Decision No. 6 of 27 March 2018 on Constitutional Case No. 10/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Plenum of the Supreme Court of Cassation (SCC). The subject matter of the case concerns the constitutionality of Article 127, paragraph 1, penultimate and final clauses, and Article 411a, paragraph 1, item 4 of the Criminal Procedure Code (CPC), as well as the compatibility of Article 127, paragraph 1, penultimate and final clauses of the CPC with an international treaty to which Bulgaria is a party, namely Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). According to the SCC, the challenged provision is contrary to Article 121, paragraph 1 of the Constitution, which establishes the constitutional requirement that courts ensure equality and adversarial conditions between the parties in judicial proceedings, and is furthermore incompatible with Article 6 of the ECHR concerning the right to a fair trial, particularly with regard to the requirements of adversarial proceedings and equality of arms. The Plenum of the SCC argues that Article 411a, paragraph 1, item 4 of the CPC should be declared unconstitutional “because assigning the Specialized Criminal Court jurisdiction over cases concerning certain offences committed by specific categories of persons confers upon that judicial body the characteristics of an extraordinary court.” Such extraordinary courts are prohibited under Article 119, paragraph 3 of the Constitution, and their functioning is contrary to the principle of the rule of law under Article 4, paragraph 1 of the Constitution. The request further alleges a violation of the constitutional principle of equality of citizens before the law under Article 6, paragraph 2 of the Constitution.
Summary of the Court’s Reasoning
The Constitutional Court does not accept the applicant’s argument that the amendment to Article 127, paragraph 1 of the Criminal Procedure Code violates the requirement to ensure adversarial proceedings and equality of arms. The factual circumstances relevant to a particular case may be established, that is, collected and verified, through all admissible means of evidence.
The approach adopted by the legislator in supplementing Article 127, paragraph 1 of the Criminal Procedure Code does not depart from the understanding under the Convention for the Protection of Human Rights and Fundamental Freedoms that evidence must be collected and examined in the course of public judicial proceedings, in the presence of the accused person and with due regard to that person’s right to have equal opportunities to challenge the prosecution’s case within the framework of the adversarial principle. Exceptions to this principle are permissible only where the fairness of the proceedings requires a balancing of the interests of the defence against those of the other participants in the proceedings.
The Constitutional Court finds that the challenged provision of Article 127, paragraph 1, penultimate and final clauses of the Criminal Procedure Code does not create conditions for conducting an unfair trial, since it does not give rise to a constitutionally impermissible imbalance in the fundamental procedural rules governing the taking of evidence applicable to participants in criminal proceedings.
As regards the petition seeking a declaration of unconstitutionality of Article 411a, paragraph 1, item 4 of the Criminal Procedure Code, the Court finds that there is no constitutionally impermissible deviation from Article 6, paragraph 2 of the Constitution, insofar as there is no identity, based on a combined criterion of the offence and the specific category of offender, between the two independent groups of aggregates of encroachments falling within the jurisdiction of the ordinary criminal courts and, respectively, the specialized criminal courts. It is constitutionally permissible that an existing distinction may lead to different solutions concerning appellate review of judicial acts rendered by specialized criminal jurisdictions. Such an approach, involving jurisdiction before appellate and cassation instances as in the case of the Specialized Criminal Court, is not novel; it has also been employed by the legislator with regard to the military courts under Article 397 of the Criminal Procedure Code and has never been called into question.
The Constitutional Court concludes that the mixed criterion applied by the legislator in Article 411a, paragraph 1, item 4 of the Criminal Procedure Code - combining subject-matter and personal criteria in defining the amended jurisdiction of the Specialized Criminal Court - constitutes a proper exercise of a constitutionally conferred discretionary power. Accordingly, it does not transform the Specialized Criminal Court into an extraordinary court, which would be impermissible within the meaning of Article 119, paragraph 3 of the Constitution, nor is its functioning contrary to Article 6, paragraph 2 or to the principles of the rule of law under Article 4, paragraph 1 of the Constitution.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, items 2 and 4 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws and for determining the conformity of laws with international treaties to which Bulgaria is a party), the Constitutional Court rejects the request of the Plenum of the Supreme Court of Cassation seeking a declaration of unconstitutionality and incompatibility with Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of Article 127, paragraph 1, penultimate and final clauses of the Criminal Procedure Code, as well as the requests of the Plenum of the Supreme Court of Cassation and of the Supreme Bar Council seeking a declaration of unconstitutionality of Article 411a, paragraph 1, item 4 of the Criminal Procedure Code.
The decision was adopted with one dissenting opinion.