Decision No. 3 of 25 April 2023 in constitutional case No. 18/2022
Referring entity and subject matter of the case
The case has been initiated upon a request of the Council of Ministers of the Republic of Bulgaria seeking binding interpretation of Article 126, para 2, in particular the part ‘oversee the legality’ read in combination with Article 127 of the Constitution, putting forward the question, ‘Does a methodical interpretation of Article 126, para 2 read in combination with Article 127 of the Constitution of the Republic of Bulgaria admit that the Prosecutor General, while overseeing the legality of the work of the prosecutors, may assign to them to supervise legality in all spheres of government and at all administrative levels?’. Further on, the request for constitutional review seeks to establish anti-constitutionality of the following provisions of the Judicial System Act (JSA promulgated SG No. 64 of 7 August 2007, last amendments and supplements SG No. 11 of 2 February 2023): Article 145, para 1, item 3 as regards the words ‘and actions’ and ‘and audits’, and of Article 145, para 1, item 6 as regards the words ‘or another breach of the law’ alleging they run contrary to Article 127, para 5 of the Constitution.
The applicant argues that a ‘careful reading’ of the provision of Article 145 JSA ‘raises the question how far it goes into outlining the powers of the prosecutor’s office for exercising its constitutional functions, and whether the latter have not been expanded beyond the constitutionally set boundaries under Article 127 of the Constitution’. The applicant reasons the need of a binding interpretation with a view to ‘cases of checks assigned by the Prosecutor General under the procedure for overseeing legality which ‘appear to go beyond the fundamental function of the prosecutor’s office as a subsystem of the judiciary’ as they comprise ‘all spheres of government’ and ‘all administrative levels’.
By a ruling of 15 November 2022 the Constitutional Court turned down the request of the Council of Ministers seeking binding interpretation of Article 126, para 2 as regards the part ‘oversee the legality’ read in combination with Article 127 of the Constitution of the Republic of Bulgaria, terminating the constitutional proceedings in this part, and admitted for review on the merits the request of the Council of Ministers seeking to establish anti-constitutionality of the provision of Article 145, para 1, item 3 as regards the words ‘and actions’ and ‘and audits’, and of Article 145, para 1, item 6 as regards the words ‘or another breach of the law’ of the Judicial System Act.
Summary of the reasons
A fundamental task of the prosecutor’s office is to ‘oversee the legality’ – it is tasked ex officio with this duty in performing the state legal function. The Constitution provides for the possibility that this body of the judiciary oversees legality outside the boundaries of the prosecution as well, which guarantees that the exercise of state power is completely bound by the law. The fundamental task of the prosecutor’s office in relation to the acts and actions of the executive is a manifestation of the checks and balances mechanism which sustains the principle of the separation of powers. The supervision of legality exercised by the judiciary in relation to the executive is of particular importance since most often it is the executive that encroaches upon the domain of the other two powers. The supervision of legality exercised by the prosecutor’s office pursuant to Article 127, item 5 of the Constitution is not boundless but is limited to the legality of the acts. The prosecutor does not exercise supervision over the decision-making competence of the administrative authority. Unlike the ‘general’ supervision, the supervision under the 1991 Constitution is strictly limited. The regulation currently in force of the supervising powers of the Bulgarian prosecutor’s office in relation to the legality of acts of the executive and its involvement in civil and administrative proceedings in cases laid down in the law is in accordance with the European practice on the role of the prosecutor’s office outside the boundaries of criminal proceedings.
Article 145 JSA grants the prosecutors a toolbox to exercise their powers as laid down in the Constitution and the legislation currently in force. The challenged regulation comprises means that are only put into use as long as they serve to allow the exercise of expressly provided statutory powers of the prosecutor’s office. The legislator has conditioned the application of Article 145 JSA on the need to ensure due exercise of existing powers of the prosecutor’s office both in the framework of the criminal proceedings and beyond it.
The prosecutor’s office acting under Article 145, para 1, item 3 JSA in the part challenged by the applicant is limited within the boundaries laid down in the JSA provision itself. In this way the challenged provision opposes the ‘totalitarian practices of ‘universal’ supervision by the prosecutor’. The prosecutor’s activity under the challenged provision is premised and initially limited within fixed grounds related to the need of performing powers laid down in the Constitution and further detailed in the law.
The possibility for the prosecutor’s office to perform the activities laid down in Article 145, para 1, items 1-6 JSA does not directly affect the powers of the administrative supervising authorities in the system of the executive. The prosecutor’s office does not avail of the powers of the specialized administrative authorities, there is no procedural possibility for it to exercise their competence. Hence the procedural possibility granted to the prosecutor’s office under Article 145, para 1, item 3 JSA to assign the competent supervisory authorities to conduct ‘checks’ and ‘audits’.
The legislator has provided in Article 145, para 1, item 6, alongside criminal offences, hypotheses of administrative violations but no privately prosecutable offences. The prosecutor takes part in civil proceedings only in cases expressly provided for by the law to defend public interests or the private interest of those persons who for various reasons are not capable of defending themselves.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on constitutionality of laws and other acts passed by the National Assembly), the Constitutional Court rejects the request of the Council of Ministers seeking to establish anti-constitutionality of the provision of Article 145, para 1, item 3 as regards the words ‘and actions’ and ‘and audits’, and of Article 145, para 1, item 6 as regards the words ‘or another breach of the law’ of the Judicial System Act (JSA promulgated SG No. 64 of 7 August 2007, last amendments and supplements SG No. 11 of 2 February 2023).
Two judges have submitted dissenting opinions.
Председател: Павлина Панова