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The Constitution provides for the Supreme Judicial Council to manage the Judiciary inasmuch as there is no infringement upon the independence of the judges, prosecutors and investigating officers in the performance of their functions so as to ensure the close protection of the rights and legitimate interests of the citizens, of the corporate entities and of the State.
The Supreme Judicial Council’s administration activity shall ensure the efficient performance of its Constitution-assigned functions in relation to the personnel, budget and organization. The assignment of this activity to institutions outside the Judiciary would bring about inconsistence with the principles of the separation of powers and of the independence of the Judiciary.
A panel of the Supreme Administrative Court approached the Constitutional Court with a challenge of the constitutionality of Art. 16, para 1, Sentence Two of the Judiciary Act. The panel members insisted that the contested provision in the part that entrusts the Supreme Judicial Council (SJC) with the administration of the Judiciary’s proceedings conflicts with Art. 117, para 2, Sentence One of the Constitution that reads that the Judiciary shall be independent of all the other powers. Further it was claimed that the text of Art. 16 of the Judiciary Act was inconsistent with Art. 130, para 6 of the Constitution as the Constitution provisions regarding the Supreme Judicial Council’s powers make no mention of functions to be performed so as to organize the Judiciary’s operations and to direct the Judiciary’s activities.
The Constitutional Court dismissed the challenge on the following grounds:
Concerning the principle of the independence of the Judiciary and the separation of powers
Each of the three powers within the frame of the Constitution exercises its prerogatives on its own; therefore the mechanism of interaction between and among them precludes enforcement of actions or prescription of acts that might divest the institutions of either of these of their Constitution-guaranteed independence and discretion in the exercise of their prerogatives.
Independence is a most essential Constitution-defined trait of the Judiciary. It is only the Judiciary whose independence is explicitly proclaimed at Constitution level as a crucially important element.
Functionally the Judiciary has the duty to protect the rights and legitimate interests of the citizens, the corporate entities and the State. This duty is performed by the courts, prosecution offices and investigating authorities that resort to various ways and means to do that. By definition the most crucial element of the Judiciary is justice that is dispensed by the Constitution-established courts. This is so as the dispensation of justice by the courts provides a final and binding settlement to the legal disputes that concern the protection of the legitimate interests of the citizens, the corporate entities and the State, i.e. the performance of the State’s function of right protection.
Along with the budget independence of the Judiciary and the settlement of personnel-related issues, the Constitution provides for the personal independence of the judges, prosecutors and investigating officers and the guarantees that they are independent by the codified principles of а tenure status, functional immunity and incompatibility.
The functional independence of any Judiciary authority has specific dimensions that rule out dependencies on and prescriptions or instructions by state institutions or political entities in law enforcement in any specific case. Functional independence provides a guarantee that an inner conviction that is based on the evidence as gathered for the trial and on law is freely formed. In the long run the independence of a judge, prosecutor and investigating officer in the performance of their functions stays always within the confines of the Constitution and the law.
Functional independence encompasses, inter alia, such court’s activities that are not dispensation of justice and that pertain to actions of court administration such as the authorization for or the prohibition against the use of wireless tapes, the contract of civil marriage between juveniles, the disposition of the assets of mentally incapable persons, etc. There the judge has to obey nothing but the applicable law.
Concerning the Supreme Judicial Council and the administration of the Judiciary
The structural and functional particularity of the Judiciary calls for guarantees that it stays independent of the Legislature or the Executive. The Constitution provides for the autonomy of the Judiciary in the implementation of its personnel, budgetary and financial policies. The implementation of these policies is entrusted to the Supreme Judicial Council as the body that must ensure the strongest protection of the independence of the judges, prosecutors and investigating officers.
While the Constitution does not expressly define the legal status of the Supreme Judicial Council, the texts that provide for the SJC prerogatives allow deducing the Council’s salient features as the authority that manages the Judiciary. An earlier decision of the Constitutional Court defines the SJC thus: “… a new institution that is modeled on an institution in some European states to be installed in the state organization of the Republic of Bulgaria. By definition the SJC is an arm of the Judiciary. The SJC prerogatives make it clear that it is not a body that administers justice, it is a supreme administrative body that manages the constituents of the judiciary."
The review that traces the evolution of the Constitution and of the legislation that treats the SJC shows a steadily running trend where the SJC prerogatives are extended to bring out its role of a body that manages the Judiciary. This trend is the substance of the justification for the fourth amendment to the Constitution in 2007. The justification indicates that “… in contrast to the provisions so far new provisions are proposed whose purpose is, first and foremost, to underscore the role of the SJC as a body that takes the major decisions about the management of the Judiciary…” Several times the Constitutional Court has defined the SJC as a body of administration and the arms of the Judiciary as the bodies that are managed, being subject to the SJC acts.
To define the SJC as the body that manages the Judiciary should mean the exercise of prerogatives that enable its functioning and the establishment of an organization, conditions and setting which make possible, respectively facilitate the activity of the Judiciary bodies to perform their Constitution-assigned duty to protect the rights and legitimate interests of the citizens, of the corporate entities and of the State. Being structurally and organizationally standalone arms of the Judiciary to apply various ways and means to carry out the activity, it was imperative to have in place a special institution, the SJC as the case is, to guide, direct and manage the organizational activity of any of the bodies that are included in the structures of the Judiciary and to coordinate the interaction of these bodies.
Staffing of the Judiciary is extremely important. The process comprises the selection, appointment, dismissal, disciplinary sanctions, in general the career development of the judges, prosecutors and investigating officers who exercise the prerogatives of the Judiciary. Typical management functions like direction, organization, administration, coordination and control are observed as the SJC engages in these activities and draws up and spends the Judiciary’s autonomous budget. In the Constitutional Court’s understanding administration should not be viewed as a specific prerogative of one institution or another; it should be seen as a more general category that is manifest in any of the forms of State power with its specific characteristics. Therefore there exists no legal definition, at constitutional level, of the notion “administration” whose substance is described by the competence as provided to the relevant State institutions.
To take the view that the Constitution restrains the SJC from exercising solely and exclusively the prerogatives that are expressly enumerated in Art. 130, paras 6 and 7 signifies that the managerial functions as required for the exercise of these prerogatives will be assigned to institutions other than those from the Judiciary and thus the principles of the separation of powers and of the independence of the Judiciary will be infringed on.
The Judiciary is a State power and the arms of the Judiciary, the SJC included, are State institutions. The exercise of the judicial power by its arms should be seen as a component of the running of the State. However, the administration of the Judiciary has distinctive features that make it distinct from the government administration.
The administration of the Judiciary, a function that is performed by the SJC, does not employ a modus operandi for the Judiciary structures identical with that employed for the Executive structures. The existence of a hierarchic subordination in the sense of the Constitution’s Art. 107 that reads that “The Council of Ministers shall rescind any act of an individual cabinet minister which is legally non-conforming or incorrect”, is not to be found in the JSC-Judiciary authorities legal relationship. Furthermore, though the Supreme Judicial Council is the authority that manages the Judiciary, it is not a body that may perform the functions of the Judiciary that are relevant to the close protection of the rights and legitimate interests of the citizens, of the corporate entities and of the State. Hence the nonexistence of whatever subordination in the SJC-Judiciary authorities relationship where in their capacity of State authorities the judges dispense justice, the prosecutors supervise to make sure that the law is abided by and the investigating officers investigate into criminal cases. The principle of functional independence (Art. 117, para 2 of the Constitution) as applied in the verification of facts and in the interpretation and enforcement of the law shall preclude any possibility for the SJC to give the Judiciary authorities orders, commands or instructions, respectively, to direct and oversee these authorities and to control the rulings that they may give. Within these confines the independence of a judge, prosecutor or investigating officer is full and absolute as they form their inner conviction which is relevant to the facts and the applicable law both with regard to the Supreme Judicial Council and all other State institutions that are in charge of the government of the State.
By the provision contested of Art. 16, para 1, Sentence Two of the Judiciary Act the Lawmaker has expressly removed that part of the judicial authorities’ activities that might affect their functional independence, i.e. the activities that are termed dispensation of justice and overseeing to ensure law abidance from the province of the SJC’s administration. Thus protection is extended over the independence of mind of the SJC judges, prosecutors and investigating officers. Therefore the Constitutional Court ruled that the contested part of the Judiciary Act’s Art. 16 was not discordant with Art. 117, para 2 of the Constitution.
The institutions of the Judiciary are engaged in multiple further activities that are a sine qua non to perform their key function which is the protection of rights. The functional independence of the institutions of the Judiciary leaves out exactly those activities that relate to the selection, recruitment and career development of the judges, prosecutors and investigating officers, to the budget autonomy of the Judiciary, to the judicial moves to initiate proceedings, to appoint hearings, to move forward the cases and to close actions, in general to go through the appropriate formalities, to direct the administrative and support staff and to manage the long-term tangible assets. It all refers to the logistic support for the discharge of duty of the judges, prosecutors and investigating officers and this logistic support does not affect the substance of their function which is to dispense justice as bodies of the Judiciary. This is exactly what the Lawmaker had in mind in assigning the Supreme Judicial Council to manage the activity of the Judiciary (Art. 16, para 1, Sentence Two of the Judiciary Act).
Art. 130, para 6 of the Constitution, at constitutional level, provides for the SJC’s key prerogatives concerning the construction of the Judiciary in line with the principle of the separation of powers. By virtue of Constitution-delegated power the Lawmaker has made a primary law that contains the arrangements for the SJC’s work that, to summarize it, boils down to personnel, disciplinary, organizational, budgetary/financial, managerial and controlling activities. For the purpose of execution it is only natural for the legal frame to provide for executive prerogatives that are not provided for in the Constitution but that pertain directly to and derive from the prerogatives that paragraph 6 and paragraph 7 of the Constitution’s Article 130 provide for.
Direction and control are likewise elements of the administration that the Supreme Judicial Council engages in. The Constitutional Court’s Interpretative Decision No. 9/2014 recognized that the SJC shall have the power to pass subdelegated legislation as it performs its Constitution-assigned functions as per Art. 130, para 6 and the passage of such legislation is a typical decision-making activity which does not impinge on the Judiciary authorities’ functional independence. By the control that the SJC exercises it has to ensure the efficiency of the dispensation of justice – for instance to hand down court rulings within a reasonable time. It is beyond doubt that the findings of control are needed for the SJC to take fair decisions on its Constitution-granted powers that pertain to the career development and disciplinary liability of the judges, prosecutors and investigating officers.
Though the collection and retention of telecommunications traffic data (in general and without a specific reason) constitutes a measure that is designed to achieve a legitimate goal, it amounts to a serious intrusion into the private life of citizens and therefore, if it is to be seen as needed, appropriate and commensurate with the conditions prevailing in a democratic society, it should be codified in a manner that honors the highest security standards and in consideration for the right balance between the interests of the individual and the public interests.
The Ombudsman of the Republic of Bulgaria approached the Constitutional Court with a challenge of the constitutionality of Art. 250а to Art. 250f, Art. 251 and Art. 251а of the Electronic Communications Act (ECA). The Ombudsman claimed that the provisions challenged disproportionately encroach on Constitution-proclaimed civil rights and freedoms and insisted that the texts that are seen as unconstitutional transpose Directive 2006/24/EC of the European Parliament and the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks which Directive has been invalidated by Judgment 08/04/2014 of the Court of Justice of the European Union.
The Constitutional Court accepted the challenge on the following grounds:
The Ombudsman challenges an act that violates fundamental individual rights that citizens enjoy and that, in most general terms, are worded as the right to the inviolability of privacy and the right to freedom and confidentiality of correspondence and of all other communications – Art. 32, para 1 and Art. 34, para 1 of the Constitution in addition to the series of international law instruments to which Bulgaria is a party and which extend protection – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Charter of Fundamental Rights of the European Union and the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF).
To declare Directive 2006/24/EC invalid cannot automatically abolish or disallow the contested domestic legislation transposing provisions. The sole effect of the Judgment in question is the lift of the member states’ obligation to transpose the Directive prescriptions into their national legislation. The ECA as approved will continue to be valid as long as it is tolerated by the national Legislature unless it abolishes it or amends it following the proper procedures or by the Constitutional Court unless it declares the ECA texts under consideration unconstitutional.
2. The nature and essence of the modus operandi of traffic data collection, retention, availability, use and deletion that the provisions challenged establish make it an undeniable intrusion into fundamental Constitution-protected rights of the citizens and therefore should be treated as an exception to the rules that are laid down in the prescriptions of Art. 32, para 1 and Art. 34, para 1 of the Constitution. The said rights are not absolute. Art. 32, para 2 and Art. 34, para 2 of the Constitution read that exceptions shall be established by law and shall be permissible solely with authorization from the Judiciary, where this is necessitated for the detection or prevention of grave crimes.
3. Art. 250а, para 2 of the ECA that provides for the purpose of traffic data retention is in contravention of the Constitution. The exception as per Art. 34, para 2 of the Constitution shall be permissible solely where interference in the domain of inviolability of freedom and of the confidentiality of correspondence and of all other communications is necessitated for the detection or prevention of grave crimes providing it [the exception] lends itself neither to extensive interpretation nor to extended application. Therefore the provision, in the part that is relevant to offences that are not grave crimes in the sense of the Criminal Code, is unconstitutional. The above said is equally relevant to the “wanted individuals” hypothesis which, as it is, cannot be related to the Constitution-imposed restriction except in cases where the wanted individual is a victim or a perpetrator of a grave crime.
4. The extension of
The regulation of free enterprise including the instances where it is designed to protect human lives and public health should not lead to restraints and prohibitions that fall short of the rational judgment of necessity and proportionality.
A group of Members of Parliament challenged the constitutionality of Art. 217c of the Pharmaceuticals in Human Medicine Act. In the MPs’ view the restrictions imposed upon the exports of pharmaceuticals, including exports that are an intra-Community supply within the European Union, conflict with the principles of the state committed to the rule of law (Art. 4 of the Constitution) and of free enterprise where equal legal conditions for economic activity to all economic actors (Art. 19 of the Constitution) are guaranteed.
Further, in the MPs’ view the texts challenged are dissonant with the Treaty on the Functioning of the European Union (TFEU) which prohibits quantitative restrictions on exports between member states just as it prohibits all measures having equivalent effect. Restrictions that are intended to protect the health and life of humans can be imposed subject to the condition they are really needed and commensurate with the aim pursued.
The Constitutional Court accepted the challenge on the following grounds:
Free enterprise and the entitlement to equal legal treatment of all economic actors can be subjected to commensurate (proportional) restrictions whenever Constitution-enshrined values such as the health and life of humans need to be protected. Art. 52 of the Constitution specifically justifies such a restriction reading that the State shall exercise control over the trade in pharmaceuticals, bioactive compounds and medical equipment and shall guarantee that citizens have the benefit of affordable healthcare.
The provision challenged makes it binding on any wholesale license holder to inform an administrative authority (the Bulgarian Drugs Agency, BDA) about any export of medicinal products. In the event that the deadline for the Agency’s feedback is not met, it is assumed that the Agency gives its tacit consent that the exporter is free to proceed with the transaction. However, the Agency has the authority to ban the export of a drug if it judges the drug is in short supply on the domestic market.
The law reads that the judgment whether to give a tacit consent for or to ban the export shall be based on information collected only about the pharmaceutical and its use in the course of the six months prior to the notification and on figures of the amounts as supplied by the holder of the license to use the product. There exists no provision to make it binding to collect information about the other pharmaceuticals that are members of the relevant group and that are used in the therapy of the same disease.
Here are the reasons on the basis of which the Agency is free to refuse to authorize the export of a specific pharmaceutical: 1. The pharmaceutical is available in an amount that is not sufficient to meet the population’s health demands; 2. The export may lead to an impermanent pharmaceutical shortage that will be detrimental to the population’s health needs; and 3. The non-availability of sufficient amounts of a definite pharmaceutical is seen as a major threat to public health.
The Constitution vests the Legislature with power, by way of exception and with satisfaction of the requirements of proportionality, including the international standards of recourse to legal defense that are binding upon the country, to enact legislation that will make a definite category of administrative acts unappealable in court only if this is needed in order to protect the very foundation of the constitutional system or to defend other public interests of particular importance like national defense and national security and the application of the principles and the achievement of the goals of the country’s foreign policy.
While the Legislature enacted unappealability, it should not prevent the persons immediately concerned (propositus/propositi) from referring in court to the nullity of an administrative act whenever such an act undermines the foundation of the administrative procedure that was established by the Constitution and further developed in the existing legislation (for example, when the issuing authority lacked legal competence or failed to comply with the form of the statute).
The subject of the action is the request of a group of Members of Parliament for a binding interpretation of Art. 120, para 2 read in combination with Art. 56 and Art. 57 of the Constitution. The Constitutional Court admitted the case at issue upon its merits to answer the question: Are there any Constitution restrictions upon the Legislature in the passage of legislation that makes administrative acts unappealable?
The submission insists that the freedom that the Legislature enjoys under Art. 120, para 2 of the Constitution to pass legislation that will make administrative acts unappealable is fictitious. Sublime values like defense of the national security and of the sovereignty of the State keep a tight rein on this freedom as does the requirement that fundamental human rights should not be infringed on and that rights concerning privacy and property should not be ignored out of proportion. Accordingly, the request filed expected as a feedback the legally permissible parameters of the Legislature’s power to enact such unappealability.
To provide the interpretation requested the Constitutional Court proceeded as follows:
Art. 120, para of the Constitution was not subject to a content analysis at the time the Constitution was adopted; it was just its systemic position that was debated. The fact that the text under discussion was incorporated in Chapter Six of the Constitution – Judicial Power – and that it is pertinent to Paragraph 1 of Art. 120 of the Constitution reading that the courts shall supervise the legality of the acts and actions of the administrative bodies give reasons to make a conclusion that the possibility of unappealability as provided for shall apply to an appeal through the court only and shall not pertain to administrative acts to which an administrative appeal procedure is applied.
The answer to the interpretative question discussed is organically linked to the need that stems from the Constitution to find an efficient tool to counter infringements on the rights and legitimate interests of individuals and corporate entities. Art. 56 of the Constitution reads that the right to legal defense is a fundamental right that enables anyone within the national jurisdiction to resort to individual energetic actions so as to parry any possible violation of or threat to their legal privacy. This is a universal procedural right that is intended to be a guarantee that all other fundamental rights and Constitution-recognized interests of individuals and corporate entities will be exercised.
The right to legal defense is more than just a tool to enforce all other fundamental civil rights. It is a standalone right that has a value of its own and its exercise seeks to really maintain human dignity. The right to legal defense discourages infringements upon privacy by the authorities and subjects of law. In that context the right to legal defense, apart from being a common universal right, is an individual civil right that enables the materialization of the Constitution-recognized rights and interests and of rights and interests that stem from any other law.
The right to legal defense makes it binding on all state authorities, within their competence, to help an individual whose rights have been infringed on to cope with the consequences of the infringement, respectively of the threat. Definitively the central government and local authorities are under the obligation to act so. However, sometime the citizen-administration procedural relationship fails to have the due legal redress effect. Hence the need to maintain clear the path to the independent court and justice. In adversary trial and transparency the court finds the truth and properly enforces the law. It is at trial alone where the injured party faces offenders as an equal. This is worded in Art. 121, para 2 of the Constitution that proclaims the principle of the equality of parties in adversary proceedings involving the complainant and the respective administration over the demand for legal defense may turn out to be wishful thinking without the chance to have recourse to court. That is why although the right to legal defense is not explicitly formulated in the Constitution, even so, within the general wording of its Art. 56, it should be regarded as a principle of the state committed to the rule of law.
The problem that the Judiciary is facing is in what cases and under what circumstances restraints may be put on the right to have recourse to an independent and impartial tribunal established by law. While the Constitution proclaims that the fundamental rights shall be irrevocable, it goes on to say that they shall not be abused nor shall they be exercised to the detriment of the rights or the legitimate interests of others (Art. 57, paras 1 and 2).
The hypotheses of abuse of the right to legal defense in terms of recourse to court or the exercise of the said right to the detriment of others are untenable. In a democratic law-governed state the integrity of the court as a Constitution-established unbiased authority to arbitrate is unchallenged. Further, the tenets of justice rule out the risk of a judicial act decreed to the detriment of the rights and legitimate interests of persons who are deprived of the chance to be parties in proceedings.
The logical conclusion is that the recourse to court as a standalone fundamental right should not be confined solely to cases where a supreme public interest that the Constitution recognizes is abused. First, a legitimate reason to resort to the restraint should be seen in the necessity to defend the very foundation of the constitutional system inclusive of state sovereignty, separation of powers, form of government and state organization. Second, restrained recourse to court would be justified, if need be, to prevent abuse of other public interests of particular importance such as national defense and national security or foreign policy objectives and principles. In any of these circumstances the restraint should conform to the principle of proportionality, i.e. it should be needed for the defense of the above-mentioned category of public interests and it should be the most appropriate and the softest possible tool to efficiently achieve the constitutionally justified goal.
The above stated principles are fully relatable to the interpretation of Art. 120, para 2 of the Constitution. The underlying guiding principle that the text referred to formulates is the freedom to contest in court any administrative act indiscriminate of the authority that has issued it – the central government or local authorities – and of its nature – individual, general or legal act – whenever such an act is detrimental to the rights and legitimate interests of individuals or corporate entities. Alongside, the text referred to provides for the neglect of this principle as it allows, by way of exception, to enact legislation that will make some administrative acts unappealable but does not explicitly explain on what grounds it may be proceeded with. In this way the Constitution implies a possible curtailment of a fundamental right, in the case at issue, the right to legal defense through the right to have recourse to court.
Beyond the judicial control as per Art. 120, paras 1 and 2 of the Constitution, is the appropriate competence that, within the framework of the powers that it is vested with, controls any administrative body that issues an act. The Constitution empowers the court to supervise only the legality of the acts and actions of the administrative bodies while it disallows the courts to pass judgment on the free exercise of discretion that the administration is duly vested with.
The exception under Art. 120, para 2 of the Constitution does not cover administrative sanctions that administrative bodies impose and that are in essence jurisdictional acts and as such shall be subject to judicial control all the time.
The existence of legal interest conditioned by the direct involvement of the rights and legitimate interests of individuals and corporate entities is necessary and sufficient justification to place the State under the obligation to ensure adequate legal defense. Contrariwise, if the purposes and contents of a definite category of administrative acts (for instance, in-house acts) do not involve the individual legal domain of subjects of law, the introduction of unappealability does not bind it.
The Constitutional Court can refer to its case-law for the clear definitions it has given of the nature of the problem that relates to the interpretative matter under consideration, namely, the answer to the question: What is the constitutional measure of the exception under Art. 120, para 2 of the Constitution? In particular, is the Legislature free to make judicially unappealable, as it sees appropriate, a definite range of administrative acts at its own discretion or shall the Legislature’s action be confined to criteria that are not explicitly set forth in the Constitution but stem from the spirit and the underlying principles of the Constitution?
There is no reason to retreat from the understanding that when the recourse to legal defense for definite administrative acts is suppressed, legislative appropriateness is constricted in the sense that unappealability shall not be an obstruction to the exercise of the fundamental rights and freedoms of the citizen unless the protection of supreme Constitution-enshrined values that pertain to public interests of particular importance calls for. For instance, for the sake of the defense of the national security it may appear to be justified to restrict the appeal in court against administrative acts that directly involve the country’s defense capability or relations with other states.
However, it is an unacceptable thesis that a law shall be allowed to provide for departure from the principle of appealability only against administrative acts whose contents and consequences do not infringe on the citizens’ fundamental rights. As noted above, the blanket regulation that derives from the Constitution and that is the basis on which a proportionate and reasonable curtailment of various kinds of rights, fundamental rights included, shall be the applicable regulation.
So far the Constitutional Court has given predominantly restrictive interpretations of the possibility to remove the appeal procedure for administrative acts established by law. In principle, the Court assumed that such an exception to the general rule of Art. 120, para 2 of the Constitution may be justified by particularly important public interests and only within narrow confines that implicate specific rather than generally referred acts that don’t irremediably undermine the exercise of the fundamental rights of citizens and the principle of the state committed to the rule of law. For instance, the Legislature shall not make administrative acts unappelable on the basis of the authority that issues them (an administration or a particular group of administrations) while it ignores the substance of the acts. The Court has agreed and is agreeing with these views.
Also the Constitutional Court thought that by the enactment of unappelability under Art. 120, para 2 of the Constitution the Legislature shall not rule out the possibility of judicial defense against void administrative acts whenever the infringement on lawfulness undermines the very foundation of the set of administrative procedures that the Constitution establishes and that the existing legislation develops further (for instance, whenever the issuing authority is not vested with the legal competence or the form that the law prescribes is not observed). Individuals who suffer from such acts shall all the time be free to take legal action in reaction to distortions of the acts by severe and drastic violations of the legal procedure that makes the acts invalid. This is the way to follow if the wronged individuals are to possess an efficient tool to eliminate the constitutive effect of the fundamentally vitiated administrative act and to be compensated, as appropriate, for the damage suffered in consequence of the act’s application. The opposite would be tantamount to a flagrant violation of the principles of the state committed to the rule of law in the sense of Art. 4 of the Constitution.
Whatever the case may be, the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution calls for proportionality of the codified restriction. That is to say, the restriction shall be appropriate, the softest possible and, in parallel, an amply sufficient tool to reach the constitutionally warranted goal. The endeavor to find the exact measure in restriction of legal defense within the margins of Art. 120, para 2 of the Constitution is a serious legislative problem. Consideration for “the prohibition of excessiveness” as a consolidated component of the law-governed state relates to the case-law of the European Court of Human Rights (ECHR) under the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) and to the prescriptions for recourse to court by virtue of the international instruments that the country has ratified, promulgated and enacted and that supersede any domestic legislation stipulating otherwise (Art. 5, para 4, sentence 2 of the Constitution). The issue under consideration correlates to Art. 14 (1) of the International Covenant on Civil and Political Rights (ICCPR) and Art. 6 (1) of the CPHRFF read in combination with Art. 6 (2) of the Treaty on European Union. Further the ECHR judgments should likewise be taken into account (see Terra Voningen B.V. v. Netherlands, Chevrol v. France, Klass and others v. Germany, I.D. v. Bulgaria, Mihailov v. Bulgaria, „Capital Bank“ AD v. Bulgaria, Fazliiski v. Bulgaria, etc). It is inadmissible to let the exception that Art. 120, para 2 of the Constitution allows to conflict with the country’s international duty to ensure that any person shall have recourse to independent and impartial court in the determination of his or her rights and obligations.
The deviation from the general principle of appealability of an administrative act is admissible within the margins as set by Art. 120, para 2 of the Constitution but in practical terms consolidates the constitutive effect of the respective category of acts. This is fully sufficient to achieve the Constitution-justified goal that seeks to protect public interests of special importance. However, it would be excessive and unjustified to let unappealability curtail and furthermore, deny altogether the individual his or her civil right to recourse to court. Therefore when unappealability is codified to meet the requirement of proportion and in particular, the international standards of recourse to the law, the Lawmaker shall consider the option of indirect judicial control whereon the respective administrative act shall give rise to the intended legal effects while the injured parties shall enjoy the right to take parallel legal action against the wrongful act in all its aspects and to sue for damages inflicted. Otherwise the text of Art. 7 of the Constitution concerning the liability of the State for any damages caused by illegitimate acts on the part of its agencies would become an unfounded statement.
Premising on the above dispositive facts the Constitutional Court formulated, in general terms, a summary conclusion to the effect that respect for the requirement of proportionality may allow for the codification of the no-appeal with a court of an expressly named category of administrative acts on the condition that the no-appeal is needed to safeguard the very foundation of the constitutional order or of other public interests of particular importance such as the national defense and security or the principles and objectives of the country’s foreign policy. The rules of recourse to legal defense under Art. 14 (1) of the ICCPR and Art. 6 (1) of the CPHRFF shall, all the time, be seen as an element of proportionality. The exception under Art. 120, para 2 of the Constitution shall not thwart the chance for wronged individuals to plea in court that the administrative act that has injured them should be considered null and void.
The justification for a user fee to be paid to the Government is the delivery of a service or the performance of an operation by a public authority for a beneficiary who is the payer. That fee is onerous and voluntary, hence the unconstitutionality of the provision in the Energy from Renewable Sources Act that enforces it on the generation of electricity from such sources, viz. solar and wind power plants, since it has none of the above-mentioned aspects for the reason that it is an ex gratia compulsory payment (i.e. a payment made without the giver recognizing any liability or legal obligation).
The provision is unconstitutional as it compromises, among other principles, the Constitution-established principle of guaranteed equal legal conditions for business when it awards a privilege to some economic actors like those engaged in the generation of electricity from definite renewable sources while it declines to grant one to be enjoyed by the generation of electricity from renewables other than the privileged ones. Thus the provision under discussion goes against the requirement of the Government protection to be given to lawful investments and respectively, to free enterprise that is the pivot of the national economy.
Furthermore, the texts that provide for an administrative penal procedure to be followed in the event of non-payment of the fee established for the generation of electricity from certain renewables are likewise unconstitutional since they favor the unconstitutionality of the provision under consideration.
The case was initiated on 14 January 2014 by the President of the Republic of Bulgaria in proceedings subject to Art. 149, para 1, item 2 read in combination with Art. 150, para 1 of the Constitution. The President requested that the Constitutional Court declare unconstitutional § 6, items 2 and 3 of the Concluding Provisions of the 2014 State Budget of the Republic of Bulgaria Act (SBA-2014) that create Art. 35а, paras 1, 2 and 3, Art. 35b, paras 1, 2, 3 and 4, Art. 35c, paras 1, 2 и 3 and Art. 73, paras 1, 2, 3 and 4 of the Energy from Renewable Sources Act (ERSA). The newly made texts of the Energy from Renewable Sources Act run thus:
„Article 35a
(1) A fee shall be collected for the production of electricity from wind and solar energy.
(2) The size of the fee referred to in paragraph 1 shall be determined using the following formula:
FPE = PP х QEP х 20%,
where:
FPE is the fee for production of electricity;
It is unacceptable to request that the European Parliament Election that was held on 25 May 2014 be declared totally invalid. A request to that effect may seek to invalidate the election of an individual Member of the European Parliament (MEP), in contrast to the national parliamentary election, the reason being that the Republic of Bulgaria shall not schedule and hold a second European Parliament election.
The case was instituted on 5 June 2014 upon an initiative from 49 Members of the 42nd National Assembly who referred to Art. 394, para 1 of the Election Code to request that the Constitutional Court declare invalid the Election to the European Parliament on 25 May 2014 of Members for the Republic of Bulgaria.
The MPs insisted that there had been actions in flagrant violation of the Election Code and that they can be summarized as follows:
А. Large-scale vote buying which compromised the election returns that don’t show the voters’ real choices and which combined with omission on the part of the competent government authorities who failed to take timely measures.
B. Spending during the election campaign of large amounts of money from sources that were not made transparent, hence the strong suspicions about the origin of the money, the business quarters who contributed the money and the swayed election returns.
The proceedings are in the first phase where the Constitutional Court is to rule on the admissibility of the petition in abidance by the procedure as provided for by Art. 19, para 1 of the Constitutional Court Act.
To hand down a ruling the Constitutional Court considered as follows:
The Constitutional Court acted on an initiative from a legitimate petitioner as per Art.150, para 1 of the Constitution, however, the petitioners made only general assessments of violations committed during the holding of the elections and failed to cite concrete circumstances that make out a case. Nonetheless in the case at issue it won’t be needed to resort to the procedure under Art. 19, para 3 of the Rules on the Organization and Activities of the Constitutional Court (ROACC) which procedure seeks to eliminate deficiencies as per Art. 18, para 2, item 4 of the ROACC, since under the existing legislation the Constitutional Court is not vested with the power to pronounce totally invalid elections by which the Republic of Bulgaria is to send its Members to the European Parliament and thus to push for a new election which is exactly what the MPs petition for. The Legislature complied with Art. 42, para 2 of the Constitution and conformed to Point VІІ of the Constitutional Court’s Decision No. 4/2011 on Constitutional Case No. 4/2011 and codified in Section ХІІ of Chapter ХVІІ of the existing Election Code a procedure to be followed to overthrow the results of election of MEPs with the Constitutional Court solely in the context of Art. 149, para 1, item 7 of the Constitution, that is, only with regard to the election of a MEP (cf. Arts. 393-395 of the Election Code). That binding legal frame includes Art. 394, para 1 of the Election Code to which the petitioners refer to justify their petition’s admissibility.
