Ruling No. 3 of 2 April 2024 on Constitutional Case No. 6/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by a panel of the Sofia District Court to establish the unconstitutionality of §1 of the Act amending and supplementing the Family Code. The applicant alleges that the contested provision is in contradiction with Article 4, Article 32, paragraph 1, Article 47, paragraph 1, Article 56, Article 88, paragraph 1, and Article 122, paragraph 1, in conjunction with Article 117, paragraph 1 of the Constitution. It argues that the amendments to the Family Code, adopted with a single vote in plenary, bear no connection to the proposals contained in the initially submitted bill, which, according to the request, is contrary to Article 88, paragraph 1 of the Constitution. It is further argued that by removing the possibility of entering into marriage before attaining the age of majority, the amendment affects an important set of rights that the repealed provisions of the Family Code were intended to protect. The request also points to the absence of regulation concerning pending proceedings under the repealed provisions.
Summary of the Court’s Reasoning
The proceedings in the private civil case before the Sofia District Court, related to the application of Article 6, paragraph 2 (repealed) of the Family Code, are of a non-contentious nature - here, the court does not administer justice in the strict sense but performs a function of judicial administration. The proceedings are unilateral, initiated upon a petition by an applicant, in which no legal dispute arises and the applicant merely seeks assistance from the district court. The act issued by the court is not an act for the protection of an infringed civil right but an act of judicial assistance intended to produce legal consequences favorable to the petitioner. The judicial act rendered in such proceedings (a ruling, which is final) does not have the force of res judicata and does not preclude the matter from being reconsidered in contentious proceedings under the ordinary lawsuit procedure.
The Constitution, in safeguarding the institution of marriage, establishes only its structural elements. The previously existing legal possibility - prior to the entry into force of the contested §1 of the Act Amending and Supplementing the Family Code - for minors to marry by way of exception is not part of the constitutionally protected core of marriage. Its repeal therefore does not constitute a legal impediment to the exercise of the freedom to marry or to the full application of the constitutional institution of marriage. The legislature is competent to lay down such rules on the conditions for entering into marriage as it deems appropriate, provided that they remain within the constitutionally established core of the marital institution. It is not required to provide for an exception to the general rule on marital majority and the prohibition of marriage for minors. The introduction of such an exception in legislation, as well as its repeal, is left to the discretion of the legislature. This discretion cannot be restricted beyond the limits defined by the constitutionally protected core of the institution of marriage, which in the present case has not been transgressed. The Constitutional Court cannot, through constitutional review, substitute the legislature’s policy choices regarding the regulation of particular social relations, so long as those choices do not contradict constitutional principles and do not infringe, in a constitutionally impermissible manner, the rights guaranteed by the Constitution. The Court is mindful of the boundaries of the authority entrusted to it and carefully evaluates whether it should rule on matters falling within the competence of institutions exercising discretionary powers. The abolition of the possibility for minors aged 16 or above to enter into marriage is justified by the legislature with the aim of protecting children’s rights from violations associated with “early/child” marriages, and such a legislative objective cannot be challenged solely on legal grounds. The provision of §1 of the Act Amending and Supplementing the Family Code embodies a particular conception of the protection of children’s rights. The principle of legal certainty, invoked by the applicant, cannot be equated with an absolute prohibition on changes to the legislative framework governing the conditions for entering into marriage. The expectations of legal subjects that legislation in this sphere will remain unchanged are not constitutionally protected, particularly when they rely on the continued operation of a legal arrangement which cannot be presumed to be necessarily preserved by the legislature as socially necessary or justified.
The considerations set out above, which substantiate the inadmissibility of the request, are likewise applicable to the procedural violation of Article 88, paragraph 1 of the Constitution alleged by the applicant. The assessment of whether the amendments proposed between the first and second readings are inconsistent with the principles and scope of the bill adopted at first reading falls exclusively within the competence of the National Assembly. Accordingly, it is not for the Court, in the present proceedings, to substitute its judgment for the sovereign discretion of Parliament.
Grounds for the Ruling and Disposition
Pursuant to Article 13 (the Constitutional Court determines on its own whether the question referred to it falls within its jurisdiction) and Article 19 (the Court rules on the admissibility of the request) of the Constitutional Court Act, the Constitutional Court dismisses the request of a panel of the Sofia District Court to establish the unconstitutionality of §1 of the Act Amending and Supplementing the Family Code.
The ruling was signed with a dissenting opinion by three judges.
Председател: Павлина Панова