Decision

DECISION No 8 OF 1 SEPTEMBER 2005 ON CONSTITUTIONAL CASE No 7/2005

         The Supreme Court of Cassation asked for a binding interpretation of Art. 153 and Art. 158, item 3 of the Constitution. The SCC asked whether the five new provisions incorporated in the Constitution and related to the reorganization of the Judiciary would be tantamount to a change in the form of government which change is within the prerogatives of the Grand National Assembly only.

         First the Constitutional Court discussed the core and functions of the abstract interpretation of the Constitution and came to the conclusion that the interpretation is not associated with a specific constitutional dispute but seeks to build a transparent and uncontroversial system of standards and to prevent constitutional disputes in future. Next the Court recalled that one and the same Constitution text can receive further interpretations when and if they are asked for again and that the Constitutional Court is not to answer literally the specific questions that may be asked if it is not to become an advisory body or a positive legislator – activities that are not within its prerogatives. In view of the role of the Grand National Assembly in amending some parts of the Constitution, the Constitutional Court defines the Bulgarian Constitution as one of the pivotal fundamental laws of developed democracies.

         II. Next the Constitutional Court made an analysis of the provisions of the chapter “Judicial Power” and came to the conclusion that three categories of bodies are involved in the Judiciary: the courts, the prosecution and the investigating authorities. The intensity of their operation is different; they employ different modi operandi and achieve a different legal effect. For this reason these three categories of bodies cannot be put on a par.

         1. From an organizational perspective the courts are the core of the Judiciary; from a functional perspective their activity is the most essential and crucial manifestation of this branch of power; the courts guarantee the most intensive legal protection of individuals, corporate persons and the State. The conclusion is that the courts are the protagonist of the Judiciary.

         2. Streamlining the prosecution structure in unison with its key mission and for the purpose of meeting the obligations that are thoroughly listed in the Constitution and within the framework of the judicial power cannot affect the form of government and falls within the National Assembly’s prerogatives. However, if the reorganization of the prosecution stands for its fragmentation and the transfer of one part outside the Judiciary or the contraction of its core functions to one of its modus operandi by which it performs its principal mission – to see to the rule of law, then it is a change which reflects on the form of government that the Grand National Assembly has the prerogative to approve.

         3. Concerning the investigating authorities, the Constitutional Court limited its comment to the constitutional frame, which, contrary to the texts about the courts and the prosecution, does not provide for their type and structure and makes a conclusion about the legislating authority’s freedom on them. The Constitutional Court said nothing about the term “investigating magistrate” that extends to cover the investigating officer as well and took it for granted that it is a matter of legal appropriateness; depends on the overall characteristics, the model chosen, the key priorities and focuses of the reform of the courts and goes beyond the subject of the interpretation asked for.

         4. The Constitutional Court stated that being involved in an agreed Government anticrime policy the prosecution, the investigating authorities and the Ministry of Interior can be monitored by the National Assembly and a change in the Constitution to that effect will not constitute a change of the form of government. The conclusion is invited through the explanation of the Constitution-enshrined principle of the separation of powers to maintain the balance among the three by means of mutual control. The modern constitutionalism calls for the dynamic balance of powers to be achieved by cooperation and interaction especially in areas that are an undeniable national priority like the anticorruption drive. At the same time the Constitutional Court noted that the National Assembly’s control on the bodies of the Judiciary should not repeat the classical form of parliamentary control that are typical of the Legislature-Executive relations for this would be interference that changes the foundation on which the constitutional model of the State is built.

Председател: Неделчо Беронов