The above account invites a conclusion that there exists no legal avenue to approach the Constitutional Court to dispute the entire legitimacy of the election of Members of the European Parliament for the Republic of Bulgaria and to petition that the election be quashed altogether. Since in this particular case the Constitutional Court has been approached with a petition that goes beyond its competence, the petition shall be abandoned and action shall be dismissed subject to Art. 26, para 1, proposition 2 of the ROACC.
The national legislation regarding the incapacitation of persons who are placed under judicial interdiction, respectively, the equivalence between the placement under full interdiction of infants and under limited interdiction of minors shall be subjected to a constricted interpretation in a manner to ensure the materialization of the Constitution requirement of the extension of stronger protection over the mentally deranged. The only purpose of the legal arrangements to this end is to keep such individuals away from actions and transactions that may be detrimental to their own interests and to guarantee the security of the civil turnover by the protection of the rights and interests of third parties who might likewise suffer.
The matter under consideration is a challenge by the Ombudsman of the constitutionality of Art. 5, para 1 – the phrase „and become incapacitated“ and Art. 5, para 3 of the Persons and Family Act (PFA).
The Ombudsman insisted that the challenged PFA texts were passed when the societal relations that prevailed then are no longer compatible with the new Constitution and with the international human rights instruments in general and with the UN Convention on the Rights of Persons with Disabilities in particular. The Ombudsman claimed the texts that are referred to were unconstitutional and intolerable in the legislation of a state committed to the rule of law. He found the challenged PFA provision to be in contravention of the Constitution-granted guarantees of the protection of human dignity and rights. The Ombudsman noted that the only Constitution curtailment of the rights of persons who are placed under judicial interdiction relates to suffrage as per Art. 42, para 1 and Art. 65, para 1 of the Constitution and, accordingly, stated his opinion that it is inconsistent with the Constitution to place persons of full legal age under full legal interdiction subject to a general legal text. The Ombudsman stressed that mentally deranged and physically handicapped individuals should enjoy special protection from the State. It is inadmissible to let such protection take the form of placement under disability or to considerably trim it on the basis of general and obsolete criteria like insanity or mental disorders and ignore the specifics of different illnesses and conditions and the extent of disability. In the understanding of the Ombudsman protection should take „appropriate forms to assist and support such persons in decision-taking and in actions and transactions that they may undertake unassisted and should not appoint someone guardian so as to divest them of the capacity, to a varying extent, to make their own choices concerning their day to day life“.
Further, the Ombudsman referred to the noncompliance of the PFA texts that he quoted as unconstitutional with the UN Convention on the Rights of Persons with Disabilities. He viewed the texts challenged as inconsistent with the principles that are set forth in Art. 3, Art. 4 (1) and Art. 12 (2) of the Convention.
The Constitutional Court dismissed the challenge on the following grounds:
The Constitution prescribes that “the physically and mentally handicapped shall enjoy the special protection of the State and society” (Art. 51, para 4). Regarding the mentally deranged the special protection that they enjoy shall keep them away from legal steps and transactions that might be detrimental to their own interests. An important element of the protection is the institute of legal interdiction which makes sure that the mentally deranged shall be kept away from legal steps and transactions inasmuch as the nature of their condition does not presuppose a different and more efficient way in which their interests can be protected. These restrictions have yet another effect as they protect, inter alia, the rights of third parties who might likewise suffer from the legal steps of mentally deranged individuals just as they protect the security of civil turnover.
The only restraints that the persons placed under legal injunction face are displayed at constitutional level and touch on the right to active and passive suffrage only (Art. 42, para 1 and Art. 65, para 1 of the Constitution) inasmuch as the exercise of the right to suffrage is not confined to nomination and voting in elections but is a statement of volition that is based on the awareness of political interest.
The Persons and Family Act reads that persons who, due to insanity or mental disorder, cannot take care of their affairs shall be placed under full disability and become incapacitated. This is an essential condition that is relevant to the legal status of a person and that renders him or her unable to exercise rights or to take responsibilities on their own. The legal status of legally disabled persons is equivalent to that of infants. It is their guardians who undertake legal step in their stead and on their behalf.
Legal incapacity ensues from adjudicated full interdiction. The court is approached by the spouse, relatives, a prosecutor or other persons who may be concerned. The court adjudicates on the basis of two criteria: a medical criterion which gives the reasons for the mental disorder; and a legal criterion to show whether the insanity or mental disorder makes the person incapable to take care of his or her affairs. The adjudication of the court practically measures how serious the mental disorder is and tries to foresee how long it may linger. Alongside, the medical criterion does not make it binding on the court to order a medico-legal psychiatric assessment. The court is bound to hear the person to be placed under interdiction and if the hearing proves insufficient, the court shall proceed with taking of other evidence and hearing of expert witnesses (Art. 338, para 1 of the Civil Procedure Code – CPC). Though this judgment is based also on an assessment of the duration of the mental disorder, there exists no mechanism of regular reassessment of the condition, hence of a chance to reinstate the disabled individual’s rights if, as a result of treatment or on the basis of other circumstances the positive changes that may have occurred in the individual’s mind will not justify such a restriction. Moreover, the individual placed under interdiction is deprived of a legal venue to approach the court directly with a plea for vacation of the interdiction. The individual’s relatives or the authority of guardianship or the prosecutor may request that (Art. 340 of the Civil Procedure Code).
The legislation does not explicitly arrange the legal status of the disabled. Their status is made equivalent to that of minors by the artificial sign of equality between the parental care for a minor who is the biological parent’s own child and the care for a disabled person by a guardian (custodian) who is appointed by the mayor of the municipality. The legislation makes it binding on the mayor to act in the best interest of the person to be placed under full interdiction and to appoint a custody board whose members are kin and relatives of that person (Art. 156 of the Family Code). Provision is made for cases for custody by right where the custodian is the spouse or the parents of the person placed under full interdiction (Art. 173 of the Family Code). It is not clear who will be appointed as a custodian to an individual who has no relatives or whose relatives refuse to take custody.
The absence of detailed legislation concerning the legal treatment of adult disabled persons curtails an unjustifiably broad package of rights, including rights of constitutional rank that are exercised by legal steps rather than remain confined to such rights which, if exercised, will constitute a threat to the interests of the disabled, of third parties or of society. For instance, the disabled are divested of the right to defend their honor and dignity when they feel an
The declaration of islands and terrestrial areas that were formed as a result of natural processes occurring in water bodies public state property does not have the effect of expropriation and does not impinge on the Constitution-proclaimed inviolability and protection of private property as it will be valid ex nunc and will not rearrange existing legal relationships of ownership. The declaration does not go against the principle of the state committed to the rule of law nor does it infringe on the requirements of the provision of equal conditions for the development of businesses.
The constitutional case is in response to a challenge of the constitutionality of Art. 12 of the Water Act by a jury of the Civil Panel of the Supreme Court of Cassation.
The challenge notes that the contested text is tantamount to nationalization of lands on islands that prior to the Water Act’s entry into force were restituted to individuals in the procedure as prescribed by the Agricultural Land Ownership and Use Act (ALOUA). Hence the contravention of Art. 17, para 1 of the Constitution that reads that the right to property shall be guaranteed and protected by law and of Art. 17, para 3 of the Constitution that reads that private property shall be inviolable and of Art. 17, para 5 of the Constitution that reads that forcible expropriation of property in the name of state or municipal needs shall be effected only by virtue of a law, provided that these needs cannot be otherwise met and after fair compensation has been ensured in advance. The challenge followed on the adjudication of a specific justiciable dispute. The jury’s adjudication had to apply Art. 12 of the Water Act; however, as the jury found the text in question to be inconsistent with the Constitution, it suspended the proceedings and approached the Constitutional Court.
The Constitutional Court dismissed the challenge by reason of the following argument:
Art. 12, para 1 of the Water Act reads thus: „The islands and terrestrial areas formed as a result of natural processes occurring in rivers, bodies of water and islands in the internal marine waters and the territorial sea shall constitute public state property.“ The above-cited text on which there had been no discussion was approved in 1999. However, its enforcement raised doubts about its compliance with the Constitution, primarily with respect to its effect on vested interests.
The first impression that the analysis of the text challenged creates is the Lawmaker’s approach. Art. 12, para 1 of the Water Act revives a legislating policy that has been adopted in the abolished Property, Ownership and Servitus Act (POSA). At that time a consolidated opinion was formed that islands in rivers shall be treated as a real thing that had to be subject to a specially made regulation that names their owner. The now existing Ownership Act that was passed more than 60 years ago abandoned this approach and took a different one instead that was an outcome primarily of the uncertainty whether islands in rivers exist independently, like any real thing. Thus the concept that came to prevail that there was no need to pass special provisions about the legal status of islands in rivers and that the matter could be treated within the framework of other groups of real things. As a result some islands were individualized as landed property, inclusive of farmland, forests, etc. Following the definition some of these islands were entered into existing cadastral maps and registers and became separate pieces of property. Quite a number of the islands though have remained simply a part of a concrete water body and this fact indicates that they do not enjoy a standalone status as pieces of property; their legal status is identical with that of the water body they are appurtenant to. In the late 1990s the legislating policy concerning islands in rivers and bodies of water was revisited to single them out and, naturally, such a policy called for the identification of an owner. First, a Forestry Act was passed in 1997 (abolished in 2011), that declared islands in border rivers in the national forest to be exclusively in state ownership. Two years later a concept evolved that an omnibus regulation was needed, hence Art. 12, para 1 of the Water Act to provide that the islands and terrestrial areas formed as a result of natural processes occurring in rivers and other bodies of water are in public state ownership.
By the enactment of Art. 12, para 1 of the Water Act the Legislature subscribed in principle to the idea that was codified in the previous Bulgarian legislation and that named the owner of the islands and terrestrial areas formed as a result of natural processes occurring in bodies of water, the difference being the legislative technique of rebuttable presumption. The islands were likewise declared to be in state ownership unless it is proved otherwise. However, in 1999 the Legislature was content to declare these in public state ownership. In general, a conclusion may be made that the provision that is the mark of the challenge is modeled on an older abolished legal text and essentially follows its logic. Understandably, certain differences do exist in, inter alia, the terminology used, yet on the whole the link between Art. 12, para 1 of the Water Act and the abolished POSA is apparent as regards the basic roots of the regulation, the purpose it is intended for and the essential similarity of legal impacts.
Before making conclusions about the legal effect of a provision it is necessary to see what purpose it is intended for within the legislation system. The Constitutional Court’s view is that the purpose of the text that is the mark of the challenge is to provide for the legal status of the islands as a real, that is, a corporeal thing, that exists on its own exclusively within the borders of a water body. Since an island is a piece of land that is always surrounded by water and inasmuch as waters are in public state ownership (Art. 18, of the Constitution and Art. 11 of the Water Act), it seems logical to declare the islands and terrestrial areas formed as a result of natural processes occurring in bodies of water public state property alike. In that sense the Legislature has incorporated Art. 12, para 1 of the Water Act to declare its will to “emancipate” such islands, in legal terms, from the factors that generate them. No doubt such islands are inextricably linked with the water body as they are subject to its impacts all the time and configure a combined geological, climatic, hydrological and ecological assemblage, however, in parallel and from the perspective of legal effects in this way the islands’ legal independence is recognized, i.e. the islands acquire the aspect of a separate real thing. If, however, that unique legal status materialized owing to the pieces of landed property, including farmland, forestland and suchlike that were constituted when that was physically and legally possible, it is evident that the goal that the Legislature pursues has already been achieved. Accordingly, the need that called for the passage of this piece of legislation is gone and the question of its impact on such landed property is gone. Thus the solution as advanced in Art. 12, para 1 of the Water Act in practical terms is relevant for the islands that for one reason or another have not acquired a legal status within the framework of a definite group of immovable property as it allows to individualize these alike. In this way the Act provides for the legal status of the islands within the confines of the water body where they were formed inasmuch as there had been no other arrangement of this matter prior to the Act’s entry into force. Yet in cases where individualization did occur, it will continue to have effect to address the needs for which it was done.
The very Act furnishes proofs to that effect. It is noteworthy that the incorporation of Art. 12, para 1 of the Water Act into the body of laws was not paralleled by any change in the status quo ante of the islands. Evidently as the case stands the only conclusion that can be made is that whenever Art. 12, para 1 of the Water Act is discussed, the provisions of some other pieces of legislation will have to be taken into account as for instance the Agricultural Land Ownership and Use Act (ALOUA), the Forestry Act, the Listed Areas Act and some other that continue to be relevant to the legal status of the islands, in particular to their individualization and the title holder. The text of Art. 12, para 1 of the Water Act joins the legal environment where previously established rules continue to be valid. Since Art. 12, para 1 of the Water Act neither amends nor repeals pieces of legislation from which titles can be derived which is a conditio sine qua non, if the Act intends to provide in a new way for the relationships already established, there is no way to draw a conclusion that it remakes the legal status quo ante prior to its entry into force and specially that it has „an effect of nationalization“. For this Act to be able to provide, in a new way, a legal frame concerning the river islands and, inter alia, the titles that existed prior to its entry into force, there should be some kind of intervention in the Act whose effect resulted in titles. Generally, a legal situation that was valid prior to an act’s entry into force and that continues to have reasons in the existing legislation, leaves no room for a different version.
Indirectly though and within the adopted approach of legal regulation, the view that Art. 12, para 1 of the Water Act is not tasked with a rearrangement of titles that existed prior to its entry into force is supported by the fact that the Act does not set any deadline or procedure to enter into the deeds books, as public state property, the islands that have been individualized as farmland, forests and suchlike nor does it make any reference to the State Property Act (SPA) with regard to other water bodies.
The above account leads to the conclusion that Art. 12, para 1 of the Water Act seeks to provide for the legal status of the river islands that prior to its entry into force were an integral part of the water body where they were formed. The meaning and purpose of the text in question rule out, therefore, the alternative to attribute to it an effect of „nationalization“. Given the conclusion made there is no need to discuss the reasons as stated in the application within the purview of restitution or the nonpayment of compensation to redress the effect of „nationalization“ of the provision in question. However, attention should be given to yet another point. The fact that Art. 12, para 1 of the Water Act is formulated in a way to conduce to a definite goal, leads to some problems of its enforcement. The existing general legislation needs some enabling legislation. There is no legal definition of the notion „island“ just as there is no clarity in the criteria that should differentiate an island from other terrestrial areas that the text in question refers to. Some views maintain that islands are merely part of the riverbed and because of that they cannot be singled out as pieces of landed property. The Constitutional Court holds the opinion that such understanding of the matter is more likely to cause problems. It is not clear to what an extent the cited opinion considers the fact that Art. 12, para 1 of the Water Act treats islands and other terrestrial areas alike that are formed as a result of natural processes in rivers. It should not be doubted, however, that there exist some river islands that all the time or usually protrude above the water surface and that, therefore, have area and borders as variable as those of the riparian estates. The differentiation between the sites that Art. 12, para 1 of the Water Act provides for is important as it will prejudge how this text will correlate with the general texts of the Ownership Act, specifically its Article 97 and some other articles.
A question is asked in some of the opinions whether the Legislature had justification to declare by its decision the islands formed in the rivers to be in public state ownership. In the Constitutional Court’s view that problem should be further judged in the context of the reasoning of Decision No. 19/1993 on Constitutional Case No. 11/1993 that was decreed in reaction to a request that interpretation be provided of Art. 17 of the Constitution. Article 17 explicitly states that for a corporeal thing to be in public ownership, three factors shall be in place, viz. ownership by the State or by the municipalities, the type of the corporeal thing and its purpose It is beyond doubt that Art. 12, para 1 of the Water Act provides for a special kind of real things formed as a result of natural processes and with specific location in water bodies that the Constitution declares to be in public state ownership. These specifics of the real things project the indissoluble link in hydrographic, climatic and environmental terms between the islands and the water bodies where these islands are situated. This leads to the conclusion that the public usefulness of the islands shall not be discussed outside the dependence that the laws of nature have brought about. It is the usefulness that must be the leading criterion at least until the river island comes to enjoy legal status or accommodates a large-scale extensive human activity which in turn is related to a certain „critical mass“ of land and other natural geographical features. Given the expansion of the spectrum of impacting factors it would be normal then to expect that the conclusions about the public usefulness of a river island may receive broader interpretation that goes beyond the normal natural link between the island and the water body where it is located. In fact the modus has already been applied to islands where business operations developed.
However, disagreement needs to be expressed over the view advanced in some opinions, viz. that as Art. 12, para 1 of the Water Act declares river islands to be in public state ownership per se it thus constrains free economic enterprise. On the contrary, the legal status that the islands gain as real things makes them distinct from the water body where they are situated. Legal status makes sense inasmuch as it allows a more flexible judgment to conduce to their standalone use in the broad sense of the word. It is worth mentioning in this train of thought that whenever favorable conditions are available, a concession can be granted to conduct business on river islands, just as in any other unit in public state ownership. Hence the non-agreement with the view expressed that when the Legislature passed the decision to declare that the islands formed as a result of natural processes occurring in rivers shall constitute public state property, it „doomed“ the islands to disuse and ruled out any chance for entrepreneurship and by doing so went against the requirements that are established in the Constitution and in the Constitutional Court’s jurisprudence.
Both the request and the opinions stated touch on the question whether Art.12, para 1 of the Water Act is consistent with the Constitution, remembering that it is not based on the grounds and preconditions that existed when the text was passed and that allow to declare a definite thing public state property. Art. 2, para 2, item 2 of the State Property Act (SPA) which can substantiate such a decision was passed later – only in 2005. Furthermore, Art. 12, para 1 of the Water Act does not meet the requirements as set in Art. 2, para 2, item 5 of the SPA which reads that only properties of national significance designated to serve public needs of national importance by public use can be declared public state property. Apropos of this it is worth mentioning first that a Constitutional Court interpretative decision that had been adopted long before the passage of the now existing Art. 2, para 2, item 2 of the SPA explained that, except for the entities in Art. 18, para 1 of the Constitution the placement of all other things in public state ownership shall be subject to law (Decision No. 19/1993). Prior to 1999 the declaration of river islands public state property was subject to law and thus a Constitution-established practice was observed. More interestingly the application and some of the opinions insist that Art. 12, para 1 of the Water Act had to meet the requirements as posed by Art. 2, para 2, item 5 of the SPA remembering that Art. 2, para 2, item 5 of the SPA was inexistent prior to 1999. However, again the fact was ignored that Decision No. 19/1993 establishes definite criteria as to which things can be declared public state property. Since Art. 12, para 1 of the Water Act satisfies these criteria, there is no reason to declare it unconstitutional on grounds of being dissonant with a specific provision of a definite law.
The curtailment of the disposal right enjoyed by an owner of ferrous and non-ferrous metals waste (scrap) by the Waste Management Act provision that reads that the disposal shall be free of charge for all parties is unconstitutional since it conflicts with the nondiscriminatory treatment of the separate title rights and with the obligation of individuals to contribute to environmental protection when the incentive for a commitment met ceases to be offered. Waste Management Act provisions that express a definite management strategy and the strategy-related appropriate legislation are not unconstitutional. The Waste Management Act provision that makes it binding to present a bank guarantee that has been issued by a commercial bank and only by a commercial bank having its court registration (registered office) in the Republic of Bulgaria and holding a license that has been issued by the Bulgarian National Bank is not in contravention of the Treaty on the Functioning of the European Union since it makes no difference, despite the liberalization of banking services within the EU, between a bank guarantee from a commercial bank in an EU Member State and from a commercial bank in a non-EU State. The provision must be interpreted and applied conformably to the latter case only and not to a commercial bank that has been licensed in a EU Member-State and that can deliver banking services, including the supply of bank guarantees for which it does not need to have been licensed by the Bulgarian National Bank (BNB), providing the BNB has been duly notified by the license issuing authority.
Proceedings under Art. 149, para 1, item 1 of the Constitution.
The case was filed on 6 February 2014 upon a request from the Plenum of the Supreme Court of Cassation for interpretation of Art. 8; Art. 84, para 1; Art. 86; Art. 114; Art. 115; Art. 117, para 1; Art. 129, para 1; Art. 130, para 6 and Art. 130а of the Constitution of the Republic of Bulgaria.
It was claimed that the Bulgarian Constitution has no text to provide the Constitution-established authorities that carry out activities in one sector or another of the powers of the State with the rule-proclaiming, assignment and exercise of the competence to draft and pass secondary legislation. This gap calls, pursuant to the existing Constitution regulations, for a binding legal interpretation to answer questions concerning the performance in practice of the subdelegated competence: viz. Who can entrust whom with the competence and under what conditions? Or: What is the importance of the principle of separation of powers in such entrustment? In the understanding of the Applicant the query is particularly relevant to the conferment and the exercise of statutory competence within the Judiciary considering its guaranteed normal operation which shall have to abide by the Constitution-proclaimed principle of the independence of the Judiciary. Therefore in the view of the Applicant the Constitutional Court is bound to interpret severally and jointly some Constitution articles: Art. 8 (proclamation of the principle of separation of powers); Art. 84, para 1 and Art. 86 (enumeration of the National Assembly’s legislating competences); Art. 114 and Art. 115 (enumeration of the secondary legal instruments that the Council of Ministers is free to adopt or a cabinet minister is free to issue); Art. 117, para 2 (proclamation of the independence of the Judiciary); Art. 129, para 1 and Art. 130, para 6 (provision for the functional competence of the Supreme Judicial Council) and Art. 130а (description of the functional competence of the Minister of Justice within the domain of the Judiciary), and shall give an answer to the following questions that demand interpretation:
- Which authority shall vest in statutory competences, under what conditions and by what type of act?
- Which authority may be vested with statutory competences and shall they tally with the functional competence of the Constitution-established authority thus entrusted?
- Can the Supreme Judicial Council (SJC) be vested with statutory competence to enable it to perform its Constitution-conferred functions regarding the maintenance of a well staffed and well resourced institution and the administration of the Judiciary?
- Is it permissible to let a law expand the functional powers of the Minister of Justice within the domain of the Judiciary as enumerated in Art. 130а of the Constitution, in particular, is it compliant with the Constitution to vest the Minister of Justice with statutory powers that grant him/her functions that the Constitution does not grant them as they reside in a Constitution-established authority, other than the Minister, namely, in the Supreme Judicial Council?
- Shall Art. 114 and Art. 115 be interpreted to the effect that the central government holds apriori a universal statutory competence that covers, inter alia, areas where the Executive branсh of power has no prerogatives even if the prerogatives at issue happen to be within the domain of another branch of power, the Judiciary for example, or else are vested in some other independent authorities or institutions (for instance, in the Constitutional Court, the Bulgarian National Bank or the National Audit Office)?
The Constitutional Court found the request tenable and therefore eligible for consideration on merit in the part that contains the question whether the Supreme Judicial Council may be vested with statutory competences that are requisite if it is to perform its Constitution-conferred functions regarding the maintenance of a well staffed and well resourced institution and the administration of the Judiciary inasmuch as the Constitutional Court case-law is inconsistent and thus presupposes the existence of a legal dispute over the matter at issue. In the Court’s understanding a binding legal interpretation should be made regarding Art. 130, para 6 with a view to the question whether the SJC’s competences that are listed there imply that the Council shall be free to pass secondary legislation.
The Constitutional Court dismissed
The existence of a legal dispute whose consequences may be eliminated by a Constitutional Court decision is a sine qua non for court proceedings. The dispute must have existed as of the date of the initiation of proceedings and must not have been brought to a close as of the date on which the ruling was pronounced on the admissibility and tenability of the claim.
The purpose of the control that the Constitutional Court exercises is to see that a parliamentary or a presidential act is compliant with the Constitution. Constitutional control cannot be exercised if, in the meantime, the competent authorities have taken actions to remove the consequences that have caused the legal dispute.
A group of Members of Parliament approached the Constitutional Court with a challenge of the constitutionality of a decree of 20 March 2014 of the President of the Republic of Bulgaria wherewith fifteen members of the Central Election Commission (CEC) were appointed.
The MPs insist that the presidential decree that they challenge defies the legal procedure as the President ignored the configuration of the political parties and coalitions in Parliament and went beyond the presidential competences when he revised the will of the Legislature. The MPs think that the Head of State overlooked what Art. 46, para 8 of the Election Code provides for and that instead he abided by his concepts of pluralism, justice and equality of political parties, however, the concepts fail to conform to the spirit and the letter of the law. As a result the GERB (Citizens for European Development of Bulgaria) Party nomination sent to the CEC one member in excess to the detriment of the Movement for Rights and Freedoms (MRF).
The decree that is challenged is seen as discordant with an explicit Election Code provision and therefore, incompatible with the Constitution-proclaimed principle of the state committed to the rule of law.
The Constitutional Court ruled that the case submitted could not be decided on its merits for the following reasons:
1. Art. 46 of the Election Code provides for the CEC status and composition. The Commission is a standing independent collegiate body whose members serve a five-year term in office.
Art. 46, para 8 of the Election Code vests the President with the power to appoint the CEC members other than the SEC chair (the Chairperson, the Deputy Chairpersons and the Secretary) who are appointed by Parliament. The appointment shall comply with three requirements: a) The proportion of the parties and coalitions represented in Parliament shall be retained. b) The appointment of one member each, nominated by the parties and coalitions which have Members of the European Parliament elected from the candidate lists
thereof but are not represented in Parliament. c) The representatives of a single party or coalition may not have a majority in the Commission.
2. According to the Election Code previous wording that was valid at the time the disputed presidential decree was issued, the President should have appointed fifteen CEC members. Acting on the nominations that the parties and coalitions had placed, the President appointed six GERB nominees, five Coalition for Bulgaria nominees, one MRF nominee, one Ataka Party nominee, one Blue Coalition nominee and one National Movement for Stability and Progress Party nominee.
3. An Act Amending the Election Code was approved in the period intervening the reference of the challenge to the Constitutional Court and the Court’s ruling on the admissibility of the challenge on its merits. The amendment reads that the CEC shall consist of eighteen members, counting among them the Chairperson, the Deputy Chairpersons and the Secretary whose nominations are placed by the parties and coalitions represented in Parliament, while the parties and coalitions that do not have seats in Parliament but have seats in the European Parliament may place one nomination each. Henceforth the President’s CEC appointments shall respect the proportion of all CEC members without excluding the CEC chair (the Chairperson, the Deputy Chairpersons and the Secretary) who shall be appointed by Parliament.
4. § 13 of the AAEC Final Provisions makes it binding on the President of the Republic to issue an additional decree to complete the composition of the CEC in accordance with the new wording of Art. 46, para 3 of the Election Code within three days of the amendment’s entry into force. The President acted accordingly and issued a second decree by which he appointed a CEC member, the nominee of the Movement for Rights and Freedoms. Thus on the day this resolution was issued, the CEC configuration mirrored that of the parties and coalitions represented in Parliament in keeping with the new Election Code requirements which continue to be valid as heretofore.
5. The facts that were verified led the Court to the conclusion that the challenge is unsustainable and therefore must be dismissed.
The Constitutional Court decisions have ex nunc effect (Art. 151, para 2 of the Constitution). Meanwhile the requirements that Art. 46 of the Election Code sets to be met for the appointment of CEC members were amended and the President issued a second, supplementary decree to appoint one more CEC member and thus aligned the CEC membership to the latest amendments. Given this situation there is no need to rule on the constitutionality of the contested first decree.
Amendments to the legislation must always be recognized and accounted for in the supervision over both – compliance with the Constitution and with the law. In the context of the constitutional case under consideration the construal to make is that the compliance of the contested presidential decree with the Constitution and the law must be judged further in the light of the legislative
changes that occurred in the wake of the issuance of the decree and the existence of a second supplementary decree. No doubt the Election Code amendments that were followed by the second presidential decree resulted in a CEC whose membership meets all that the new wording of Art. 46 of the Election Code requires.
The Constitutional Court is not engaged in the administration of justice in the meaning of Chapter Six of the Constitution which vests this power in the Judiciary. The Constitutional Court rules on concrete legal disputes in the field of public law when and only when the Constitution vests it with supplementary powers. These disputes involve nonstatutory instruments – National Assembly decisions and presidential decrees – that are checked for compliance with the Constitution, rather than laws.
A constitutional court is to handle a legal dispute. Legal disputes that are brought to the Constitutional Court are of a specific type and are based on the alleged noncompliance of a National Assembly’s act or of a presidential decree with the Constitution. The purpose of the exercised constitutional control is to eliminate the noncompliance and to reinstate the primacy of the Constitution. There exists no justification for control to be exercised whenever in the meantime the National Assembly or the President has taken action to do away with the consequences that have caused the legal dispute. As the case stands, the combined action that comprises an amendment to the Code and a supplementary second presidential decree, the President’s steps of appointment of CEC members conform to the legislation in place.
The existence of a legal dispute whose consequences are to be eliminated by a Constitutional Court ruling is a sine qua non for proceedings with the Court. The dispute must be pending throughout the interval from the initiation of the proceedings to the ruling on the dismissal or non-dismissal of the case and the decision on the case, if pronounced admissible, on its merits. In the case at issue, the legitimacy of the CEC membership is questioned and judged in the light of the constitutionality of a challenged presidential decree. As of now the dispute on that matter no longer exists, consequently there exist no legal consequences to eliminate whereupon a Constitutional Court ruling, if any such, will become irrelevant and any further litigation will have to be dismissed.
The Constitution forbids the National Assembly to enact, at its own discretion and by a decision, not by a law, a legal curtailment of a fundamental right (the right to property as the case stands) and thus to bypass the legislating procedure which comprises two readings of drafted legislation and a presidential veto on a bill which is then returned to the National Assembly for further debate.
The declaration of a moratorium on the disposition of immovable property without a clear indication of the duration of the moratorium conflicts with the requirement of legal certainty which is an element of the state committed to the rule of law.
The curtailment of a fundamental right is not proportionate if it goes beyond the legitimate ends that the curtailment seeks to achieve.
The Constitutional Court was approached by the General Assembly of the Civil College of the Supreme Court of Cassation who challenged the constitutionality of Point 8 of the National Assembly’s Decision of 26 May 2009.
The claim contested the declaration of a moratorium on all transactions involving blank space in the Studentski Grad locality – Sofia and the maintenance of the moratorium as long as the ownership is identified.
The Constitutional Court found the claim sustainable on the following grounds:
Following the National Assembly’s Decision of 19 February 2009 an Ad hoc Inquiry Committee was set up „to identify property adjustment and use acts and actions that involve estate in Studentski Grad in the city of Sofia“. To carry out the assignment the Committee made inquiries and wrote up a report and submitted it to Parliament. The report’s findings may be summarized in two main groups: a) inobservance of the restitution law with examples cited of the restitution of estate that is used for the needs of the universities, the Cancer Clinic and other and with cases when the landed estate authority issued invalid
and illicit title deeds; b) wrongful actions by the Sofia Municipality which registered government-owned estate as municipal and subsequent transactions with it. The Committee concluded that the wrongful actions were detrimental to the interest of the Government as the subject of law enjoying the right to possession of estate.
The National Assembly’s Decision (see its Point 1) of 26 May 2009 approved the Ad hoc Committee’s Report. Within the framework of parliamentary control on the Executive branch of power a proposal was put forward that the relevant institutions and agencies (the Regional Governor, the Ministry of Regional Development and Public Works and the Ministry of Education and Science) should examine papers and then take action and measures, including legal action, to protect the property of the Government (see Points 2-7). A separate proposal was made to the Council of Ministers to avail of its right to propose legislation so as „to draft and introduce a bill that will govern the status and the mode of Government-owned resources in campus universities or draft and introduce amendments to achieve results in harmony with the public interest.“
The contested Point 8 of the above-cited Decision reads thus: „A moratorium is declared on all transactions involving blank space in the Studentski Grad locality – Sofia and shall be maintained as long as the ownership is identified.“ By the approval of Point 8 the Legislature went beyond the constitutional confines of parliamentary control and affected rights and interests of individuals and entities who are outside the Executive branch of power.
