Ruling No. 9 of 1 October 2024 on Constitutional Case No. 21/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by a panel of the Sofia City Court. The subject matter of the case is the constitutionality of Article 287, paragraph 1, in the part “more serious”, of the Criminal Procedure Code. The provision stipulates that the prosecutor shall bring a new charge when, during the judicial investigation, grounds are established for a substantial amendment of the circumstantial part of the existing charge or for the application of a law providing for a more serious offence. In the request, the principal argument for unconstitutionality is the alleged contradiction between the provision and Article 127, item 3, second proposition of the Constitution (the prosecution shall uphold the charge in criminal cases of a general nature).
Summary of the Court’s Reasoning
The provision of Article 150, paragraph 2 of the Constitution (any court may refer a case to the Constitutional Court requesting a finding of inconsistency between a statutory provision applicable to the specific case and the Constitution) makes the possibility of such a referral conditional upon the existence of an inconsistency between a law and the Constitution established within the framework of specific judicial proceedings, and it is precisely the need to resolve this issue that entitles the judicial panel to approach the Constitutional Court. According to the interpretation consistently adopted in the Court’s case-law, a judicial panel may request a declaration of unconstitutionality only with respect to statutory provisions that have a direct bearing on the subject matter of the case before it (Ruling of 29 April 2014 on Constitutional Case No. 4/2014; Ruling of 17 September 2019 on Constitutional Case No. 9/2012). The justification that the question raised is relevant to the resolution of the specific case is a decisive requirement both for establishing the competence of the judicial panel to refer the matter to the Constitutional Court and for enabling the Constitutional Court itself to rule on it.
The referring court’s view on the applicable law is not binding on the Constitutional Court, which has the authority to make its own determination as to whether it is competent to rule on the request submitted to it. A decisive condition for admitting the request for consideration on the merits is whether the question raised falls within the Constitutional Court’s jurisdiction. The judicial panel sets out its arguments regarding the applicable law, referring to the “statutory impossibility” for the prosecutor under Article 287, paragraph 1 of the Criminal Procedure Code to amend the charge “by applying a law for a less serious crime, without substantially amending the circumstantial part of the indictment”. The applicant concludes that, although this matter is not governed by EU law, the consequences of the cited judgment of the Court of Justice of the European Union have resulted in the malfunctioning of the established regime of judicial reclassification of the offence on the court’s own motion.
The referring court raises an issue that falls within the exclusive adjudicatory competence of the trial court. The Constitutional Court is not required to rule on requests that contain questions relating to the court’s inherent adjudicatory functions - questions that are to be resolved by the court itself when delivering its judgment, as these matters lie entirely and solely within the jurisdiction of the referring court (Ruling No. 3/2024 on Constitutional Case No. 6/2024). In the present case, the issue raised by the referring court does not concern the conformity of a statute with the Constitution, but rather the constitutionally compliant interpretation and application of the law governing the proceedings.
Grounds for the Ruling and Disposition
Pursuant to Article 13 of the Constitutional Court Act (the Constitutional Court determines on its own whether the question referred to it falls within its jurisdiction), Article 25, paragraph 1 (the case is examined in two phases - on the admissibility of the request and on the merits), and Article 26, paragraph 1 (where a request is inadmissible, it shall be dismissed by a reasoned ruling and the proceedings shall be terminated) of the Rules of Procedure of the Constitutional Court, the Constitutional Court dismisses the request for establishing the unconstitutionality of Article 287, paragraph 1, in the part “more serious,” of the Criminal Procedure Code.
Председател: Павлина Панова