Resolution No. 7/2023 in constitutional case No. 9/2023
Referring entity and subject matter of the case
The case has been initiated upon request of the Prosecutor General of the Republic of Bulgaria. Subsequently, the request in constitutional case No. 11/2023 was joined to for joined review due to similarity of the subject matter. The second request was submitted by a three-member panel of the Supreme Administrative Court. The Prosecutor General seeks binding interpretation of the provision of Article 130, para 4, first sentence of the Constitution putting forward the following questions:
1. Shall the functions of the Supreme Judicial Council (SJC) be terminated upon expiry of the term of office under Article 130, para 4, first sentence of the Constitution of its elected members?
2. Is it constitutionally admissible for the elected members of the professional quota of the new Supreme Judicial Council to form a new college of the SJC with the ex officio members of the SJC? Конституционно допустимо ли е избраните членове от професионалната квота на новия Висш съдебен съвет заедно с членовете по право да формират нов състав на ВСС?
3. Is it constitutionally admissible for a Supreme Judicial Council whose term of office under Article 130, para 4, first sentence of the Constitution of the Republic of Bulgaria has expired to take decisions, including as regards the presidents of the Supreme Court of Cassation, the Supreme Administrative Court and the Prosecutor General, or the administrative heads of any of the other bodies of the judiciary?
The panel of the Supreme Administrative Court puts forward the following questions:
1. Does the expiry of the term of office under Article 130, para 4, first sentence of the Constitution terminate the functions of the elected members of the Supreme Judicial Council in case no new members from the parliamentary quota have been elected but new members from the judiciary quota have been elected and all ex officio members under Article 130, para 1, second sentence of the Constitution are present?
2. Is it constitutionally admissible to make the beginning of functioning of the newly elected members of the Supreme Judicial Council from the judiciary quota conditional on the National Assembly discharging its duty to elect members of the Supreme Judicial Council from the parliamentary quota?
3. In case of an expired term of office under Article 130, para 4 of the Constitution and effected new election of only some of the elected members of the Supreme Judicial Council, is it constitutionally admissible and upon what conditions for the elected members to start exercising their functions?
Summary of the reasons
As regards the questions put forward by the Prosecutor General, the Court finds it necessary to make the following preliminary clarifications. ‘Functions’ or ‘powers’ of a public authority established by the Constitution may be terminated by amendments to its constitutional or/and statutory regulation, respectively by terminating the existence of the public authority itself in the state construction. The expiry of the term of office of the members of a college body may not terminate its functions or powers. The Constitutional Court is of the opinion that there is no ambiguity as regards this issue as clarified by the Court, namely the first question of the request of the Prosecutor General seeking binding interpretation. The Court has held in its case-law that the Supreme Judicial Council is a ‘standing permanently functioning supreme authority in the system of the judiciary’ rather than an authority with a ‘mandate status’. The Constitutional Court underscores the difference between the term of office of a college authority and the term of office of its elected members. Should the National Assembly be unable to form the political will to elect members of the SJC in accordance with what the Constitution prescribes, protection needs to be afforded as a priority to the continuity of the authority as a supreme value in view of safeguarding the rule of law. The Court is of the opinion that its case-law so far is sufficiently clear and finds there are no unclarities in the context of the request for binding interpretation, hence it rejects the first question.
As regards the second question, the Court once again is of the opinion that there are no ambiguities or contradictory application. It points out that no other interpretation is admissible but that the Constitution enshrines the principles of separation of powers (Article 8) and independence of the judiciary (Article 117, para 2); that the constitutional guarantees for the independence off the judiciary comprise among others the tenure and immunity of judges as well as self-governance through the very institution of the Supreme Judicial Council. Failing a provision regulating the term of office of the college body, the only conclusion that can be made is that the institution of the Supreme Judicial Council provided for in the Constitution is a standing authority with no term of office and acts as a ‘single panel’. In view of the afore mentioned the request is rejected as regards this issue.
The third question in the opinion of the Court falls under the first one in terms of meaning and content. The Constitution provides for no obstacle or express provision to that end restricting the powers of the Supreme Judicial Council as a whole. Therefore, the request of the Prosecutor General should be rejected in full.
As regards the second request for binding interpretation, the required majority could not be garnered on the issue of the standing of the applicant authority to make the request in question. For the Constitutional Court to make a ruling, more than half of the votes of the constitutional judges are required. No majority could be reached on this issue.
Grounds for the ruling
Pursuant to Article 149, para 1, item 1 of the Constitution of the Republic of Bulgaria (power to provide binding interpretations of the Constitution), the Constitutional Court rejects as inadmissible the request of the Prosecutor General for binding interpretation of Article 130, para 4, first sentence of the Constitution and the request of a three-member panel of the Supreme Administrative Court for binding interpretation of Article 130 of the Constitution.