Decision

DECISION No 1 OF 7 MARCH 2006 ON CONSTITUTIONAL CASE No 8/2005

         Being approached by the General Prosecutor of the Republic of Bulgaria the Constitutional Court admitted the case on 7 December 2005.

         The General Prosecutor’s two points were as follows. First, a challenge of the constitutionality of Art. 5, para 2 of the Constitutional Court Act (CCA), Art. 38 para 5 of the Law on Local Self-Government and Local Administration (LLSGLA) and Art. 125a, para 8 of the Judiciary Act. The General Prosecutor claimed that any piece of legislation that extends the term in office for high-ranking officials beyond the limit as fixed by the Constitution is in contravention to the Constitution. In the opinion of the General Prosecutor this pertains to the provisions that are the subject of his challenge.

         The second point concerned a binding interpretation of Art. 93, para 1 of the Constitution.

         By its resolution of 21 December 2005 the Constitutional Court admitted the first point and dismissed the second point regarding the interpretation of Art. 93 para 1 of the Constitution.

         The Constitutional Court discussed the positions and the views they contain that were maintained by the parties to the case. The Court considered both the common elements of the three challenged provisions and the differences in the functions of the posts and the legislation concerning them and therefore individually assessed the constitutionality of each.

         On Art. 5, para 2 от the Constitutional Court Act

         Art. 147 para 2 of the Constitution reads as follows: The justices of the Constitutional Court shall be elected or appointed for a period of nine years and shall not be eligible for re-election or re-appointment. The purpose of having this fixed period is to confine the exercise of the powers of the Constitutional Court justices within this time limit. Art. 148 para 1 of the Constitution serves the same purpose providing that the mandate of a justice of the Constitutional Court shall expire, inter alia, upon the expiry of the nine-year term of office. The duration of the term of office is imperative and the Constitution contains no provision to allow extension.

         The Constitutional Court thinks that Art. 5 para 2 of the CCA contravenes the Constitution as it provides for a possibility to continue to perform the function after the expiry which terminates the vested powers.

         On Art. 38, para 5 of the Law on Local Self-Government and Local Administration

         Two divergent opinions were expressed in the judgment on the constitutionality of Art. 38, para 5 от the LLSGLA and the vote did not give the required majority of seven, therefore that part of the challenge was dismissed.

         One of the justices maintained the opinion that Art. 38, para  5 of the LLSGLA is in contravention to the Constitution, therefore the challenge had to be complied with. Art. 139, para 1 of the Constitution reads that the mayor is the body of executive power within a municipality. He is elected for a term of four years by a procedure established by law. The LLSGLA passed on the basis of the delegation under Art. 146 of the Constitution should be confined solely to the activity organization and activity procedures of the bodies of self-government and local administration and cannot prolong or shorten the time limits that are fixed in the Constitution.

         Another of the justices maintained the opinion that the provision of Art. 38, para 5 of the LLSGLA is not in contravention to the Constitution. The provision is applied only to the cases where, as per Art. 38, para 4 in relation to Art. 23 of the LLSGLA the mayor is sworn in at the first session of the newly elected municipal council. While the provision does not allow a mayor to continue to perform his or her functions over an indefinite period of time it ensures that there is not a discontinuity in the performance of a mayor’s functions and is not in contravention to Art. 139, para 1 of the Constitution.

         Art. 38, para 5 of the LLSGLA is not in contravention to the Constitution for it treats legal relations that are not treated in the Constitution and that Art. 146 of the Constitution explicitly delegates to a law.

         On Art. 125а, para 8 of the Judiciary Act

         The first amendment to the Constitution (DV, No 85/2003, effective from 1 January 2004) granted a status which is defined in the Constitution to the heads of judicial bodies. Except for the Chairman of the Supreme Court of Cassation (SCC), the Chairman of the Supreme Administrative Court (SAC) and the General Prosecutor, these heads are appointed for a period of five years and are eligible for re-appointment as provided for by Art. 129 para 5 of the Constitution. The amendment of Art. 129, para 3 of the Constitution (DV, No 85/2003) provided for that there shall be no discrimination in the grounds for dismissal of the heads of judicial bodies, hence the conclusion that the fathers of the Constitution treat the chairmen of the supreme courts and the General Prosecutor on a par with the rest of the heads of judicial bodies. Their powers alike shall be terminated upon the expiry of their term of office. Art. 125а, para 8, sentence two is in contravention to Art. 129, para 5 of the Constitution as it allows the head of a judicial body to keep the position as long as the successor takes office.

Председател: Неделчо Беронов