Decision No. 7 of 21 November 2023 in constitutional case No. 12/2023
Referring entity and subject matter
The case has been initiated upon a request of the President of the Republic of Bulgaria. The subject matter of the case concerns constitutionality of section 2 of the Decision amending Decision for the adoption of procedural rules on the terms and procedure for nominating candidates for President of the Audit Office, presenting and publicly announcing the documents and hearing of the candidates in the Standing Parliamentary Commission on Budget and Finance as well as the procedure for election by the National Assembly and for addressing the consequences of judgment No. 5/2023 of the Constitutional Court in constitutional case No. 5/2023, adopted by the 49th National Assembly on 7 July 2023.
Summary of the reasons
On 7 July 2023 the National Assembly adopted an act addressing the consequences of judgment No. 5 of 22 June 2023 of the Constitutional Court. As of the date the parliamentary act was adopted, the judgment of the Constitutional Court was promulgated but had not yet entered into force. This circumstance does not affect the obligation for the National Assembly to comply with the judgment of the Court since the judgment was publicly announced (in the State Gazette and on the website of the Constitutional Court), i.e. the responsible body was aware both officially and factually of the judgment of the Constitutional Court while its entry into force was a certain future event. Hence, the act of the National Assembly prior to the entry into force of the judgment of the Constitutional Court was not a violation in itself. It was taken with a view for the National Assembly to comply with the constitutional and statutory requirements by repealing the unlawful consequences that had occurred in the course of applying the anti-constitutional act.
However, in the challenged decision of 7 July 2023 the National Assembly, relying on Article 91, para 3 of the Rules of Organisation of the National Assembly, states that it addresses the consequences of declaring its decision dated 20 January 2023 anti-constitutional. One legal consequence of this decision is that Tsvetan Tsvetkov continued to be president of the Audit Office after 20 January 2023. This is why the duplicate election of an acting president of the Audit Office provided there was a holder of that position was lacking legal basis and practical sense. Opening a procedure for the election of a new president of the Audit Office does not require Parliament to take such action. By this act the National Assembly in fact tried to prevent Tsvetan Tsvetkov to perform the functions of president of the Audit Office while the post was occupied by Goritsa Grancharova-Kozhareva. The decision of the National Assembly even if formally trying to address the consequences of declaring an act anti-constitutional, in fact had a result that had already been declared anti-constitutional. Hence a legal mimicry is being produced to conceal a violation of Article 4, para 1 (rule of law) of the Constitution read in combination with Article 19, para 1 of the Audit Office Act and non-application of judgment No. 5 of 22 June 2023 of the Constitutional Court.
The decision of the 49th National Assembly of 7 July 2023 repeats in the challenged section the decision of the 48th National Assembly of 20 January 2023 after the Constitutional Court had already declared by its judgment No. 5 of 22 June 2023 the decision dated 20 January 2023 anti-constitutional.
Pursuant to Article 14, paras 5 and 6 of the Constitutional Court Act (CCA), the acts of the Court shall be final and binding on all state bodies. The finality of the judgments of the Constitutional Court as a guarantor of the rule of the Constitution is an essential barrier against subsequent legal regulations that reproduce conditions declared anti-constitutional by an act of the Constitutional Court – adopting such a legal regulation would be contrary both to provisions of the Constitution and to an act of the Court.
Non-compliance, circumvention, or defective execution of an act of the Constitutional Court runs contrary to the principles of the rule of the Constitution and rule of law. When the Constitutional Court declares an act that has been challenged before it anti-constitutional, the body which pursuant to Article 22, para 3 CCA is competent to regulate the legal consequences thereof should not adopt/issue any act whatsoever that reproduces the deficiency established by the constitutional jurisdiction.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on constitutionality of laws), the Constitutional Court declares anti-constitutional section 2 of the Decision amending Decision for the adoption of procedural rules on the terms and procedure for nominating candidates for President of the Audit Office, presenting and publicly announcing the documents and hearing of the candidates in the Standing Parliamentary Commission on Budget and Finance as well as the procedure for election by the National Assembly and for addressing the consequences of judgment No. 5/2023 of the Constitutional Court in constitutional case No. 5/2023, adopted by the 49th National Assembly on 7 July 2023.
Председател: Павлина Панова