Though the Decision quoted was not passed in the form of a law, it is prescriptive nonetheless. The contested parliamentary act does not seek to solve a specific problem whereby its implementation will achieve the intended legal effects and was suspended accordingly. By the declaration of a moratorium (temporary prohibition) on transactions involving blank space, though within a definite jurisdiction, the Legislature has formulated a general rule of conduct of multiple effects and has made it binding on an indefinite mass of subjects of law – the possible title-holders who are individuals or corporate entities, the local authority or the central government and also officers whose function is to validate, that is to notarize and register the executed property transactions (notaries, registrars of deeds and others).
The Constitutional Court’s case-law implies that the constitutional regulation of property is inclusive of the right to ownership in a broader public law sense as the citizens’ fundamental right that ensures the individual’s freedom and ability to take responsibility for their own affairs. No doubt the declaration of the moratorium essentially curtails the right to property as it removes an owner’s power to conduct legal transactions that involve his or her property.
The ownership right may be curtailed subject to compliance with the principle of the state committed to the rule of law as per. Art. 4, para 1 of the Constitution and the parameters of the exercise of rights as per Art. 57, para 2 of the Constitution, however, such curtailment shall be codified, shall be needed to enable the achievement of a constitutionally legitimate goal and shall be a proportionate weapon of defense of Constitution-proclaimed values at risk. Though the Submitter has not formulated the particulars of the claim of incompatibility with an international instrument to which Bulgaria is a party, a note may be made of the case-law of the European Court of Human Rights as per Art. 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (see Judgment of 25.10.1989 on the case of Allan Jacobson; Judgment of 19.12.1989 on the case of Mellacher and others; and Judgment of 28.09.1994 on the case of Spadea and Scalabrino, etc.).
Art. 17, paras 1 and 3 of the Constitution decrees that the right to property in all forms „shall be guaranteed and protected by law“ and that „private property shall be inviolable“. Furthermore, Art. 17, para 4 of the Constitution reads that the regime applying to the different units of state and municipal property shall be established by a law. The concept „law“ as framed in the quoted texts should, beyond doubt, be understood as the aggregate of relevant statutory instruments („law in the substantive sense“) regardless of the issuing authority as well as „law in the formal sense“ as an act of the National Assembly that the Assembly has passed in abidance by the rules of the lawmaking process. While the Constitution demands legal guarantees and safeguards for the values and civil rights that it proclaims, it recognizes that the subject-matter of the relevant lawmaking includes essential social relations that lend themselves to unchangeable regulation. Such social relations shall be treated in a law as a formal act of the right-holder of the legislating function, the National Assembly. The same holds true of the guarantees and the protection of the right to property as Art. 17, para 1 of the Constitution provides for. This is the legal reality as the mode of ownership of all forms of property is subject to primary legislation that is passed by Parliament. Given the fact that the right-holder enjoys the freedom to manage his or her property pursuant to “a law in the formal sense”, the stronger the reasons to introduce a law to make the prescriptive curtailments of this right. This requirement was not taken into account by the Lawmaker on the passage of the contested Point 8 of the National Assembly’s Decision of 26 May 2009.
The above disposition leads to the conclusion that Art. 86, para 1 of the Constitution will not allow the National Assembly, at its discretion, to vote on a decision when it should vote on a law that legally curtails a Constitution-proclaimed right, the right to property as the case is, and thus to circumvent the legislating procedure of two ballots (Art. 88, para 1 of the Constitution) and the option enjoyed by the President to return a bill for further debate and the possibility for the National Assembly to pass such a bill where the passage shall
require a majority of more than half of all MPs (Art. 101, paras 1 and 2 of the Constitution). The special modus operandi as compared to the simplified procedure to apply for the passage of all other acts of parliament, decisions included, is conditioned by the nature and importance of the social relations that are the subject of regulation by law. Thus a guarantee is provided that the preliminary debate on concerned bills will be profound and well thought-out so as to achieve the intended result while the Constitution requirements are met.
In the case at issue even if the prohibition had been codified, the moratorium on all transactions involving blank space in the Studentski Grad locality – Sofia would have been again incompatible with the Constitution had it been examined within the framework of the content of the contested Point 8 of Parliament’s Decision of 26 May 2009. In addition to the aspect as considered here and related to the kind of the act of Parliament and the passage procedure, the way in which the moratorium was declared defied the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution on two other aspects: first, it shakes legal certainty; second, it disregards the required proportionality between the curtailment of a fundamental right and the goal it pursues that in the case at issue is compatible with the public interest to overcome the consequences that stem from specific illicit encroachments upon Government property and to prevent recurrences in future.
The moratorium declared is bundled with a check that Parliament proposed to be conducted by the respective institutions and agencies which exercise the ownership rights on behalf of the Government in order to identify the ownership. However, the duration of the moratorium is fictitious as no deadline is set for the completion of the check nor is there a text to let other subjects at law that may have claims on the property in question protect their interest as they press to complete the check within a reasonable time. It is not clear either what „the identification of ownership“ means in terms of a point in time when the moratorium will cease to exist. There is not an answer to the question about the duration of the period over which the due legal action should be taken, including claims brought to court, should the check lead to the conclusion that the Government is a title-holder or to the question about the point in time when ownership would be considered identified in all other cases if it appears there is no reason for Government claims. This uncertainty is to be attributed to the inexistence of regulation concerning the production of a formal act to validate the conclusion of the check. Contrary to the requirement of legal certainty and with respect for the legitimate rights of individuals and corporate entities, a situation has arisen where the alleged short-term curtailment of the right to property actually became a long-term one and even continues to be valid today, more than five years after the adoption of the contested parliamentary decision.
There exists an apparent disproportion between the contested Point 8 of the National Assembly’s Decision of 26 May 2009 and the rest of the Decision.
The declared moratorium covers all transactions involving blank space in the Studentski Grad locality – Sofia and disregards the way in which such pieces of property have been acquired despite the fact that the National Assembly has found wrongdoing in two specific sectors: the registration of Government property as municipal property; and the restitution of Government-owned property. In defiance of justice as an element of the state committed to the rule of law in substantive terms there have been infringements on legitimate interests of individuals and corporate entities whose rights do not relate at all to the Parliament’s fact-finding endeavor to expose offences committed. In that context the curtailment that was resorted to is not the appropriate defense weapon as it is not commensurate with the objective to protect Government-owned property against a definite category of trespasses.
The substitution of the punishment of probation by the punishment of imprisonment is not unconstitutional since it is not discordant with the principle of the state committed to the rule of law that in criminal jurisdiction is expressed in terms of the principle that a preexisting penal law is a sine qua non for the existence of a crime and that a due punishment hall be meted out for it.
A perpetrated crime act is statutory when it is sanctioned by a probation measure; a crime is not statutory in the event of culpable avoidance by the convicted offender serving the sentence though the avoidance gives a reason to substitute probation for imprisonment.
A punishment is statutory even when the criminal offense is not punishable by imprisonment as per the Criminal Code Special Part and is punishable by probation only, given the fact that the Code’s General Part provides for the substitution of probation, subject to definite conditions of avoidance that is punishable by imprisonment and to awareness on the part of the convicted offender of the possibility that a potentially harsher punishment may be imposed on him. This is so since a punishment is legitimate not just when it conforms to what the Criminal Code’s Special Part provides for but also to the modified punishment that the Code’s General Part provides for and that is administered under the particular circumstances as defined in the General Part and pertinent to the offence and the offender, in this particular case to the offender’s misdemeanor in serving the probation measure that an absolute verdict inflicted on him.
Therefore, this is not an instance of violation of the Convention for the Protection of Human Rights and Fundamental Freedoms whose Article 7 (1) reads that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed since, as the case stands, the sanction is law-prescribed and is a consequence that the convicted offender could foresee as a punishment for his culpable avoidance of the probation measure that was inflicted on him.
There has been no violation of the International Covenant of Civil and Political Rights whose Article 14 (7) reads that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law since the substitution, the punishment of imprisonment, is not double jeopardy for it is imposed for the same offence that was punished by probation – the punishment is one and the fully or partly served term of probation that substitutes it ceases to apply.
Proceedings under Art. 149, para 1, item 2 and item 4 of the Constitution.
The case was filed on 24 January 2014 in response to a request from the General Assembly of the Criminal College of the Supreme Court of Cassation (the GACC of the SCC) on grounds of Art. 150, para 1 of the Constitution.
The Applicant claimed that Art. 43а, item 2 of the Criminal Code (CC) went against the Constitution. The challenged text that provides for a possibility to substitute the punishment of probation for the punishment of imprisonment in the event of culpable avoidance by the convicted offender of the probation measures imposed on him was seen as incongruent with Art. 4, para 1 of the Constitution. The argument presented to that effect postulates that a punishment may be imposed on an individual who has committed a crime by a verdict alone whereas the text challenged allows a possibility to shun this principle. The avoidance is equivalent to the revision of an absolute verdict decreeing probation which is in the process of execution and the substitution of probation for a harsher punishment, imprisonment as the case is. The substitution was not decreed in retaliation for a newly committed crime; the substitution was inspired by the fact that the convicted offender avoided the probation measures that had been imposed on him. Art. 43а, para 2 of the CC is inserted in the Code’s General Part but is applied to all crimes that are covered by the Code’s Special Part and that are punishable by probation though for many of these crimes probation happens to be the harshest sanction that the legislation provides for. In the Applicant’s view the substitution of probation for imprisonment which is not among the sanctions to be applied towards the enumerated crimes will compromise the principle of “no punishment without a law”. This principle postulates that the punishment for any crime shall be of a type and duration as provided for in the Criminal Code’s Special Part.
Further, the Applicant insists that the challenged Art. 43а, item 2 of the CC is discordant with the international instruments to which the Republic of Bulgaria is a party specifically with Article 7 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) reading that „Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed“. Moreover, the challenged Art. 43a, item 2 of the CC is inconsistent with Article 14 (7) of the International Covenant on Civil and Political Rights (ICCPR) reading thus: „No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.“ The revision of a practically absolute verdict that imposes a new punishment on a convict thus sentenced indicates noncompliance with the cited provisions in international instruments to which the Republic of Bulgaria is a party. Thus drawing on Art. 149, para 1, item 2 and item 4 of the Constitution the GACC of the SCC pleaded to the Constitutional Court to pronounce Art. 43, item 2 of the CC unconstitutional and inconsistent with the international instruments to which the Republic of Bulgaria is a party.
To pronounce its judgment the Constitutional Court considered as follows:
1. On the challenge of the constitutionality of Art. 43а, item 2 of the Criminal Code – Art. 149, para 1, item 2 of the Constitution.
Probation is a kind punishment that is defined in Art. 42а, para 1 of the CC’s General Part as a system of non-custodial measures for control and intervention that shall be imposed separately or jointly. These measures are enumerated in paragraph 2 of the same text; paragraph 3 of the same article fixes the duration of each of the measures. Art. 43а of the Criminal Code advances two hypotheses where a probation measure may be substituted for imprisonment in the event of culpable avoidance, i.e. if the convicted offender fails, without a valid reason, to serve the probation measure imposed on him. Pursuant to Art. 43a, item 1 acting on a proposal from the competent Probation Board the court may rule the imposition of another probation measure; pursuant to item 2 – it may substitute probation, fully or partially, for imprisonment whereas two days of probation shall be substituted with one day of imprisonment; in such hypotheses the duration of imprisonment may go below the minimum under Art. 39, para 1 of the CC. The latter provision is challenged as being unconstitutional and incompatible with the international instruments to which the Republic of Bulgaria is a party as it provides for the substitution of a probation measure imposed to be served out of prison for a harsher punishment that imprisonment is, even for corpus delicti for which the CC’s Special Part prescribes probation rather than imprisonment.
A specific manifestation of the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution) in criminal jurisdiction is the requirement of „no crime without a law and no punishment without a law“. That requirement is linked up to the unlimited power that the State wields to enforce coercive measures against offenders and the coercion may take the form of infringement on fundamental human rights such as the right to freedom, the right to property and the right to life (the latter has been removed from the Bulgarian criminal law). In that context it would be legitimate to resort to coercion that so tangibly affects the individual’s privacy only if the coercion is subject to unambiguous and firm prescriptions as formulated in the criminal substantive and procedural law. Thus stability and legal certainty that are the essentials of a state committed to the rule of law would be ensured in the respective substantive and procedural law relationships that were the subject of the criminal proceedings.
There would be violation of the abovementioned principle and respectively unconstitutionality in the meaning of the reasoning that is presented in the plea of the GACC of the SCC if the challenged Art. 43а, item 2 of the CC provided for a punishment for an act that is not determined as a crime in the Code’s Special Part or if the Code’s General Part that contains a provision for the substitution of probation for imprisonment is seen as a deviation from the requirement of „no punishment without a law“. The substitution of probation for imprisonment does not constitute a punishment for an act that is not determined to be a crime though it relates to the avoidance by the convicted offender of the probation measure imposed on him. This is so as it is not the convict’s conduct that as seen as a crime by the CC’s Special Part; it is the crime for which the offender has been convicted by a final verdict that imposed a probation measure that the convict culpably avoided that is the reason for the sanction, i.e. the challenged Art. 43а, item 2 of the CC does not waive the requirement of „no punishment without a preexisting criminal law“ in the Special Part of the CC.
The substitution that the text in question provides for does not waive the requirement of „no punishment without a preexisting criminal law“ even in the hypothesis of an offence for which the CC’s Special Part does not prescribe imprisonment though the punishment of imprisonment may be imposed to punish the convicted offender for the culpable avoidance of the probation measure. If probation is to be substituted for a harsher punishment, imprisonment, that the CC’s General Part provides for, then the requirement of „no punishment without a preexisting criminal law“ is met at the time of the commission of the crime as is met, respectively, the requirement of foreseeable substituting punishment. The very imposition of the probation measure presupposes the possibility of substitution of the measure, i.e. the convict is aware of the possibility of substitution for a harsher punishment that is subject to the existence of preconditions that are clearly defined in the Criminal Code. Pursuant to Art. 43а, item 2 of the Criminal Code these prerequisites are: 1. culpable avoidance by the convicted offender of serving the probation measure inflicted on him; 2. substitution of probation for the harsher punishment that imprisonment is; and 3. substitution of probation, fully or partially, and the recalculation of the duration of imprisonment when a term in prison is to be served as a substitute for probation.
In the context of the above exposé the reasoning of the challenge of the constitutionality of Art. 43а, item 2 of the CC should be seen as erroneous: namely, that the „no punishment without a preexisting criminal law“ as a manifestation of the principle of the state committed to the rule of law in criminal jurisdiction means that the requirement has been met only if the sanction against the specific act conforms to what the CC’s Special Part provides for this category of crimes. The punishment shall be legitimate not just with regard to the regulation of sanctions against crimes in the CC’s Special Part but also with regard to the CC’s General Part provisions that pertain to the determination of the punishment. These are the provisions that generally establish the rules of punishment enforcement not just when the punishment is individualized – Art. 54 and Art. 55 of the CC and the specific hypotheses of Art. 58 and Art. 58а of the CC but also when the elements of a crime are relatable to the corpus delicti as repeated crime or dangerous recidivism – Arts. 27-29 of the CC, aggravating acts in crimes that are committed in real or ideal combination or are undisrupted – Arts. 23-26 of the CC, specifics of the crime perpetrator – juvenile delinquent for who the punishments that the Special Part provides for are reduced by their substitution for more lenient or shorter ones, respectively by the application of correctional measures. Art. 66 which is in the CC’s General Part provides for a suspended sentence of imprisonment and for a probation period as a substitute for a term in prison. If by the expiry of the probation period the sentenced person commits another intentional crime of general nature, for which punishment by imprisonment is imposed on him even after the above period, that person shall serve also the suspended sentence – Art. 68, para 1 of the CC; if an offender who is to serve out a suspended sentence fails, without any valid reason, to comply with any of the probation measures pursuant to Art. 67, para 3 imposed on him, then, acting on a proposal from the Probation Board, the court may substitute that probation measure for another or shall rule that person to serve fully or partially the suspended punishment of imprisonment – Art. 68, para 3 of the CC.
All above advanced hypotheses support the conclusion that the punishment imposed for a specific act is conformant with the requirement of legitimacy when it is commensurate with what the CC’s Special Part provides for such corpus delicti in terms of kind and duration but also when this punishment is modified to conform to the CC’s General Part provisions that pertain to the crime and the criminal and to how he serves the final sentence decreeing the suspended punishment of imprisonment. Under the latter hypothesis which is very similar to the one in the challenged Art. 43а, item 2 of the CC, the culpable avoidance of the inflicted probation measure is justification to serve the suspended sentence of imprisonment. The only difference between these is that though in either case one and same criminal act is sanctioned by the substitution of probation for imprisonment, in the former case the jury decrees a suspended sentence with a probation measure to be applied whereas in the latter case the only punishment is the measure that the convict fails to serve, in either of the hypotheses, for no valid reason.
The substitution of probation for imprisonment shall have to be proposed by the prosecutor in the form of a judicial act, a ruling under Art. 452 of the Criminal Procedure Code and the ruling shall be subject to judicial control. The ruling shall be issued by the district court sitting in panel composed of a judge and court assessors and the participation of the prosecutor, of the Chair of the Probation Board and of the sentenced person shall be mandatory to guarantee the latter’s right to legal counsel and the legitimacy of the substitution to be applied.
It is a manifestation of the principle of the state committed to the rule of law in criminal jurisdiction and not of the opposite, of the betrayal of the said principle that Art. 43а, item 2 provides for substitution that seeks to achieve the goals set for punishment as per Art. 36, para 1 of the CC. An alternative that the text challenged provides for is the substitution of the probation measure for another probation measure; however, the alternative would be translated into practice providing the convict fails to serve any of the more lenient measures as per Art. 42а, para 2 of the CC – from item 1 to item 4 of the text at issue where it would be possible to substitute them for harsher probation measures like corrective labor or community service – Art. 42а, para 2, item 5 and item 6 of the CC. However, if either of the last two measures was the punishment imposed that the convicted person culpably avoids, the substitution of that measure for imprisonment as a severer treatment would be the adequate path to the purpose that the punishment is to achieve regardless of the fact that the CC’s Special Part does not provide for such a sanction against the incriminated action. If the possibility mentioned did not exist, the service of the punishment of probation would have been conditional only upon the convict’s will and readiness to respect the restrictions on his privacy when the State resorts to coercive legal measures against him.
In consideration of the above presentation of the case the challenge of the constitutionality of Art. 43а, item 2 of the Criminal Code should be dismissed as unsustainable.
2. On the challenge of the compatibility of Art. 43а, item 2 of the Criminal Code with the international instruments to which the Republic of Bulgaria is a party – Art. 149, para 1, item 4 of the Constitution.
Art. 43а, item 2 of the CC is not in contravention of Article 7 (1) of the CPHRFF reading that „Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed“. Even when the CC’s Special Part does not provide for an alternative to probation in the form of imprisonment, once the Code’s General Part provides for the substitution of probation for imprisonment, subject to strictly formulated legal texts, this will not go against the text of Article 7 (1) of the CPHRFF. This is so since the convict is aware of the enforcement of a harsher punishment that replaces probation should he avoid, for no valid reason, serving the probation measure that was inflicted on him, i.e. imprisonment is statutory and foreseeable, and therefore, the cited CPRHFF text is not compromised. The substitutional punishment would not be statutory nor would it be foreseeable if the substitution of probation for a harsher punishment that imprisonment is had been arranged in the CC’s General Part at a point in time following the perpetration of the crime but not at a time when the substitution was just a possibility to resort to at that moment. Only under this hypothesis would the substitution be incompatible with Article 7 (1) of the CPHRFF. This is not the case as the challenged Art. 43а, item 2 is in complete unison with Art. 2, para 1 and para 2 of the CC that proclaim the same fundamental principle of criminal jurisdiction as set forth in Article 7 (1) of the CPHRFF, namely: To each crime applied shall be that law, which was in force at the time of its perpetration. If by the entry of the sentence into force different laws are issued, that law shall be applied which is most favorable for the perpetrator.
It was seen as untenable to allege that the provision challenged was incompatible with Article 7 (1) of the Convention in view of the nonexistence of predictability concerning the substitutional punishment, the reason being the enforcement-related difficulties caused by the substitution of probation for imprisonment and by the controversial jurisprudence. The very substitution does not cause the cited enforcement-related difficulties; problems issue from multiple crimes and previous convictions in consideration of the rules of cumulation, dangerous recidivism and serving a prison term under a suspended sentence in the event a judgment is pronounced to substitute the punishment of probation for imprisonment. The controversial jurisprudence as developed under these hypotheses does not sustain a conclusion of the incompatibility of Art. 43а, item 2 of the CC with Article 7 (1) of the CPHRFF since drawing on interpretation the Supreme Court of Cassation can cope with the jurisdiction and make it uniform throughout whereon, acting on a request from the Prosecutor General, the suspended interpretative case No. 6/2013 of the GACC recommenced.
The provision challenged is not incompatible with Article 14 (7) of the ICCPR reading thus: „No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country,“ i.e. the cited Covenant text forbids the revision of a final verdict that imposes a new punishment on a finally convicted individual. The substitution of the punishment of probation for the punishment of imprisonment is not, with reference to Article 14 (7) of the ICCPR, a review of a final verdict as it is not a case of double jeopardy. This is so as the substitution for a harsher punishment is intended to punish the crime of which the perpetrator has been pronounced guilty by a final verdict. That verdict has not been revised in a way to alter the characteristics of the crime and of the perpetrator nor has it touched on the legal description of the perpetrated crime for which the verdict is only one: after the substitution the punishment meted out is imprisonment. As a result of its enforcement the punishment of probation ceases from a point in time onward or if the probation measure has been partly served, what remains of the duration shall be served as a term in prison as a substitutional punishment subject to a conversion ratio that is fixed in Art. 43а, item 2 of the CC. In other words, the convict is not put twice in jeopardy.
Given the above stated considerations the challenge of the compatibility of Art. 43а, item 2 of the Criminal Code with the international instruments to which the Republic of Bulgaria is a party is likewise unsustainable.
A procedural regulation that makes easily available a legal option whose use is conditional solely upon the rightful claimant’s will is not unconstitutional. The Constitution forbids retroactive legislation only if it curtails rights enjoyed or imposes liabilities ex tunc, however, it will tolerate a retroactive law providing it grants further rights. The principle of the equality of citizens before the law or the requirement of guaranteed equal and same legal conditions for economic activities are not infringed upon if and when the Legislature, drawing on a definite criterion and honoring the express prohibition against discrimination, introduces a differentiated regulation to be applied to a definite group of subjects of law.
A port is a whole whose components are the water area, land area and infrastructure. The land area and the infrastructure may be owned by the central government, local authorities, individuals or corporate entities whereas the water area is, by legal definition, exclusive State-owned property. The use of units of property that are in exclusive State ownership as a kind of public state property may be granted by the Government to individuals and corporate entities subject to a concession contract. The construction of a port, though for regional or special purposes – for yachts or fishery vessels – presupposes construction and assembly onshore and offshore operations with, inter alia, installations under the sea surface (on the seabed) which is public state property and in the space between the seabed and the sea surface which space is exclusive state property. A port will be unable to function as intended unless the adjacent water area is exploited to enable the approach, shunt (maneuvering, movement) and moorage of the ships; considering that, the whole port shall be subject to concession and any legal tool to circumvent concession in the port construction shall be ruled out. By this reckoning it is unconstitutional to have in place legislation that derogates concession to use exclusive state property subject to a building lease that individuals or corporate entities are to obtain.
The Constitution makes it binding upon the Legislature to provide guarantees that will enable the exercise of the citizens’ social rights and to decline to vote acts that may infringe on such rights. It is discordant with the principle of the state committed to the rule of law to pass legislation that veils the receiving authority of the social security and health insurance contributions paid up by scheme-covered individuals and that blurs the allocation process. Security and insurance contributions shall not be put in one basket nor shall they be added to the tax receipts as a risk exists that they might be misallocated and misused. It is intolerable to reallocate paid-up social security and health insurance contributions in order to pay off taxes due.
The National Assembly’s Decision to Declare a Moratorium on the acquisition of ownership over land in the territory of the Republic of Bulgaria by non-Bulgarian nationals or non-Bulgarian legal persons and to extend that moratorium till 1 January 2020 is unconstitutional as it is in defiance towards the principles of the state committed to the rule of law, the separation of powers, Community law that, on the basis of international treaties to which Bulgaria is a party, has been incorporated into the national law and also the Constitution-established procedure to be applied so that non-Bulgarian nationals and non-Bulgarian legal persons may become rightful land owners. The Decision is intrinsically controversial: it gives rise to uncertainty which is at variance with the principle of the state committed to the rule of law as it is not clear whether the National Assembly declares a moratorium on the acquisition of ownership over land or tasks the Council of Ministers to extend the suspension. Further, noncompliance with the principle of the state committed to the rule of law is evident in the circumstance that the National Assembly, upon its own usurped discretion, takes over a prerogative that is not to be enjoyed by it under the Constitution since by a declaration of unilateral intention the Assembly approved an amendment to an international treaty to which Bulgaria is a party and which has been concluded, ratified and promulgated. Also this constitutes a violation of the Treaty Concerning the Accession of the Republic of Bulgaria to the European Union and of the Treaty on the Functioning of the European Union which, being international treaties to which Bulgaria is a signatory party, shall supersede any domestic legislation, viz. the free movement of capital within the Community. Land acquisition on the territory of EU Member States is such free movement. Moreover, the Decision does not respect the procedure of amending Community treaties as any amendment is subject to a unanimous consensus of all EU Member States and not to a unilateral act of one Member State – the Republic of Bulgaria in this particular case. By doing so the moratorium goes against the requirement of legal certainty and of predictability that are inherent attributes of a state committed to the rule of law. The Decision disturbs the balance that the principle of separation of powers maintains as it divests the Council of Ministers of the freedom, at its own discretion, to propose measures that enable the discharge or alteration of assumed international obligations concerning the rightful acquisition of and ownership over land in the territory of the Republic of Bulgaria. The Council of Ministers is a standalone Constitution-established body with Constitution-granted prerogatives in the field of foreign policy and its operative implementation though the National Assembly while it is free to have its say on any aspect of that policy, is not to be involved in the very process of implementation. The Decision imposes a total ban on land acquisition across the Republic of Bulgaria and thus goes against Art. 22, para 1 of the Constitution that provides for different manners of land acquisition given the existence of specific preconditions to be met by EU and non-EU Member States’ nationals and legal persons alike.
1. Supervision over National Assembly’s decisions that have the aspects of administrative acts is subject to the Judiciary’s and not to the Constitutional Court’s jurisdiction. The modus operandi of the exercise, including the generic competent court, is determined by the legislating body (in the view of three Justices who ruled inadmissibility). 2а. The Constitutional Court shall not act as a court on the facts on challenges to the constitutionality of National Assembly’s decisions. The suspension of a term office before its expiry is a prerogative vested in the National Assembly, therefore it is only normal that it should be exercised in a state committed to the rule of law providing the Constitution and the laws are complied with really and not for the sake of appearance. The Constitutional Court judges whether the motives as cited in the National Assembly’s challenged decision conform to the law-established grounds on which an official’s term of office may be suspended before its expiry. This judgment is not to unseat the National Assembly’s sovereign will to label the facts it has established in a definite way. The National Assembly is entitled to judge the facts and decide accordingly whether any violations have been committed and of what sort (the position of three Justices who pleaded for the dismissal of the motion). 2b. The Constitutional Court’s judgment on challenges to the constitutionality of the National Assembly’s decisions shall not overlie in terms of reach and adequacy of the supervision that a relevant court exercises over the legality of an adopted administrative act. Constitutional control shall not disregard the purpose of the acts of election or suspension before the expiry of the term of office for such acts are subservient to public interest where, in addition to all considerations, appropriateness that is inspired by visions of strategies and by the implementation of a definite policy is to be taken into account. It is a right enjoyed by the National Assembly to judge the facts and to decide accordingly whether any violations have been committed and of what sort. The Constitutional Court shall not unseat the National Assembly’s judgment (the position of two Justices who pleaded for the dismissal of the motion). 3. The existing constitutional justice model seeks directly to conform to public interest which is that the supreme authorities like the Parliament and the President act in compliance with the Constitution whenever they decree acts regardless of their kind as the possible subsequent remedy for infringed individual rights of a citizen might be just an indirect effect from the outcome of an institution-to-institution dispute that the public action of a subject of law other than these has provoked. Reference to facts that were reported to the National Assembly’s floor session but that did not make up the motivation of the decision taken shall not be discussed by the Constitutional Court whenever the judgment of the decision’s compliance with the law is made since they fall beyond the legal motives for the decision. The Constitution-proclaimed principle of the state committed to the rule of law keeps the National Assembly away from noncompliance with the substantive matter of the laws it passes which essentially is tantamount to an outrage of the law (the position of four Justices who pleased for granting the motion).
To rule on the contestation of the validity of elections the Constitutional Court gathers evidence which is relevant to the breaches as described in the contestation and to pass judgment the Court considers the relevant Constitution provisions and the special election laws. To declare parliamentary elections invalid in part or in total, the Court must have found significant violations that are relevant to the Constitution principles and that are so flagrant that it is impossible to know what the voters’ real choice has been.
Provisions that make exceptions for urban interventions in listed areas are in contravention of the Constitution if the interventions materialize after they upset the balance between the principle of environmental protection and the principle of free enterprise, respectively the protection and promotion of investments. An exception may be consistent with the Constitution only if it is in tune with the public interest which calls for a citizen’s right to a healthy and salubrious environment. If the principle of the state committed to the rule of law is to be complied with, the criterion to have it in place shall not stay within the domain of economic interest alone and some other ecology-related requirements shall be posed and be subject to the same piece of legislation that provides for the exception in the event of construction in listed territories.
The National Assembly shall be the competent authority to judge on the appropriateness of tax reduction or tax exemption. To change the designation of immovable property for the sake of urban green space leaves the owners with less opportunity to make a full use of their property which, however, is not taken out of the civil turnover and is not transformed into a taxable asset. It is only the Legislature that has the power to exempt such assets of taxation by the passage of the relevant legislation.
It is not in contravention of the Constitution to provide for a tax on interest accrued on bank deposits in the advance payment of the yield prior to the enactment of the tax legislation that imposes that tax since this taxable income is always assessed and charged on the maturity date. Since maturity relates to a period over which the act is valid and in force, then the act under consideration shall not be retroactive which would have made the text challenged inconsistent with the principle of the state committed to the rule of law.
The Constitution-imposed incompatibility of being a Member of Parliament and a member of the civil service within the Executive branch of power (in the case referred to, being a Deputy Minister of Interior) arises but upon the completion of the procedure of appointment which includes, inter alia, the proper adoption of an act that provides for the assumption of office.
Lustration texts that disqualify persons who were affiliated with the totalitarian state’s secret services from certain public offices as directors general of public media, viz. the National Radio and the National Television, and members of the media regulator, viz. the Council for Electronic Media (CEM), discriminate against them in terms of “social status” and are therefore unconstitutional as noncompliant with the principle of equality before the law. Furthermore, such texts are not consistent with the international instruments to which Bulgaria is a party for while they don’t pose specific professional requisites for a post, they infringe on the freedom of choice of occupation and of career development of persons who go through lustration.
1. While the Constitution makes it legally binding on Members of Parliament to eschew situations of incompatibility, it should enable the MPs to fulfill the said obligation. The law doctrine cannot rule out the assumption of an obligation whose fulfillment is not resourced. The legislation of the Republic of Bulgaria abides strictly by the principle that the elimination of incompatibility, both initial and subsequent, is subject to a procedure and a time limit that are established by law. Law demands that the negative consequences from incompatibility shall not occur automatically and makes the occurrence contingent upon the non-elimination of incompatibility by a proper procedure and upon a time limit (according to the position of the six Justices who dismissed the motion). 2. The concept “civil service” is not legal; it is constitutional since the Constitution does not refer to any law to describe its essence. Unlike incompatibility in the hypothesis of the performance of an activity that is incompatible with the status of an MP, incompatibility stemming from a public function is not bound to the provisions of a special law nor is it to be eliminated by a preset date. In all cases but when an MP is elected a minister, the incompatibility that is caused by a public office, regardless of the duration of office, discredits irremediably the MP status. Thus whenever the Constitutional Court finds incompatibility, the MP’s prerogatives shall be suspended before the expiry of the term of office (according to the position of the five Justices who found the motion sustainable). 3. The decision by which the National Assembly elects one of its members for a public function outside Parliament implicitly contains an avowed intention that his/her prerogatives of an MP should be suspended since the Constitution forbids multiple appointments that are split between the Legislature and the Executive. In such a case the Parliament shall pass an act to constitute a new legal situation and to invalidate the status quo ante, i.e. the status prior to the election. With this rationale, it becomes pointless for the Constitutional Court to subsequently find incompatibility (according to the position of a Justice who found the motion unsustainable).
