Decision No. 8 of 4 June 2024 on Constitutional Case No. 21/2023
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the Ombudsman of the Republic of Bulgaria. The subject matter of the case is the constitutionality of part of the provision of Article 300, paragraph 3 of the Judicial System Act (JSA), in fine - “up to three times.” The request presents arguments for unconstitutionality based on alleged contradiction with the provisions of Article 4, paragraph 1 (the principle of the rule of law), Article 32, paragraph 1 (protection of private and family life), Article 48, paragraphs 1 and 3 (the right to work and free choice of profession), and Article 53 (the right to education) of the Constitution.
Summary of the Court’s Reasoning
The Bulgarian legislator has designated several professions, including the legal profession, as regulated in view of their importance to society. However, it has not established a general standard to which they must conform; therefore, in adjudicating the specific legal dispute, the Constitutional Court cannot rely on general normative requirements applicable to these professions that would stand between the Constitution and the contested provision. What distinguishes certain legal professions from other regulated professions is that many positions requiring a legal education are connected with the exercise of state authority.
The restriction under consideration on the possibility of taking the examination for qualification to practice law aims to reduce the risk that persons with insufficient preparation, who have repeatedly demonstrated unsatisfactory results, may gain access to certain legal professions. This renders the restriction socially justified. The legitimate interest in its introduction is precisely the need to ensure the adequate preparation of persons for the exercise of these professions.
In assessing the proportionality of the measure under consideration, two further factors must be taken into account: the prior clarity of the criteria that candidates must meet, and the possibility for candidates to choose the moment at which to take the examination. The methods and criteria by which candidates for qualification to practice law are assessed are known in advance. Moreover, it is up to the candidates whether to take each upcoming exam or to postpone their participation to a later session, based on an assessment of the likelihood of meeting the exam requirements.
The choice of education presupposes the choice of profession. In this case, such choice is mediated by theoretical and practical training as a trainee lawyer and the successful passing of the examination for qualification to practice law. The Court finds that the right to education, as regulated by the Constitution, includes the provision of equal legal opportunities for training but does not guarantee professional realization in the same field. Article 53, paragraph 1 of the Constitution proclaims the right to education as a fundamental right of citizens without specifying the principles, procedures, manner, or system for its implementation and practical application. The dispute concerning the number of attempts permitted for the examination for qualification to practice law has no bearing on the values reflected in the right to protection from unlawful interference in private and family life and from attacks on the honor, dignity, and good name of citizens.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the power to rule on requests for establishing the unconstitutionality of laws), the Constitutional Court rejects the request of the Ombudsman of the Republic of Bulgaria to establish the unconstitutionality of the provision of Article 300, paragraph 3 of the Judicial System Act in the part “up to three times”.
Председател: Павлина Панова