Decision No. 2 of 30 January 2018 on Constitutional Case No. 8/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by 62 Members of Parliament from the Forty-Fourth National Assembly seeking a declaration of unconstitutionality of the parliamentary act of 4 October 2017, by which the National Assembly declined to adopt a draft decision terminating the mandate of Member of Parliament Delyan Aleksandrov Dobrev, who had submitted his resignation pursuant to Article 72, paragraph 1, item 1 of the Constitution.
The applicants contend that the refusal is contrary to the principle of the rule of law under Article 4, paragraphs 1 and 2 of the Constitution, infringes the right of the Member of Parliament to free will and a free mandate under Article 67, paragraphs 1 and 2, as well as the right freely to choose a profession and place of work under Article 48, paragraphs 3 and 4. It is further alleged that the National Assembly acted in violation of Article 72, paragraph 1, item 1 and paragraph 2 of the Constitution by failing to terminate the mandate of the Member of Parliament notwithstanding the resignation submitted.
Summary of the Court’s Reasoning
The Constitutional Court finds that the refusal of the National Assembly to adopt a draft decision terminating the mandate of a Member of Parliament who has submitted a resignation constitutes an authoritative act producing legal effects and is therefore subject to constitutional review under Article 149, paragraph 1, item 2 of the Constitution. The fact that this refusal was not promulgated in the State Gazette does not preclude the exercise of constitutional review.
The Court clarifies that the resignation of a Member of Parliament constitutes a subjective right, the exercise of which triggers the procedure under Article 72, paragraph 2 of the Constitution. The role of the National Assembly within that procedure is limited to establishing the existence of a clear and unequivocally expressed intention to terminate the parliamentary mandate prematurely. Once such intention has been established, Parliament is constitutionally obliged to terminate the mandate of the Member of Parliament, without exercising any discretion based on expediency.
Making the legal consequences of a resignation dependent upon additional considerations of expediency - such as the personal qualities of the deputy or the benefit derived from his work as a Member of Parliament - is incompatible with Article 72 of the Constitution and results in the introduction of new and unclear grounds for either terminating or not terminating a parliamentary mandate prematurely. Such an interpretation is contrary to the principle that the premature termination of a parliamentary mandate, as an exception to the legal relationship of political representation, may occur only on grounds expressly provided for in the Constitution (Interpretative Decision No. 14 of 18 December 2013 on Constitutional Case No. 17/2013).
The Constitutional Court further emphasizes that the compelled continuation of the legal relationship of political representation against the will of the Member of Parliament to terminate it prematurely is incompatible with the nature of such representation. Refusing to terminate the mandate despite the deputy’s express wish to do so also violates the right to free will under Article 6, paragraph 1 of the Constitution, as well as the right freely to choose a profession and place of work under Article 48, paragraph 3 of the Constitution.
The subsequent withdrawal of the resignation after the adoption of the challenged act is irrelevant to the outcome of the present proceedings, since the subject matter of the case concerns the refusal of the National Assembly as it stood at the moment of its adoption.
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 acts of the National Assembly), the Constitutional Court declares unconstitutional the refusal of the National Assembly of 4 October 2017 to terminate prematurely the mandate of Member of Parliament Delyan Aleksandrov Dobrev on the basis of the resignation submitted on 3 October 2017.
The decision was adopted with dissenting opinions by four judges.