Decision No. 4 of 14 July 2015 on Constitutional Case No. 3/2015
The Prosecutor General approached the Constitutional Court with a challenge of the constitutionality of Art. 2, para 6 of the 2015 State Budget of the Republic of Bulgaria Act. The Prosecutor General insisted that the provision challenged conflicted with underlying principles in Chapter One (Fundamental Principles) of the Constitution of the Republic of Bulgaria – the principle of the state committed to the rule of law (Art. 4, para 1), the principle of the supremacy of the Constitution (Art. 5, para 1) and the principle of the separation of powers (Art. 8). The text in question is seen as dissonant with Art. 117, paras 2 and 3 of the Constitution that proclaim the independence of the Judiciary and the independent budget of this branch of power.
The Constitutional Court accepted the challenge on the following grounds:
The Constitution definitely reads that the Judiciary shall have its own budget which enables it to act independently and to function normally. To enable the performance of the functions that the Constitution entrusts the Judiciary with and to ensure the independence of the judicial authorities in the protection of the rights and legitimate interests of the citizens, of the corporate entities and of the State, the budget of the Judiciary shall meet the demands of the judicial authorities. Hence the need of sufficient funding to ensure the normal operation of the judicial authorities within the framework of the entire budget year. The Constitution’s imperative that the budget of the Judiciary should be independent will not materialize both whenever no funding is made available to enable the functioning of the Constitution-established judicial authorities or whenever the allocations earmarked are insufficient so the judicial authorities fail to function adequately throughout the whole budget year. It is in defiance of the Constitution to let State institutions that derive their power from the Constitution itself function to an extent that will not go beyond that amount of the State Budget Act allocation. State institutions which the Constitution entrusts with definite functions should carry out their activities always and fully throughout the year. This is a Constitution requirement and any failure to satisfy it in consequence of insufficient funds constitutes a violation of the Constitution.
So far there has been a legislative way to compensate the Judiciary by the provision of an extra subsidy from the central budget (with the exception of the 2014 financial year) whenever the nonperforming revenue side to which the judicial authorities should have contributed suffers a gap which, even if filled in with cash, if any such has remained, from previous years balances, is still there. To exercise its budgeting prerogative the National Assembly has perceived the provision of further guarantees for the performance of the Judiciary’s approved budget as an element of its Constitution-assigned duty to make sure that the Judiciary will be independent and will spend its own sovereign budget as prescribed by Art. 117, items 2 and 3 of the Constitution. Such a legislative approach is in concord with the principles of the state committed to the rule of law, of the separation of powers and of the supremacy of the Constitution. Departure from this approach, namely the application of the challenged Art. 2, para 6 of the 2015 State Budget of the Republic of Bulgaria Act is unconstitutional. This is to be attributed to the codified express prohibition against any compensation for the nonperforming revenue side of the Judiciary’s 2015 budget by debiting the amount to the national budget accounts and it is only the Judiciary that is entitled to benefit from the measure taken.
The text challenged makes the Judiciary face inequality that the Legislature and the Executive are free of inasmuch as the normal function [of the Judiciary] is made contingent upon its own revenue. It is well known that the institutions of the Judiciary are not self-reliant in the performance of their functions and that their activities rely on an approved public finance resource allocation. Moreover, the Judiciary shall not come up unilaterally with stamp duties that are tailored to their needs as these are subject to legislation that is enacted by the National Assembly. The amount of stamp duties is fixed by the Executive, that is to say by the Council of Ministers. As a rule the Judiciary is not directly involved in the collection of the bulk of its earnings as the activity is within the scope of competence of the National Revenue Agency. To make the Judiciary’s budget that the National Assembly has approved contingent upon the collection of the earnings that the judicial authorities’ activities generate is to go against a number of Constitutional Court decisions that are premised on the understanding that the national budget is the budget that is to provide the financing so as to enable the operation of the Constitution-established institutions of State. Moreover, to clarify the Supreme Judicial Council’s budget independence the Constitutional Court has definitely decreed that any annual National Budget Act be declared unconstitutional providing there are no budget items for one Constitution-established institution of State or another as non-availability of funding will paralyze the activities of such institutions. The Constitutional Court has done so on an understanding that the independence of the Judiciary’s budget would be guaranteed in practical terms by the provision of funding in amounts which will be sufficient to enable the normal operation of any judicial authority. The provision that is the target of the challenge allows a financially unsupported budget and puts at risk the Judiciary’s operation which might be brought to a standstill. Virtually this would upset the balance of equality in the separation of powers and will go against the principle that Art. 8 of the Constitution proclaims.
The budget of the Republic of Bulgaria must make available the financing that is required for the Constitution-established institutions of State, the institutions of the Judiciary included, to function while it recognizes the principle of the separation of powers and of the prerogatives that each branch of power exercises by virtue of the Constitution. The Judiciary’s spending items are items on the national budget and the sources of financing which is required to balance the annual expenditure that the National Assembly approves are the funds that are accumulated in the National Budget revenue column. Therefore, whenever the nonperforming revenue of the Judiciary brings about an unbalanced budget, the Legislature, that is the National Assembly, shall make an arrangement to fill in the gap with cash, if any such has remained, from the Judiciary’s previous years balances and should the cash thus made available is not sufficient, then the National Assembly shall approve a direct extra Government subsidy.