Decision No. 3 of 30 January 2018 on Constitutional Case No. 9/2017
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 seeking a binding interpretative ruling on Article 129, paragraph 6 of the Constitution concerning the scope of the expressions “with the right to reappointment” and “whether its precise meaning includes the possibility of appointment for up to two terms (inclusive) throughout the entire professional career of the magistrate, regardless of whether these are served within the same or in different bodies of the judiciary.”
The request is motivated by the existence of contradictory practice in the application of the provision - on the one hand by the Judicial Chamber of the Supreme Judicial Council, and on the other by judgments of the Supreme Administrative Court. The applicant maintains that Article 129, paragraph 6 of the Constitution limits the holding of the office of administrative head of a court or prosecution office to no more than two terms only “within the same body of the judiciary.”
Summary of the Court’s Reasoning
The Constitutional Court examines Article 129, paragraph 6 in the context of the 2003 constitutional amendments, which introduced term limits for managerial positions within the judiciary and excluded the possibility that irremovability should extend not only to the office of magistrate itself, but also to the performance of the functions of an administrative head. The purpose of these term limits is to ensure the renewal of the leadership of the respective bodies within the judiciary - so as to prevent the same office from being occupied more than twice by the same person, rather than to restrict an individual from holding managerial positions more than twice throughout their professional career.
The Court emphasizes that the Constitution establishes a model of judicial power in which the selection of judges, prosecutors, and investigating magistrates is carried out under competitive conditions and on the basis of objective criteria relating to their professional qualities. The same applies to the appointment of administrative heads, in respect of whom additional requirements naturally arise - such as the ability to work in a team, managerial decision-making skills, and similar qualities. The implementation of a sound personnel policy is entrusted to the Supreme Judicial Council as an independent body of the judiciary.
The purpose of the 2003 constitutional amendments is decisive for determining the scope of the limitation on the number of managerial terms introduced by the phrase “with the right to reappointment”. Any restriction that does not correspond to the intent of the constitutional legislator or that exceeds the limits imposed by the requirement of proportionality would be incompatible with the fundamental principle of the rule of law under Article 4, paragraph 2 of the Constitution.
The Constitutional Court emphasizes that, in introducing Article 129, paragraph 6 of the Constitution, the constitutional legislator in 2003 took into account the risks and dangers to the proper functioning of the administration of justice arising from the excessively prolonged exercise (for more than ten years) of managerial functions by the same person in the same position. Inherent responsibilities of an administrative head include representative and organisational functions, encompassing the conduct of public procurement procedures, the conclusion of contracts, and the appointment and dismissal of judicial staff. The prolonged exercise of such functions could impair the quality of performance and lead to the establishment of lasting relationships with representatives of local and central government, as well as with participants in economic life within the respective region. Even where such relationships have not affected the impartiality and objectivity of the administrative head, their very existence may at least give rise to suspicion and undermine public confidence. Preventing the possible adverse effects of routinisation in the administration of justice, while at the same time preserving confidence in the judicial system, are the essential objectives justifying the limitation on the number of terms of office of an administrative head; however, this rationale applies only with respect to the specific body of the judiciary concerned. A restriction preventing a person who has served two terms in a particular managerial position from competing, on the basis of their professional qualities, for another managerial position within the judiciary exceeds the scope of the constitutional objective pursued. An extensive interpretation of an express limitation established by the Constitution is impermissible.
In relation to the question raised in the request, the Court clarifies that the concept of the “office” of an administrative head within the judiciary is specifically defined - there is no abstract office of “court president,” but rather specific offices such as president of a district court, regional court, court of appeal, and so forth. The constitutional legislator provided only for a restriction on appointment for a third term to the same specific office (that is, within the same specific body of the judiciary). A grammatical interpretation of Article 129, paragraph 6 of the Constitution likewise leads to the conclusion that the limitations on the number of terms are linked to the office itself, rather than to the individual holding it. This interpretation is also reflected in Interpretative Decision No. 13 of 15 December 2010 on Constitutional Case No. 12/2010.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 1 of the Constitution (the competence to provide binding interpretations of the Constitution), the Constitutional Court holds that the phrase “with the right to reappointment” in Article 129, paragraph 6 excludes the possibility of one and the same person being appointed as administrative head of a specific court, prosecution office, or investigating service for more than two terms.
The same person may, however, be appointed to other managerial positions within the judiciary.