The communication medium that is resorted to in the event of expropriation to inform stakeholders – the Durzhaven Vestnik/The State Gazette where the notification is printed in the form of “to whom it may concern” is not addressed to the addressee to inform him/her of the individual administrative act of expropriation, restricts, out of proportion, the owners’ rights to legal defense and makes the notification procedure unconstitutional. This touches on the principle of the state committed to the rule of law which calls for consistent and predictable legislation and on the principle of the inviolability of private property. The indicated result that a constitutional perspective would grunt against may be preempted if legal texts are passed to ensure that any expropriation would be notified and thus strike a balance between the sovereign interest on one hand and the individual or corporate interest on the other hand and in this way guarantee legal certainty and respect for the rights of citizens and of legal entities. The provisions were challenged as noncompliant, inter alia, with the Convention on the Protection of Human Rights and Fundamental Freedoms as they clog up a complainer’s efficient outlet to protest against an administrative act that is seen as a direct impingement on the property rights. Private real property may only be taken in the exercise of the power of eminent domain and, then not without prior and just compensation, i.e. before the property is taken away. Compensation is not seen as timely if it is not fair and is not fully paid up. However, if and when an owner claims a compensation higher than what he or she is offered, and brings the claim to court, a timely compensation cannot be paid prior to the court’s final decision which fixes the ultimate size of the compensation. Hence the unconstitutionality of the text that provides for expropriation of real property before the dispute about the amount of the compensation due is settled.
A Constitutional Court’s decision to invalidate elections may rest solely on particularly gross violations that undermine the underlying democratic constitutional principles that are relevant to suffrage (universal, equal and direct suffrage by secret ballot – Art. 10 of the Constitution) and are flagrant and recurrent to an extent that entirely invalidate the election process and the election result in total.
Fees are a financial payment due to the State or to municipalities for activities performed or services delivered to corporate entities and individuals, unlike taxes that are irreclaimable and payable by citizens who don’t stand to be rendered a service in return. The raison d’être of the fee is to pay for the usage of a service or for an activity which has to be performed by a Government institution and of which the payer is the beneficiary; the amount of a fee is commensurate to the service delivery costs. A fee is established by law and the amount of the fee is determined by the Government in its secondary legislation. If a challenge of a legal text is brought to the Constitutional Court and the text in question provides for a surcharge for a service whose substance is not described and that service duplicates another service that has already been charged and thus implicates an extra payment due for the citizens who don’t become beneficiaries of a new service or activity, the said legal text is noncompliant with the Constitution. This is so as the legal text in question conflicts with the principle of the state committed to the rule of law that requires legal certainty and predictability of regulation.
The Legislature in a state committed to the rule of law is bound to apply the same solution to similar cases and a solution that varies from case to case. This is the only way in which equality before the law and justice in society can be guaranteed. The situation of an orphaned child with one parent to bring him/her up is not identical with the situation of a child who is brought up by one parent for reasons other than the demise of the other parent. Therefore a differentiated privileged treatment of the former group of children is justified and acceptable when it is viewed from a perspective of the need to ensure “equal protection” for all children.
The possibility for the Commission for Forfeiture of Unlawfully Acquired Assets to exercise judicial control on one and the same decisions as taken by different courts of different competence generates preconditions that facilitate the adoption of controversial and mutually exclusive judicial acts and thus causes legal uncertainty and conflicts with the principle of the state committed to the rule of law. It is an official duty of the Court to see that the parties to a lawsuit concerning the forfeiture of unlawfully acquired assets are property constituted and thus to avert the risk that such assets are taken away from a person who is not a respondent despite the fact that such a person may not be explicitly named as a party to the proceedings. This is so as the right to counsel for the defense is guaranteed to such a person despite the imperfections of the legislation because of the subsidiary application of the procedural law that reads that such a person shall take part in the proceedings as an indispensable party. The cited circumstance precludes the anticonstitutionality of the provision in the Act on Forfeiture of Unlawfully Acquired Assets that non-exclusively defines the range of persons who shall be constituted as respondents to the proceedings.
In a state committed to the rule of law it will be an act of defiance of the Constitution whenever the authorities, the legislating authority included, i.e. the National Assembly, do not enforce, in total or in a sufficient measure, the Constitutional Court’s decisions or altogether bypass them.
The purpose of the parliamentary control is to let the Parliament obtain information about the lawfulness and appropriateness of the Government’s actions. Such parliamentary control may be designed to examine certain aspects of state and public life or analyze the legislation in place or another matter within the National Assembly’s competence while the purpose of the control should be the transparent and improved function of the incumbent Government in various sectors.
Ad hoc committees are free to gather information about any matter that is of interest to the State and the public at large, including matters that have arisen in the days of governments that are no longer in office.
The case was filed by fifty MPs from the 41st National Assembly who challenged the constitutionality of a parliamentary decision of 16 May 2012 on setting up an ad hoc committee that was to examine facts and circumstances pertaining to actions and initiatives by Government officials, to pardons of convicts, to cancellations of bad debts (uncollectible State receivables) and to cases of granting, restoring, relieving from and withdrawing Bulgarian citizenship in the period January 2002 – January 2012 (DV, No 39/2012).
The motion insisted that the National Assembly’s challenged decision disagreed with the Constitution as essentially its content and purpose are identical with the National Assembly’s preceding decision of 15.02.2012 that was declared unconstitutional by the Constitutional Court’s Decision No. 6/2012 on Constitutional Case No. 3/2012 and that allowed to subject the ex President and ex Vice President to parliamentary control. The movants insisted that the two decisions cover one and the same period and have one and the same content, the only difference being the words “Government officials”. Further, the movants noted that the parliamentary committee that was set up by the contested latter decision was the successor of the committee that was declared unconstitutional for it was explicitly provided that that the newly set up committee was to take over its records. In the movants’ view, the National Assembly was not complying with a Constitutional Court’s binding decision and thus violated the principles of the state committed to the rule of law. Further, the movants believed this was a violation of the principle of separation of powers as it is but the Constitutional Court that has the prerogative to exercise control on the President’s and Vice President’s decrees. The MPs who filed the challenge claimed that in disagreement with the Constitution the decision challenged provides that the committee should examine the motivation, legal justification and the circumstances for issuing the presidential pardoning decrees. In the MPs’ view parliamentary control should not extend beyond the Government’s prerogatives. Not least, the motion insisted that parliamentary control shall be exercised by the Parliament “on the incumbent Government” and shall not be exercised on past governments. Hence the decision challenged was seen as inconsistent with Art. 62, para 1 and Art. 79, para 2 of the Constitution.
The Constitutional Court turned down the motion for the following reasons:
The first argument as advanced in the motion is the sameness of the challenged decision and the decision of 15.02.2012 that was declared unconstitutional. This argument is inextricably linked with the second one concerning the noncompliance by the National Assembly with the Constitutional Court’s Decision No. 6/2012 on Constitutional Case No. 3/2012.
The Constitutional Court’s decisions shall be binding on all State institutions, legal entities and citizens. As
Forfeiture of unlawfully acquired assets where the progress and outcome of the criminal trial do not condition the action is admissible, in principle; however, the individual who is implicated shall enjoy the right to fair trial.
The unlawful acquisition and accrual of assets is dissonant with a number of Constitution-enshrined values like justice, the state committed to the rule of law, equality before the law and guaranteed equal legal conditions for economic activities; hence the individuals who profit in this way shall not rely on the Constitution-extended protection on property in contrast to the rightful holders of vested interests.
The sources of lawful proceeds may be deduced from the Constitution and the laws. Therefore, if these sources are not exposed in adversary proceedings in civil suit, the logical conclusion is that these are proceeds from illegal activity that increased the assets of the person implicated.
Restoration of the citizens’ feeling of justice does not constitute a legitimate legislative purpose in the meaning of the Constitution.
Whenever this is established by a valid act the administrative violation that might enable the unlawful acquisition of vast public assets may justify the initiation of a preliminary examination; however, the principle of the state governed by rule of law calls to make such an examination contingent solely upon a notice of the administrative sanctioning authority and not of other persons.
The examination into the unlawfully acquired assets must be conducted within a period of fixed duration which shall not exceed ten years in order to honor the principle of the state governed by rule of law and the citizens’ right to legal defense.
The forfeiture of assets of unlawful origin from persons other than the person under examination is admissible only if these persons are given the chance to defend their rights in adversary proceedings and to prove theirs had been a bona fide acquisition.
It is inadmissible to let forfeiture to the Exchequer of unlawfully acquired assets be detrimental to the immediate victims of the crime.
The challenge was filed by 59 Members of Parliament who requested that the Constitutional Court establish the anticonstitutionality of the Act on Forfeiture to the Exchequer of Unlawfully Acquired Assets (AFEUAA) (DV, No. 38 /18.05.2012), and of some of its provisions and also their inconsistence with international treaties to which Bulgaria is a signatory.
The AFEUAA is challenged as a whole for the movants think it disregards, in principle, the Constitution-guaranteed protection of the right to property and the inviolability of private property under Art. 17, paras 1-3 of the Constitution and provides for inadmissible exception to the prescription of Art. 17, para 5 of the Constitution concerning the reasons for expropriation. The MPs referred to Art. 57 para 1 of the Constitution as they maintained that fundamental human rights like the right to property may be curtailed or revoked only in circumstances that are explicitly stated in the Constitution or in international law instruments that are binding on the country. Also the MPs stated that the AFEUAA disagreed with Art. 1 of Additional Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF) in relation to the Preamble and the analogical provision of Art. 17, § 1 of the Charter of Fundamental Rights of the European Union as it provides for expropriation that is not compensated, just and timely.
The MPs challenged the administrative procedure to establish unlawfully acquired assets since the secrecy of the procedure was seen as inconsistent with the right to legal defense under Art. 56 of the Constitution. The MPs insisted that the procedure created objective preconditions for violation of the citizens’ right to privacy (Art. 32 of the Constitution) and the freedom and secrecy of correspondence and other communications (Art. 34 of the Constitution) and in that context, for violation of Art. 3 of the CPHRFF. The movants advanced the opinion that an invalidation of the procedure would make the whole act worthless.
The Constitutional Court proceeded as follows:
І. On the challenge of the constitutionality of the entire AFEUAA and its compliance with international treaties to which Bulgaria is a signatory (State Party)
1. Core, ideas and principles of the AFEUAA
The display of inexplicable prosperity by individuals who, in the prevailing opinion, gravely infringe on and even commit crimes against the economic system in the State as established by the Constitution and the laws, arouse the feeling that the free market is not subject to recognized rules, that democratic institutions are impotent to cut off unlawful sources of enrichment to the detriment of others and of the society as a whole.
A legislative response to the above described socio-political situation was the passage of the Act on Forfeiture to the Exchequer of Unlawfully Acquired Assets in 2005. Unlawfully, directly or indirectly, acquired assets were subject to forfeiture to the Exchequer under this Act, providing such assets were not recompensed to the victims unless forfeited to the Exchequer or seized under other pieces of legislation. Bodies were instituted to establish assets and proceeds from crime: a Commission for Forfeiture of Unlawfully Acquired Assets with local offices which, on the basis of an examination, decided, on a case by case basis, whether a reasonable presumption could be raised that the assets had been acquired through crimes committed by the implicated persons in order to bring legal action (civil suit), with supporting evidence, to award to the Exchequer the assets from crime. A final verdict, unless it is legally impossible for the trial to proceed, was a sine qua non to bring legal action, respectively a precondition for the State to have its claim complied with.
The new element in the AFEUAA is that the course and outcome of the trial cease to be the key to the forfeiture of assets to the Exchequer. Further, the Act challenged allows bringing legal action, in addition to the prosecutor’s findings, leading to a reasonable presumption of the commission of a crime of a definite class, also on the basis of a serious administrative offense statement that has taken effect. The new elements predetermine the broader notion of assets liable to forfeiture since assets whose lawful origin has not been ascertained are seen as liable to forfeiture.
Apart from instituting the bodies to establish unlawfully acquired assets – the Commission for Forfeiture of Unlawfully Acquired Assets (the Commission) and its local offices (directorates), the challenged AFEUAA provides for the three crucial phases of the legal procedure: 1) preliminary examination; 2) institution of a proceeding including the submission of a motion for imposition of precautionary measures to support a claim in future; 3) an action for forfeiture to the Exchequer of unlawfully acquired assets.
The purpose of the examination by the bodies under the AFEUAA is to establish whether there exists a significant lack of correspondence in the assets of the person under examination, i.e. whether there exists an explanation of the amassed wealth to make it attributable to Constitution-recognized and law-defined sources – entrepreneurship, freelance work, contract of employment, inheritance, etc. The reasons to commence an examination are: 1. the person has not been constituted as an accused of a criminal offence by reason of a refusal to institute a criminal proceeding or a termination of a criminal proceeding in progress because an amnesty has ensued; the period of prescription, provided for in the law, has lapsed; a transfer of a criminal proceeding to another State has been admitted; the actor has died, absconded or enjoys immunity; 2) a notification by the administrative sanctioning authority, where there is an enforceable written statement against a person in connection with an administrative violation of a nature to generate a benefit, provided the said benefit is to an amount exceeding BGN 150,000 at the time of acquisition thereof; 3) an act of a foreign court concerning any of the criminal offences or administrative violations from the mentioned categories has been recognized according to Bulgarian legislation. In the course of the examination the specialized authorities may obtain information about the assets of the individual whom they examine from other institutions providing they observe the Classified Information Protection Act and the Personal Data Protection Act. Disclosure of information that is placed under law protection like banking or commercial secrets shall be made subject to court permission. The examination may last up to one year and the Commission is free to allow a onetime 6-month extension.
When the Commission finds that the examination has collected data sufficient for a reasonable presumption that the assets have been unlawfully acquired, it shall take a decision and respectively bring legal action for the sake of the future claim. The imposition of precautionary measures marks the commencement of the proceedings for the forfeiture to the Exchequer of unlawfully acquired assets. From that point in time onwards the person examined, respectively his assigns, can read the evidence gathered, demur to evidence, furnish evidence to the contrary and retain an attorney. The duration of this phase of the proceedings shall not exceed three months. The court shall revoke the precautionary measures if ex officio or upon a request of the persons concerned it is established that the action was brought after the end of the three months reckoned from the date of imposition.
The AFEUAA introduces special rules for trial. The most essential feature is the opportunity to third parties whose interests might have been impaired by the decision on the claim to participate effectively in the trial. The trial is public and adversary. The parameters of possible deal between the parties are defined. The Code of Civil Procedure provisions shall apply inasmuch as special provisions to that effect have not been codified.
2. On the arguments of violation of Art. 17 of the Constitution
Though the provisions of Art. 17, paras 1-3 of the Constitution are contained in Chapter One “Fundamental Principles”, they make it binding on the State to make laws guarantee and protect the right to property as a fundamental right enjoyed by citizens and to honor the inviolability of private property. The Constitution does not forbid that: quite the reverse, the Constitution encourages the citizens’ natural pursuit of well-being and aspiration to increase possessions in a market economy context. The sources of wealth are mentioned in most general terms in the Constitution and are further detailed in specific legislation. Such sources are: free enterprise, freelance work, lawfully earned income, inherited possessions, etc. However, the targets of the AFEUAA are not lawfully acquired possessions but assets of unlawful origin for which no legally plausible explanation can be given to justify the wealth that the individual has amassed. Essentially the AFEUAA seeks to address the consequences of wealth that is amassed to the detriment of other individuals or of society as a whole and of wealth that proceeds from doings that are normally outlawed like tax evasion, nonpayment of mandatory social security and health insurance contributions, smuggling, corruption, trafficking in human beings, illicit traffic in drugs, racketeering, large-scale fraud, etc. The acquisition and amassment of possessions of unlawful origin is fully dissonant with a number of Constitution-proclaimed values like justice in the meaning of the Preamble, the principle of the state governed by rule of law, the principle of the equality of citizens before the law and the principle of the provision of law-guaranteed equal legal conditions for economic activities. Art. 58, para 1 of the Constitution makes it binding on citizens to observe and implement the Constitution and the laws and to respect the rights and the legitimate interests of others. The persons who will face forfeiture under the Act challenged for the unlawful acquisition of possessions have not complied with this requirement and therefore cannot enjoy the protection that Art. 17, paras 1-3 extends and that is due only to a holder of a legitimate vested interest.
The Constitutional Court did not share the movants’ view that the AFEUAA as a whole was dissonant with Art. 17, para 5 of the Constitution as it provides for the confiscation of property which is not needed to meet any State or municipal needs and which is not to be adequately compensated. The text in question makes provision for a specific hypothesis of expropriation of lawfully acquired possessions and is irrelevant to the forfeiture, in the public interest, of unlawfully acquired possessions, which is the idea of the challenged Act. The Constitutional Court’s record so far contains resolutions to the effect that whenever Constitution-cherished values are to be protected, the right to property may be restricted by law given the infringement on the principle of justice in the specific circumstances of acquisition but may even allow for uncompensated confiscation. Proceedings under the AFEUAA are intended to restore the status quo ante – the situation before the misappropriation when it would be illogical to offer to pay compensation to individuals who unlawfully acquired possessions to the detriment of others and, in the long run, of the whole society.
3. On the argumentation of the violation of Art. 1 of Additional Protocol No. 1 to the CPHRFF
Despite the different wording as compared to Art. 17 of the Constitution, the protection of property under Art. 1 of Additional Protocol No. 1 to the CPHRFF is essentially similar to it. While the entitlement to the peaceful enjoyment of possessions is proclaimed as a principle, it is not treated as an absolute right. Normally dispossession is admissible when it is for the sake of public interest and subject to the conditions provided for by law and by the general principles of international law. The State is free to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. In that context the sustained practice of the European Court of Human Rights (ECHR) calls for the observation of three criteria whenever unlawfully acquired possessions are subjected to restricted enjoyment or to forfeiture following a civil suit that is brought by the State over unjust enrichment: a) conformity with the law; b) a legitimate goal to be achieved; and c) proportionality. Regarding the checked Act’s compliance with Art. 17 of the Constitution, the above-stated reasons are fully valid for the check of compliance with Art. 1 of Protocol No. 1 to the CPHRFF. It should be borne in mind though that the Constitutional Court judged the Act in its complete form as a legal abstraction which will not preclude the need for the institutions under the challenged Act and for the civil court to judge, inter alia, the concrete circumstances of the case.
A sine qua non for the forfeiture to the Exchequer of unlawfully acquired assets in most legal systems is the absolute verdict of conviction regarding a certain type of crime – mostly organized crime, corruption and infringement on the economic fabric of society. However, in a number of cases such an approach will not work – for instance, when evidence that categorically indicated a unlawful source of definite assets but was not sufficient to render a verdict for a patent and established crime or when a temporary or a permanent barrier arises and checks the progress of the trial in the event of the perpetrator’s death, amnesty, running of the statute of limitations, enjoyment of immunity, objective impossibility to find the perpetrator’s location and bring him to trial, the perpetrator’s mental derangement that rules out the presumption of sanity, and suchlike. Under such circumstances some states, including members of the Council of Europe and of the European Union, have opted for and translated into reality the idea of confiscation of assets of unlawful origin by means of an order whereon the confiscation is not contingent upon the progress of a trial that closes with an absolute verdict of conviction. A major problem for the new legislation is not so much its compliance with the protection of the right to property under Art. 1 of Protocol No. 1 to the CPHRFF but rather conformity with the prescriptions of fair trial under Art. 6 of the CPHRFF (see the ECHR judgment on Arcuri v. Italу). In a number of cases the ECHR sides with the national authorities and rules that an order of confiscation might be compatible with the protection of human rights (see the judgments on Walsh v. United Kingdom and Phillips v. United Kingdom).
No doubt, proceedings under the Act on the Forfeiture to the Exchequer of Unlawfully Acquired Assets do not let the defendants enjoy the specific rights that are enjoyed by defendants in criminal proceedings. Primarily it is a matter of higher required standard of proofs for the indictment to appear credible (“beyond the reasonable presumption” in the Anglo-Saxon legal systems) as a precondition to pronounce a verdict of conviction while the presumption of innocence is observed. The ECHR underlying practices assume that the definition of proceedings as criminal or civil is not contingent upon declarative legal norms; it is determined by the essentials of the proceedings assessed in the light of three criteria: a) the qualification of the offense in question in terms of the national legislation; b) the nature of the prescription in view of its “targets” and goal; c) the nature and severity of the prescribed sanction (see the ECHR judgment on Engel v. Netherlands). From that perspective the proceedings under the challenged Act are civil proceedings as they are clearly distinguishable in terms of time, rules and substance from proceedings under the Code of Criminal Procedure. It is important that the purpose of the State’s claim before the court is not to constrain or punish the defendant; the purpose is to address the consequences of the unlawful acquisition of assets. What the adversary trial has to prove is not a crime subject to the Criminal Code or a grave administrative offense by exclusionary methods to exclude the likelihood of just enrichment and to measure up the defendant’s assets for which there exist no proofs of lawful acquisition, hence the presumption that directly or indirectly the source of wealth is unlawful. Essentially the forfeiture of such assets is not equivalent to punishment for a crime or a sanction for an administrative violation; it is a civil sanction to restore justice. The relation to the criminal proceedings is limited and lends itself to the following description: to avoid discretionary examinations to form a reasonable presumption of the existence of assets of unlawful origin, criminal proceedings have to be initiated while the assumed crime is supposed to have brought sizeable gains or to have put up a legal barrier to the progress and conclusion of the trial. In both cases the procedure (the examination) is initiated by decrees of an independent authority within the Judiciary like the Prosecution, according to the Constitution of the Republic of Bulgaria or at least by decrees of the investigating authority that conducts its investigations under the prosecutor’s procedural supervision.
Once the procedure under the AFEUAA is established as a civil law procedure, the remaining reasons to conduct an examination cannot be said to question the human rights that the CPHRFF protects. That the Bulgarian Judiciary complied with a foreign court’s judgment that established a crime of a certain category shows the country’s positive attitude towards its participation in international cooperation to eliminate the consequences of unjust enrichment with proceeds from crime. Although it is a matter of public risk and a penal policy to term an infringement on public order a crime or an administrative violation. Therefore an examination on the basis of a verdict of conviction (providing it can be appealable) for a grave crime that essentially may generate sizeable gains – over BGN 150,000 – is conceptually compatible with the CPHRFF standards.
The restriction on the peaceful enjoyment of possessions under Art. 2 of Protocol No. 1 to the CPHRFF by the imposition of precautionary measures as prescribed by the contested Act (imposition of preventive attachment on a corporal immovable; garnishment of a movable thing; garnishment of receivables), apart from seeking a legitimate objective – to ensure the enforcement of a possible future court ruling on the forfeiture of unlawfully acquired possessions – tallies, inter alia, with the prescriptions of proportionality and fair trial. All measures shall be imposed by the court on the basis of a reasonable presumption that rests on sufficient evidence that the assets they refer to were unlawfully acquired. All the time the measures are under the court’s control and in cases of urgent need the court may authorize the effecting of payments or of other steps disposing of the assets whereupon an injunction has been imposed. Prior to the submission to the court of a motion the duration of the imposed precautionary measures is up to three months. A problem may arise over the proportionality of precautionary measures if the trial protracts beyond the reasonable time as per Art. 6.1 of the CPHRFF; however, a problem would derive from the court’s failure, if any, to efficiently handle the case as obliged and not from the abstract legal text which is subject to a check for compliance with the Constitution. It may be noted that it is recommended to minimize the risk of serious harm to the interests of the parties in economic relations by a summary civil suit, rather than count on a compensation owed by the State in pursuance to the Act on the Liability for Damage Incurred by the State and the Municipalities.
While the Act on the Forfeiture to the Exchequer of Unlawfully Acquired Assets contains the idea that no one shall acquire more rights than his grantor, it guarantees fair trial to all third parties that subsequently came to hold title to property of unlawful origin. From the onset of proceedings with the imposition of precautionary measures the third parties are free to read the evidence gathered, demur the evidence, furnish evidence to the contrary, make demands and take notes, retain an attorney, etc. Such stakeholders shall be constituted as defenders to the claim lodged and may be parties in the crucial phase of the hearing of the dispute.
4. On the claimed inconsistency of the preliminary administrative procedure to establish unlawfully acquired assets with Art. 56 of the Constitution read in combination with Art. 32 and Art. 34 of the Constitution and Art. 8 of the CPHRFF
The fundamental right to legal defense as per Art. 56 of the Constitution is not an abstract award to citizens; it emanates from a concrete situation where “a citizen’s rights and legitimate interests are violated or threatened”. That fundamental right includes the possibility for the person implicated to take counteraction, on his own or through his counsel, on the violation or the threat. The purpose of the right to legal defense is to guarantee the other rights that the Constitution grants.
The examination starts with an act of the director of the respective local office premising on legal grounds to conduct it. The examination precedes the proceedings for the forfeiture to the Exchequer of unlawfully acquired assets and starts with the imposition of precautionary measures by the court. The purpose of the examination is to trace the origin, expose the way of acquisition and transformation of the property of the person who is examined within a law-fixed term. The examiners gather the necessary evidence as they are supplied with information that is readily available from different public registers and also with classified information which is stored by other authorities, institutions and individuals. The examination has to be completed within a year; a onetime extension of up to 6 months is permitted. The findings, if conclusive, will enable the Committee to decide whether to plea for precautionary measures that will guarantee a future claim on unlawfully acquired assets providing sufficient evidence has been gathered to justify an assumption of unlawfully acquired assets or to refuse to bring legal action and abandon the examination in default of such evidence.
The Committee and its agencies shall not infringe on the freedom and confidentiality of exchanged mail and other communications of the person examined. Therefore the question of infringement on or of menace on the fundamental right as per Art. 34, para 1 of the Constitution is not to be raised.
Information obtained officially from the examination must remain undisclosed to the persons examined and to all persons other than the person examined. The examiners do not have a possibility to directly interfere with the private and family life of the persons examined. True the data about property that were collected in the course of the examination may, from time to time, contain information about the citizens whose inviolability is protected by Art. 32, para 1, sentence 1 of the Constitution. The secrecy of the examination is excusable for the sake of two legitimate goals: first, to make sure a court’s decision that the unlawfully acquired assets is really enforced by the imposition, surprising as it may be to a debtor, of precautionary measures; and second, to make sure that the affected persons’ public image and credibility are spared if it appears that nothing could possibly justify further proceedings. The Personal Data Protection Act makes it binding on all authorities to observe the rules of secrecy when they handle personal data and lets banking or commercial secrets be disclosed following a court permission that has been obtained in the appropriate law-established procedure as such information enjoys special law protection and it has to be seen whether such disclosure would contribute to the achievement of the AFEUAA’s goal. The examination is of limited fixed duration and as soon as property interests are really affected by the precautionary measures as imposed by the court, the persons who are injured, in addition to being informed about the competent authorities preceding actions in the collection of information also enjoy all opportunities to effectively exercise the right to legal defense – to demur the evidence that disfavors them, to furnish evidence to the contrary, to express opinion before the Commission and the court, to make demands and comments and to retain an attorney.
The conclusions regarding Art. 32 and Art. 34 of the Constitution are valid for, inter alia, the judgment of the compliance of the challenged preliminary examination under AFEUAA with the right to respect private and family life under Art. 8 of the CPHRFF. Inasmuch as this right might be restricted, the limit of tolerable interference by government institutions has been set unambiguously in the law and this precludes discretion of any kind. The measures planned are justified in a democratic society as they are said to extend the protection required for the economic prosperity of the country, public moral and the rights and freedoms of citizens and their intensity is commensurate with the goals set; the measures are soft to the maximum, i.e. they are not excessive for no good reason.
5. On the possibility to establish noncompliance with the Constitution of the whole AFEUAA on grounds that are not mentioned in the request
The Constitutional Court deems it necessary to have a say on the idea that was expounded in some positions and that claimed that there exists conceptual incompatibility between the Act challenged and the principle of the state governed by rule of law in the meaning of Art. 4 of the Constitution regarding the legal definition of “unlawfully acquired assets”. The provision of Art. 1, para 2 of the AFEUAA is quite succinct; however, it is reasonable and logical. It is unrealistic to expect from the lawmaker to enumerate expressly all possible sources of enrichment. For this reason the Act just provides for specific requirements and vetoes that pertain to the acquisition of possessions and that shall not be disregarded. On this basis the Constitutional Court did not find any justification to claim that the “targets” of the Act wonder what line of conduct would spare them clashes with the prescriptions of the challenged Act: they shall not acquire assets that proceed from outlawed activities. Unlawfully acquired assets in the meaning of the AFEUAA are associated with the source they proceed from and not with a gap in the legislation that invalidates the grounds of acquisition. In that sense the invalidity of a transaction, hypothetically, that transfers property title does not, per se, condition the inclusion of its subject in the notion under Art. 1, para 2 of the AFEUAA when the very source of the possessions is permissible, according to the Constitution and the laws. In conclusion the Court ruled that the AFEUAA as a whole did not infringe on legal certainty which is one of the most essential elements of the idea of the rule of law as embodied in Art. 4, para 1 of the Constitution.
The recourse to irrefutable presumptions will not make the whole AFEUAA unconstitutional either. Generally, legal presumptions, irrefutable presumptions included, are not extraordinary in the existing legal system. They enable to establish the truth about a relevant legal fact on the basis of the establishment of another fact which is easier to ascertain. In this particular case the presumptions related to the AFEUAA are justified as they constitute a proportional instrument to achieve the constitutionally defendable objective of the law. When sources of just enrichment may be derived from the Constitution and the laws, the non-establishment of such sources which essentially is tantamount to their inexistence logically leads to the conclusion of the unlawful origin of the examined persons’ increased possessions. Yet the latter enjoy every opportunity to oppose the claim in a civil suit as they furnish evidence to the contrary to prove the lawful source of their enrichment. Third parties enjoy the same avenue as they have title to the disputed property regardless of whether civil liability is based on an irrefutable or refutable presumption.
There occurs no usurpation of legislative powers by the assignment to the Committee to adopt Rules of its organization and operation including its administration thereof and to participate, jointly with the Chairman of the State Agency for National Security, the Minister of Interior, the Minister of Finance and the Prosecutor General in issuing an Instruction about the procedures and time frames of their interaction and approve a sample of a declaration of assets that the persons subject to examination are invited to fill in and submit. To circumvent fruitless judicial disputes the lawmaker assigned to the specialized authorities under the AFEUAA to conduct a preliminary examination that will, in no way, infringe on individual property rights: it seeks solely to help the Commission in the decision taking process to make sure it possesses the evidence needed for the successful civil suit. The Act arranges the conditions and mode of the examination, including the interrelation between the State institutions within the range of competence that the law has granted them. In this context there exists no constitutional impediment to adopt organizational charters – both internal like the Rules as per Art. 20 of the AFEUAA and joint (interagency) like the Instruction under Art. 30, para 2 of the AFEUAA. In the same context the Constitutional Court found that the standard declarations and the law-conformant questionnaire that it contained was not an exercise of legislating powers as this move did not regulate basic social relations that are excessively important in civil rights protection. It is important to note that the filing of a declaration of assets is not binding on the invitees. Filing such a declaration is not detrimental to the persons examined; just the opposite it is in their interest as they might make the Commission decree to suspend proceedings rather than bring the matter to court. In that context it should be borne in mind that according to the Act challenged the refusal to fill in a declaration is not to be detrimental to the persons examined and to the members of their families. Moreover, the persons concerned who judge it would be more to their advantage to file a declaration shall not be liable if they misinform.
