case No. 1/2024, they applied an equally high standard to all amendments, including both those concerning the bodies of the judiciary and those concerning the role of the presidential institution in a parliamentary crisis. This standard, also reflected in the Court’s interpretative case-law regarding the form of government, was likewise followed in the proceedings in Constitutional Case No. 38/2024 when ruling on the contested §7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution.
In their view, the application of the amended constitutional provisions governing the formation of a caretaker government only confirms the soundness of the arguments set out in their opinion in Decision No. 13/2024 on this issue.
In addition to these arguments, Judges Sasho Penov and Nevin Feti advance further considerations.
According to Judge Sasho Penov, following the appointment of a caretaker government, a matter of fundamental importance concerns its responsibility within the framework of the horizontal separation of powers. The legal framework established by the amendments to Article 99, paragraph 5, and the repeal of Article 102, paragraph 3, item 3, does not provide a clear answer to this issue. This renders the regulation ineffective and incapable of governing essential aspects of the political and legal order, as well as the organisation and functioning of public authority in circumstances of impaired parliamentary governance resulting from the absence of a parliamentary majority for the formation of a regular parliamentary government. It is therefore contrary to the integrative function of the Constitution to preserve the state as a political unity and to maintain its capacity for political action.
According to Judge Nevin Feti, the amendments to Article 99, paragraph 5, and Article 102, paragraph 3, item 3 of the Constitution, introduced by §7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution, deprive the President of a substantial part of the powers conferred upon him by the will of the Grand National Assembly, in which agreement was reached that the Head of State should appoint a caretaker government without being restricted in the exercise of his discretion as to its composition.
According to Judges Nadezhda Dzhelepova, Krasimir Vlahov, and Desislava Atanasova, the requests for a declaration of unconstitutionality of Article 99, paragraph 5, second sentence, and Article 102, paragraph 3, item 3 of the Constitution, as introduced by §7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution, are unfounded, and the contested provisions are not unconstitutional, as they do not engage the competence of the Grand National Assembly under Article 158, item 3 of the Constitution. They maintain that, from the perspective of the functions and powers of the caretaker government, considered within the overall context of the constitutional framework, the new wording of Article 99, paragraph 5 of the Constitution does not alter the balance of powers among the principal state authorities and, in that sense, does not change the form of government.
Grounds for the Ruling and Disposition
On the basis of Article 149, paragraph 1, item 2 of the Constitution (which empowers the Court to rule on requests for the establishment of the unconstitutionality of laws) in conjunction with Article 153 of the Constitution (the National Assembly may amend and supplement all provisions of the Constitution, except those falling within the competence of the Grand National Assembly), the Constitutional Court rejects the requests submitted by 55 Members of Parliament of the 51st National Assembly, by 53 Members of Parliament of the 51st National Assembly, and by the President of the Republic of Bulgaria for a declaration of unconstitutionality of the amendments to Article 64, paragraphs 2, 3 and 4; Article 65, paragraph 1, second sentence; Article 99, paragraph 5; and Article 102, paragraph 3, item 3, as introduced by §§2, 3, 7, item 1, and §8 of the Law on Amendments and Supplements to the Constitution of the Republic of Bulgaria.
Председател: Павлина Панова