Ruling No. 2 of 13 March 2024 on Constitutional Case No. 8/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by a panel of the Pleven District Court to establish the unconstitutionality of the provisions of Article 381, paragraph 2 (agreements are not permitted in the enumerated cases) and paragraph 3 (where the crime has caused pecuniary damage, an agreement is permitted only after such damage has been restored or secured), and of Article 382, paragraph 3 (where the crime has caused pecuniary damage, an agreement is permitted only after such damage has been restored or secured) of the Criminal Procedure Code (CPC). The referring court maintains that the challenged provisions are in conflict with Article 4, paragraph 2 (the State guarantees the life, dignity, and rights of the individual [...]), Article 56 (right to defense), and Article 121, paragraph 1 (equality and conditions for the adversarial nature of the proceedings) of the Constitution, as they allow for „the theoretical possibility that criminal proceedings for the offense of 'trafficking in human beings' could be concluded by a plea agreement during the pre-trial phase, without the participation of the victim and without the restoration of the pecuniary damages (including lost profits) caused by the crime.“
Summary of the Court’s Reasoning
Any request made by a court pursuant to Article 150, paragraph 2 of the Constitution must concern the establishment of the unconstitutionality of a current statutory provision applicable in the case at hand.
Referring a matter to the Constitutional Court must not merely be an option, but a necessity arising from the specific proceedings. The statutory provision in respect of which the referring authority has determined a conflict with the Constitution must be applicable to the case before it. This means that, without the answer to the question posed, the referring court would be unable to exercise its judicial function in conformity with the Constitution.
The Court notes that “every court within the national judicial system, in every case, is obliged ex officio to verify whether the subject matter of the case or the applicable domestic legal norms are related to EU law (whether the applicable domestic legal norm constitutes a measure for its implementation or is otherwise connected to it) and, if such a connection is established, to fully take into account the consequences of its application” (Decision No. 5 of 14 June 2022 on Constitutional Case No. 13/2021).
The assessment by the referring court under Article 150, paragraph 2 of the Constitution regarding the applicable law falls within the scope of review by the Constitutional Court, insofar as it directly relates to the determination of the preliminary question concerning its jurisdiction (Ruling No. 2/2021 on Constitutional Case No. 15/2021).
In addition, for a request for the exercise of the specific form of incidental constitutional review envisaged in the Constitution to be admissible, it must be substantiated not by mere doubt regarding unconstitutionality, but by the court’s reached conviction, supported with reasoned arguments.
In the present request, the ground for challenging the provision of Article 381, paragraph 2 of the Criminal Procedure Code (CPC) is the exclusion of Section IX “Trafficking in Human Beings” of the Second Chapter of the Criminal Code from the category of serious intentional offenses for which a plea agreement is not permitted in pre-trial proceedings. In connection with this claim, the provision of Article 382, paragraph 3 CPC has also been challenged, which provides that in the court hearing the prosecutor, defense counsel, and the accused participate, but not the victim.
The Court notes that, pursuant to Article 62, paragraph 1 of the Constitution, the legislative power is exercised solely by the National Assembly. The Constitutional Court is not competent to substitute the will of the legislator with its own decision, nor to give instructions to the National Assembly on what legal regulation to enact. Admitting the case for examination on the merits pursuant to Article 149, paragraph 1, item 2, in conjunction with Article 150, paragraph 2 of the Constitution, on the ground of an alleged absence of necessary legal regulation, would mean that the Court exceeds the limits of its powers within the framework of incidental normative control and assumes the role of a positive legislator (Ruling No. 2/1994 on Constitutional Case No. 1/1994).
In conclusion, the Constitutional Court notes that the absence of clear findings regarding the applicable law, in particular EU law, and the presentation of arguments concerning a lack of legal regulation in support of the alleged unconstitutionality of the contested statutory provisions, in light of the considerations set out above, justify the inadmissibility of the request.
Grounds for the Ruling and Disposition
Pursuant to Article 13 of the Constitutional Court Act (the Constitutional Court decides whether a question submitted to it falls within its competence), Article 25, paragraph 1 (a constitutional case is examined in two phases [...]), and Article 26, paragraph 1 (where it considers that a request is inadmissible, the Constitutional Court dismisses the request by reasoned ruling and terminates the proceedings [...]) of the Rules of Procedure of the Constitutional Court, the Constitutional Court dismisses the request of the Pleven District Court to establish the unconstitutionality of the provisions of Article 381, paragraphs 2 and 3, and Article 382, paragraph 3 of the Criminal Procedure Code. The proceedings on Constitutional Case No. 8/2024 are hereby terminated. The request is returned to the submitting court together with a copy of this ruling.
The ruling was issued with two opinions on the reasoning.
Председател: Павлина Панова