Type of act
14-08-2007 year
To the case

Decision №9

София, 14 август 2007г.

Конституционният съд в състав:


Румен Янков


Васил Гоцев
Димитър Токушев
Людмил Нейков
Благовест Пунев
Лазар Груев
Пламен Киров
Емилия Друмева
Красен Стойчев
Евгени Танчев


The case was filed following a challenge of 50 Members of the 40 th National Assembly of the constitutionality of Art. 98 and Art . 199, para 2 of the Act on Defense and Armed Forces of the Republic of Bulgaria (ADAFRB).

А. On the challenge of the constitutionality of Art. 98 of the ADAFRB reading that mandatory military service shall be nine months for all and six months for the holders of BA or MA degree or of an equivalent degree.

The Constitution text that pertains to the challenged ADAF article is Art. 6, para 2 reading that all citizens shall be equal before the law and that t here shall be no privileges or restriction of rights on the grounds of education .

Clarification of the conception of the Constitution: of the many interpretations of ,,equality” the Bulgarian Constitution opts for ,,equality before the law” as a time-tested and realizable notion. In other words, the law shall not make one man more privileged or less privileged than others. The second sentence of Art. 6 of the Constitution proclaims one of the forms of infringement on equality – the toleration of privileges.

Military service is a duty. When the length of service for a university graduate is shorter, this is tantamount to a privilege. Deficiency in a certain competence might be an impediment to performance. However, this is not the case: while bodily and mental fitness is required for the mandatory military service, university degree is not a special requirement. Thus, there can be no existential or rational justification for the differing duration of military service.

It is true that the duration of mandatory military service is fixed by the National Assembly; however, it is also true that when the Constitution prohibits privileges, a law shall not grant privileges on the basis of the level of education. Hence, the impossibility for the Constitutional Court to satisfy the MPs who ask that only the text that fixes the nine - month duration of military service be deleted in the provision. Further, it is to be noted that conscripts must be equal before the law, i.e. there should be no privileges on the basis of higher level of education.

B . On the challenge of the constitutionality of Art. 199, para 2 of the ADAFRB reading that career officers who happen to be nominated by political parties or coalitions for election shall be released from the army. This ADAF text is seen as inconsistent with Art. 42, para 1 and Art. 65, para 1 of the Constitution.

Art. 9 of the Constitution reads that the armed forces shall guarantee the sovereignty, security and independence of the country and shall defend its territorial integrity.

It is evident that the quoted Constitution text defines the purpose of having armed forces in a state. The army's superiority over the civilian institutions must be noted because of the organization, discipline, strict chain of command and total monopoly over the armaments that none of the other institutions possess. Being the guarantor of the national security and territorial integrity the armed forces serve the public interest, hence their high social status. However, the medal has a reverse side: as seen in history, the army is prone to interfere into politics when the Supreme Command of which the career officers are members is convinced that the national interests are at stake. This is a situation when suspicions arise over the principle of political neutrality, which saves the army's loyalty to the State, irrespective of the political party that has formed the government. The national security is undermined when the political status quo as a result of legitimate elections might be changed with threats or violence . It is this latter eventuality that is nothing but a menace to the national security. It is then that the armed forces cease to be the guarantor of the political status quo.

The Court's interpretation of this provision found that the credibility of the army and the strong public confidence in it are to be attributed to its might but also to the conviction that the career officers are politically non-involved. Therefore whenever they choose to go into politics, their discharge from the army is not at odds with the Constitution.

A crucial point to make here is that the Bulgarian suffrage law does not exclude career officers as ineligible for nomination and election. However, they must register as independent nominees.

In view of the above expounded views and with the rationale of Art. 149, para 1, subpara 2 of the Constitution the Constitutional Court pronounced Art. 98 of the ADAFRB to be anticonstitutional and dismissed the challenge of the 50 Members of the 40 th National Assembly of the constitutionality of para 2 of the ADAF Art. 199.

Justice Lazar Grouev signed the decision with dissenting opinion on Art. 98 of the ADAF .

Председател: Румен Янков

Dissenting opinion on a decision: