Decision No 11 of 22 November 2011 on Constitutional Case No 8/2011
Proceedings were instituted on the grounds of Article 149(1)(2) and (4) of the Constitution on 12 September 2011 on a petition received from 56 members of the 41st General Assembly. The petitioners request that the Constitutional Court declares the anti-constitutionality and non-compliance with international treaties to which Bulgaria is a party of the following provisions of the Diplomatic Service Act (promulgated in the State Gazette (SG) No 78 of 28 September 2007; last amended SG No 69 of 8 September 2011): Article 3(2)(1), (2) and (4) (amended by paragraph 2 of the Law amending and supplementing the Diplomatic Service Act, promulgated SG No 69 of 8 September 2011); Article 11(2) (amended by paragraph 9 of the Law amending and supplementing the Diplomatic Service Act); Article 13(1) (amended by paragraph 10 of the Law amending and supplementing the Diplomatic Service Act); Article 14(2) and (3) (amended by paragraph 11 of the Law amending and supplementing the Diplomatic Service Act); Article 15(1) (amended by paragraph 12 of the Law amending and supplementing the Diplomatic Service Act); Article 26(2) (amended by paragraph 18 of the Law amending and supplementing the Diplomatic Service Act); Article 27(4) (created by paragraph 19 of the Law amending and supplementing the Diplomatic Service Act); Article 31(3) (created by paragraph 22 of the Law amending and supplementing the Diplomatic Service Act); Article 33 (amended by paragraph 24 of the Law amending and supplementing the Diplomatic Service Act); Article 69 (amended by paragraph 43 of the Law amending and supplementing the Diplomatic Service Act); paragraph 52 thereof and of the Law amending and supplementing the Diplomatic Service Act in its entirety (promulgated SG No 69 of 8 September 2011).
According to the petitioners paragraph 2 of the Law amending and supplementing the Diplomatic Service Act by which Article 3(2) is supplemented by sub-paragraphs 1, 2 and 4 is unlawful as it expands the remit of competence of the Minister of Foreign Affairs in the capacity of Head of the Diplomatic Service thereby detracting from the powers vested in other bodies established by Constitution. The petitioners maintain that the usurpation of powers vested in public bodies established by the Constitution contravenes the principle of a State based on the rule of law proclaimed in Article 4(1) of the Bulgarian Constitution.
According to the Members of Parliament (MPs) from whom the petition was received paragraphs 9, 10, 11, 12 and 18 of the Law amending and supplementing the Diplomatic Service Act amending Articles 11(2), 13(1), 14(2) and (3), 15(1) and 26(2) of the Diplomatic Service Act allow the Minister of Foreign Affairs to make subjective and career development decisions that are not properly justified on the basis of criteria that are unclear and of an unreasonably low grade, which undermines the principles of stability, transparency and career development on which the Diplomatic Service is based. In their opinion this violates the principle of democratic governance proclaimed in the Preamble of the Constitution.
The petitioners allege that paragraph 43 of the Law amending and supplementing the Diplomatic Service Act changes the procedure for termination of the secondment postings of the Heads of the Diplomatic Missions of Bulgaria abroad by the Minister of Foreign Affairs and contravenes Article 98(6) of the Bulgarian Constitution. In their opinion this is an act of usurpation of the powers vested exclusively in the Head of State.
It is also alleged that paragraphs 19, 22 and 24 of the Law amending and supplementing the Diplomatic Service Act are discriminatory towards a certain category of persons as they do not allow them to hold public offices in the Diplomatic Service in the capacity as ambassadors, consuls general, deputy heads of Bulgarian diplomatic missions as well as senior positions at the Ministry of Foreign Affairs. According to the petitioners the restriction concerned, which applies to former officers or collaborators of the security or intelligence services of the totalitarian State or of the Bulgarian People’s Army contravenes Articles 4(1) and (2), 5(1), 6(2), 57 and 98(6) of the Constitution; Article 14 of the Convention for Protection of Human Rights and Fundamental Freedoms (CPHRFF); Articles 2(1), 2 and 26 of the International Covenant for Civil and Political Rights; Articles 20 and 21 of the Charter of Fundamental Human Rights of the European Union (CFHREU) and other international treaties to which Bulgaria is a party.
Paragraph 2 of the Law amending and supplementing the Diplomatic Service Act expands the scope of application of the prohibition laid down in paragraphs 19 and 24 to include the officials who held any of the abovementioned positions at the date of entry into force of the amended law. According to the petitioners the Parliament has legislated retroactively in breach of the principle of a State based on the rule of law (Article 4(1) of the Constitution).
The petitioners argue that the philosophy and nature of the Law amending and supplementing the Diplomatic Service Act (SG No 69 of 8 September 2011) is contrary to the Constitution and that it should be declared anti-constitutional on those grounds.
The Constitutional Court, having appraised the arguments and considerations set out in the opinions received from the interested parties and with a view to ruling on the case, considered the following:
1. With regard to Article 3(2)(1), (2) and (4) of the Diplomatic Service Act amended by paragraph 2 of the Law amending and supplementing the Diplomatic Service Act (SG No 69 of 8 September 2011)
Bulgaria’s foreign policy, including its involvement in the process of “building and developing the European Union” (Article 4(3) of the Constitution) should be underlined by the long-term strategic interests of the nation. In light of this stipulation public governance functions should neither be dominated by the narrow party-political interests of any parliamentary majority and its government nor be influenced by incidental or temporary considerations. This is so because according to the Bulgarian Constitution they are to be discharged by different institutions and may not be concentrated into any of the three branches of government or responsibility for them vested in a single institution.
The Constitution further stipulates that the Head of State (President of the Republic) represents Bulgaria in international relations (Article 92(1) of the Constitution). This is one of the essential functions of the President under the fundamental law and in the broader context of the separation of powers as the main principle underlying both the national Constitution and the recognised standards of international law (Article 7 of the Vienna Convention on the Law of Treaties, promulgated SG No 87 of 10 November 1987, in force as from 21 May 1987). A number of the powers vested in the Head of State stem from this function. For example, according to Article 98(3) of the Constitution the President signs international treaties in the cases envisaged by law and according to sub-paragraph (b) of the same Article they appoint or dismiss the heads of Bulgarian’s diplomatic representations and missions and the country’s permanent representatives in international organisations on a proposal from the Council of Ministers. The Head of State also accepts the letters of accreditation and recall of foreign diplomats to the country.
At the same time the legislature, i.e. the National Assembly, has exclusive powers to ratify or denounce by law international treaties in certain cases expressly mentioned in the Constitution (Article 85 of the Constitution). As a part of its constitutional powers to supervise the government, the Parliament is entitled to receive information from the Council of Ministers about Bulgaria’s commitments and responsibilities as a Member State of the European Union. At the same time, the Council of Ministers is obligated to ensure the Parliament is apprised of the process of developing or enacting pieces of legislation at Community level in which it is involved. The government has a duty to report to Parliament on its work in this area (Article 105(3) and (4) of the Constitution).
The Council of Ministers directs and conducts State domestic and foreign policy in line with the Constitution and the body of national law (Article 105(1) of the Constitution). In other words, this constitutional function of the government is to be discharged in accordance with the fundamental law and the laws enacted by Parliament. This means that the foreign policy of the government is limited by the constitutional powers vested in the President of the Republic and the National Assembly insofar as the government may enact only bylaws.
According to the contested provisions of Article 3(2) (1), (2) and (4) of the Diplomatic Service Act the Diplomatic Service under the jurisdiction of the Minister of Foreign Affairs “is responsible for the planning, coordination and implementation of foreign policy; represents and protects Bulgarian interests in the European Union and NATO and contributes to the achievement of the development goals of these organisations; and liaises officially with the diplomatic and consular representations of foreign countries and international organisations accredited to the Republic of Bulgaria”. This contravenes the provisions laid down in the Constitution on the representative function of the Head of State and some of the constitutional powers vested in the government.
According to Article 2(1) of the Diplomatic Service Act the Diplomatic Service is a “specialist public administration”, which includes the Ministry of Foreign Affairs and Bulgaria’s diplomatic missions and their branches overseas. As such it is a part of the executive branch of government and operates under the jurisdiction of the Council of Ministers, and in particular the Minister of Foreign Affairs. According to the contested provisions of Article 3(2)(1) of the Diplomatic Service Act it may plan, coordinate and implement the foreign policy of the Republic of Bulgaria independently. However, the provision concerned has failed to indicate the manner of allocation of the functions relating to the implementation of national foreign policy. Instead the provision radically departs from the Article 105(1) of the Constitution hence the enacted provision is anti-constitutional. The Diplomatic Service does not and may not have sole responsibility for directing, governing, planning, coordinating and implementing national foreign policy. It is the only specialist administration, which reports to and implements the political decisions of the constitutional bodies responsible for foreign policy. The Diplomatic Service facilitates the work of and cooperates with all institutions of the State, which by Constitution have competence to formulate and implement foreign policy and act in international relations – the Parliament, the President of the Republic and the Council of Ministers. By Constitution the Minister of Foreign Affairs may not formulate foreign policy single-handedly as they are a member of the Cabinet and in that capacity may only implement its decisions in this area. The President of the Republic who in accordance with Article 92(1) represents Bulgaria in international relations liaises officially with the diplomatic corps whilst the specialist administration under the jurisdiction of the Minister of Foreign Affairs, i.e. the Diplomatic Service, aides the President in the discharge of the functions vested in the office of Head of State by Constitution. On the other hand, the government, which is also a constitutional body, directs and governs foreign policy that is implemented by the Minister of Foreign Affairs and the Diplomatic Service under their jurisdiction. In their capacity as a body of government the Minister of Foreign Affairs may not discharge any independent or extraordinary powers relating to foreign policy but may only implement the political decisions of the Council of Ministers. It should also be emphasized that the Council of Ministers itself discharges its constitutional powers within the legislative framework enacted by the National Assembly in its capacity as lawmaker. At the same time, the Minister of Foreign Affairs and the Diplomatic Service under their jurisdiction may not encroach on the sovereign powers vested in the Head of State insofar as the latter is not a part of the executive branch of government. This means that Article 3(1)(1) of the Diplomatic Service Act is anti-constitutional because it unlawfully expands the remit of competence of the Minister of Foreign Affairs in their capacity as Head of the Diplomatic Service thereby encroaching on the constitutional powers of the President of the Republic and the Council of Ministers in the area of foreign policy as stipulated in Articles 92(1) and 105(1) of the Constitution, respectively.
The practical meaning of the amended provision of Article 3(2)(2) of the Diplomatic Service Act is that the Diplomatic Service may, at its sole discretion, direct, formulate and determine Bulgarian national interests by “representing and protecting” them before the European Union and the North Atlantic Treaty Organisation (NATO). Furthermore, according to the enacted amendment the Diplomatic Service may also single-handedly decide the means, forms, timeframes and remit of representation and protection of national interests as opposed to merely implementing a policy and defending a position, which has been developed and approved in advance by the constitutional body responsible for foreign policy. This means that in practice the Minister of Foreign Affairs acting through the Diplomatic Service under their jurisdiction encroaches on the sovereign territory of other State institutions established in accordance with the Constitution. In other words, the Diplomatic Service has been delegated powers in contravention of the provisions laid down in the Constitution thereby unlawfully expanding the remit of competence and the powers vested in the Minister of Foreign Affairs.
According to the amended Article 3(2)(4) of the Diplomatic Service Act the Diplomatic Service is delegated exclusive powers to liaise with foreign diplomatic and consular missions and international organisations accredited to Bulgaria. The provision concerned ignores the constitutional function of the President to represent Bulgaria in international relations (Article 92(1) of the Constitution). The systematic interpretation of the provisions laid down in the enacted law and in the Constitution shows that this is absurd from a logical standpoint. This is so because acting in compliance with the law the Head of State will represent Bulgaria in international relations acting through the Diplomatic Service, which does not report to them but to the Minister of Foreign Affairs. Should the enacted amendment remain in force the President of the Republic will not be able to liaise officially with the diplomats accredited to Bulgaria independently and on their own initiative but will be required to rely on the Diplomatic Service under the jurisdiction of the Minister of Foreign Affairs in the capacity as an intermediary.
The amended Article 3(2)(1), (2) and (4) of the Diplomatic Service Act are anti-constitutional because they contravene the principle of a State based on the rule of law (Article 4(1) of the Constitution); the principle of separation of powers (Article 8 of the Constitution); and Articles 92(1), 98(3) and (6) and Article 105(1) of the Constitution, which stipulate the powers vested in the Head of State and the government in the area of foreign policy and international relations. Hence, they should be declared anti-constitutional.
2. With regard to Article 11(2) (amended by paragraph 9 of the Law amending and supplementing the Diplomatic Service Act); Article 13(1) (amended by paragraph 10 of the Law amending and supplementing the Diplomatic Service Act); Article 14(2) and (3) (amended by paragraph 11 of the Law amending and supplementing the Diplomatic Service Act); Article 15(1) (amended by paragraph 12 of the Law amending and supplementing the Diplomatic Service Act); and Article 26(2) (amended by paragraph 18 of the Law amending and supplementing the Diplomatic Service Act)
The Members of Parliament who petitioned the Constitutional Court argue that the provisions concerned are anti-constitutional as they contravene the principle of democratic governance postulated in the Preamble to the Constitution. At the same time, they argue that the contested provisions allow the Minister of Foreign Affairs to act arbitrarily and impartially in career matters with implications for the career development of diplomats in violation of the rules governing the organisational structure of the Diplomatic Service and the principles of stability, transparency and career development. The Constitution does not stipulate specific requirements for joining the ranks of the Diplomatic Service. Hence decisions in this regard are fully within the remit of competence of the National Assembly. By Constitution the rules governing the Diplomatic Service are to be enacted by Parliament hence the Constitutional Court may not rule on the anti-constitutionality of the contested provisions. They may only be appraised in light of their feasibility and the effect they have on legal certainty and the stability of the legal order. The principles of stability, transparency and career development in the Diplomatic Service, which the Members of Parliament cite in the petition, are not expressly stipulated in the Constitution. They may rather be viewed as standing requirements for the normal functioning of the Diplomatic Service as a specialist public administration with competence and responsibilities for a specific area of State governance. The organisational and functional principles underlying the functioning of the Diplomatic Service are to be decided by Parliament, and in particular by the ruling majority, which enacts the decisions in the form of laws. The need to stipulate additional criteria for career appointments in the Diplomatic Service that are more stringent or easier to satisfy is a matter of feasibility and expedience at any given time. The same applies to the career development of non-diplomatic staff on the basis of political, financial, social and other criteria, which, in the opinion of the majority of MPs, applicants must satisfy. Hence the criteria for career development enacted by the lawmaker may not be linked to the principle of democratic governance proclaimed in the Preamble to the Constitution. This means that the Constitutional Court may not give credence to the arguments set forth in the petition and they should be dismissed. The contested provisions do not contravene the principles and standards stipulated in the Bulgarian Constitution.
3. With regard to Article 69 (amended by paragraph 43 of the Law amending and supplementing the Diplomatic Service Act)
According to the contested provision the Minister of Foreign Affairs issues orders recalling Bulgarian ambassadors extraordinary and plenipotentiary or permanent representatives posted to other countries or international organisations following the expiry of their mandate in accordance with the procedure laid down in the Diplomatic Service Act or following the issuance of a decree by the President of the Republic. Bulgarian consuls general are recalled following the expiry of the mandate overseas or pursuant to decisions on their recall adopted by the Council of Ministers.
The appointment of an ambassador extraordinary and plenipotentiary to a foreign country or a permanent representative of Bulgaria in international government organisations follows a complicated procedure, which involves the submission of a report by the Minister of Foreign Affairs to the Council of Ministers; the adoption of a decision by the Council of Ministers setting out a proposal to the President of the Republic for the issuance of a decree on the appointment of an ambassador or a permanent representative; where necessary, the Minister of Foreign is to request a letter of agreement from the country to which the official is to be posted; following the receipt of a letter of agreement the Head of State issues a decree on the appointment of the country’s ambassador or permanent representative to an international government organisation. The presidential decree must be countersigned by the Prime Minister on the grounds of Article 102(2) of the Constitution and then promulgated in the State Gazette. In its Judgment No 13/1996 the Constitutional Court held that by countersigning the presidential decree on the grounds of Article 102(2) of the Constitution, the Prime Minister or the respective competent minister of the government symbolically acknowledges the decree and accepts responsibility for its issuance, including political responsibility on the grounds of which it may be held accountable to Parliament. The act also signifies the government’s duty to act upon the decree, which is an operative requirement for its entry into force. The recall of Bulgarian ambassadors or permanent representatives follows the same procedure. In this sense, the Heads of Bulgarian diplomatic missions are recalled by the President of the Republic acting on a proposal from the Council of Ministers. The decrees on recall must also be countersigned by the Prime Minister. Bulgarian ambassadors extraordinary and plenipotentiary and permanent representatives are posted to foreign countries or international organisations pursuant to a secondment ordinance issued by the Minister of Foreign Affairs in which the length of the overseas mandate is specified. The issuance of the order is the ultimate requirement for the entry into force of the presidential decree and enables the appointed officials to commence discharging their duties in protection of Bulgarian national interests in the foreign country or international organisation to which they have been posted. A failure to issue a secondment order means that the appointed official is neither allowed nor may they be expected to carry out their tasks.
According to Article 69 of the Diplomatic Service Act the Minister of Foreign Affairs is obligated to recall the Head of a Bulgarian diplomatic mission in a foreign country in two cases: upon the expiry of their mandate or following the issuance of a presidential decree on their recall. According to the law the duration of an appointment to a diplomatic post overseas is 4 years and may be extended. The law does not stipulate a procedure for extending a posting to a foreign country. By obligating the Minister of Foreign Affairs to issue an order of recall whereby the long-term posting of the Head of a Bulgarian diplomatic mission abroad is terminated on the grounds of expiry of the mandate of the official concerned prior to the issuance of a presidential decree of recall, the Diplomatic Service Act circumvents the provision laid down in Article 98(6) of the Constitution and effectively allows the Minister of Foreign Affairs to exercise a power which by Constitution is vested exclusively in the Head of State. In the case at hand, the act of the Minister of Foreign Affairs can be regarded as arbitrary inasmuch as instead of initiating a procedure for the appointment of a new diplomat or permanent representative to replace the one whose mandate has expired, the Minister, acting on their own initiative, recalls an official appointed by a dedicated decree. It is manifestly evident that a Bulgarian diplomat or permanent representative abroad may not discharge their duties unless they have been appointed by a dedicated order of secondment. If this is not the case then no legal or factual grounds would exist that would enable them to act. A secondment constitutes grounds for the payment of subsistence and other expenses arising in relation to a diplomat’s travel to, residency and work in another country in the capacity as an official of the Ministry of Foreign Affairs. That allowance may be suspended by an order of the Minister of Foreign Affairs, which would render the official concerned unable to discharge the duties of their office although they do so pursuant to a decree issued by the President of the Republic. This warrants the logical legal conclusion that the early termination of a posting of a Bulgarian diplomat or permanent representative must be linked to the appointment of a successor to take over their responsibilities. The recall by the Minister of Foreign Affairs of Bulgarian ambassadors or permanent representatives in international organisations is an act of usurpation of powers, which by Constitution are exclusively vested in the Head of State.
The appointment and recall of Bulgarian ambassadors extraordinary and plenipotentiary and permanent representatives to international organisations is a matter of shared responsibility between the President of the Republic and the Council of Ministers, which requires the consent of two constitutional bodies to be expressly stated. However, there are no legal mechanisms, which allow potential conflicts relating to that shared responsibility to be resolved. Hence the two institutions should in all cases strive to cooperate and collaborate with a view to achieving a compromise. A failure to do so would block the exercise of the functions of government in the area of foreign policy. The Constitution does not allow the Minister of Foreign Affairs who is a member of the Cabinet to recall Bulgarian diplomats or permanent representatives by issuing a dedicated order where they have failed to agree such recall with the President. However, the Constitution does not prescribe a mechanism for the resolution of conflicts that may arise between the Head of State and the executive branch of government, i.e. the Council of Ministers. In the case at hand, such recall would be tantamount to dismissal insofar as it hinders the work of the Heads of the Bulgarian diplomatic missions abroad. An ambassador extraordinary and plenipotentiary or a permanent representative to an international organisation may be recalled solely by a dedicated presidential decree and a consul general by a decision adopted by the Council of Ministers.
According to the Constitution where powers are shared by two institutions of the State they must be exercised in line with the principles of separation of powers and the State based on the rule of law. This means that the institutions concerned must act with mutual respect. In the case at hand, the Constitution does not allow any intervention by one of the branches of government into the decisions and choices of the other. It strictly prohibits the attempts of either branch of government to impose its decision on the other insofar as the long-term strategic national interests are at stake. This is the reason why in its Judgment No 14/1995 the Constitutional Court ruled that the nature of functions carried out by the bodies established in accordance with the Constitution mean that the institutions concerned enjoy a corresponding legal status “that may not be undermined by intervention or subjugation, which goes against the very core of the principle of separation of powers, last but not least because it erodes their dignity and prestige thereby affecting the manner in which they discharge their functions”. Hence the Constitutional Court finds that the contested provisions of the Law amending and supplementing the Diplomatic Service Act unlawfully encroach on the sovereign right of the Head of State to appoint and recall the Heads of the Bulgarian diplomatic missions abroad and that as such they must be declared anti-constitutional.
4. With regard to Article 27(4) (created by paragraph 19(2) of the Law amending and supplementing the Diplomatic Service Act); Article 31(3) (created by paragraph 22 of the Law amending and supplementing the Diplomatic Service Act); and Article 33 (amended by paragraph 24 of the Law amending and supplementing the Diplomatic Service Act) and paragraph 52 of the Law amending and supplementing the Diplomatic Service Act
The prohibition for a certain category of persons to continue to hold senior public offices at the Diplomatic Service and the additional grounds for dismissal or reappointment within the Service introduced by means of the amended provisions of the Diplomatic Service Act contravene the principle of a State based on the rule of law (Article 4(1) of the Constitution) and the principle of equality of citizens (Article 6(2) of the Constitution) hence they are discriminatory. Their intended objective is lustration as they introduce an express prohibition for a certain category of persons who held senior government offices under the Communist regime to be appointed diplomats or to continue to hold diplomatic appointments within the meaning of Article 3(1)(23) and (26) of the Disclosure of Documents and Exposing Bulgarian Nationals as Collaborators or Officers of the Former Secret Service and Intelligence Service of the Bulgarian Army.
The negative attitude in society towards the secret services of the totalitarian State should not be mixed with the matter relating to the constitutional rights of citizens in a modern democratic society.
The contested provisions are anti-constitutional as they are discriminatory within the meaning of Article 6(2) of the Constitution. It should also be noted that by law the collaborators of the secret services of the totalitarian regime are not prohibited from holding government offices. The restrictions apply to diplomats only, to the exclusion of the other branches of public administration, including the Ministry of Internal Affairs and the Defense Ministry, and senior officials of the central and local government.
In line with its jurisdiction to date, the Constitutional Court finds that being an officer or collaborator of the former secret services of the totalitarian State does not constitute grounds for restricting the constitutional rights of citizens by denying them access to certain positions in government and upholds that view. Furthermore, the contested lustration provisions introduce collective liability, which does not take into account the actual role played by individuals. Regardless of the strong negative attitude against the bodies of the former Secret Service and its collaborators and officers, by Constitution the presumption of collective reprehensibility of certain categories of occupations, which were governed by law, without taking into account the individual liability of a person, if any, in each case is prohibited.
The contested provisions of the Diplomatic Service Act contravene the principle of equality before the law (Article 6(2) of the Constitution). According to one of the fundamental principles laid down in the Constitution all citizens are equal before the law as they should be in any democratic society. The principle has been proclaimed as a universal value and it fully applies to the Diplomatic Service. Introducing provisions to the contrary, even if they are temporary in nature, is a violation of the fundamental law. The equality of citizens means that they enjoy equal treatment by all State institutions. The collaborators of the secret services of the former totalitarian regime acted in accordance with a set of laws that were in full force and effect at the time. As such their conduct may be described as amoral only if the body of law that governed social relations during the period in question was declared anti-constitutional in its entirety (Judgment No 10/1997 on the record of the Constitutional Court). Although they discharged their duties in line with an ideological system, which has since been rejected, “being a former officer or collaborator of the secret services of the communist regime does not have negative implications for the reputation of an individual”. Hence it may not play a role or be used a criterion to judge the professionalism and integrity of the persons concerned. The argument that the category of persons concerned could in principle hold government offices, including in a specialist public administration, but may not act as diplomats is untenable. The provisions are discriminatory because the discriminating criterion, which restricts the rights of employees of the Diplomatic Service, is their former association with the security services of the totalitarian State or the intelligence services of the Bulgaria People’s Army. This means that their rights are restricted, which has direct implications for the principle of equality of citizens, postulated in Article 6(2) of the Constitution. The criterion is linked to the personal circumstances and social status of citizens, which are discriminatory according to the Constitution, and this fully applies to the employees of the Diplomatic Service. The discriminatory measure concerned deprives a certain category of persons from an opportunity to be appointed or to retain their appointments in the Diplomatic Service, regardless of meeting all other statutory requirements for such appointment.
Acting as a collaborator of the secret services of the former totalitarian regime may not be used a social criterion for discrimination and restriction of constitutional rights as this contravenes Article 6(2) of the Constitution. The fundamental law expressly prohibits this form of discrimination and hence the amended provisions of the Diplomatic Act directly contradict the Constitution. The attempted lustration of “collaborators” of the former security services and the intelligence services of the Bulgarian People’s Army is discriminatory. The Constitutional Court has ruled to this effect in its judgments concerning the Banks and Lending Act, the Pensions Act and the Public Administration Act.
The contested provisions are an act of unproportionate restriction of human rights within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (SG No 66/1992, in force as from 7 September 1992). This is corroborated by the jurisprudence of the Court of Human Rights in Strasbourg. In a number of rulings the CHR has held that lustration effectively restricts human rights safeguarded by the European Convention. On several occasions the Court has argued that such measures may be deemed in line with the Convention solely when “the condition of society requires creating safeguards for democratic rule”. At the same time, it has strongly emphasized that such restrictions and lustration provisions would be warranted solely if they are proportionate to the goals a society seeks to achieve. According to the Court in some post-communist countries undergoing a transition from a totalitarian to a democratic society the restriction of human rights by means of lustration may be deemed as proportionate insofar as the transition is in serious jeopardy. However, the postponement of lustration measures in time makes them unproportionate to the goals a society seeks to achieve. The Court maintains that lustration measures may be temporary only and last whilst democratic social and political order is under threat. Where no such threat exists lustration would be unproportionate within the meaning of the Convention. The Court in Strasbourg notes that this is so particularly in countries, which have acceded to the European Union because their “its democratic governance is beyond any doubt” (cf. Sidabras and Džiautas vs Lithuania – Applications nos 55480/00 and 59330/00; Rainys and Gasparavičius vs Lithuania – Applications nos 70665/01 and 74345/01; Ždanoka v Latvia – Application no 58278/00). The contested provisions contravene Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in their entirety because it postulates requirements for the rights and freedoms under the Convention to be exercised without any discrimination on any grounds whatsoever.
The provisions of the Law amending and supplementing the Diplomatic Service Act, which have been contested before the Constitutional Court, also contravene Articles 2(2) and 5 of the International Covenant for Economic, Social and Cultural Rights (SG No 43 of 28 May 1976; in force as from 23 May 1976). The contracting parties to the Covenant undertake to ensure the exercise of the rights proclaimed therein without any discrimination on the grounds of race, skin colour, gender, religion, political and other beliefs, ethnic or social origin, property status, birth or any other grounds. Restricting the possibility to hold certain positions in the Diplomatic Service on the grounds of having associations with the secret services or the intelligence services of the Bulgarian People’s Army in the past is an act of discrimination within the meaning of the cited provisions of the International Covenant for Economic, Social and Cultural Rights. The right to work is one of the fundamental human rights of the so-called “second generation” and is governed by the provisions of Article 6 of the Covenant. At the same time the contested provisions contravene Article 25(b)(q) of the International Covenant for Civil and Political Rights (SG No 43 of 28 May 1976) insofar as each State Party to the Covenant is obligated to ensure and guarantee its citizens access upon general conditions of equality to all government services without any discrimination whatsoever.
At Community level the right to work is safeguarded in the Charter of Fundamental Rights of the European Union. According to Article 15(1) thereof “Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation”. The right to freely engage in work has also been upheld in the jurisprudence of the European Court of Justice, which has followed the principle that the right to engage and practice a profession is unlawful when it is not proportionate to the goal it seeks to achieve or represents excessive intervention to the detriment of a guaranteed right. The right to work is enshrined in Article 48(1)(3) of the Constitution, which stipulates “Everyone shall be free to choose an occupation and a place of work”. According to the same Article “The State shall take care to provide conditions for the exercise of that right”. In its judgment No 18/1997 the Constitutional Court held that the lawmaker may not enact requirements for holding certain offices that violate the right of an individual to engage in work and choose an occupation. The provisions of the Diplomatic Service Act, which the Members of Parliament have contested, create restrictions by law by prohibiting the appointment of or retention by a certain category of persons of diplomatic posts within the meaning of Article 3(1)(23) and (26) of the Law on the Access to and Disclosure of Documents and the Identity of Bulgarian Nationals Associated with the National Security Service and the Intelligence Services of the Bulgarian People’s Army, regardless of their professional qualifications, diplomatic rank and position held in the Diplomatic Service. Hence the enacted Law amending and supplementing the Diplomatic Service Act violate Article 6(2) of the Constitution by virtue of discriminating a specific group of Bulgarian citizens.
The contested provisions of the Law amending and supplementing the Diplomatic Service Act restrict the right to engage in work. The persons to whom the lustration provisions apply are not to be dismissed from the Diplomatic Service; they are not prohibited from working for the Ministry of Foreign Affairs or in diplomatic missions abroad but must be “reappointed to another position in the Diplomatic Service that is commensurate with their professional experience and length of service (paragraph 52 of the transitional and final provisions of the Law amending and supplementing the Diplomatic Service Act)”. Hence it follows that the persons concerned are to be dismissed from their present position and the law does not allow that they be subsequently reappointed to a similar position. At the same time, although the amended Diplomatic Service Act does not directly deny the persons concerned the right to choose an occupation, effectively restricts it. Without introducing an explicit ban on pursuing the career of a diplomat or choose another occupation within the Diplomatic Service, the law does not allow them to take full advantage of career development opportunities and gain professional experience. The statutory ban effectively means that this category of persons, unlike all other officials of the Diplomatic Service with an equal diplomatic rank, may not hold certain public offices.
The contested provisions of the Diplomatic Service Act almost fully compromise the concept of career development and obtaining higher diplomatic ranks on the basis of seniority and qualifications although the career development of the category of officials concerned is not expressly prohibited. Taking into account the difference between the specific occupation as listed in the Classification of Diplomatic Positions and the diplomatic rank of an “ambassador”, the restriction essentially means that access has been denied to a highly specific and representative senior office, notably that of a Head of a diplomatic mission and other senior offices at the Ministry of Foreign Affairs. Indeed, the appointment to such positions is not automatic and does not depend on seniority only but requires a general selection procedure and an appraisal of the specific professional skills and integrity of candidates. Nevertheless, the lustration provisions prohibit a certain category of persons from holding the positions concerned whilst another category of persons is fully exempt from it. The career development of all diplomats is based on their promotion through all diplomatic ranks. No diplomat is guaranteed an appointment to a specific public office, including those to whom the restrictive measures do not apply. At the same time those to whom the measures do apply, the appointment to a public office is neither guaranteed nor allowed by law. In principle, there is and there may never be a guarantee that an official of the Diplomatic Service will be promoted to a senior public office. This applies equally to all other services of the public administration. Although the lawmaker is fully within the remit of its competence to determine specific conditions for holding certain positions in government, it is unlawful that it does so in a discriminatory manner such as it has done in the case at hand.
The contested provisions further violate Articles 1(1) and (2), 2 and 3(b)(b) of Convention No 111 on discrimination in respect of employment and occupation (SG No 35 of 2 May 1997) of the International Labour Organisation. By expressly prohibiting discrimination in the area of employment it stipulates that “any differences, exceptions or preferences based on established requirements for an occupation are not deemed discriminatory”. The prohibition according to which a certain category of persons from holding public offices on the grounds of their association with the State Security Service or the intelligence services of the Bulgarian People’s Army does neither stems nor is it linked to requirements concerning the professional qualifications of a person insofar as the latter determine whether they are capable of pursuing a certain occupation on the basis of their professional skills and experience. As far as the restrictions introduced by the contested provisions go, they are not based on specific requirements for a certain occupation and are hence discriminatory. By restricting the possibilities for promotion and career development of a certain category of persons the lustration provisions contravene Article 48(3) of the Constitution because they limit the choice of an occupation and undermine the legitimate expectation that a certain professional experience and satisfying a set of requirements for qualifications would ensure that an equal opportunity is available to each official to be appointed to a particular post.