Decision No. 4 of 12 April 2016 on Constitutional Case No. 10/2015
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Prosecutor General of the Republic of Bulgaria for a declaration of unconstitutionality of Article 29, paragraphs 2, 3 and 4, and Article 30, paragraph 1 of the Bar Act (BA). According to the applicant, “a comprehensive reading of the challenged provisions” gives rise to legal uncertainty in view of the relevant rules governing disciplinary liability under the Judicial System Act and creates the possibility for an additional body, alongside the Inspectorate to the Supreme Judicial Council, to undertake actions related to the disciplinary liability of magistrates.
Summary of the Court’s Reasoning
By their nature, the contested provisions establish a procedure for identifying and sanctioning infringements of a specific right of attorneys-at-law - namely, the right to be treated on an equal footing with judges with regard to the respect and assistance due to them.
Article 29, paragraph 1 of the Bar Act provides for the right of an attorney-at-law to be treated on an equal footing with a judge with regard to the respect and assistance due to him or her. Such respect and assistance are owed to the attorney-at-law by the courts, the pre-trial authorities, administrative bodies, and other services in the country.
Neither the Judicial System Act nor any other statute regulates the issue of the respect due to a judge. This would hardly be possible - respect is an ethical category requiring the personal motivation of each individual. Respect cannot be created by statute. Even the Code of Ethical Conduct of Bulgarian Magistrates establishes, as a fundamental principle governing the conduct of magistrates, only the requirement of courtesy and tolerance.
Failure to comply with an obligation that cannot be defined in a clear and consistent manner cannot, in a state governed by the rule of law, give rise to disciplinary liability. The absence of a clearly defined normative content of the obligation introduced by the Bar Act for attorneys-at-law to be accorded “due” respect and assistance specifically as judges creates the possibility for that obligation to be perceived and applied with arbitrary content.
The procedure laid down in Article 29, paragraphs 2 and 3, and Article 30, paragraph 1 of the Bar Act reveals additional elements of unconstitutionality where it concerns magistrates.
The possibility of seeking disciplinary liability from a magistrate must be regulated in a manner that safeguards his or her independence - both institutional and personal. This must be achieved through legislation clearly and exhaustively regulating both the constituent elements of disciplinary offences and the procedure for establishing disciplinary liability.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court declares unconstitutional Article 29, paragraphs 2, 3 and 4, as well as Article 30, paragraph 1 of the Bar Act.
The decision was signed with dissenting opinions by two judges and with a concurring opinion on the reasoning by one judge.