ІІ. On the constitutionality of some AFEUAA texts and their compliance with international treaties to which Bulgaria is a signatory
1. On Art. 1, para 2 of the AFEUAA
The provision is not in contravention of Art. 1 of Additional Protocol No. 1 to the CPHRFF, as claimed. It is a concisely formulated legal definition which associates assets that are slated for forfeiture with assets whose acquisition cannot be attributed to a lawful source. While the legal deficiencies of the grounds of acquisition may condition different kinds of invalidity they are irrelevant to the subject of proceedings under AFEUAA. The examination is to cover all the “input” and “output” assets that the person examined had and has and all possessions from lawful sources (earned income, private enterprise, inheritance, transactions and suchlike) in addition to all the spending and debts in the period under examination. There is no reason to reject the lawmaker’s idea that the category of facts and circumstances in question may be established in adversary proceedings. If the examination establishes a significant lack of correspondence in the assets of the person which may not be attributed to lawful acquisitions, a reasonable presumption shall be warranted of unjust enrichment. It is to be noted that such an approach to proof (on the basis of exclusionary rules) is admissible in criminal proceedings as well when a verdict of guilty is pronounced on the basis of indirect evidence only.
Diverse unlawful sources of enrichment are possible: income from outlawed or unlicensed operations, tax evasion, nonpayment of social security or health insurance contributions, smuggling of goods, trafficking in human beings, illicit trafficking in drugs, racketeering, money laundering, large-scale fraud, among other but their specifics in terms of type and size is beyond the scope of proof in a civil suit under the AFEUAA. It is essential that Art. 1, para 2 of the AFEUAA provides the frame for the rectification of an injustice by the forfeiture to the Exchequer of assets that have been unlawfully acquired and that are to be recovered to the society at large. As mentioned such a codified restriction is in the public interest and is not excluded from the general principles of international law. The ECHR practices are in this spirit. Therefore the provision challenged is compatible with the preconditions for deprivation of possessions as per Art. 1 of Additional Protocol No. 1 to the CPHRFF.
2. On Art. 3, para 1 of the AFEUAA
The challenged part of the provision in question defines the objective of the Act thus: “This Act shall have as an objective to protect the interests of society and to restore the sense of justice in citizens by preventing and limiting the possibilities for unlawful acquisition of assets and disposition thereof.”
The Constitutional Court found that the first of the objectives as mentioned in the challenged Act (protection of the interests of society) did not conflict with Art. 1, para 3 of the Constitution. The protection of public interest is a legitimate objective and exponent of national sovereignty. Fundamental civil rights that are not absolute shall not be restricted on grounds that public interest should prevail over individual interest. The Constitutional Court has invariably criticized such attitude and sees no reason it should stop.
In the Constitutional Court’s view the restoration of the sense of justice in citizens is not a legitimate objective in the meaning of the Constitution. Normally feelings are not objective facts nor are they juristic concepts to be advanced as law’s objectives. It is very difficult and dangerous to associate the fundamental right to property with the emotional condition of other individuals who, moreover are viewed separately and outside society. In this particular case in addition to the imprecise legal wording the lawmaker has inadequately outlined the objective of the Act as а guarantee to prevent administrative and judicial unpredictability. For these reasons the Court concluded that the challenged provision of Art. 3, para 1 of the AFEUAA in the part “and to restore the sense of justice in citizens” was anticonstitutional as it disagreed with the Preamble and with the principle of the state governed by rule of law.
3. On Art. 24 of the AFEUAA and the related Art. 2 of the AFEUAA in the part concerning the words “or administrative penalty” and Art. 23 of the AFEUAA in the part concerning the words “or an administrative violation referred to in Article 24 (1)”
As free market economy developed new grave administrative violations were made subject to legal sanctions as they were seen as capable to generate a benefit, provided the said benefit is to an amount exceeding BGN 150,000 at the time of acquisition thereof. The Constitution does not preclude for declaratory decrees in effect to give occasion to proceedings that seek forfeiture to the Exchequer of unlawfully acquired assets.
However, the Constitutional Court established the anticonstitutionality of Art. 24, paras 3 and 4 of the AFEUAA. These provisions enable other persons and bodies, apart from the administrative sanctioning authority, to inform the specialized administration, pursuant to the AFEUAA, that to their knowledge there was a benefit to an amount exceeding BGN 150,000 at the time of acquisition and that there was no other alternative to forfeit in view of the preliminary investigation under way. The Constitutional Court concluded that such an approach to the initiation of proceedings for the forfeiture of citizens’ privately owned assets was discordant with the prescription of the state governed by rule of law as per Art. 4, para 1 of the Constitution. The inexistence of clearly worded and precise rules practically enables absolutely all Bulgarian citizens to report to the Commission for the Forfeiture of Unlawfully Acquired Assets presumable administrative violations without any conclusive facts about the size of the acquired benefit and regardless of the entry into force of the declarative decree. Thus the Act might become an instrument of administrative repression with the unfounded examinations that might be undertaken. Indirectly though the challenged Art. 24, paras 3 and 4 of the AFEUAA is in contravention of Art. 57, para 2 of the Constitution as it creates preconditions for abuse of rights to the detriment of the rights and legitimate interests of others.
The idea of the state governed by the rule of law as per Art. 4, para 1 of the Constitution presumes that legal prescriptions shall not exclude one another; they should create a coherent system of clear rules rather than breed uncertainty where the addressees are confused over differing interpretations of the rules and their enforcement, respectively. Accordingly, the Constitutional Court found the request tenable vis-à-vis Art. 2 of the AFEUAA to be declared unconstitutional in the part concerning the words “or administrative penalty”. The principle of independent non-contingent civil suit under the AFEUAA as established by the said provision corresponds to the legislation on the initiation, progress and conclusion with respect to criminal proceedings only. The preliminary examination on a grave administrative violation may start only if there exists a ruling of the administrative penalty authority, i.e. proceedings to ascertain an administrative violation and to decree an administrative penalty must be complete. Compliance with the request in that part will eliminate the internal contradiction in the AFEUAA.
4. On Art. 27, para 3 and Art. 73 of the AFEUAA
The movants insisted that concerning Art. 27, para 3 of the AFEUAA the request must be granted but for a reason other than the claimed non-observance of the parliamentary procedure that Art. 88, para 1 of the Constitution prescribes. The text is anticonstitutional due to its substantive content. In principle, to fix the duration of the period of acquisition of unlawful assets subject to an investigation by the authorities under Art. 13, para 1 of the AFEUAA must be assessed positively in the light of the guarantees
The text of Art. 417, para 2 of the Civil Procedure Code that provides for a facilitated procedure for government institutions, municipalities and banks to collect their receivables by issuing an immediate enforcement order based on a document or an abstract of the books of account, whereby receivables of the government institutions, the municipalities and the banks are established, is not unconstitutional. The text in question is not in contravention of Art. 56 of the Constitution that proclaims the citizens’ right to legal defense. While the law provides an execution debtor with a number of guarantees of his rights, while it parries the risk of order for payment proceedings against a person who objectively does not owe the receivables that are claimed from him, it makes the facilitated collection procedure applicable only to the claims of the expressly said creditors. The latter is motivated by the circumstance that government institutions and municipalities need to be enabled to efficiently perform their public functions and to manage well the budgets that are made available to them and banks need guaranteed financial stability, liquidity and protection of the rights of their depositors. The provision challenged does not infringe on the principle of guaranteed equal legal conditions for business – Art. 19, para 2 of the Constitution as the specifics of banking distinguishes the banks from the rest of the market actors. That specifics, in tune with the principle stated, calls for a facilitated receivables collection procedure to be applied equally to all banking institutions with similar activities (deposits and loans).
Proceedings under Art. 149, para 1, item 2 of the Constitution of the Republic of Bulgaria
Drawing on Art. 150, para 3 of the Constitution the Ombudsman of the Republic of Bulgaria approached the Constitutional Court with a request to declare as unconstitutional Art. 417, item 2 of the Code of Civil Procedure (CCP) for, in his view, it conflicted with Art. 19, para 2 of the Constitution.
The Ombudsman challenged Art. 417, item 2 of the CCP which arranges for the issuance of an enforcement order based on a document or an abstract of the books of account, whereby receivables of the government institutions, the municipalities and the banks are established. The Ombudsman insisted that when these three groups of creditors exercise their procedural rights, they are in a privileged position over the other legal entities and thus violate the Constitution prescriptions that the law shall establish and guarantee equal legal conditions for economic activity to all citizens and legal entities by preventing any abuse of a monopoly status and unfair competition, and by protecting the consumer, as Art. 19, para 2 of the Constitution reads.
Having discussed the argumentation of the challenge, the stated reasons, the positions of the parties and the relevant legal arrangements, the Constitutional Court took into account the following in order to rule:
1. The Court found it appropriate to discuss the admissibility of the challenge before considering it on merit.
According to Art. 150, para 3 of the Constitution the Ombudsman may approach the Constitutional Court with a request for declaring as unconstitutional a law which infringes on civil rights and freedoms. However, he substantiated his position on the case in the part that challenged the privileged procedure enjoyed by banks in the order for payment proceedings under Art. 417, item of the CCP with its noncompliance with Art. 19, para 2 of the Constitution. He stressed that unequal legal conditions were provided in this way for economic activities to be carried out in one and the same sector given the existence of non-bank financial institutions along with banks as per Art. 3 of the Credit Institutions Act (CIA).
Unlike the other rightful initiators under Art. 150, para 1 of the Constitution, the Ombudsman is subjected to limitations in the exercise of this Constitution-granted right as he shall not challenge a piece of legislation that infringes on the rights of certain legal entities by the provision of more business-friendly conditions to be enjoyed by other entities. However, when he refers to violation of citizens’ rights and freedoms, as he does by his request and the matter it relates to, viz. the violation of citizens’ fundamental rights in the economic sector that are generally set down in Art. 19, paras 1 and 2 of the Constitution, he is empowered to approach the Constitutional Court. As a procedural piece of legislation the Code of Civil Procedure lays down the rules to protect individual civil rights, including the coercive execution of civil law pretences. Substantive regulation of economic activities remains entirely outside the CCP domain. Regarding the constitutional dispute in question, however, given the nature of the CCP challenged text, there occurs a partial overlap of the claimed right to legal defense of citizens that Art. 56 of the Constitution established in order for payment proceedings, on the one hand; and on the other hand, the constitutional prescriptions of Art. 19, paras 1 and 2, namely, that the law shall establish and guarantee equal conditions for economic activity to all citizens and legal entities by preventing any abuse of a monopoly status and unfair competition, and by protecting the consumer in conditions of free economic initiative. In principle the citizen may constitute a party to different civil or commercial relations, including relations with government institutions, municipalities and banks wherefrom his rights and obligations derive. In that sense whenever a citizen claims receivables that the said actors owe him, he shall not avail himself of the order for payment proceedings tools as per Art. 417, item 2 of the CCP enjoyed by the other party in the capacity of a creditor. Conversely, when a citizen is an execution debtor (e.g. as a consumer of bank services including the typical hypothesis of a bank credit borrower), he shall be the target of summary coercive enforcement proceedings initiated by any of the said creditors. The subject of the challenge is the assumption insisted on, viz. infringement on the individual right of citizens to legal defense in an enforcement proceeding whose initiation and progress might be the result of a business activity. The suggested argumentation invites the conclusion that essentially it is the proceedings whose constitutionality is to be judged in the context of the citizens’ constitutional right to legal defense as proclaimed in Art. 56 of the Constitution. However, the right to legal defense is an immanent part of the broader concept of the due legal conditions in the economic sector in the sense of Art. 19, para 2 of the Constitution, judged in all aspects of substantive and procedural legislation. Therefore, as the Constitutional Court considered the rule of Art. 22, para 1, sentence 2 of the Constitutional Court Act (CCA), Art. 25, para 2 of the Rules on the Organization of the Activities of the Constitutional Court (ROACC), the Court did not find a reason to revise its conclusion that the Ombudsman’s motion is admissible and should be adjudicated on its merits.
2. To claim that Art. 417, item of the CCP is noncompliant with the Constitution, the movant highlighted a blemish in the legislating process, supported by the violation by the competent legislating power, of Art. 28, para 3 of the Statutory Instruments Act (SIA). The Constitutional Court is competent to rule on requests to establish the noncompliance of a specific law with the Constitution but is not competent to establish noncompliance of a specific law with another specific law except in the hypothesis of Art. 4, para 1 of the Constitution for a possible violation of the principle of the state governed by rule of law. Judged from this perspective the reason is not sound as the justification for the bill approved by Decision No. 342/11.05.2006 of the Council of Ministers fully meets the criteria, standards and requisites as codified in Art. 28, para 2, items 1-5 of the SIA: the reasons are stated that make it imperative to adopt the bill as are the objectives to be achieved; and the financial and other instruments needed to enforce the new arrangement, the expected outcome of the application, including the financial outcome, if any, and an analysis of compliance with EU law.
3. To provide the creditor with a justification for enforcement, the CCP of 1952 (abolished) adopted an entirely different model and philosophy to arrange execution proceedings. Excluding the order for payment proceedings, the quoted procedural code establishes the non-judicial (or out-of-court) reasons for execution by enlarging the circle of documents on the basis of which a writ of execution is issued. An amendment of 1999 introduced the so called “summary proceedings” – Art. 126j of the CCP (abolished) that, to a certain extent, has the features of a kind of the order for payment proceedings with the specifics that the order issued shall be enforced by means of an administrative procedure.
The order for payment proceedings subject to Chapter ХХХVІІ of the existing CCP and their judicial reasons for enforcement as a fundamental of the procedural arrangement of the execution instead the non-judicial reasons that existed in the abolished CCP, eliminates the shortcomings of the preceding procedural regime while it guarantees, in a sufficient amount, the methods and tools that are required for the efficient exercise of an execution debtor’s right to legal defense in tune with the Convention’s binding standards.
Essentially the enforcement proceedings are special judicial proceedings designed to provide the needed valid justification for judicial execution in the event of claimable receivables attributable to any of the categories under Art. 410 of the CCP where by definition the execution debtor shall not contest but shall not comply either. Most generally outlined, the order for payment proceedings are optional, one-off strictly formal proceedings. In the hypothesis of presumptively indisputable receivables, considering the execution debtor’s circumstances and his own views of how the proceedings will progress, including the preferred manner of satisfaction, the creditor decides whether he will initiate that differentiated proceeding or opt for a standard action procedure within the framework of which he is come to judgment adverse, court settlement as per Art. 234 of the CCP, judgment upon admission of demand (Art. 237 of the CCP) or judgment by default (Art. 238 of the CCP).
The two kinds of order for payment proceedings, according to the existing CCP are: the standard (conventional) model that establishes the general rules – Art. 410, and special order for payment proceedings – Arts. 417-418. In keeping with the dispository nature that is typical of civil suit, the applicant who has the legitimate right to defense should expressly formulate the form of order for payment proceedings that he seeks or else ask for pronouncement in the action brought under conditions of eventuality.
The order for payment proceedings as arranged by the existing CCP is in tune with the European tendencies to facilitate and shorten judicial proceedings as proclaimed in Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure particularly for cases where there exists no real legal dispute and where judicial intervention is needed solely provide the creditor with reasons of execution to enable enforcement to recover receivables.
4. The challenged provision of Art. 417, item 2 of the CCP belongs, in systemic terms, to the second version of the order for payment proceedings according to the conditional differentiation that is accepted by the doctrine and judicial practice: the so called special proceedings or proceedings to issue an order for immediate enforcement. With the standard (conventional) order for payment proceedings under Art. 410 of the CCP the writ of execution is issued only after the enforcement order takes effect whereas in the hypothesis of Arts. 417-418 of the CCP the two actions proceed in parallel. The set of receivables subject to execution is different (see Art. 410, para 1 and Art. 417, items 1-9 of the CCP). The comparative analysis of the cited provisions shows the lawmaker’s different criterion of differentiation of the categories of exigible receivables to which the order for payment proceedings are applicable in either of its two forms. Art. 410, para 1, items 1-2 of the CCP is valid for receivables of sums of money or of fungible things, where the action is cognizable in the regional court, i.e. with a cost of action exceeding BGN 25,000, according to Art 104, para 4 of the CCP while the legal grounds are not taken into account. The material scope of the second type of order for payment proceedings under Arts. 417-418 of the CCP is defined by the documents that are expressly provided for in the law and free of whatever restrictions vis-à-vis the amount of receivables. The essential reliable criterion here is the type of document on which the application for issuing an order of immediate enforcement is based: the document shall be one from the category as per Art. 417, items 1-9 of the CCP, individualized and conformant with the author, the legal grounds for issuing it, its special form, content, requisites, etc. In view of the outlined procedural frame, including the formal evidential value of the documents that are enumerated in Art. 417 of the CCP, the court is bound to verify whether the document submitted to the proceedings is prima facie conforming and whether the receivable is ascertained, claimable and exigible, whether the exigibility of the receivable is duly attested, whether the amount claimed by the applicant is identical with the amount that is cited in the document on which the claim is based, and also whether there are other conditions that make the execution contingent upon a cross-obligation of the creditor or upon the occurrence of other circumstances – matters that in principle a court will not hear in proceedings under Art. 410 of the CCP.
The extent of defense is different as are the methods and tools of defense in view of the interplay of the different preconditions and possible legal consequences that ensue in either of the two forms of the order for payment proceedings. In the hypothesis of Art. 410 of the CCP if the execution debtor lodges an opposition in writing within the set time frame as per Art. 414, para 2 of the CCP, whereof justification of the opposition is not be required, this, by itself, is enough to make it binding on the court under Art. 415, para 1 of the CCP to instruct the applicant that he may bring an action to establish the receivable thereof. If the applicant fails to do so and to present evidence that [the said applicant] has brought the action within the time limit set, adduce proofs of civil action taken, the court shall invalidate the enforcement order and also the writ of execution had it been issued subject to the conditions under Art. 418, para 1 of the CCP. Pursuant to Art. 418, para 1 of the CCP, the procedure under Art. 410 ff. of the CCP, according to Art. 419, para 1 of the CCP, the immediate enforcement order is appealable by an interlocutory appeal. The prescription of Art. 419, para 2 of the CCP introduces explicit requirements that restrict the reasons for appeal solely to reasons that may be derived from the acts under Art. 417 of the CCP. An essential difference is that in these proceedings the appellate review of the immediate enforcement order shall not stay the enforcement (Art. 419, para 3 of the CCP), unless the execution debtor furnishes due security to the creditor according to the procedure established by Articles 180 and 181 of the Obligations and Contracts Act – Art. 420, para 1 of the CCP or if supported by convincing written evidence, the court may decree stay of enforcement – Art. 420, para 2 of the CCP. In the event of order for payment proceedings (immediate enforcement order) under Arts. 417-418 of the CCP, the burden of proof lies with the applicant-creditor who must take an action for the existence of a receivable in the procedure of Art. 422, para 1 of the CCP, however, the action, if taken, will not stay the enforcement unless the court has ruled otherwise on the basis of any of the reasons enumerated in Art. 420 of the CCP. The execution debtor may contest the receivable according to an action procedure as per Art. 424, para 1 of the CCP, where newly discovered circumstances or new written evidence of material relevance to the case are discovered, which could not have been known to the said execution debtor before the expiry of the time limit for lodgment of the opposition or which the said execution debtor could not procure within the same time limit. Another form of legal defense that an execution debtor who had no opportunity to contest the receivable may resort to is an opposition before Intermediate Appellate Review Court as per Art. 423 of the CCP where the enforcement order has not been duly served upon the said execution debtor or where the execution debtor was unable to learn of the service in due time owing to special unforeseen circumstances or the execution debtor was unable to lodge the opposition thereof owing to special unforeseen circumstances which the said execution debtor was unable to overcome.
In that context, analyzing the challenged procedural arrangement as a whole the Constitutional Court concluded that the law provides many and diverse tools supplied with the required constitutional guarantees for an execution debtor to exercise his right to legal defense within the framework of this procedure which is entirely in the form of writing and which has been simplified compared to the action procedure. In this way there ceases to be a risk for possible coercive enforcement against a person who objectively does not owe what is claimed from him as a receivable in favor of an applicant.
5. The request that was brought to the Constitutional Court contested solely the option as arranged by Art. 417, para 2 of the CCP for government institutions, municipalities and banks to resort to order for payment proceedings and ask the competent court to issue an immediate enforcement order based on a document or an abstract of the books of account whereby their receivables are established. Hence the need to give an unambiguous answer to the question whether the Constitution permits a group of entities to resort to an easier procedure to satisfy demands while the law does not allow such a procedure for the rest of entities in the civil turnover, including citizens on whose infringed rights the Ombudsman drew his request while he kept it within the confines that the Constitution allows for his initiative.
In the part related to government institutions and municipalities the challenged provision finds application only with respect to the receivables of the said entities as issuing from civil or trade relations. Their public claims in the sense of Art. 162, para 2 of the Tax and Social Insurance Procedure Code (TSIPC) are definitively excluded from order for payment proceedings under the CCP as they are subject to execution in the special law procedure.
So far the Constitutional Court has had a consistent and noncontradictory case history on the matter that a basic and essential criterion in the judgment of the constitutionality of the forms of differentiated defense as provided by individual laws, including enhanced legal defense, appears to be the core of the ensuing legal relationships, the intended purpose of the property, the tools that provide a guarantee for the efficient performance of the public functions of government institutions and municipalities, and not the status of entities. In that context, since the Constitution allows to deviate from the general rules when the respective law provides for a special procedure concerning the liabilities of government institutions, for the guaranteed performance of the public functions as assigned to them, it should be assumed, on the same grounds, that the inclusion of government institutions as possible entities that initiate the issuance of an enforcement order in order for payment proceedings under Art. 417, item 2 of the CCP, whenever their non-satisfied demands are relevant, does not appear to be in contravention of the Constitution either. This is so because “the considered appropriateness and the existing need of achieving important goals of public priority like the budget made available to ensure the performance of functions allow for differences in the legislative decision while this will not disagree with the constitutional principle as laid down in Art. 19, para 2”, as concluded by the Constitutional Court in previous proceedings on a similar matter. The circumstance that by definition government institutions perform their activities in the interest of a broad and infinite circle of persons, including the society as a whole while their inherent core function which is non-economic activity is just one aspect of the concrete permissions as formulated in the legislation (which permissions are judged from a public law angle). Alongside, the theory of law defines them as legal entities in a dual role: on the other hand, they are involved in the civil turnover as equal civil law subjects. The involvement of government institutions and municipalities in economic activities is not a rule, unlike that of the rest of economic actors; it is an exception of their regular public activity; it is accidental and happens if needed but remains subordinate to the interest of the whole society or on a regional scale, of the municipalities. Another essential particular is that government institutions are financed by the national budget which presupposes that the planning and management of the resources that are made available to them shall be subject to rules that are laid down in special statutory instruments: the budget laws, the Financial Management and Control in the Public Sector Act, the Public Sector Internal Audit Act and many applicable pieces of secondary legislation. Contracts are made with citizens and companies in a procedure and under rules that are essentially different from those that are valid for their parties to the contract (the Public Procurement Act, the Concessions Act, etc.). The financial parameters of the participation of government institutions in the civil turnover of civil and commercial transactions are determined by the revenue and spending columns in the budget that is made available to them and that is subject to ongoing control by the National Audit Office and by the financial audit bodies and thus lead to the conclusion that it is the contested provision of Art. 417, item 2 of the CCP that provides for is the needed procedural tool to ensure the fast, efficient and cheap collection of their receivables, respectively, of revenue for the budgets without clashing with the principle of the provision of equal conditions for natural persons and legal entities to enable them to participate in economic activities in conditions of free economic initiative as proclaimed by Art. 19, para 2 of the Constitution of the Republic of Bulgaria.
In the specific case there exists a legitimate goal which is to protect public interest in connection with the performance of public functions by the government institutions while the different legislation in place for the collection of their receivables in the order for payment proceedings objectifies the lawmaker’s differentiated approach entirely within the framework of admissible appropriateness which is proportional to the goal pursued. Feeding revenue into the national budget or municipal budgets by a faster and easier procedure guarantees the normal functioning of government institutions and municipalities and the performance of their inherent public functions. That is why the easier, fast and efficient coercive enforcement in favor of the said entities is in the interest of all society.
To accept the opposite means to recognize the absolute nature of the constitutional requirement debated here though, no doubt, the requirement is of no such nature and at the same time, to deny state regulation, control and options of specific legal arrangements that serve the different sectors of the economy.
As the Constitutional Court formed its conclusions on the merit of the concrete constitutional case, it considered, inter alia, its Decision No. 6/2010 reading as follows: “The principle of equality stands for equality before the law. That the law provides for differentiation with regard to one and the same right or obligation is not tantamount to a violation of the Constitution principle. Differentiation is based on a certain criterion which is met by all entities in the respective group. That differentiation accounts for the strict and fair enforcement of equality to a greater extent and codifies it. The recognition of objective and subjective differences that call for singular legal arrangements if equality before the law is to be achieved needs differentiation. The issue of the choice of criterion in the differentiation of the groups of players is an issue of social, economic and political appropriateness and the criterion must be codified or deduced from the relevant legal arrangements.”
6. The predominant part of the considerations stated so far pertains to the legal status of municipalities inasmuch as municipal power is a kind of administrative public power. According to Art. 140 and Art. 141 of the Constitution a municipality shall be entitled to own municipal property, which it shall use to the interest of the community under its jurisdiction and shall have its own budget whereas the State shall ensure the normal work of municipalities through budget appropriations and other means. In that context the procedural option that Art. 417, item 2 of the CCP provides for that municipalities alike may benefit from the facilitated procedure of coercive collection of their receivables as an alternative to the action procedure is constitutionally defendable given its public functions and the protection of public interest at local level.
For the sake of completeness it should be stressed that the challenged provision of Art. 417, item 2 of the CCP is the lawmaker’s expression of confidence in the objectivity, truthfulness and reliability of the registrations that are contained in the documents and abstracts of the books of account that are written and issued by government institutions and municipalities on the basis of which municipalities are free to initiate order for payment proceedings. In that context it should be taken into account that in addition to the general rules of the Accountancy Act that are valid for all entities, the legislation poses far greater requirements and standards regarding their financial and accounting operations and the bookkeeping thereof. All these higher codified requirements to the content and the requisites of the documentation produced and the strict control on the doings of the respective officials create the required principle-abiding guarantees for an execution debtor that his rights and legitimate interests will not be infringed upon.
7. The thoughts expressed in the request concern basically banks and justify the thesis launched by the Ombudsman of the inexistence of constitutional reasons for their inclusion into the group of entities that are possible issuers of documents as per Art. 417, item 2 of the CCP. The restriction under Art. 150, para 3 of the Constitution precludes that the Ombudsman may approach the Constitutional Court with a claim that the provision challenged puts the banks in a more advantageous position in the collection of their receivables than other companies – financial institutions with a similar subject of activity. Hence that part of the request should be considered and its merits should be judged in the context of the assessment due of the scale and substance of the right to legal defense of an execution debtor as usually a citizen finds himself in that procedural position, and conversely, when a citizen claims receivables in the capacity of a creditor.
The main question to be given an explicit and categorical answer by the Constitutional Court’s current pronouncement is about the existence (respectively inexistence) of a constitutionally defendable reason to include banks into the groups of entities referred to in Art. 417, item 2 of the CCP along with government institutions and municipalities. If the government institutions and municipalities are seen as performing public activities in the public interest nationally and regionally and this perception prevails, formally speaking banks are joint-stock companies established predominantly with private capital and non-bank financial institutions exist side by side and engage in activities that are partially close to bank activities.
The legal definition of a bank (credit institution) is to be found in Art. 2, para 1 of the Credit Institutions Act (CIA) and is formulated on the basis of a description of the typical features that characterize banking: A bank (a credit institution) shall be a legal person engaged in the business of receiving deposits or other repayable funds from the public and granting credits or other financing for its own account and at its own risk. Banks are registered as joint-stock companies and hold a license for banking operations subject to a relevant legislation; they have to meet far more stringent requirements upon institution and are engaged in operations that the law will not permit to other legal entities. It is only the banks that are entitled by virtue of the law to engage in credit and deposit transactions (active and passive banking transactions). Particularly essential is the differentiation that should be made in comparing the inherent features of banking operations with those performed by all other economic actors, including the mentioned non-bank financial institutions. While the latter operate with their resources, it is solely banks that operate with deposits received, contracts of deposit accounts, payment accounts and other financial instruments received from their customers as they extend loans which they manage for their own account and at their own risk, offer credit services – letters of credit, direct debits, bankcards, etc. manage and operate the accounts of their customers – natural persons and legal entities, including government institutions, municipalities, agencies, companies and enterprises. Inasmuch as the banks constitute a part of the financial system of a state, they have a particular legal status and a modus operandi that are subject to detailed arrangements at law and bylaw level. An overall review of the banking legislation forms the Court’s conclusion that the State has introduced intensified systemic control on all activities in which banks engage exactly for the sake of the protection of public interest, including, inter alia, the assignment to the Bulgarian National Bank (BNB) to regulate and exercise supervision of the activities of the other banks – Art. 2, para 6 of the Bulgarian National Bank Act (BNB Act).
In that context it is impossible to seek any sameness between banking activities as defined by Art. 2, para 1 of the CIA and as carried out solely by banks, and the transactions conducted by non-bank financial institutions (under Art. 3 of the CIA) so as to effectively advance the thesis that banks and non-bank financial institutions are engaged in one and the same activity, least so because the latter have no right to conduct deposit/credit transactions that are typical exclusively of banks. Moreover, the CIA (Art. 3, para 1, item 3) explicitly limits the granting of credits by these institutions with funds which have not been raised from receiving deposits or other repayable funds from the public, i.e. they can operate solely with their own resources and, in contrast to banks, are not subject to licensing (authorisation) but are subject to registration and shall be entered into a Register of the BNB in order to be able to operate. As the law provides, non-bank financial institutions are not placed under the BNB’s continual supervision and their relations with the Central Bank are reduced to the submission of regular financial statements.
The banks’ legal status thus defined and analyzed and assessed in comparison to that of non-bank financial institutions, in addition to the specifics and factors that characterize the activities they engage in invite the conclusion that any likely financial difficulties that banks may be confronted with and that are attributable to accumulated recurring defaults will threaten effective payment operations and customer service and, if such developments escalate, will globally impinge on the rights of depositors, the national economy, the performance of the national budget and of the municipal budgets with a number of other negative public and social consequences. A risk of such public consequence to confront financial institutions could not arise even theoretically inasmuch as it may affect an economic player but never citizens and society as a whole.
The considerations as stated above regarding the objectivity, truthfulness and reliability of the documents that “flow out” from government institutions and municipalities and that verify their receivables are entirely valid for the banks as well.
Therefore the Constitutional Court found that by the approval of the existing procedural standard as laid down in Art. 417, item 2 of the CCP the lawmaker enacted a text which does not violate the Constitution. As already stressed, since there exists no identicalness between rights, liabilities, functions and specifics of the activities in which banks and non-bank financial institutions engage and in general between their legal statuses, there is no reason to require that the legal arrangements should be identical. The principle that Art. 19, para 2 of the Constitution proclaims has not been infringed upon by the challenged provision of Art. 417, item 2 of the CCP since the procedure of easier and faster collection of receivables that it arranges may be enjoyed by all banks that identify themselves as a group of economic actors brought together under common denominators, engaged in identical activities and conformant with the criteria of the legal definition of a bank (a credit institution), as laid down in Art. 2, para 1 of the CIA and is not to be enjoyed by some banks only, to what effect the Constitutional Court has handed down quite a number of rulings.
In view of the considerations stated and in the part concerning banks, the challenged text is not anticonstitutional because, inter alia, it objectifies the reasonable balance between the peculiar and unique legal status of banks as companies, recognizes the specifics of the functions that are assigned to them, the harsher requirements to their operations in different areas, guarantees the need of stronger protection of public interest by ensuring the stability of the banking system and by guaranteeing the rights of depositors (in pursuance of the Bank Deposits Guarantee Act).
In conclusion, the Constitutional Court ruled on the compliance with the Constitution of the contested Art. 417, item 2 of the CCP whereby the request of the Ombudsman of the Republic of Bulgaria was pronounced unsustainable and was dismissed accordingly.
The veto over Bulgarian citizens’ election in the headship of the Bulgarian News Agency (BTA) providing they were affiliates to the ex State Security and/or the intelligence services of the Bulgarian People’s Army defies the Constitution-enshrined principles of the state governed by rule of law and the equality of citizens, is tantamount to law-established discrimination and, in addition, disagrees with the established international human rights standards.
The case was filed by 56 MPs who challenged the constitutionality Art. 11, para 1, item 8 of the Bulgarian News Agency Act (BTA Act) (DV, No. 99/16.12.2011) and its consistence with universally recognized international law standards and with international treaties to which Bulgaria is a signatory.
