Decision No. 12 of 13 October 2016 on Constitutional Case No. 13/2015
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 declaration of unconstitutionality of § 2 of the Act Amending and Supplementing the Criminal Code (AASCC) (promulgated in State Gazette No. 74 of 26 September 2015), by which item 2 of Article 79, paragraph 2 of the Criminal Code (CC) (promulgated in State Gazette, issue No. 26 of 2 April 1968, last amended in State Gazette, issue No. 47 of 21 June 2016) was introduced, as well as of §§ 35 and 36 of the Transitional and Final Provisions of the AASCC (promulgated in State Gazette, issue No. 74 of 26 September 2015).
In his request, the Prosecutor General argues that both the exception introduced by § 2 of the AASCC from the scope of the statute of limitations for criminal prosecution under Article 79, paragraph 2, item 2 of the Criminal Code, and the manner in which it is reaffirmed by §§ 35 and 36 of the Transitional and Final Provisions of the AASCC, are incompatible with fundamental provisions of Chapter One of the Constitution of the Republic of Bulgaria.
Summary of the Court’s Reasoning
On the request for establishing the unconstitutionality of Article 79, paragraph 2, item 2 of the Criminal Code:
In general, the contested amendments to the Criminal Code are contrary to the principle of the rule of law. By them, the non-applicability of the statute of limitations to criminal prosecution and the enforcement of punishment for crimes against peace and humanity - established as binding for the State by a number of international instruments and expressly enshrined in Article 31, paragraph 7 of the Constitution - has been further extended to cover certain other serious crimes committed during the period of the totalitarian regime from 9 September 1944 to 10 November 1989. Moreover, the amendment has been given retroactive effect with respect to criminal acts for which the statute of limitations had already expired. A subsequent act of justice cannot be definitively denied, as the restoration of a disturbed balance constitutes a constitutionally legitimate aim - justice is elevated to a fundamental value already in the Preamble to the 1991 Constitution. It is socially justified that the perpetrators of acts whose criminal prosecution was impeded for political reasons related to the characteristics of the totalitarian regime should be deprived of the possibility to benefit from the statute of limitations that expired under non-democratic conditions. There was no obstacle for the Bulgarian legislator to adopt such an approach, provided, however, that in doing so it complied with all constitutional requirements - which, in this case, has not been achieved.
From the perspective of the prohibition of retroactive application of criminal law under Article 15, paragraph 1 of the International Covenant on Civil and Political Rights, in conjunction with Article 5, paragraph 4 of the Constitution, the question arises whether a law with retroactive effect may restore statutes of limitations that have already expired. Indeed, the cited provision of international law is binding on the Bulgarian State; however, it introduces a prohibition only with regard to retroactive rules that concern the offence or the content of the punishment - i.e. those that criminalize conduct which was not criminal at the time it was committed or that aggravate the prescribed sanctions. The institution of statutes of limitations for criminal prosecution falls outside the scope of this prohibition.
The contested amendments to the Criminal Code, however, do not lead to the restoration of impaired justice (i.e. they lack the aforementioned legitimacy), and insofar as such an aim may nevertheless be inferred from their specific content, the means employed are disproportionate to its achievement.
As noted above, it is entirely unjustified to disregard the statutes of limitations that has run after the restoration of democracy in the country (according to the legislator - after 10 November 1989), including during the period when the 1991 Constitution has been in force. In a democratic state, founded on the principles of separation of powers, political pluralism, and the like, the inaction of institutions - including the legislature - cannot justify a restriction, particularly a discriminatory one, of the rights that should be enjoyed by all perpetrators of criminal offences.
A classical component of the rule of law in its formal sense is the principle of legality. The requirements of accessibility and comprehensibility, precision, unambiguity, and clarity of laws - and hence their foreseeability, as well as their conformity with the principles and values of the Constitution - are among its most essential dimensions. The rule of law does not tolerate the enactment of vague or ambiguous statutory provisions, and this intolerance is particularly strict where the legislature intervenes in the sphere of individual rights and freedoms. This applies with particular force in the field of criminal law, given the universally recognized principle of the personal nature of criminal liability.
The provision of Article 79, paragraph 2, item 2 of the Criminal Code specifies the categories of offences for which the statute of limitations do not apply. These offences are defined through a factual reference to criminal laws that were in force during the period from 9 September 1944 to 10 November 1989. This reference is imprecise, as the structure of those laws differs from that of the current Criminal Code, on the basis of which the reference is made. This makes it impossible to determine which offences are in fact being referred to.
On the request for establishing the unconstitutionality of §§ 35 and 36 of the Transitional and Final Provisions of the Act Amending and Supplementing the Criminal Code:
Two transitional and final provisions - § 35 and § 36 of the AASCC - are also consistent with the amendment to Article 79, paragraph 2, item 2 of the Criminal Code.
The Court considers that § 35 has no independent scope of application. Article 79, paragraph 2, item 2 of the Criminal Code applies also to offences for which the statutes of limitations have already expired. This conclusion follows from the manner in which the provision is formulated. This renders § 35 redundant. All arguments for unconstitutionality on the grounds of Article 4, paragraph 1 of the Constitution, advanced in the analysis of Article 79, paragraph 2, item 2 of the Criminal Code, apply equally to this provision.
By § 35 of the Transitional and Final Provisions of the Act Amending and Supplementing the Criminal Code, retroactive effect is conferred on a criminal provision (Article 79, paragraph 2, item 2 of the Criminal Code) which is already retroactive in nature. As already noted, it arbitrarily defines not only the scope of subjects but also the categories of serious offences for which the statute of limitations is excluded. In this way, retroactive effect is once again conferred on a provision that is contrary to all requirements of legality.
Given that the provision of Article 79, paragraph 2, item 2 of the Criminal Code is inconsistent with the Constitution, the provision introduced by § 35 of the Transitional and Final Provisions of the AASCC, which once again confers retroactive effect on the abolition of statute of limitations, also violates the principle of the rule of law.
The Court holds that, by providing that cases already terminated due to the expiration of the statute of limitations are to be reopened by operation of law, the contested provision in § 36 of the Transitional and Final Provisions of the AASCC undermines confidence in the stability of the legal framework and, consequently, in the rule of law. The Constitutional Court has consistently maintained that legislation that hinders law enforcement or is internally contradictory is constitutionally intolerable as being contrary to the principle of the rule of law (Decision No. 10/2009, Decision No. 2/2013, Decision No. 5/2000, and Decision No. 5/2002).
The provision in § 36 of the Transitional and Final Provisions of the AASCC stating that “criminal proceedings concerning offences under § 2 which have been terminated due to the expiration of the statute of limitations shall be reopened upon the entry into force of this Act” is likewise unconstitutional. This provision imposes a mandatory obligation on the authorities conducting pre-trial and judicial proceedings to take steps to reopen an indeterminate number of criminal proceedings.
The absence of criteria by which to determine the scope of proceedings subject to reopening renders such reopening impossible.
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 declares unconstitutional Article 79, paragraph 2, item 2 of the Criminal Code (promulgated in State Gazette No. 26 of 2 April 1968, last amended in State Gazette No. 47 of 21 June 2016), as well as §§ 35 and 36 of the Transitional and Final Provisions of the Act Amending and Supplementing the Criminal Code (promulgated in State Gazette No. 74 of 26 September 2015).
The decision was adopted with a dissenting opinion by one judge.