Resolution No. 1 of 17 March 2015 on Constitutional Case No. 1/2015
The case was filed by the Supreme Court of Cassation – its Commercial Tribunal’s General Assembly which asked the Constitutional Court to hand down a decision to interpret Art. 12, para 2 of the Constitution reading thus: “Citizens’ associations, including the trade unions, shall not pursue any political objectives, nor shall they engage in any political activity which is in the domain of the political parties.”
The Constitutional Court dismissed the petition on the basis of the following reasoning:
An interpretative decision as per Art. 149, para 1, item 2 of the Constitution is to be handed down whenever an ambiguity is to be cleared up or the vagueness of one or several Constitution prescriptions is to be removed in order to make sure that the enforcement of the text will not allow mutually exclusive interpretations. The Constitutional Court’s jurisprudence demands that the petition should set forth detailed reasons as to why an interpretation is needed for a specific Constitution provision whose meaning and content are seen as vague and imprecise, should point out that the provision is applied in a contradictory and discriminatory manner, should cite the adverse and undesirable consequences of the application and should give a clear picture of a legal dispute and of a valid legal interest.
The Court concluded that the petitioner failed to explicate the claim that the Constitution prescription was unclear and to cite examples to illustrate the contradictory jurisprudence that has issued from the enforcement of the said prescription which was impossible to resolve by the prerogative of the Supreme Court of Cassation to make interpretations.
The petition asked that answers should be given to the following questions:
First: do the phrases “the pursuit of political objectives” and “the engagement in political activities” stand for two individual hypotheses of the prohibition as stated in Art. 12, para 2 of the Constitution with respect to the citizens’ associations, that is, is the Constitution provision applicable alternatively?
Second: what political objectives shall only the political parties pursue and what political activities shall only the political parties engage in and what objectives and activities shall be forbidden to citizens’ associations?
In the understanding of the Supreme Court of Cassation the rationale to claim a valid legal interest in handing down an interpretative decision arises from the need for the provision to be applied in an adequate and nondiscriminatory manner by the panels whenever they register citizens’ associations as non-profit organizations. In the petitioner’s view the panels have difficulties whenever they are to decide whether the text of the Constitution is applicable alternatively – i.e. when the citizens’ associations will pursue political objectives while the political activities appropriate to them are not defined or vice versa, when the citizens associations will be engaged in political activities while the specific political objectives are not explicated. However, the petition does not cite any case of such alleged prevailing contradictory jurisprudence within the civil courts.
The Constitutional Court exercises its prerogatives as per Art. 149, para 1, item 1 of the Constitution whenever there exists a valid legal interest but not before its emergence and confirmation. Such a concept is risky as it might “turn the court into an advisory body or a positive legislating authority and evidently this goes beyond the court’s powers of jurisdiction” (cf. Decision No. 8/2005). The Constitutional Court’s prerogative to give interpretations is not to be the prerogative to amend or supplement the Constitution (Resolution of 17 May 2004 on Constitutional Case No. 3/2004), as doing so would be practically the same as writing a new constitution.
The argument presented by the Supreme Court of Cassation – viz. that the Constitutional Court’s interpretation would help “find out the exact meaning of the Bulgarian Constitution’s text” and “the possible existence or inexistence of problematic areas when the text is juxtaposed with the interpretation and application of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms” – also presupposes some front-running interpretation of provisions that are otherwise unclear.
The latter question is supposed to be answered with a pronouncement as to whether citizens’ associations in the sense of Art. 12, para 2 of the Constitution are free to pursue political objectives or to engage in political activities that seek to change the unitary system of the State, to encroach on the territorial integrity, to destroy the unity of the Bulgarian nation, to violate the country’s sovereignty or to push the governance under limited sovereignty. However, the answer to this question is to be found in other Constitution texts. Art. 2 of the Constitution reads thus: “The Republic of Bulgaria shall be a unitary state with local self-government. Autonomous territories shall not exist. The territorial integrity of the Republic of Bulgaria shall be inviolable.” Art. 44, para 2 of the Constitution cites the reasons for curtailment of the freedom of association and reads thus: “No organization shall act to the detriment of the sovereignty and the territorial integrity of the country or the unity of the nation, nor shall it stir up any racial, national, ethnic or religious enmity nor shall it provoke any encroachment on the rights and freedoms of citizens; no organization shall establish any clandestine or paramilitary units nor shall it seek to attain its aims through violence.”
In conclusion, the Court did not find any reason for changing its precedent jurisprudence and refused to hand down an interpretative decision that would decide the case on its merits “since no ambiguity and no legal problem exist that are to be resolved via interpretation” (vide Resolution No. 4/2007).