The MPs believe that the provision they challenged was discriminatory and in conflict with the principle of the state governed by rule of law (Art. 4, para 1 of the Constitution), the principle of the supremacy of the Constitution (Art. 5, para 1 of the Constitution) and the principle of equality of citizens (Art. 6 of the Constitution) as it imposed an explicit veto over the occupation of certain posts within the civil service by a category of persons who occupied definite positions in the past as thus the rights of a group of Bulgarian citizens by virtue of the Constitution are restricted. The MPs concluded that the provision did not observe international standards deriving from Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Art. 2, Art. 25, littera “c” and Art. 26 of the International Covenant on Civil and Political Rights; Art. 20 and Art. 21 of the Charter of Fundamental Rights of the European Union; the European Social Charter and the Universal Declaration of Human Rights as well as other international treaties to which Bulgaria is a signatory.
The Constitutional Court admitted the challenge on the basis of the following reasons:
The challenged provision that restricts the eligibility of Bulgarian citizens to be elected Director General of the Bulgarian News Agency (BTA) and to be appointed Deputy Director General of the BTA and Chief Secretary of the BTA providing they were full-time or part-time affiliates to the former State Security and/or to the intelligence services of the Bulgarian People's Army is discordant with the principle of the state governed by rule of law (Art. 4 of the Constitution), with the principle of the equality of citizens (Art. 6, para 2 of the Constitution) and constitutes law-established discrimination. The provision challenged is lustrating in nature – it codifies an express veto over the occupation of definite posts by a concrete group of Bulgarian citizens of certain public standing in the past. The provision shut the BTA headship against the election or appointment of persons whose affiliation to the totalitarian state’s secret services has been ascertained.
The negative reaction in the public domain to the activity of the totalitarian state’s secret services should not impact the exercise of citizen’s rights by virtue of the Constitution in a modern democratic society. It is intolerable to let this negative public attitude to the past be a reason to restrict the Bulgarian citizens’ rights that are proclaimed in the country’s democratic Constitution that has been in force since 1991.
The provision challenged is constitutionally intolerable as it is discriminatory in the sense of Art. 6, para 2 of the Constitution. Moreover, the Act does not impose an all-out veto over the affiliates of the totalitarian secret services to occupy public posts. The restriction is valid solely for the BTA headship and spares senior positions within the Central Government or positions within the local self-government and local administration.
The sustained practice of the Constitutional Court of the Republic of Bulgaria has been to disregard affiliation to the totalitarian secret services in the past as a reason to restrict Constitution-proclaimed rights in general or to veto election or appointment to definite positions in particular. The Constitutional Court has no reason to retreat from this practice. Moreover, the challenged lustration text codified collective liability in an intolerable way and without any judgment of the individuals’ concrete actions. Decision No. 10/1997 of the Constitutional Court ruled that doing so creates conditions to infringe on citizens’ dignity and rights “that are Constitution-protected values”. At the same time the Constitutional Court made it binding on the Bulgarian State to guarantee, by means of legal instruments, human dignity and human rights and in parallel to ensure the right of the society to be informed while the constitutional prescriptions of Art. 41, para 1 of the Constitution are observed.
The challenged BTA Act text violates the principle of equality before the law (Art. 6, para 2 of the Constitution). In the Constitution the equality of all citizens before the law is formulated as a constitutional principle inherent to any democratic society. Equality before the law is proclaimed as a universal human value and is equally valid with respect to the opportunity to occupy public posts. Even a temporary retreat from this principle on the basis of codified restrictions conflicts with the Constitution prescriptions. The equality of citizens includes their equal treatment by the authorities of State. The affiliates to the totalitarian state’s secret services carried out „lawful activities and on the whole their amorality might be implied providing the legislation that was in place then had been pronounced anticonstitutional” (Decision No. 10/1997 of the Constitutional Court). ”In principle affiliation to the ex State Security does not smear the reputation (Decision No. 10/1997 of the Constitutional Court) of the respective category of persons and cannot play the role of a criterion to assess their [the affiliates’] professional skills and abilities.
The criterion employed to restrict rights pertains to citizens’ personal and social status. It is among the criteria that the Constitution taboos to resort to in order to restrict civil rights, including the right to occupy a public post of whatever kind. This discriminatory measure strips a certain group of persons of the opportunity to be elected BTA Director General or to be appointed BTA Deputy Director General and BTA Chief Secretary though they may meet all other law-posed requirements that make them eligible to occupy these posts.
Collaboration with the totalitarian state’s secret services is seen as a social distinctive mark on the basis of which there shall be no restriction of constitutional rights inasmuch as this will result in discrimination which disagrees with Art. 6, para 2 of the Constitution. The notion “affiliate” to the State Security and the intelligence services of the Bulgarian People’s Army has been pronounced “lustrating” and “discriminatory”. Drawing on that the Constitutional Court’s mentioned decisions pronounced anticonstitutional the provisions of the Banking and Lending Act, the Pension Act, the Administration Act and the Diplomatic Service Act.
The text challenged constitutes non-proportional restriction of human rights in the sense of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights (ECHR) in Strasbourg. The consistent practice of the ECHR assumes that the passage of lustration legislation restricts human rights that the European Convention guarantees. In a number of decisions the Constitutional Court assumed that such measures may pursue a goal that the Convention permits when “the state of society calls for the creation of instruments to protect democratic arrangement.” At the same time it is emphasized that restrictions and lustration texts would have been justifiable only if they are commensurate with the goals pursued. In the view of the Court the restriction on some human rights by means of lustration is proportional in post communist states in the period in transition from a totalitarian to a democratic system inasmuch as there exist serious risks to this transition. However, when these measures are protracted they become non-proportional to the goals pursued. The Constitutional Court upheld the understanding that lustration measures shall be in place only as long as the threat to democratic order exists. If no such threat exists, lustration would be non-proportional in the sense of the Convention. As the European Court of Human Rights notes, this is valid to a stronger extent for a EU member state, ”because its democratic system is beyond doubt” (see Sidabras and Dziautas vs Lithuania – Applications nos 55480/00 and 59330/00; Rainys and Gasparavicius vs Lithuania – Applications nos 70665/01 and 74345/01; Zdanoka v Latvia – Application no 58278/00). The challenged legal text is fully in compliance with Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms inasmuch as it reads imperatively that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground.
The provision of the BTA Act challenged before the Constitutional Court is in conflict with Art. 2, para 2 and Art. 5 of the International Covenant on Economic, Social and Cultural Rights. The states parties to the Covenant undertake to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind as to race, color, sex, religion, political or other opinion, national or social origin, property, birth or other status. The restriction of the opportunity to occupy certain public posts on the basis of the affiliation of certain persons to the State Security and/or the intelligence services of the Bulgarian People’s Army discriminates these persons in the sense of the quoted texts from the International Covenant on Economic, Social and Cultural Rights. The right to work is defined as one of the fundamental human rights of the so called “second generation” of human rights and is arranged in Art. 6 of the Covenant. Alongside, the provision challenged conflicts with of the Art. 25, littera “c” of the International Covenant on Civil and Political Rights inasmuch as each state party to the Covenant undertakes to guarantee that its citizens have the right and the opportunity to have access, on general terms of equality, to public service in the country.
The Constitutional Court’s Decision No. 18/1997 assumes that the lawmaker shall be free to pose concrete requirements to appointments to certain posts and positions and that such requirements shall not constitute a violation of the right to work and choice of profession. The BTA Act text that the MPs challenged does not pose concrete requirements to occupy certain public posts; it imposes restrictions as it imposes a veto over the election or appointment respectively of the Director General and Deputy Director General and Chief Secretary of a certain category of persons regardless of their professional qualification, competence and experience. In this way the BTA Act text discriminates a group of Bulgarian citizens in violation of Art. 6, para 2 of the Constitution.
The text challenged is not conformant with Art. 1, item 1 and item 2, Art. 2 and Art. 3, littera “b” of the Convention concerning Discrimination in Respect of Employment and Occupation (Convention No. 111) of the International Labor Organization. While the Convention precludes discrimination in labor, it provides that “any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.” The imposition of restrictions to occupy certain public posts based on some Bulgarian citizens’ affiliation to the State Security and the intelligence services of the Bulgarian People’s Army is unrelated to any qualification requirements inasmuch as the latter determine the opportunity for a certain person to perform a specific activity for which he has competence, skills and knowledge. Inasmuch as the restrictions that the challenged text imposes do not rest on specific requirements posed by the prescription challenged, they are discriminatory in nature. By restricting the career opportunities of a group of Bulgarian citizens, the lustration text conflicts, inter alia, with Art. 48, para 3 of the Constitution inasmuch as it restricts the freedom of choice of profession and the legitimate expectation that providing these persons have professional experience and qualification, they may be appointed to public posts on the condition that they meet all requirements of eligibility to such posts.
It is untenable to claim that the lawmaker refused to let a certain group of persons occupy the posts of BTA Director General, BTA Deputy Director General and BTA Chief Secretary in order to protect public interest and not as, a repressive measure. It is unacceptable to claim that the restrictions as imposed by Art. 11, para 1, item 8 of the BTA Act conform with the principle of proportionality as on the one hand, the Bulgarian News Agency has to be “a national independent information institution”, and on the other hand, the restrictions are valid for a limited number of posts within the Agency. Hence the conclusion that it is appropriate to impose a restriction on the occupation of senior positions by persons who were full-time or part-time affiliates to the ex State Security and/or the intelligence services of the Bulgarian People’s Army inasmuch as the restriction is proportional and justifiable in view of the objective that the law has, viz. to guarantee the Agency’s independence in the information activity that it performs. Such a conclusion is illogical inasmuch as the attainment of complete independence of the Bulgarian News Agency as an ultimate goal pursued by the Legislature, might justify the imposition of such a restriction not just on the top-level positions but also on positions within the Agency.
The concept that one of the major objectives of the BTA Act is to guarantee the Agency’s independence by, inter alia, the restrictive text of Art. 11, para 1, item 8 is not concordant with what the principle of the state governed by rule of law stands for. It is even less acceptable to make the restrictions thus imposed conditional upon the realization of the prescription of Art. 40, para 1 of the Constitution reading that the press and the other mass information media shall be free and shall not be subjected to censorship. It is unacceptable for any freedom in a modern democratic state to be guaranteed by legislation that curtails citizens’ Constitution-enunciated rights.
The requirements to be met by the trade unions and employers associations for recognition of national representation shall be symmetrical in the consideration of the specific interests that they stand for and protect in social dialog.
While the State accepts as a binding criterion manpower in terms of the number of insurance-covered hired factory and office workers for an employers association to be recognized a nationally representational, it gives an undeserved privilege to the associations of big capital over the associations of medium-size and small capital and thus threatens to distort the market environment as a risk of monopoly and unfair competition arises.
The participation of an employers association or a trade union in social dialog at national level can be restricted under a pretext that state functions are assigned to it providing the assignment is subject to law and following an advance consent by the high representative body of the respective union or association.
The administrative liability to be assumed for a person who agrees to work without a contract of employment conflicts with the obligation of the State to guarantee and protect the right to work and the principles of the welfare and law-abiding state and the relevant applicable international standards.
The case was filed by 55 MPs who challenged the constitutionality and compliance with universally recognized international law standards and with international treaties to which Bulgaria is a signatory, of Art. 34 and Art. 35 of the Labor Code (LC), amended by § 2 and § 3 of the Act Amending the Labor Code (AALC) (DV, No. 7/2012), and Art. 414a of the LC (DV, No. 26/1986, last amended No. 7/2012), created by § 21 of the AALC.
The challenge insists that § 2 and § 3 of the AALC conflict with Art. 49, para 1 and para 2 of the Constitution as the new criteria that they introduce withhold the freedom of association of citizens and trade unions and of unions that protect the citizens’ interests in the domain of labor and social security as well as the right of employers to associate to protect their business interests. The texts in question suppress pluralism and lead to monopoly in trade unions and employers associations and thus exclude the institutional dialog between the Government, the workers and employers as a basic element of a welfare state. This is tantamount to abuse of rights as rights and interests are infringed upon and thereby Art. 57, para 2 of the Constitution is violated. In the view of the movants the texts challenged disagree, in addition, with universally recognized international law standards and with international treaties to which Bulgaria is a signatory, with: Convention No. 87/1948 and Convention No. 98/1948 of the International Labor Organization (ILO) concerning freedom of association for trade unions and employers, Convention No. 111/586 of the ILO, the Charter of Fundamental Rights of the European Union, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter and the Universal Declaration of Human Rights.
Further, the challenge insists on the anticonstitutionality of the newly incorporated Art. 414a of the Labor Code that makes the factory or office worker administratively liable when they agree to work without a contract of employment: the liability being a fine amounting to thrice the insurance contributions payable by an employee for the purpose of mandatory social and health insurance. The movants claimed the text they challenged violated the principle of the state committed to rule of law as citizens are fined without being guilty since a factory or an office worker is the vulnerable party to a contract of employment whereas it is the State that must pull its controlling authorities to guarantee the enforcement of labor legislation and to generate conditions to enable the right to labor: not doing so violates Art. 4, para 1 and Art. 48 of the Constitution.
The Constitutional Court admitted the challenge partially on the following premise:
1. On the challenge of the constitutionality and compliance with the universally recognized international law standards and with international treaties to which Bulgaria is a signatory, of § 2 and § 3 of the AACL which amend Art. 34 and Art. 35 of the LC
1.1. The new version of Art. 34 of the LC, introduced by § 2 of the AALC, provides that to be recognised as representative organisations of factory and office workers at a national level, such organisations shall meet the following requirements: 1. have at least 75,000 members; 2. have organisations of factory and office workers in more than one-fourth of the industries designated by the Classification of Economic Activities endorsed by the National Statistical Institute, with at least 5 percent of the people engaged in each economic activity being members therein, or at least 50 organisations with at least 5 members in each economic activity; 3. have local chapters in more than one-fourth of the municipalities in Bulgaria and a national governing body; 4. possess the capacity of a legal person, acquired in accordance with the procedure established by Article 49, para 1 at least three years prior to the submission of the request for recognition of representativity.
The change in the existing text of Art. 34 of the LC of a representative organization of factory and office workers at national level compared to the previous version (DV, No. 58/2010) makes it binding to be able to prove a higher number of members of the applicant organization (50,000 vs. 70,000) and a longer period to acquire the status of a legal entity (2 vs. 3 years). Criteria have been slacked regarding the other requirements of representativity. As things stand, the judgment of constitutionality should be confined solely to item 1 and item 4 of Art. 34 of the Labor Code.
The change of the text concerning item 1 and item 4 is a change in terms of numbers, not in terms of substance. Under both hypotheses the requirement of representativity of trade unions at national level retains its substantive characteristic while the parameters change – the number of members and the length of registration as a legal entity prior to the application for recognition of representativity. The changes referred to do not impact the relations within a trade union as they do not put a constraint on the manner in which it is established, i.e. they do not implicate interference by the State in the establishment – an action that would be unconstitutional as it conflicts with Art. 49, para 1 of the Constitution. The numerically greater trade union membership that is needed for eligibility to national representativity will not impede social dialog as this includes not just participation in the National Tripartite Cooperation Council but also collective bargaining, different forms of exchange of information and consultancy in enterprises and also the mechanisms of joint decision taking by employers and employed in a community of interests. Despite the existence of national representativity, the trade unions participate in collective bargaining and in the conclusion of a collective labor contract in an enterprise, i.e. the main objective of the right of association of factory and office workers in the field of labor and social security schemes is achieved. They are autonomous structures that engage in industrial relations and social dialog at the enterprise, subsector and sector level. On the other hand, the higher number needed for eligibility to national representativity is a proper governance action which will not affect the right to association since the trade unions continue to exist even if they do not meet the new requirements. The new criteria are applicable solely to organizations at national level. These norms are intended to achieve really greater representativity in conducting social dialog at national level between trade unions, employers and the Government. The number of members who are covered by social security schemes determines the relative weight of the respective trade union whereas the prolonged interim period in the course of which an application can be lodged for recognition at national level after establishment as a legal entity is made conditional upon the positions gained, structures in place and bodies that are capable to be a party in social dialog. Organizations at national level represent the majority of professional communities and have acquired better knowledge, at national level, about the problems and interests of their members – factory and office workers – hence their importance as partners in the National Tripartite Cooperation Council and the need to have their members sitting in the supervisory boards of the National Social Security Institute (NSSI) and the National Health Insurance Fund (NHIF). Therefore, the challenged provisions of Art. 34 of the LC are not anticonstitutional as they do not conflict with Art. 48, para 1, Art. 49, para 1 and Art. 57, para 2 of the Constitution.
The provisions challenged do not disagree with the international conventions to which Bulgaria is a signatory and which by virtue of Art. 5, para 4 of the Constitution have been transposed into the national legislation. As such they shall have primacy over any conflicting provision of the national legislation. In the particular case there is no contravention of Art. 3, para 2 of the ILO Convention No. 87/1948 according to which the public authorities shall refrain from any interference that would restrict this right or impede the lawful exercise thereof since, as stressed above, there is no such interference by the State: the trade unions are not subject to an authorization procedure; their self-organization and self-government is subject solely to their statutes, i.e. they are autonomous in their internal organizational life whereas the challenged LC provisions pertain solely to their representation at national level – their participation in the National Tripartite Cooperation Council and that concerns their external relations with social partners. In that sense there exists no contravention of Art. 5 of the European Social Charter that refers to the right of workers to freely form national or international organizations for the protection of their economic and social interests. The provisions challenged are not discriminatory, hence they do not infringe on Art. 2, para 1 of the Universal Declaration of Human Rights, Art. 2, para 2 of the International Covenant on Economic, Social and Cultural Rights and Art. 20 of the Charter of Fundamental Rights of the European Union. The provisions challenged do not treat trade unions in a different style when they pose requirements of national representativity as these requirements do not impede the workers’ rights to organize; on the contrary, the requirements ensure efficient protection of their interests in social dialog at national level by organizations that are proponents, on the broadest scale, of these interests and that hold the real potential to provide protection.
1.2. § 3 of the AALC amends Art. 35 of the Labor Code with regard to the standards of national representativity of the employers associations. While the required minimum number of member employees is deleted from the new text, the number of hired factory and office workers went up substantially (15,000 in the previous version vs. 100,000 in the amended version). It is a change in substance and not just a change in numbers. In addition to the dramatically increased required number to be eligible to national representation, the criterion of the number of members who are employers is eliminated and it is solely the number of hired factory and office workers that will matter and thus will reduce the number of organizations that represent small business in the tripartite dialog at national level. Concerning the employers associations, given the specifics of the business interests that are subject to protection, namely optimum conditions for profit-making, the membership of employers should be the overriding criterion which, combined with the number of the hired scheme-covered (insured) individuals will determine the importance of the respective employers association and the need for this association to be a party in the tripartite dialog at national level. The approach taken leads to the elimination of participants in the social dialog at national level and to a non-equal treatment of social partners both in comparison to the trade unions and within the employers associations in view of the existing stratification within a business and the specific interests of these social groups within the business sector. The result is a selective and imbalanced treatment by the State of the employers associations and, resultantly, a privileged status of big business organizations over small and medium-sized business organizations. Such national representation which ignores differentiation and the diversity of interests of individual employers associations while it gives priority to big business employers associations threatens to distort the market environment because of the risk of monopoly and unfair competition – a violation of Art. 19, para 2 of the Constitution.
The eligibility requirements for national representation constitute restrictions that are imposed, as stated above, for the sake of good management and good business practices. These restrictions shall be reasonable and admissible if they are to be compliant with the Constitution. However, when the national representation is made conditional on an excessively great number of insured individuals while no requirement is posed regarding the number of employers who participate in the organization, the consequence is the violation of the constitutional principle of proportionality in the enforcement of admissible requirements in the exercise of fundamental rights. Such requirements turn into a curtailment of the right to organize with no serious justification given as to what necessitated the increased number that entitles to national representation and violate Art. 44, para 1 and Art. 49, para 2 of the Constitution.
Art. 34, item 2 and item 3 of the LC and Art. 35, para 1, item 2 and item 3 of the LC introduce standardized criteria of representativity respectively for trade unions and employers associations. The criteria are symmetrical in terms of substance and have an identical focus. The symmetry in substance is seen in that the criteria under Art. 34, item 2 of the LC have the same credence for the representativity of trade unions as Art. 35, para 1, item 2 of the LC have for the employers associations. The two cited articles provide for to the same effect, viz. their purpose is to guarantee that trade unions and employers associations comprise a minimum number of structures and a minimum number of members of these structures. The requirement is quantifiable and equally important for the two kinds of organizations as it expresses the extent to which their program and activities are shared by the factory and office workers or by the employers whose interests these organizations protect. This requirement has important social significance in the assessment of the respective organizations’ potential to be the proponents and defenders of the interests not just of their members but also of the community of factory and office workers or of employers countrywide.
The stated correlation between Art. 34, item 2 and item 3 of the LC and Art. 35, para 1, item 2 and item 3 of the LC calls for a standardized measure in the check of their compliance with the Constitution. There is a rule in law “Ubi eadem legis ratio, ibi eadem legis disposition” (Where the same reason exists, there the same law prevails). In this particular case the texts are identical and have one and the same purpose. Therefore the solution should be one for both or, as the Latin dictum reads “et de similibus idem est judicium” (and where there are similar situations, the judgment is the same). Since the motion to overturn Art. 34, item 2 and item 3 of the LC was dismissed and the same reasoning should apply to Art. 35, para 1, item 2 and item 3 of the LC, the challenge of the cited texts relatable to the employers associations’ representativity at national level should be dismissed, too.
The existence of symmetrical requirements to recognize the representativity of trade unions and employers associations is in tune with the main idea which underlies, in modern international law, the workers’ right to organize in trade unions and the employers’ right to organize in employers associations, namely common and identical principles and requirements of association. That is why their regulation was adopted together with and put in one and the same international instruments: Art. 2-8 of ILO Convention No. 87/1948 and Art. 5 of the European Charter of 1961. The same idea is behind Art. 49 of the Constitution where para 1 and para 2 provide for the right to association of both factory and office workers and of employers. The same approach was taken by the legislating body (Art. 33 of the LC). The two kinds of organizations – the trade unions and the employers associations – are partner organizations. This makes it imperative for their representativity to be recognized on the basis of common and identical criteria while the divergence in the interests that they represent should be taken into account, obviously.
The challenged Art. 35, para 1, item 4 of the LC is not in contravention of the Constitution. The text in question adds an extra two years between the registration of the employers association as a legal entity and the application for the recognition of representativity at national level. In the interim the association performs all its functions as an association of employers given the acquired status of a legal entity whereas the greater number of years to be amassed in order to be an eligible applicant is required only for its national representation as it presupposes strong positions, structures in place and competent bodies. The facts to make an organization eligible result from a period of consolidation and establishment of reputation that are needed for the organization’s mature performance at national level and because of that the duration as fixed in Art. 35, para 1, item 4 of the LC should not be judged as a legal constriction of this opportunity.
The requisite under Art. 35, para 1, item 5 of the LC for national representation faces the organization with a negative condition, viz. that it shall not perform activities that are expressly assigned to it only by a law or by a statutory act. This requirement conflicts with Art. 12, para 1, Art. 44, para 1 and Art. 49, para 2 of the Constitution. For an assignment procedure to be compliant with the Constitution in view of the requirement to that associations of citizens may, at their own will, assume functions that otherwise are performed by the State, the supreme representing body of the legal entity shall take a decision in a democratic manner to assent to the assignment; however, the challenged provision contains no such condition. The provision is anticonstitutional as it provides for the delegation of assignment of all kinds of activities other than the performance of state functions. Decision No. 10/1994 on Constitutional Case No. 4/1994, Section Two, paragraph 4 is to the same effect. Further, Art. 35, para 1, item 5 of the LC provides for the functions to be assigned not just by a law but also by any piece of legislation which may be even a bylaw whereas the Decision cited rules that the assignment shall be subject to a law and nothing but a law. This requirement is associated with the possibility that it is solely the Parliament that can judge the admissibility and public justification for such an assignment and also with the possibility to approach the Constitutional Court with a challenge of the constitutionality of the assignment. In that context the law-established restriction on national representation does not seem to restrict the dependence of an employers association on the State since the assignment of state functions to the association cannot be seen as a restriction providing the association is willing and agreeing. The Court judged that such a requirement might disqualify certain employers associations from the tripartite dialog at national level if the State unilaterally assigns to them the performance of State-specific functions. Owing to that the text challenged conflicts, in addition to Art. 44, para 1 and Art. 49, para 2, also with Art. 4, para 1 of the Constitution since such legal changes misplace legal certainty and predictability as basic characteristics of a state committed to the rule of law. This holds true even to a greater extent of employers associations to which a state function has previously been assigned, providing the legal entity was willing and agreeing to take it over and which now is being stripped by the challenged Labor Code of the national representativity functions. It is a case of flagrant violation of the principle of the state committed to the rule of law with respect to an organization that, at its own will, has taken over state functions assigned to it and that a subsequent amendment stripped of the status of a nationally represented organization, i.e. its acquired rights were waived by retroactive legislation.
2. On the challenge of the constitutionality of Art. 414a of the LC created by § 21 of the AALC
The liability brought by Art. 414а of the LC conflicts with Art. 16 of the Constitution that reads that labor shall be guaranteed and protected by law and with Art. 48, para 1 of the Constitution that reads that citizens shall have the right to work and the State shall take care to provide conditions for the exercising of this right. The assumption in which a factory or office worker who has not signed a contract of employment shall be guilty and as guilty as the employer conflicts with the two cited Constitution texts. Either of these Constitution provisions strongly attacks the presumption of guilt in Art. 414a of the LC reading that both the worker and the employer who employs him without an employment contract concluded shall be equally guilty for “the supply of labor power without an employment contract concluded”. First, it must be noted that the guilt that the text ascribes to the factory or office worker is conditioned by a number of preceding actions by the employer who is bound to conclude a contract of employment with the factory or office worker before beginning of work (Art. 61, para 1 of the LC) and obligated to provide the factory or office worker with a copy of the employment contract as concluded, signed by both parties as well with a certified copy of the notification of the conclusion of an employment contract from the relevant territorial directorate of the National Revenue Agency and only then shall allow the factory or office worker to begin work (Art. 63, para 1 and para 2 of the LC). A factory or office worker shall not be liable whenever he is encouraged to supply his labor power as the supply implies, among other things, admission to his workplace; besides a worker is not to judge whether his is a law-abiding employer. The hypothesis thus advanced appears incapable to warrant an administrative penal liability of a worker. Moreover, the employer is the economically more powerful party and therefore, it is up to him what course the bargaining will take.
Second, to provide labor power without an employment contract concluded, is a line of action that solely the employer benefits from inasmuch as in such circumstances the employer will benefit from the non-payment of social security/health insurance contributions, compensations due under relations of employment, paid annual leave etc, and from the chance to terminate contracts of employment with factory/office workers in defiance towards the law. Conversely, it is quite difficult to claim that a factory or an office worker who agrees to work without a valid contract of employment is motivated to agree, in the generally accepted sense, by his personal interest to gain. Quite the opposite, he faces legal uncertainty and cannot claim remuneration; the period over which he works is not counted as insurance-covered length of service, etc. In such circumstances the claim that a factory or an office worker is as free as an employer to make a choice or that a factory or an office worker and an employer are on equal terms is tantamount to ignoring the labor market situation and the position of either party with respect to the protection of their interests. It is not freedom of choice if a worker agrees to work when he is not offered to sign a contract of employment for his right to refuse to accept the terms and conditions offered as a compulsory component of his free will gives place to the risk to join the dole though he may realize this will take him in the zone of uncertainty, including legal, social and financial uncertainty.
Further, it is worth noting that even in the event of non-conclusion of a contract of employment, Art. 16 and Art. 48 of the Constitution extend protection. While the practice is not to be tolerated, it cannot be penalized. It is an obligation of the State to see to the provision of conditions that enable the right to labor to materialize. However, to term the acceptance to be employed without a valid contract of employment an administrative breach and to exact administrative liability from a factory or an office worker could hardly be seen in the modern time as a form of preoccupation by the State with the protection of their interests. To arrange relations the lawmaker has resorted to the institute of administrative penalty, however, this does not fit into the approach that the Constitution demands from the Legislature in the regulation of this specific matter.
Therefore Art. 414a of the LC is anticonstitutional as, first, it conflicts with Art. 16 of the Constitution since the law penalizes the factory or office worker instead of protecting and guaranteeing labor. Next, Art. 414a of the LC is discordant with Art. 48 of the Constitution since the State exacts administrative penal liability from a factory or an office worker who agrees to provide his labor power without an employment contract concluded instead of meeting its Constitution-assigned obligation to see to the exercise of the right to labor.
Art. 414a of the LC conflicts with the principle of the state committed to the rule of law. When the lawmaker codifies one legal liability or another, the nature of the relations that are implicated must be taken into account. Whatever the judgment on the conduct of a factory or office worker who agrees to work without holding a contract of employment, the breach of which he is implicated is from private law domain. However, noncompliance with such an obligation shall not entail administrative penalty. Thus Art. 414a of the LC collides with the fundamental principle in law of the commensurateness of the sanction imposed on the offender with the offence. Despite numerous attempts the lawmaker had refused, without cogent judgment, to qualify the non-fulfillment of obligations that fall under civil law a crime or administrative breach.
Essentially, Art. 414 a of the LC shows determination to qualify the exercise of rights an administrative obligation and in this way to justify the administrative penal liability but ignores the fact whose interest is specifically affected and in what way precisely the offence fits into the public interests. The very assumption that the exercise of rights might be an administrative obligation, inter alia, is to be traced to an ancient root and relates to the wish to blur the dividing line between private and public law.
The constitutionality of Art. 414 a of the LC cannot be substantiated by the comparison of the offence that the text in question mentions and the breach by a factory or an office worker of the rules regarding health and safety at work as per Art. 413, para 1 of the LC, as underscored in some positions on the case. However, the administrative breaches under Art. 413, para 1 of the LC and Art. 414a of the LC are profoundly different. Non-observation of the rules for the provision of health and safety at work under Art. 413, para 1 of the LC is termed administrative breach because it concerns the life, health and the capacity for work of the factory and office workers and though these values have bearing on the individual factory or office worker, they are highly important in social terms. Accordingly the rules to safeguard them are public in nature and guard the factory or office worker against their own negligence. Further, the non-observation of the rules for the provision of health and safety at work may cause the death or health injury or incapacitation of other factory and office workers in an enterprise and in general, of an indefinite number of people. Suffice it to mention the non-observation of these rules in transportation, road traffic and in general in operations where so called potentially higher risks exist so as to form an idea of why it is for the sake of public safety that Art. 413, para 1 makes it binding to exact administrative liability also from factory and office workers. The law doctrine has no hesitation to advance the view of the public law nature of the obligation that a factory or office worker has to observe the rules of health and safety at work and it is this obligation that justifies the incorporation of administrative liability in case of non-observation. However, a hazard of such scale will not proceed from the non-observation that Art. 414a of the LC provides for and therefore it could be inappropriate to judge the one text against the other.
The problem with which the Constitutional Court was approached relates to the question whether it is compliant with the Constitution to define as an administrative offense the provision of labor by a factory or an office worker without an employment contract concluded and to impose a “fine” as an administrative penalty. Such an approach is inadmissible inasmuch as the adoption of Art. 414a of the LC establishes, namely that it shall guarantee and protect labor whereas the Government, as per Art. 48, para 1 of the Constitution, shall see to the exercise of the right to labor. A solution is sought that ignores the observation of the explicit provisions of the Constitution texts to enforce a definite type of rules and that introduces administrative penal liability regardless of the nature of relations to which such liability pertains and not considering the ends that such liability is intended to achieve. Thus Art. 414a of the LC violates, in addition to the two Constitution texts, principles of the Constitution like the principle of the state governed by the rule of law (Art. 4 of the Constitution) and the principle of the welfare state (the Preamble of the Constitution) inasmuch as the two provisions are the direct exponents of these principles. In general, the lawmaker has resorted to instruments that are alien to the domain that is subject to legal regulation.
