Resolution No.1 of 31 January 2017 on Constitutional Case No. 14/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria seeking a declaration of unconstitutionality of Article 14, paragraphs 3 and 5 of the Election Code (EC) on the grounds of an alleged violation of Article 6, paragraph 2 of the Constitution. The applicant maintains that a differentiated regime is introduced for the establishment of polling stations within and outside the country, respectively within and outside the territory of the European Union, thereby “in violation of Article 6, paragraph 2 of the Constitution, creating a legal framework that treats different groups of Bulgarian citizens differently, affecting their constitutional rights solely on the basis of their location.” Following an amendment to the text of Article 14, paragraph 5 of the Election Code by the Act Amending and Supplementing the Election Code, the Constitutional Court admitted for consideration on the merits only the request of the Ombudsman of the Republic of Bulgaria seeking a declaration of unconstitutionality of the provision of Article 14, paragraph 3 of the Election Code, in the part reading: “by a decision of the Central Election Commission at the discretion of the diplomatic and consular representations.”
A request has been submitted by the Ombudsman of the Republic of Bulgaria for withdrawal of the request filed pursuant to Article 150, paragraph 3 of the Constitution.
Summary of the Court’s Reasoning
Pursuant to Article 150, paragraph 1, first sentence of the Constitution, the Constitutional Court shall act upon the initiative of no fewer than one-fifth of the Members of Parliament, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, and the Prosecutor General.
The understanding of the constituent legislator that the Constitutional Court may act only upon a clearly expressed will of the expressly designated entitled bodies is also reflected in paragraph 2 of Article 150 of the Constitution, through the possibility granted to the Supreme Court of Cassation and the Supreme Administrative Court to refer a question concerning the constitutionality of a law applicable to a pending case when they establish a discrepancy between such law and the Constitution, while suspending the proceedings in the respective case. Undoubtedly, the same understanding is embodied in the term “refer” used in paragraphs 3 and 4 of Article 150 of the Constitution, which designate the Ombudsman and the Supreme Bar Council as entitled bodies empowered to request the Constitutional Court to establish the unconstitutionality of a law infringing upon citizens’ rights and freedoms. In all provisions of Article 150 of the Constitution, the prerequisite for the initiation and conduct of constitutional proceedings is the existence of a request submitted to the Constitutional Court by the entities exhaustively enumerated in the Constitution. The absence of a request by the entitled body, at any stage of the proceedings, renders it impossible for the Constitutional Court to “act” within the meaning of Article 150 of the Constitution.
Accordingly, where, irrespective of the stage of the constitutional proceedings, the applicant withdraws its request before the Constitutional Court, the constitutionally prescribed prerequisite for the Constitutional Court to act ceases to exist. To accept otherwise would result in the Constitutional Court acting ex officio.
Grounds for the Ruling and Disposition
Pursuant to Article 17 of the Constitutional Court Act (requests to the Constitutional Court shall be submitted in written form, stating the reasons therefor and accompanied by written evidence), the Constitutional Court terminates the proceedings on Constitutional Case No. 14/2016 and returns the request of the Ombudsman of the Republic of Bulgaria.
The resolution was signed with two dissenting opinions.