Decision No. 17 of 8 November 2018 on Constitutional Case No. 9/2018
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a three-member panel of the Supreme Court of Cassation. The subject matter of the case concerns the constitutionality of the provision of Article 225, paragraph 3 of the Judiciary System Act (JSA), which provides that where a judge, prosecutor, or investigating magistrate is charged with an intentional crime or is subject to disciplinary proceedings, the compensation shall not be paid until the criminal or disciplinary proceedings have been concluded. According to the applicant, the provision is contrary to Article 4, paragraph 1, Article 48, paragraphs 1 and 5, in conjunction with Article 31, paragraphs 3 and 4 of the Constitution.
Summary of the Court’s Reasoning
The deferral of the payment of the lump-sum compensation under the conditions of Article 225, paragraph 3 of the Judiciary System Act represents the moral assessment made by the legislature in the presence of sufficient indications of conduct by which a judge, prosecutor, or investigating magistrate has deviated from the requirement of integrity and impeccable conduct and has given rise to disciplinary or criminal proceedings against him or her. The concept of “moral qualities” is a moral category. Morality constitutes a system of unwritten rules of conduct which do not arise by virtue of an act of state authority; however, its observance is not without significance in a state governed by the rule of law, including in relation to magistrates.
Under the current Bulgarian Constitution, judges, prosecutors, and investigating magistrates enjoy only functional immunity, designed to create a favourable environment for the independent resolution of cases and proceedings free from pressure and influence. By its content and scope, this immunity is intended to guarantee the independence of these persons in the exercise of their functions. Where criminal proceedings are conducted against a magistrate who has been removed from office and there are sufficient indications of an intentional offence of a general nature committed in connection with or on the occasion of the performance of official duties, it must be assumed that such conduct has had a negative impact on the exercise of his or her professional functions. In such cases, the provision of Article 225, paragraph 3 of the JSA also fulfils an important preventive and deterrent function - namely, to ensure that judges, prosecutors, and investigating magistrates refrain from acts and conduct that undermine the core of the administration of justice.
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 laws), the Constitutional Court rejects the request submitted by a three-member panel of the Supreme Court of Cassation, Civil Division, Fourth Panel, for a declaration of unconstitutionality of Article 225, paragraph 3 of the Judiciary System Act.