Decision

Decision No. 12 of 9 July 2024 on Constitutional Case No. 3/2024

Referring Authority and Subject Matter of the Case

The Constitutional Court was seised with a request from the President of the Republic of Bulgaria and a request from 68 Members of the 49th National Assembly. The subject of the case is the constitutionality of the Decision on the election of a judge to the Constitutional Court of the Republic of Bulgaria concerning Desislava Valcheva Atanasova and the Decision on the election of a judge to the Constitutional Court of the Republic of Bulgaria concerning Borislav Nikolov Belazelkov, adopted by the 49th National Assembly on 19 January 2024. The petitioners justify their requests by alleging the absence of an open, public, and transparent procedure in the adoption of the contested acts, as well as violations of the principle of the rule of law and the principles of the supremacy of the Constitution and the direct effect of constitutional provisions. They also raise arguments that the contested decisions contradict Constitutional Court Interpretative Decision No. 1 of 2024 on Constitutional Case No. 17/2023, which provides that a constitutional judge, elected or appointed after the renewal of the composition of the Constitutional Court as envisaged in Article 147, paragraph 2, third sentence of the Constitution, exercises their powers only for the remaining term of the mandate, counted from the constitutionally due moment for the renewal of the Court’s composition.

Summary of the Court’s Reasoning

The mandate of constitutional judges is established in the Constitution (Article 147) and cannot be altered by the bodies participating in the formation of the composition of the Constitutional Court.

As noted in Interpretative Decision No. 8 of 2000 on Constitutional Case No. 9/2000, concerning the legal provision on the renewal of the Court under §2 of the Transitional and Final Provisions of the Constitutional Court Act, “it follows from the text that this renewal of the composition of the Court must continue in the same manner every subsequent three years, namely: by four judges simultaneously from each of the three quotas.” In this decision, the Constitutional Court emphasized that if it were accepted that a judge elected/appointed under the conditions of Article 148, paragraph 3 of the Constitution to replace a judge whose mandate was prematurely terminated (for example, due to death) would have a “full nine-year term,” the envisaged renewal every three years of four judges from each quota could not be carried out. Such a scenario would violate one of the fundamental provisions for the constitution of the Constitutional Court as a body - the quota principle enshrined in Article 147, paragraph 1 of the Constitution. This provision embodies the principle established in the Basic Law and the constitutional mechanism of separation of powers.

The Constitutional Court has consistently maintained in its practice, and affirms in the present proceedings, that alongside the quota principle, the formation of the composition of the constitutional jurisdiction is also based on the principle of periodic renewal of the composition of the Constitutional Court - Article 147, paragraph 2, third sentence of the Constitution.

In Interpretative Decision No. 1 of 2024 on Constitutional Case No. 17/2023, the Court held that the socially necessary and justified resolution of the problem caused by the inaction of the National Assembly in timely exercising its constitutive competence with respect to the composition of the Constitutional Court is achieved through the method of practical reconciliation. This method entails that the legal positions concerning the principles in tension (established in the first and third sentences of Article 147, paragraph 2 of the Constitution) are subject to a compromise that preserves their full realization to the greatest possible extent. The understanding reflected in the contested decisions, according to which the persons elected as constitutional judges are chosen “for a term of nine years,” cannot be supported as an acceptable compromise, since following it results in a deviation from the constitutionally prescribed scheme of periodic renewal of the Court’s composition according to the procedure set out for every three years.

In the reasoning of Interpretative Decision No. 1 of 2024 on Constitutional Case No. 17/2023, it is emphasized that the provision of Article 147, paragraph 2, second sentence of the Constitution, regarding the principle of periodic renewal, establishes a constitutional-legal order that comprehensively and directly binds the bodies responsible for election/appointment. The Court further notes that “the fundamental constitutional provision on the periodic and rhythmic renewal of the composition of the Constitutional Court represents the constitutional limit on the discretionary power of the National Assembly to decide on the election of new constitutional judges to replace those whose term has expired. The discretionary assessment of the nominating bodies cannot be exercised in a manner that would place it beyond the constitutional temporal limits imposed by the foundational constitutional solution in favor of the periodic renewal of the Court’s composition.”

In the part in which the duration of the term for which persons are elected as constitutional judges is determined, the contested acts exceed the limits of discretionary power outlined in Interpretative Decision No. 1 of 2024 on Constitutional Case No. 17/2023, and thereby disregard the impact of the constitutional value framework of Article 147, paragraph 2, third sentence, on the exercise of political independence by the Parliament.

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 and other acts of the National Assembly), the Constitutional Court declares unconstitutional the Decision on the election of a judge to the Constitutional Court of the Republic of Bulgaria, adopted by the 49th National Assembly on 19 January 2024, concerning Desislava Valcheva Atanasova, in the part “to replace Grozdan Nikolov Iliev for a term of 9 years” and the Decision on the election of a judge to the Constitutional Court of the Republic of Bulgaria, adopted by the 49th National Assembly on 19 January 2024, concerning Borislav Nikolov Belazelkov, in the part “to replace Anastas Vasilev Anastasov for a term of 9 years”. [1]

Председател: Павлина Панова