Further, Art. 414a of the LC conflicts with the Charter of Fundamental Rights of the European Union: the Charter is binding on Bulgaria by virtue of its being a EU member state and by virtue of Art. 5, para 4 of the Constitution. In the Charter the right to work is termed “freedom to choose” (Art. 15) in Chapter II entitled “Freedoms”: everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. No doubt the challenged Art. 414a of the LC imposes restrictions (guaranteed by a sanction) on this fundamental right. In principle restrictions on fundamental rights, including freedom-rights, are admissible (Decision No. 15/2010 on Constitutional Case No. 9/2010) providing the principle of proportionality is applied (Art. 5, paras 1 and 4 of the Treaty on EU) which principle is sustained in the Constitutional Court’s record of cases (Decision No. 20/2998 on Constitutional Case No. 16/1998; Decision No. 2/2002 on Constitutional Case No. 2/2002; Decision No. 15/2010 on Constitutional Case No. 9/2010).
The Constitutional Court considered the challenged Art. 414a of the LC and found that none of the three components of the principle of proportionality was applied: first, no imperative cause was detected for such curtailment; second, the curtailment in question was definitively inappropriate as it infringed on the security and insurance system whose raison d’être is completely different; third, the curtailment is not the most sparing measure that the principle of proportionality calls for. Beside, Art. 414a of the LC puts in place an imbalanced approach: one and the same breach is subject to sanctions that differ in severity commensurate with “the insurance contributions payable by an employee for the purpose of mandatory social and health insurance, calculated on the basis of the minimum contributory income fixed for the relevant kind of work performed, depending on the economic activity and profession”, i.e. the severity of sanction varies from sector to sector.
Pardon under Art. 98, item 11 of the Constitution is a presidential action whose legal effects lead to the disimprisonment of a person who serves a sentence. The pardoning power is exercised vis-à-vis persons with a definitive verdict of conviction for the crime they have committed.
The earliest possibility to issue a pardoning act is the date on which the prison term begins. A pardoning act can also be issued in the course of serving the sentence. However, it cannot be issued once the sentence is fully served.
Under the Bulgarian Constitution pardon is not bound with law-provided concrete reasons so the President can exercise this right whenever he judges he may show mercy to a convict. The Legislature is free, if it deems it appropriate, to establish a procedure to enable the legal effects of a pardoning act. The Constitution does not prescribe to pass a law to define or constrict the reasons, independent judgment and motives for the exercise of the power that Art. 98, item 11 of the Constitution grants or to restrict the types of sentences that are passed under the Criminal Code and that can be relieved or of the persons who can be granted a pardon.
The pardoning decree enters into effect upon signature.
The President is not under an obligation to state the reasons for his decision.
The President shall be free to devolve to the Vice President the right of pardon. If the President does so, the Vice President shall exercise the pardoning power in the same way, scope and form as the Head of State does. The President retains the powers under Art. 98, items 7, 9, 10 and 11 of the Constitution even when he has decreed their devolution to the Vice President.
Pardon is non-relatable to the Executive branch of power. Specialized agencies that are arms of the Executive are in charge of the enforcement of verdicts. The pardoning decree is a legal act of the Head of State who acts solely at his own discretion and shall not be countersigned by the Minister of Justice or by a relevant minister though the enforcement lies with them.
It is up to the Legislature to decide whether the pardoning decrees are to be promulgated in Durzhaven Vestnik (the State Gazette).
The enforcement of the pardoning decrees shall be assigned to the competent Government authorities depending on the kind and nature of the verdict of conviction.
The President and the Vice President shall exercise their Constitution-granted right of pardon by the decrees that they issue. These decrees shall be subject to control solely to make sure they are in compliance with the Constitution – its Art. 149, para 1, item 2. Any of the rightful movants under Art. 150, para 1 of the Constitution may ask for such check of compliance by a challenge of the constitutionality of a pardoning decree.
The Constitution does not prescribe to make the pardoning decrees public and to state the reasons for doing so.
There is no need to issue a new decree under Art. 104 of the Constitution when the President and the Vice President were reelected for a second term in office in succession, providing a presidential decree was issued in the first term in office to devolve to the Vice President the powers under Art. 98, items 7, 9, 10 and 11 of the Constitution.
The decision of 15.2.2012 of the 41st National Assembly to elect an Ad hoc Parliamentary Committee to investigate the legal justification and the facts and circumstances in order to show mercy, write off bad debts (uncollectible State receivables), grant and restore Bulgarian citizenship and relieve from and withdraw Bulgarian citizenship in the period 22.1.2002 – 22.1.2012 is antionstitutional as it conflicts with the principle of separation of powers. Parliamentary ad hoc committees are set up to conduct inquiries or investigations on matters that pertain to the parliamentary control on the Executive and its “titleholder”, the Council of Ministers; however, the National Assembly shall not exercise such control on the execution of the presidential powers like the presidential acts to pardon convicts, write off bad debts (uncollectible State receivables), grant and restore Bulgarian citizenship and relieve from and withdraw Bulgarian citizenship.
The case was filed by a group of 61 Members of Parliament who asked the Constitutional Court:
1. To provide a binding interpretation of Art. 98, item 11 of the Constitution of the Republic of Bulgaria concerning the Presidential constitutional power to exercise the right to pardon, including the constitutional purpose, the legal nature and substance of the right to pardon and also the legal effects of the exercise of this right, the questions being: Does the pardoning decree affect the Executive branch of power and shall it be countersigned and promulgated? Who shall be in charge of the execution of the decree? Who is entitled to challenge the decree and on what grounds and what is the institution to be approached? Does the decree need motivation and is it necessary in the event of reelection to reissue a decree with an identical text by which the President devolves powers to the Vice President (Art. 98, items 7, 9, 10 and 11 read in combination with Art. 104 of the Constitution) providing it is their second term in office in succession and such a decree was issued in the first term in office?
2. To rule on the anticonstitutionality of the Decision of the 41st National Assembly of 15 February 2012 to set up an Ad hoc Parliamentary Committee to investigate the legal grounds, facts and circumstances to grant a pardon, write off bad debts (uncollectible State receivables), grant and restore Bulgarian citizenship and relieve from and withdraw Bulgarian citizenship in the period 22 January 2002 – 22 January 2012.
Proceedings under Art. 149, item 1 and item 2 of the Constitution
The MPs wrote that the floor discussion in the National Assembly heard opposite opinions expressed on the question whether in the event of reelection of the President and Vice President for a second term in office in succession the President shall reissue a decree by which he shall, under Art. 104 of the Constitution, devolve again to the Vice President the powers to appoint and dismiss some civil servants who are specified by law, to grant and restore Bulgarian citizenship, to relieve from and withdraw Bulgarian citizenship and to grant asylum and pardon. Since there exists uncertainty on this matter as evident from the election of a parliamentary committee tasked to study and identify the principles and legal grounds for the exercise of these powers, 61 MPs approached the Constitutional Court with a request to provide a binding interpretation of Art. 98, item 11 of the Constitution. Also, the MPs asked the Constitutional Court to declare anticonstitutional the National Assembly’s Decision of 15 February 2012, viz. that an Ad hoc Parliamentary Committee be set up to study the legal grounds, facts and circumstances to grant a pardon, write off bad debts, grant and restore Bulgarian citizenship, relieve from and withdraw Bulgarian citizenship in the period 22 January 2002 – 22 January 2012, as this decision was said to be conflicting with the principle of the law-abiding state (Art. 4 of the Constitution), the principle of separation of powers (Art. 8 of the Constitution) and with Art. 62, para 1 and Art. 103, para 1 of the Constitution.
The challenge noted that the National Assembly’s Decision of 15 February 2012 did not have as a target the Government institutions and was not intended to make them subject to parliamentary control. The Decision ignored the nature of the pardoning decrees that are an expression of “sovereign mercy”, hence they lie within the President’s or Vice President’s power of discretion while the Government is to arrange for their enforcement just as it ignored the circumstance that the decrees that write off bad debts, grant, restore, relieve from or withdraw Bulgarian citizenship shall be countersigned by the relevant minister who by doing so shares in the responsibility of issuance and assumes political responsibility. Given the stated reasons, the MPs insisted that the National Assembly’s Decision was anticonstitutional.
Having discussed the request and the position presented and the written evidence the Constitutional Court considered as follows:
І. On the request for a Constitutional Court interpretation of Art. 98, para 1 of the Constitution:
1. The pardoning act of the Head of State as a legal institute is the successor of the royal prerogative of mercy. That royal prerogative of the sovereign is not bound with any restrictions on the scope and on the motives and reasons to exercise it. The royal prerogative to withdraw death sentences evolved into a Constitution-proclaimed power of the Head of State in modern democratic rule.
Democratic governance presupposes the rule of law and nondiscriminatory application of the law to all persons. As a constitutional institute, unlike the different forms of withdrawal of penalty, as arranged in criminal law, the pardoning act pursues a special goal, viz. to ensure the reign of justice for all with the humanism that it embodies over the abstract justice of law.
The substance of the right to pardon is not expounded in constitutional terms: it is codified in the Criminal Code (Art. 74). The substance of this right is an act whose legal effects result in the withdrawal of verdicts of conviction. These legal effects are the direct and sole purpose of pardon. Pardon is applied to lawful verdicts of conviction for crimes committed and by definition is inspired by humaneness.
Specially the exercise of the prerogative of pardon has specific features that are characteristic of the Bulgarian legal system. What is particular is that it is only crimes subject to the Criminal Code that can be petitioned for pardon. The earliest point in time when a pardon can be granted is on the date on which a verdict is absolute. The sovereign mercy may be shown while the sentence is served but is inapplicable once the sentence has been fully served. Therefore any convict who has not fully served his sentence is entitled to plea for a pardon. Pardon is a moral act and as an expression of mercy shall not be confined to some kinds of verdicts of guilty that the jury has pronounced on crimes committed.
2. Pardon as a Constitution-granted prerogative of the Head of State and as an institute of criminal law is arranged in the Bulgarian legal system as a tool of reprieve. The sentence is withdrawn entirely or partially or else commuted to a more lenient sentence. It is essential that the criminal liability stays. The opposite would mean a President’s interference into the activities of the independent Judiciary concerning the exaction of criminal liability by conviction and enforcement of conviction on persons who have committed crimes. Criminal jurisdiction is entirely within the prerogatives of the Judiciary (Art. 119 of the Constitution). The Judiciary shall be free to indict for, acquit of or convict of crimes committed. No other institution outside the Judiciary shall have any powers in the dispensation of justice. However, when it is a final verdict, the functions of the Judiciary in the enforcement end, as a rule. From that point onward a convict falls within the scope of competence of the enforcement institutions which organizationally and functionally include the Executive branch of power. Thus once a verdict is final the powers of the Judiciary are fully exercised, the scope of competence of the bodies of the Judiciary is “exhausted” and there exists no longer a constitutional barrier to the Head of State to exercise the right to pardon under Art. 98, item 11 of the Constitution.
Pardon is applicable only to sentences that are served and shall not be granted before a verdict is final. This makes it impossible for the President to have whatsoever functions with regard to the verdict. It is not the verdict but the penal measure that the Head of State can withdraw. Therefore, the right to grant a pardon is not interference into the functions of the Judiciary and does not conflict with the principle of separation of powers. Such incongruity would have existed if the right to pardon became an institute that grants a reprieve. As it is, the right does not affect the powers of the courts and is exercised only when there is a final verdict.
In addition to pardon the Bulgarian legal system applies the institute of parole. It is a procedure codified in the Code of Civil Procedure. In the event of parole pardon is inapplicable inasmuch as its effect coincides with that of parole.
3. At first glance Art. 98, item 11 of the Constitution vests the President with unlimited power to exercise the right to pardon. That text does not provide for the President’s power to pardon to be put in legal arrangements that the National Assembly passes. In principle, when the Constitution is to set limits or to prescribe a procedure for the President to exercise his powers, it sets and prescribes explicitly with reference to a special law. Inasmuch as the Constitution does not make pardon conditional on a special law, it refrains from defining the substance of the power to show sovereign mercy by way of a pardoning act, it should be concluded that there exists no barrier to let a law define the procedures that enable pardon. As it is, Art. 74 and Art. 49, para 4 of the Criminal Code and Art. 176, Art. 177, para 1 and Art. 180 of the Implementation of Penal Sanctions and Detention in Custody Act provide a legislative frame that defines the substance and legal effects of pardon. However, it is constitutionally inadmissible to let a law define or restrict the grounds, independence of judgment and the motives of the presidential power that derives from Art. 98, item 11 of the Constitution. Furthermore, the Constitution does not allow to restrict the Criminal Code’s penal measures that are subject to pardon nor does it allow to exclude one category of convicts or another from the field of application.
The right to grant a pardon is a sort of constitutional compromise with the principles of the law-abiding state and the equality of citizens before the law. This compromise is based on the understanding that sometimes it is necessary to allow deviation from the formal and nondiscriminatory enforcement of the law on all men because of the need to extend protection over Constitution-enshrined values that cannot be adequately protected by abstract legislation.
Since the Constitution does not set any limitations to grant a pardon, the conclusion is to be drawn that the President cannot be confined to any reasons when he grants a pardon. Formally speaking, the President might grant a pardon for whatever reasons he deems appropriate. Yet the Constitution that proclaims and protects supreme values normally in this way sets in a most general context the parameters that make up the frame within which the prerogative of pardon should be exercised. Therefore, the Constitution makes it binding on the President to conform to justice, humaneness and mercy when he grants a pardon. The President is bound to strike a balance between fundamental Constitution-proclaimed values and principles in the exercise of this prerogative and given the specific case he should judge to which of those he should give priority. In any case in the execution of the prerogative under Art. 98, item 11 of the Constitution the President should act on the understanding that he shows sovereign mercy while he is bound to guarantee justice.
Therefore it is inadmissible to curtail the presidential prerogative under Art. 98, item 11 of the Constitution by explicitly giving or enumerating the reasons for granting a pardon. Any such curtailment will change the meaning of the constitutional institute of pardon. All that the lawmaker can do is to define its substance while he reasserts its nature as a tool of reprieve.
As the reasons for granting a pardon are judged by the President or the Vice President, it will be inadmissible to put a requirement that they should be motivated and that the motivation should be made public. The pardoning decrees should not go with motives as an attachment inasmuch as the Constitution makes it binding to state the motives of the presidential decrees in one single case. These are the decrees under Art. 101, para 1 of the Constitution by which the President is free to return a bill together with the motives to the National Assembly for further debate. Hence, all other decrees of the Head of State may not be supported by motives. Next, the pardoning decree with motivation attached shall not be promulgated as, it is believed, in the future this may oblige the President or the Vice President to respond positively to petitions for pardon when the petitioners are in circumstances identical with those of petitioners who have already benefited from sovereign mercy. It is more than evident that the President has serious reasons when he issues a pardoning decree but the motivation should not be made public even if the lawmaker sees it appropriate to promulgate these decrees in Durzhaven Vestnik.
4. The President exercises the right to pardon on the basis of balance between the requirement to apply the law in a nondiscriminatory manner and other constitutional goals that are more important in the specific case. To prevent drastic retreat from the principle of equality and objectionable privileges or curtailment of the rights of citizens, all citizens shall be placed in an equal legal situation before the President and shall be subject to pardon under identical circumstances. Guarantees of most general nature are needed that the President shall take an identical approach to all such citizens and shall draw on identical criteria when he considers the pleas for pardon. Understandably, such criteria shall not be thrust on the President by a National Assembly law. That would be in contravention of the Constitution and especially of the Constitution-proclaimed principle of the separation of powers (Art. 8). At the same time the Head of State can and should make public the procedure by which he will exercise this presidential power and the general criteria he will draw on to secure the equality of citizens.
5. According to Art. 104 of the Constitution the President shall be free to devolve to the Vice President the prerogative of pardon. In this case the prerogative is exercised in the same way, amount and form as when exercised by the Head of State. The Constitution explicitly provides in its Art. 92, para 2 that the President shall be assisted in his actions by a Vice President. The Vice President shall not be seen solely as a “guardian of the tenure” and can take an active part in the exercise of the presidential prerogatives on the basis of coordinated positions. The President shall be free to assign to the Vice President a broad range of political tasks; however, regarding the prerogatives of the Head of State, Art. 104 of the Constitution permits to devolve to the Vice President only four of the prerogatives deriving from Art. 98 of the Constitution: to appoint and remove from office state officials, established by law (item 7); to grant, restore, relieve from and withdraw Bulgarian citizenship (item 9); to grant asylum (item 10); to exercise the right to pardon (item 11). The President shall issue a special decree to devolve the listed powers to the Vice President. The devolution may take place at any time: at the start of the term in office for which they were elected or later. The Head of State shall be free to devolve to the Vice President all prerogatives that Art. 104 of the Constitution lists, or if he sees it appropriate, he may confine to some.
The President shall be free to withdraw all devolved powers subsequently. There is no Constitution text precluding a multiple devolution or withdrawal of the powers that Art. 104 of the Constitution provides for. There exists no constitutional barrier either for the President to exercise on his own the powers that he has devolved to the Vice President.
6. The decree by which the Head of State grants pardon shall not be subject to reconsideration by another State institution or by the Head of State himself once it has taken legal effect. The issuance of a pardoning decree invalidates the reasons for continuing to serve a sentence term. The pardoning decree is final and once it takes effect, withdrawal is not possible. From that moment onwards the decree is a stable act in the sense that the President has no authority to unmake it or change it.
The decree by which a person is fully or partially pardoned takes effect as soon as it enters into force. There exists no legal tool to make the person serve the sentence again. Formal reversal of the decree is impossible as it will be invalid. The legal effect of the pardoning ceases. Once granted a pardon shall be final and irreversible. It is this effect of the pardoning decree that allows defining it as an irreversible reprieve. The nature of the pardon as an act that rests on universal human values – humanism, tolerance, justice, protection of the individual’s dignity – rules out the withdrawal of sovereign mercy once it is shown.
A pardoning decree takes effect upon signature. To validate it, a copy shall be delivered to the petitioner and to the relevant Government law-enforcement agencies. The Prosecutor General shall be informed about the pardoning decree for Art. 127, item 4 of the Constitution makes it binding on the Prosecution Office to ensure that legality is observed by overseeing the enforcement of penalties and other measures of compulsion. The decree might have taken effect, however, for its objectives to materialize, it shall be executed by the competent Government institutions. While the issuing procedure of the presidential decree shall not be subject to legal arrangement, the enforcement procedure for the pardoning decree shall be.
The pardoning decrees of the President and Vice President are the legal form in which an exclusive Constitution-granted power (Art. 98, item 11) is exercised. The decrees embody independent judgment and will to show sovereign mercy. When the Head of State makes his judgment and forms his inner conviction he shall not be chained by preset options or rules of procedure nor shall he be dependent on any State institution. In the exercise of his prerogative the Head of State shall be constrained solely by the Constitution-proclaimed values and principles.
7. The exercise of the right to pardon is an element of the Head of State-Judiciary relationship. This prerogative is exercised without any interference in the Judiciary’s activity. Pardoning does not affect the functioning of the Executive branch of power though the enforcement of sentences is ensured by specialized authorities that organizationally are an arm of the Judiciary. The pardoning decree is an act based on the Head’s of State personal will and judgment in the exercise of a Constitution-granted prerogative. The pardoning decree invalidates or changes the enforcement relationship. Such decrees are not to be countersigned by the Minister of Justice though in most cases the Minister is in charge of the enforcement inasmuch as the nature of this prerogative will preclude the interference of a Government institution other than that. Essentially, the exercise of the right to pardon impacts the outcome of the Judiciary’s activity while it does not impact the Executive branch of power.
8. Pardon is the manifestation of sovereign mercy and though it rests on the Head’s of State judgment, essentially it is sovereign mercy. Hence, it is a matter that has nothing to do with a secret power or a power whose legal effects shall remain undisclosed to the public. The question of publicity in the exercise of the right to pardon is complicated as is the very legal nature of this presidential prerogative. This is so as a collision arises between the rights and interests of the convict concerning his dignity, inviolability of privacy and personal data, on the one hand, and the citizens’ right to obtain information about what the State institutions do on matters of public interest, including the exercise of the Head’s of State prerogatives. It is for the Legislature to judge whether the decrees shall be made public by their promulgation in Durzhaven Vestnik (the State Gazette), similarly to most of the Head’s of State decrees. As of this date, the Durzhaven Vestnik Act does not prescribe for the promulgation of pardoning decrees. It is a fixed practice that evolved over the past 20 years. To support this legislative decision, it is insisted that the promulgation of pardoning decrees infringes on the privacy of the petitioners whose petitions for pardon have been resolved positively and might disclose facts of their private and family life, health, problems with the progeny and other friends and relatives of the reprieved petitioners. Owing to that currently the pardoning decrees are given publicity providing the individual, who has received a pardon, has given an explicit consent. A legislative amendment may make binding the promulgation of the pardoning decrees in Durzhaven Vestnik. The pros in favor of promulgation are inspired by an understanding that there should be legal symmetry inasmuch as the trial and the verdicts are public. Therefore pardoning decrees should be released for the general public. It is up to the Legislature to decide whether the pardoning decrees should be promulgated in Durzhaven Vestnik.
9. The pardoning decrees enforcement lies with the competent State authorities depending on the kind and nature of the verdict.
10. Pardoning decrees, like all other decrees of the President and the Vice President, do not have the juristic characteristics of administrative acts and shall not be seen as an equivalent. Hence they remain outside the scope of the Administrative Procedure Code (APC) (Art. 2 of the APC). As Constitution-granted powers of the President and the Vice President are exercised by these decrees, they shall not be challenged for compliance with the law. They shall be checked only for compliance with the Constitution in line with an argument in Art. 149, para 1, item 2 of the Constitution.
11. According to Art. 92, para 1 of the Constitution, the President is the Head of State who shall embody the unity of the nation and represent the Republic of Bulgaria in its international relations. His legal status and the role that the Constitution assigns to him make it imperative for him to perform his functions continuously. Several Constitution texts give an expression of this idea and in this way confirm that it is a matter of a fundamental rule. The President Elect shall assume office on the day following the day on which the term in office of the incumbent President expires. (Art. 93, item 5 of the Constitution). In the event of earlier end of the Presidential tenure, the Vice President shall assume the office of the President (Art. 97, para 3 of the Constitution). In the event the Vice President cannot take office, the presidential powers shall be vested in the Speaker of the National Assembly who will act as President until a new President is elected. (Art. 97, para 4 of the Constitution), i.e. the principle of continuity.
A special case of the imperative of continuous function of the President in his capacity of top-level State authority is the possibility for his reelection, i.e. the President is reelected to serve a second term in office without an intervening term between the two. Art. 95, para 1 of the Constitution reads thus: “The President and the Vice President shall be eligible for only one reelection to the same office.” Evidently even merely terminologically, the fact that the coincidence of persons who so far were the incumbent President and Vice President and the persons who are to reassume office did not escape the Constitution’s attention. The reelection of the President and the Vice President is a fact which is not irrelevant to law.
Term in office in the legal sense means to exercise mandated powers over a definite period of time; however, it is always related to a definite person when a one-man State institution is involved. This term had temporal, substantive and personal parameters. In other words, the term in office of the President and the Vice President is always intuitu personae, which in general is characteristic of each top-level State one-man institution. It is the personal aspect of the term in office of the President and Vice President that comes to the forefront in their reelection and leaves its imprint on its legal mode. Hence the conclusion that their reelection automatically leads to sort of a “linkup” between the two terms in office in a row given the sameness of the holders of the posts in contrast to the hypothesis where the President Elect and the Vice President Elect are other than the incumbent President and Vice President.
Specifically, when the President Elect and the Vice President Elect are the incumbent President and Vice President, there is no need to reassume office. The purpose of the constitutional concept “re-assumption of office” is to “herald” the assumption of prerogatives that relate to the exercise of public power. This is needed as the intervening period between the date of the election of a new President and expiry of the term in office of the incumbent President shall be at least two months (Art. 93, para 5 of the Constitution). However, the Constitutional Court has previously judged that the fact of reelection is a proof that the Constitution disallows intermission in the President’s term in office. That is why there is no sense for a reelected President and a reelected Vice President to declare that they take over powers from themselves. These powers never ceased to be exercised. It is precisely the fact of reelection that is the reason for the President and the Vice President to continue exercising their powers without any need to make a declaration of will that “bridges” the two terms in office in succession. The second term in office starts on the day following the end of the first term in office.
The fact of reelection of both the President and Vice President impacts the relations arising from the exercise of their specific powers. As a general rule once arranged, relations that are subject to public law including relationships arising out of a presidential decree continue to act in time unless a cut-off or a condition are set on their action or else it is an onetime action. That is why decrees under Art. 102, para 3, item 5 of the Constitution can take effect while the content stays unchanged with different presidents in different terms in office when they do not see any necessity to change the organization and manner of action of the offices of the Presidency as established by their predecessors. It is not necessary nor is it obligatory for each new President to approve a new structure and a new modus operandi for the offices in the Presidency that assist him in his duties. Drawing on the same logic, the decrees issued under Art. 102, para 2 item 5 of the Constitution during the President’s first term in office shall be valid during his second term in office in the event of reelection.
Concerning the President-Vice President relationship vis-à-vis the devolution of certain powers, the fact of reelection impacts its development. Given such a hypothesis, it is normal to expect that the way in which the President-Vice President relationship will develop, will be identical with the way in which it developed during their first term in office. With the same persons reelected for a second term in office as President and Vice President, it is normal for the relationship that evolved during the first term in office to move to the second term in office. In that sense the decree by which the President devolved to the Vice President certain powers as per Art. 104 of the Constitution continues to be valid, providing it was not confined to a cut-off date or conditionality and the persons who performed and perform the functions of President and Vice President are the same.
ІІ. On the request to declare anticonstitutional a National Assembly’s decision:
1. On 15 February 2012 the 41st National Assembly adopted a Decision to Elect an Ad hoc Parliamentary Committee to examine the legal framework, the facts and ci
Being approached by the General Meeting of the Civil Side of the Supreme Court of Cassation the Constitutional Court passed a decision that dismissed the challenge of December 14, 2002 of the constitutionality of §17, §20, §21, §23 and §34 of the Law on the Amendment to the Civil Procedure Code (LACPC).
The Constitutional Court noted that the Constitution (Art. 124) explicitly states that the Supreme Court of Cassation shall exercise supreme judicial oversight as to the precise and equal application of the law by all courts. Further, the Constitutional Court noted that the name of this very court as established by the Constitution indicates its cassation function. In addition the Constitutional Court ruled that the content of this function is not to be judged on the basis of Constitution provisions and that Art. 133 of the Constitution reads that the definitions of the Supreme Court of Cassation shall be incorporated in a law.
Having considered the circumstances the Constitutional Court had a ruling on each of the challenged provisions as follows:
On §17 of the LACPC
The text creates a new reason – inadmissibility – for cassation contestation. This reason expresses the understanding of the legislating authority about the possible scope of the cassation review, which is a guarantee of the protection of the rights and legitimate interests of citizens, corporate entities and the State and does not disagree with the Constitution definition of the position of the Supreme Court of Cassation within the Judiciary.
On §20 of the LACPC
This provision reads that in the event of a second cassation review the Supreme Court of Cassation is to consider the case upon its merits if it revokes the decision reviewed.
The Constitutional Court concluded that there is no text in the Constitution prohibiting to assign the facts of the dispute to the Supreme Court of Cassation while the SCC starts to collect evidence under definite procedural conditions. The conclusion is supported by the mentioned absence of a constitution characteristics of the cassation review. Yet the Constitutional Court noted that while the provision is intended to speed up the proceedings, it is not at variance with the principles of the state committed to the rule of law and of the right to legal defense (Art. 4 and Art. 56 of the Constitution).
On §21 of the LACPC
The two provisions are functionally related to the challenged §20 of the LACPC. The reasons for the dismissal of the challenge concerning §20 of the LACPC are valid for the dismissal of §21 as well.
On §34 of the LACPC
The clause challenged amends Art. 308 para 1 of the Civil Procedure Code.
The amended Art. 308 para 1 of the CPC reads that at any stage of the proceedings and until the enforcement of a judgment the claimant shall be free to ask the court with which the case is pending to allow security for costs. This option to approach the Supreme Court of Cassation with this claim is not in contravention to the Constitution and guarantees to a greater extent the rights and legitimate interests of the parties in the proceedings.
The Constitutional Court acted on an initiative from the Chief Prosecutor.
1. The decision provides binding interpretation on Art. 158 §3 of the Constitution in the part reading, “resolve on any changes in the form of state structure or form of government”.
The Constitutional Court’s interpretation drew on the will of the fathers of the Constitution and their determination as proclaimed in the Preamble to create a democratic, law-governed and welfare state. Further, the Constitutional Court considered the time of transition and the special political situation in which the Seventh Grand National Assembly worked and which motivated the Members of this Assembly to create a stable state with key institutions and powers that would be impossible to change whenever a majority causes an essential change in the configuration in Parliament.
A. The Constitutional Court assumed that the form of state structure includes territorial integrity and the Constitution-sanctioned Unitarian nature of the state where local self-government is allowed and autonomous territorial entities are not allowed.
B. The Constitutional Court gave a broader interpretation of the meaning of the notion “form of state government”. The notion is defined not just by the nature of the state which may be a parliamentary or presidential republic or monarchy but includes the system of supreme state institutions – the National Assembly, the President and Vice President, the Council of Ministers, the Constitutional Court and the Judiciary, their existence, position within the relevant power, organization, conditions, constitution and tenure.
The form of state government includes also activities and prerogatives that the Constitution vests these institutions with inasmuch as their change upsets the balance between them while respect is reserved for the basic principles on which the state is built: national sovereignty, rule of law, political pluralism, separation of powers, law-governed state and independent Judiciary.
The change of some elements that make up the two notions – “form of state structure” and “form of state government” as defined by the Constitutional Court can be approved by a Grand National Assembly only. This is so as the fathers of the Constitution had the aspiration to establish long-term democratic Constitution-sanctioned institutions that by their activities are to establish a state that is new in terms of nature and organization and to guarantee the irreversibility of the democratic process and the impossibility to overturn it. Owing to the historic moment and the complicated political situation in which the Constitution was approved, the view that the fundamental principles, bodies and balance between them shall not be changed by an ordinary National Assembly prevails.
2. The same decision of the Constitutional Court provided an answer to the question concerning the Constitution control on a law amending the Constitution and passed by an ordinary National Assembly. Such a law is subject to check for compliance with the Constitution by the Constitutional Court, which is to verify that, the procedure of submission, debate and adoption in Arts. 154 and 155 of the Constitution has been complied with and that the amendment conforms to Art. 153 reading that the National Assembly is free to amend all provisions of the Constitution except those within the prerogatives of the Grand National Assembly. This control does not cover the question whether the Constitution amendments that fall within the prerogatives of an ordinary National Assembly are in tune with the provisions of the pre-amended Constitution.
On October 17, 2002 fifty-two Members of the 39th National Assembly challenged the constitutionality of §9(1) of the Transitional and Concluding Provisions of the Law on Environment in the part regarding the phrase “… but for the privatizations concluded before February 1, 1999…”
The provision in question reads that the Government shall be responsible for past damage caused by action or inaction in the event of privatization but for the privatization transactions concluded before February 1, 1999.
The exclusion of certain privatization transactions from the law in question raises the question whether it affects the Constitution-enshrined inviolability of private property (Art. 17 para 3) and whether it violates the Constitution principles in Art. 19 para 2 and 3 reading that the law shall establish and guarantee equal conditions for economic activity to all citizens and corporate entities and protect investments and economic activity of Bulgarian and foreign persons and corporate entities.
The Constitutional Court concluded that there were no such violations. The conclusion was based on the following premises: there is no inequality between the persons that acquire property through privatization as they are not held liable for past environmental damage caused by some action or inaction regardless of when the transactions were signed. As the text challenged does not presume liability for past damage on the part of the persons in question, the conclusion is that it did not encroach upon the inviolability of property. The amendments to the legislation concerning the liability for such damage are not to be understood as the creation of a discriminatory legal frame intended for economic activities, as the Constitution principle of equal legal conditions does not rule out the possibility to amend the business legislation.
The Plenum of the Supreme Court of Cassation (SAC) challenged provisions of the Law on the Amendment to the Law on the Judiciary (LALJ), promulgated in Durzhaven Vestnik, No 74/2002 and the whole law.
The Constitutional Court decision pronounced 44 provisions of the LALJ to be inconsistent with the Constitution.
Some of the provisions pronounced to be inconsistent with the Constitution allow inadmissible increase of the prerogatives of the Executive over the Judiciary.
The Constitutional Court emphasized that the makers of the Constitution let the Judiciary be the most independent of all branches of power. Therefore the Constitutional Court pronounced that it is disallowable:
- to provide that the propositions from the judicial authorities, including the chairmen of the supreme courts and the Chief Prosecutor, should be forwarded to the Supreme Judicial Council (SJC) by the Minister of Justice and by no one else, on behalf of the Executive. It is intolerable from the perspective of the Constitution to prevent all justices, including the supreme courts justices, from forwarding their propositions directly to the SJC.
- to provide that all annual activity reports of the courts, prosecution offices and investigating authorities should be submitted to the SJC for consideration through the office of the Minister of Justice who should write a summary activity report. Justices should not be deprived of the opportunity to submit their annual reports straight to the central judicial authority that the SJC is.
- to provide that the Minister of Justice should keep the service records of the justices, prosecutors and investigating officers. The separation of powers wants that the service records of officials in one branch of power should not be maintained and filed by an officer from a branch of power other than the one concerned.
- to provide that the Minister of Justice should appoint and dismiss absolutely all justices. If the Minister does so, he or she becomes the absolute personnel power in the Judiciary.
- to provide that the Minister of Justice should present the Judiciary’s annual activity report to Parliament. The Constitution rules out the reporting by the independent Judiciary to the Legislature. It is even more absurd to report through the agency of the Executive.
- to provide that the Inspectorate of the Ministry of Justice should inspect the Supreme Court of Cassation, the Supreme Administrative Court and the Chef Prosecutor because the supreme courts see that the courts enforce the law accurately and indiscriminately and the Chief Prosecutor sees that the actions of all prosecutors are lawful and that they get methodological guidance.
- to provide that the National Institute of Justice which conducts the training of junior justices and prosecutors and the retraining of all serving justices, prosecutors and investigating officers should be under the jurisdiction of the Executive.
The second group of provisions found to be inconsistent with the Constitution concern the empowerment of the general meetings of justices, prosecutors and investigating officers with important functions in the recruitment procedure for the Judiciary. It should be remembered that the Constitution has established a special body – the Supreme Judicial Council – to pursue the personnel policy in the Judiciary. The general meetings of the justices, prosecutors and investigating officers are not Constitution-established bodies of the Judiciary. These can be established to standardize the law-enforcement practice and improve the qualification of justices but should not be made “the chief personnel officers” of the Judiciary.
The Constitutional Court concluded it was inconsistent with the Constitution to let one fifth of the SJC members have the right to ask that magistrates be stripped of their immunity because, as the Constitution reads, it is only the prosecution that can bring a charge against criminals. The said quota of SJC members is not empowered by the Constitution to start criminal prosecution, collect, check and weigh up the evidence under the terms of the Code of Penal Procedure.
Further, it is inconsistent with the Constitution to divide the positions in the bodies of the Judiciary into magistrate positions and administration positions and to fix the length of the tenure of office. The Constitution reads that all justices, prosecutors and investigating officers shall be irremovable to ensure the stability of the Judiciary.
The Constitutional Court found it was incompatible with the Constitution to have legal texts that introduce a new system of ranks in the bodies of the Judiciary as these affect rights that the magistrates already have and in the long run these new ranks are tantamount to horizontal demotion.
Fifty-seven Members of the 39th National Assembly challenged the constitutionality of eight National Assembly decisions taken by a session and stripping five MPs of their membership in parliamentary committees. The Constitutional Court turned down the challenge with the following justification:
The election of permanent and ad hoc parliamentary committees is a power vested in the National Assembly. Art. 79 of the Constitution reads that the National Assembly shall elect permanent and ad hoc committees from among its members. The article quoted does not define the election procedure. It is a matter related to the organization of the National Assembly and Art. 73 of the Constitution reads that this organization shall be in accordance with the Constitution and the National Assembly’s internal rules. In the case referred the organization of parliamentary committees is not checked for compliance with the Constitution and it is not for the Constitutional Court to judge whether the provision has been complied with in the decision taking.
Moreover, Art. 79 of the Constitution does not make it binding on each Member of Parliament to be a member of a parliamentary committee. Art. 67 of the Constitution reading that no member shall be held to a mandatory mandate does not make it binding either. The nonexistence of such an obligation is understandable as membership in parliamentary committees is not a condition and precondition for the MPs to participate in the work of the National Assembly. However, non-membership in a parliamentary committee does not pose any restriction to the exercise of their rights and the performance of their duties and the MPs are not stripped of the possibility to participate in the National Assembly’s work. It is to be concluded that the dismissal of MPs from parliamentary committees is not tantamount to any violation of the Constitution.
The Plenum of the Supreme Court of Cassation (SCC) approached the Constitutional Court for an interpretation of Art. 106; Art. 8 and Art. 117 para 2 of the Constitution and with a challenge of § 49 item 2 of the Law on the Amendment to the Law on the Judiciary (LALJ), promulgated in Durzhaven Vestnik, No 74 of July 30, 2002.
The Constitutional Court decision gave the following interpretation of the Constitution provisions for which interpretation was asked:
1. Art. 8 and Art. 117 of the Constitution proclaim the separation of powers and the independence of the Judiciary. These principles preclude the possibility for the Council of Ministers to exercise, directly or through the agency of other institutions, powers related to the management of the State’s assets that the Judiciary receives under Art. 106 of the Constitution for the performance of its functions.
2. The term “shall organize” used in Art. 106 of the Constitution concerning the State’s assets needed for the Judiciary to function should indicate that the Executive, acting through the Council of Ministers or through a minister appointed by the Council of Ministers or through a government institution other than the Council of Ministers, is authorized to organize the management of such assets by transferring them only and exclusively to the judicial authorities.
3. The notion “independent” used with regard to the Judiciary in Art. 117 para 2 of the Constitution includes, inter alia, independence in the management of the transferred assets.
The Constitutional Court justified its interpretation with the circumstance that the substance of the Council of Ministers’ prerogative under Art. 106 of the Constitution to organize the management of the State’s assets was clarified by Interpretative Decision 19/93 on Constitutional Case 11/93. The Council of Ministers shall, in the exercise of all its powers, including the powers under Art. 106 of the Constitution act in compliance with the Constitution as it is bound to act so by Art. 105 para 1 of the Constitution. This is particularly valid for the fundamental provision of Art. 8 of the Constitution that proclaims the principle of the separation of powers. The need to comply with Art. 8 in the enforcement of Art. 106 of the Constitution is explained in Interpretative Decision 14/95 on Constitutional Case 23/95 saying that in exercising its power under Art. 106 of the Constitution the Council of Ministers shall act in a way that is compatible with the hierarchy and the competency of the Constitution-established institutions among which the judicial authorities are to be counted.
The Constitution does not make the Council of Ministers, directly or through the agency of the Minister of Justice, responsible for the management of the State’s assets that have been transferred to the Judiciary. Under Art. 106 of the Constitution the Council of Ministers organizes the management of these
assets and in doing so complies with Art. 8 of the Constitution and with the constitutional status of the judicial authorities.
In exercising the power to organize the management of the State’s assets required for the functioning of the Judiciary, the Council of Ministers, respectively the Minister of Justice, shall transfer the assets directly to the judicial authorities and not to bodies of another branch of power named in Art. 8 of the Constitution.
The first sentence of Art. 117 para 2 of the Constitution proclaims the independence of the Judiciary as one of the three branches of power in the State. Art. 117 of the Constitution not just proclaims the independence of the Judiciary but its paragraph 3 guarantees the financial independence of this branch of power by an independent budget.
Financial independence includes, inter alia, independence in the management of the State’s assets that have been transferred to the Judiciary. This opinion draws on Interpretative Decision 14/95 on Constitutional Case 23/95 saying that the Council of Ministers shall not manage the state-owned offices where the divisions of the Judiciary are accommodated with ex parte acts, as appropriate unless the judicial authorities have given their explicit consent for that.
The second part of the Constitutional Court decision ruled on the incompatibility of § 49 para 2 of the LALJ that creates a new paragraph 2 of Art. 139b of the Law on the Judiciary.
The new provision reads thus: “The justices, prosecutors and investigating officers shall be provided with health service and conditions for rest and leisure in ways that the Council of Ministers has determined.” The new provision disagrees with Art. 48 para 5 and Art. 52 para 1 of the Constitution reading that the conditions and procedures for the citizens’ health service and rest and leisure shall be established by a law. The text challenged does not specify these conditions and procedures but translates them to the Council of Ministers. In the case referred, issues, which the Constitution wants to be treated in a law, are left to secondary legislation.
The Fifth Civic Suits Division of the Supreme Court of Cassation challenged § 5 para 1 of the Transitional and Concluding Provisions of the Cooperatives Law.
The Constitutional Court turned down the challenge for it did not find the text to be inconsistent with the Constitution. The text provides for the involuntary dissolution of cooperatives and cooperative unions that fail to rewrite their statutes to conform to the newly passed Cooperatives Law and to apply to be entered in the register of circumstances subject to registration within the time limit as fixed in § 2 and § 3.
The Constitutional Court assumed that the dissolution of cooperatives and cooperative unions is a measure, which is applied when law-defined specific obligations are not met. The provision for and the choice of this measure are part of the conditions for cooperation. The Constitution assigns the provision of these conditions to the Legislature, which must make them compatible with the basic principles in Art. 12 para 1 and Art. 19 para 4 of the Constitution concerning the citizens’ associations and cooperatives.
The Constitutional Court did not find any violation of the said basic principles by the text challenged. The text challenged does not infringe upon the right to association and does not prevent the association of citizens and corporate entities. While the provision sets a reasonable time limit to rewrite the statutes of the cooperatives and cooperative unions so as to conform to the new legislation in place, it guarantees, in tune with Art. 19 para 2 of the Constitution, equal legal conditions for economic activities. Further, the text is not incompatible with the Cooperatives Law as it provides for the justification for the dissolution of cooperatives or cooperative unions other than the justification as worded in the General Meeting’s decision.
The General Meeting of the Civic Suits Panel of the Supreme Court of Cassation challenged the Law on the Amendment to the Law on International Commercial Arbitration (LALICA), promulgated in Durzhaven Vestnik, No 46/2002.
The Constitutional Court decision ruled on the incompatibility of: §3 para 1 of the Transitional Provision of the LALICA reading “reverses the security measures”. The challenged § 3 para 1 contains rules for the cases brought to the Sofia City Court with the Transitional Provision in force; these are cases on which the Sofia City Court has not passed its final decision yet. The rules bind the Sofia City Court to reverse the security measures it has enforced. In defiance to the separation of powers and the independence of the Judiciary as proclaimed in the Constitution’s Art. 8 and Art. 117 para 2, the Legislature decides on the judicial acts that impose security measures and passes a law that makes it binding on the independent judicial authorities to reverse their acts.
The rest of the challenge was turned down on the premise that the transfer of the procedure that reverses arbitration decisions from the Sofia City Court to the Supreme Court of Cassation as a first and only instance is not in contravention to the Constitution. The prevailing three-instance procedure as established by the penal and civil procedural law is not bound to Constitution imperatives. Art. 133 of the Constitution reads that the organization and the activity of the courts shall be established by a law. Therefore, in addition to its functions of control and reversal, the Supreme Court of Cassation can be assigned functions that relate to original jurisdiction while the substantive legal relations between the parties are not affected.
Legal defense against the arbitration court decisions is the defense at a state court in a procedure and on an arbitration proceedings-specific basis. The one-instance procedure with the Supreme Court of Cassation alone is not a restriction of the right to defense. Within the arbitration process as a whole defense is ensured in two stages: at the non-state arbitration court and at the state court. The party that may be dissatisfied with the reversal of the arbitration decision by the Supreme Court of Cassation can bring its case to a state court or initiate the reopening of proceedings with an arbitration court depending on the defects of substance on which the Supreme Court of Cassation based its reversal.
The Constitutional Court decision turned down the challenge concerning Art. 33 para 5 of the Personal Income Tax Law by the President of the Republic of Bulgaria.
The text challenged sets a higher annual presumptive tax rate in proportion to the total space that the taxpayers have for their business. The Constitutional Court ruled that the text was not in contravention to Art. 60 para 1 of the Constitution reading that citizens shall pay taxes proportionately to their income and property. In the case in question the provision has been complied with. The largeness of the space used for activities described in Art. 33 para 5 of the Personal Income Tax Law indicates their volume and intensity and therefore the amount of the presumed income. Bearing that in mind, the reference to such a parameter in tax assessment ensures that the tax due is proportionate to the income.
The Constitutional Court surmised the text was consistent with Art. 84 item 3 of the Constitution reading that the National Assembly shall establish the taxes and their size. It is true this provision makes it binding on the Legislature to define all elements that make up the tax that is owed. It is true that the law containing the challenged text gives no definition of “total space”, though the space that is used for a business activity is one of the components that are relevant in tax assessment. The absence of a codified definition though is not to lead to a conclusion that the tax base or other component concerning the amount of the tax is not established by a law. All these elements are incorporated in a law and if and when uncertainty arises it can be overcome by an interpretation of the notion in question.
The Constitutional Court decision turned down the challenge of 48 Members of the 39th National Assembly of Art. 3 paras 2 and 4; Art. 6 para 4; Art. 11; Art. 16 para 1 subpara 5 in the part containing the words “with regard to their lawfulness” and § 22 of the Transitional and Concluding Provisions of the Law on Privatization and Post-Privatization Control (LPPC).
The provisions of Art. 3 paras 2 and 4 of the LPPC deal with the decision for the privatization of municipal assets. The text reads that the municipal councils shall decide which companies in which there is municipal interest are to be privatized. Again, the municipal councils decide which newly established companies in which there is municipal interest are to be privatized. With the said provisions in force it is not to be concluded that the municipalities are deprived of the possibility to consider and judge the interest of the community under their jurisdiction in the disposal of their assets.
The challenged Art. 6 para 4 reads thus: “The privatization authorities shall disclose the grounds for any change in their practice.” The text does not explicitly introduce a sanction to change the practice; the text just presumes that a change is possible. Therefore the text is not in contravention to the Constitution. While the provision challenged does not defy the fundamental principles of Art. 4 para 1 and Art. 19 para 2 of the Constitution, it guarantees a law-abiding privatization process.
Art. 16 of the LPPC lists the powers of the Supervisory Board, which is an arm of the Privatization Agency. One of the powers is to approve privatization deals exceeding in value the amount set in the PA’s Rules of Organization and made by way of a publicly advertised competition or a public tender. The Constitution contains no text against such a provision. On the contrary inasmuch as such a requirement is an element of the actual deal, justification for the introduction of such a requirement is contained in Art. 17 para 4 of the Constitution reading that the regime applying to the units of state and municipal property shall be established by a law.
The text of Art. 11 and § 22 of the Transitional and Concluding Provisions of the LPPC provide for a term of validity for some of the non-cash payment instruments in the privatization of companies with State interest in their capital. The term of validity is fixed only for the investment vouchers issued under the rescinded Law on the Transformation and Privatization of State-Owned and Municipal Enterprises. Apart from these investment vouchers a law provides for some other non-cash payment instruments. The time limit ensures that the investment vouchers are used and entitles the voucher holders to use them in such payments if they so wish. This being so, it is not to be surmised that the introduction of the term of validity takes away the right to use such non-cash payment instruments.
The Chief Prosecutor approached the Constitutional Court to challenge the constitutionality of Art. 57a item 2 of the Law on Physical Education and Sports (LPES) and the Constitutional Court found the text to contravene the Constitution on the following grounds:
Art. 57a of the LPES lists the sources of revenues of the budget of the Ministry of Youth and Sports. Item 2, the constitutionality of which was challenged, reads that fixed amounts shall be subtracted from the sums paid by the clubs in the transfer of players and that these subtractions shall be one of the Ministry’s budget revenues. The Constitutional Court ruled that the codification of such subtractions is incompatible with the Constitution.
Art. 60 para 1 of the Constitution states explicitly the citizens’ payments to the Treasury. These include taxes and duties, so other payments shall not be added. Owing to their different legal and economic parameters the subtractions that are an otherwise lawful operation and that Art. 57a item 2 of the LPES makes it binding to pay along with the respective taxes are not to be counted as payments to the treasury for which there are Constitution texts. The introduction of such payments by the text challenged consequently creates another type of financial burden that the Constitution does not provide for. This is inconsistent with the said Constitution provision. Further, it disagrees with the Constitution-enshrined principle of the state committed to the rule of law in Art. 4 para 1, calls for compliance with the Constitution and precludes the possibility to establish, even by a law, specific financial burdens in defiance to the Constitution texts.
A panel of the Fourth Civic Suits Division of the Supreme Court of Cassation (SCC) approached the Constitutional Court in the meaning of Art. 150 para 2 of the Constitution. While hearing a specific dispute the SCC panel found an incompatibility between the provision of § 6a of the Transitional and Concluding Provisions of the Law on the Transformation and Privatization of State-Owned and Municipal Enterprises and the Constitution. Accordingly, the panel suspended the civic suit and referred the dispute to the Constitutional Court.
§ 6a of the Transitional and Concluding Provisions of the Law on the Transformation and Privatization of State-Owned and Municipal Enterprises reads that the creditors of transformed enterprises shall be obliged within six months after the decision to initiate a privatization procedure for the said enterprise to notify in writing the privatizing authority for any receivables from the said enterprise. The persons who fail to comply with the requirements shall lose their right to claim these receivables, counting out receivables due under contracts of employment.
A new Law on Privatization and Post-privatization Control (LPPC) was enacted after the Constitutional Court was approached. § 17 para 6 of the Transitional and Concluding Provisions of the new LPPC provides that in the event where privatization contracts have been made prior to the entry into force of this Law, the provisions of § 6a of the Transitional and Concluding Provisions of the rescinded Law on the Transformation and Privatization of State-Owned and Municipal Enterprises shall apply to the claims of private and public creditors on the privatized enterprise.
The Constitutional Court did not find this text to be in contravention to the Constitution. The legislation is intended to promote an underlying economic reform – divestiture (or privatization as it is termed in the Law). The very privatization is in line with the Constitution – Art. 17 para 4, which reads that the regime applying to the different units of state and municipal property shall be established by a law and Art. 19 para 1, which reads that the economy of the Republic of Bulgaria shall be based on free economic initiative.
The text challenged covers part of the issues concerning privatization and is intended to regulate pre-privatization legal relations while the text does not provide that the creditors of an enterprise which is being privatized shall not claim receivables or property it sets a time limit to take action in order to guarantee the right to make
such claims. The challenged procedure of the said claims is a derivative of the objectives of privatization, which is not challenged and cannot continue ad infinitum.
The privatizing authority and the potential buyers obtain the due information about the real financial and business performance of the enterprise, which is being privatized. This information is important for setting a price that is really worth the privatization.
Should a creditor lose the right to claim receivables this is to be attributed to the creditor’s doing nothing to save their property and the legal instruments of protecting it and not because the text strips them of the rights in question. The text challenged does not lead to the forcible expropriation of the property, which is the creditors’ receivables in the meaning of Art. 17 para 5 of the Constitution. The provision allows to enjoy a right within a definite period. The length of this period is irrelevant, as the Constitution contains no provisions concerning time limits. Their diversity in law and dependence on the diversity of the respective public relations for which they are intended determines the different lengths of time.
The Constitutional Court decision turned down the challenge of 57 Members of the 39th National Assembly of the constitutionality of Art. 35 paras 1 and 5; Art. 43 para 5; Art. 57 para 5; Art. 59 para 5; Art. 60 para 5; Art. 68; Art. 69; Art. 88 para 2; Art. 109 of the Law on Classified Information (LCI) and of § 37 of the LCI’s Transitional and Concluding Provisions.
The register provided for in Art. 35 para 1 of the LCI is established to serve the functions of persons whose job or specific assignment requires that they be allowed to access classified information and that they have been allowed to access it. It is not the purpose of the register to inform citizens that a document containing classified information has been filed. The Constitution does not make it binding on the Legislature to let the general public access the register. Therefore the provision of Art. 35 of the LCI is not in contravention to the Constitution.
Art. 43 para 2 of the LCI reads that the security clearance procedure for the person who is to get authorization to access classified information shall be initiated after the person has given his or her written assent to be thus screened. The person is free to withdraw his or her consent at any time during the screening. The challenged Art. 43 para 5 of the LCI reads that a person who has withdrawn his or her assent shall be barred from reapplying for a job or an assignment that relate to classified information. The length of this period shall be one year. The right of such persons is temporarily curtailed by their own decision.
The texts of Art. 57 para 5; Art. 59 para 5; Art. 60 para 5; Art. 68; Art. 69; Art. 88 para 2 and Art. 109 of the LCI treat the exclusion of the right to contest the refusal to let access to classified information or the termination or withdrawal of authorized access by the competent authorities.
The Constitutional Court recalled to precedent cases to show that the exclusion of certain administrative acts from judicial control on grounds of Art. 120 para 2 of the Constitution is an exception. The exclusion applies when a more relevant explicitly stated Constitution value prevails over the Constitution-sanctioned fundamental rights and responsibilities of citizens. The limitations on the contestation in court of the provisions challenged concern the operation with secret files access to which may directly affect the national security. In this case the refusal, termination or withdrawal of access to classified information is based on a Constitution-enshrined value – the national security interest.
§ 37 of the LCI’s Transitional and Concluding Provisions rescinds the Law on Access to the Files of the ex State Security Service and the ex Intelligence Agency of the General Staff. The counting of the votes to decide whether this challenged text was in contravention to the Constitution showed that the required majority was not there. Therefore, the MPs’ challenge had to be turned down. The absence of majority for either made it impossible for the Constitutional Court to formulate general motives for this part of its decision. Hence the separate presentation of the opinions of the two groups of justices.
Members of the one group were of the opinion that the explicit rescission of a law is a basic vehicle to suspend the action of legal texts for the sake of legislative appropriateness. Art. 84 para 1 of the Constitution clearly defines this right of Parliament. To recognize that the Judiciary can have the authority to judge whether rescinded laws that the Constitution does not explicitly provide for are necessary is to give the Judiciary a recognized function of a positive lawmaker. Under the Constitution the Judiciary has no such competences.
The Constitutional Court justices did not find a violation of any Constitution-sanctioned right by the rescission. Inasmuch as the freedom to obtain information might presume an obligation on the part of Government authorities to provide such information it does not cover all or any information that the State may possess. Two decisions of the European Court of Human Rights are cited by way of justification.
The question of whether the files of the ex State Security Service and the ex Intelligence Agency of the General Staff contain information of public importance is answered by the National Assembly which is the only body competent to judge whether a special law that ensures access to such information is needed.
Another group of justices recalled that the Constitutional Court had two precedent decisions that pronounced the rescinded Law on Access to the Files of the ex State Security Service and the ex Intelligence Agency of the General Staff to be consistent with the Constitution and the instrument that enables the Constitution-sanctioned right to information. The challenged § 37 of the LCI’s Transitional and Concluding Provisions rescinds a law that alone guaranteed a fundamental Constitution-enshrined right that is not guaranteed by another existing law. If after the rescission of a law some matter is left unregulated and fundamental citizen rights are divest of codified protection, the Constitution is being violated. In the case dealt with this is the right to information in Art. 41 para 1 of the Constitution. As a fundamental citizen right it is inalienable in the reading of Art. 57 para 1 of the Constitution. Once a law defines such information to be important for the public, there shall be no act to the opposite. The State shall not, at a later stage, prevent the public from accessing the information that has been made public in order to comply with Art. 41 para 1 of the Constitution.
The rescission of the Law on Access to the Files of the ex State Security Service and the ex Intelligence Agency of the General Staff will make it impossible to uncover and expose the modus operandi and the operation of the repression apparatus of the past. It will make impossible to screen and expose the persons who have held or are holding public positions or are involved in public action just as it will make impossible to check whether the persons who apply to be elected to most responsible positions have been in the service of the ex repression machinery. Undeniably the public needs to know of such facts and the right to obtain such information is a Constitution-granted right.
The rescission of the Law on Access to the Files of the ex State Security Service and the ex Intelligence Agency of the General Staff is against the public interest. The people have the right to know their past and what methods the authorities with a decision-making function employed. The rescission is against the victims. Importantly, history is deprived of sources of information. In default of such information it is not possible to make correct analyses and give impartial judgment of the period when the ex State Security Service and the ex Intelligence Agency of the General Staff operated nor is it possible to analyze and judge the Service and the Agency as institutions.
Forty-eight Members of the 39th National Assembly challenged the constitutionality of para 28 of the Law on the Amendment to the Law on Defense and the Armed Forces (LALDAF) of the Republic of Bulgaria.
The Constitutional Court turned down the challenge on the following grounds:
1. The Constitution-defined requirements (Art. 88 para 1) concerning the passage of the law that incorporates the challenged text, namely that bills shall be read and voted upon twice, during different sessions, have been complied with. The Constitutional Court noted that these requirements do not preclude the incorporation of changes in bills after the first voting. The Constitutional Court thought such changes are tolerable providing these do not disagree with the principles of the bill
passed on first reading. Para 28 of the LALDAF agrees with the amending and voting procedure.
2. The non-involvement of the Council of Ministers and of other institutions that have functions that concern the armed forces of the country is not anticonstitutional as the discussion and passage of legislation are prerogatives of the National Assembly, which is the only legislating body.
3. Art. 6 para 2 of the Constitution has not been violated. The text challenged fixes the age limit for the career officers. It relates to what Art. 9 of the Constitution provides for the purpose of the armed forces; it derives from the nature of the activity practised and is not based on any of the characteristics that are listed in detail in Art. 6 para 2 of the Constitution. Therefore, it does not violate the principle of the equality of citizens and is not a curtailment of their rights in the meaning of the Constitution norm that is referred to.
Acting in response to 53 Members of the 38th National Assembly the Constitutional Court found items 3 and 4 of Clause 35 from the Transitional and Concluding Provisions of the 1999 Law on the State Budget of the Republic of Bulgaria to be in contravention to the Constitution.
The two items are part of the mechanism established by Clause 35 to clean the debt of Plama AD to six insolvent banks by the conversion of the debt into government debt and service of this debt by offsetting operations. The challenged item 3 quantifies the debt that the Government converts into sovereign debt. The conversion uses a decrement, which is fixed in a way described in the same item. The challenged item 4 reads the debt of Plama AD to banks shall be converted into debt of those banks to the Government in an amount that is equal to the Government’s claims on those banks.
It is on the basis of a law and not agreement with any of the parties that the Government intervenes in relations between private actors on a par and becomes an actor in those relations and determines the conditions in which they are to develop. Intervention in relations between private entities violates Art. 19 paras 1 and 2 of the Constitution, which upholds the principle of free enterprise and guarantees equal legal conditions for business. The use of the decrement under item 3, which is challenged reduces the Government’s debt to insolvent commercial banks and infringes on their ownership rights. It is a case of direct infringement by the Government on the ownership right and the freedom to negotiate terms.
The Constitutional Court’s decision responded to 50 Members of the 38th National Assembly who asked for interpretation of Art. 130 para 4 of the Constitution, specifically on whether a member of the Supreme Judicial Council could be eligible for immediate re-election when the duration of the previous term has not been five years.
The Constitutional Court ruled as follows:
In the sense of Art. 130 para 4 of the Constitution, an elected member of the Supreme Judicial Council shall not be eligible for immediate re-election in the next Supreme Judicial Council regardless of the duration of his or her term of office and regardless of the grounds on which he or she have been dismissed.
Forty-eight Members of the 38th National Assembly challenged the constitutionality of Art. 9 paras 1 and 2, subpara 1 and Art. 18 para 2 of the Higher Education Act.
The texts quoted read that the State shall perform its functions in the management of higher education through the agency of Parliament and the Council of Ministers and that the National Assembly shall open, transform or close down higher educational institutions by a decision.
The Constitutional Court decision dismissed the challenge and disagreed with the Members of Parliament who claimed that it was to be concluded from the texts referred to that the National Assembly goes beyond its legislating function and assumes administrative functions and thus it is a case of self-determination of Parliament as a body in the implementation of an ordinary law.
From the viewpoint of the Constitution there is no barrier for a piece of legislation to create a state institution to open and close down higher educational institutions under certain conditions and it is the National Assembly that can be such a body.
The National Assembly’s act to close down a higher educational institution is not law-dispensing and does not arbitrate a legal dispute; it is a law enforcement act which provides for the closure of a higher educational institution if the institution fails to meet the requirements as posed by the Government.
The Constitutional Court decision dismissed the challenge by 54 Members of the 38th National Assembly of the constitutionality of Decree 274 of July 28, 1998 by the President of the Republic of Bulgaria to release Alexander Draganov Dimitrov as Minister Extraordinary and Plenipotentiary of the Republic of Bulgaria in the Republic of Poland.
Appointment and dismissal of heads of diplomatic missions are subject to discretion by the Council of Ministers and by the President. This derives from the ambassador’s function as a representative of the Republic of Bulgaria in a foreign country and in relations with that country’s top-level institutions. This function presupposes to judge an ambassador on his or her merits and confidence in him or her. The judgement lies within the exclusive competence of the President and of the Council of Ministers and is not subject to Constitution control.
Art. 102 of the Constitution that codifies the procedure and mode of issuing presidential decrees in fulfillment of presidential powers, contains no requirement to give out motives as indispensable preconditions for the validity of the acts of the Head of State.
If the Constitution sets no term of office for a position, then the legal relations arising from presidential decrees are not linked to a fixed term. A person appointed by a decree can at any time be dismissed by the President on his discretion as long as the President abides by the Constitution requirement of sending a proposition to the Council of Ministers and having the Prime Minister countersign the decree.
The decision is in response to the Chief Prosecutor who challenged the constitutionality of Art. 399 para 1, Art. 401, Art. 403 and Art. 404 para 1 of the Penal Procedure Code – promulgated in Darzhaven Vestnik, No 89/1974; amended, No 28 of 1982, No 31 of 1990, No 39 and No 110 of 1993, No 64 of 1997.
The texts codify the special rules of inquest falling with the martial court. The texts do not change the amount and nature of the proceedings of the inquest officers. The proceedings treated in the legal texts quoted here constitute inquest from beginning to end. As inquest is one of the forms of investigation, Art. 128 of the Constitution requires that it be in the hands of investigating authorities that are part of the Judicature. In contravention to this Constitution text inquest on cases that fall with the martial courts is entrusted to persons under Art. 399 para 1 of the Penal Procedure Code who are not investigating authorities in the Judicature. Therefore the Constitutional Court ruled the challenged of the texts referred to, to be relevant and pronounced them to be non-compliant with the Constitution.
The Constitutional Court dismissed the remaining part of the challenge of the constitutionality of Art. 48, Art. 192 para 2, Art. 207 para 1, Art. 212, Art. 229, Art. 230 paras 1 and 2, Art. 395 and Art. 400 paras 1,2, 3 and 4 of the Penal Procedure Code.
The Constitutional Court’s decision dismissed the challenge of 53 Members of the 38th National Assembly of the constitutionality of the following provisions:
Clauses 21, 23, 24 and 32 of the Law on the Amendment to the Law on Local Self-government and Local Administration; Clause 34 (1) and Clause 45 of the Transitional and Concluding Provisions of the Law;
Clauses 1, 2, 3, 4, 19 (4) and 26 of the Law on the Amendment to the Law on Local Elections;
Non-compliance with an international instruments to which Bulgaria is a party – the European Charter of Local Self-government and the provisions of Clause 34 (1) and Clause 45 of the Transitional and Concluding Provisions of the Law on the Amendment to the Law on Local Self-government and Local Administration.
On the provisions in the Law on Local Self-government and Local Administration
Art. 38a provides that the mayors of boroughs in Sofia Municipality and in cities divided into boroughs shall be elected by the Municipal Council and nominated by the Mayor of the Municipality with a term expiring when that of the Municipal Council expires. Art. 39a codifies the election procedure for the borough mayors. The Constitutional Court considered that as the mayor of a municipality is elected either by direct suffrage or by the municipal council, as provided for by Art. 139 para 1 sentence 2 of the Constitution, sticking to the principle of the more cogent argument, the election of a borough mayor by a Municipal Council is absolutely in compliance with the Constitution and the amendment conforms to that.
Art. 39b provides for a new legal figure, delegate mayor, in areas with population below 500, who shall be elected by the Municipal Council. The Constitutional Court did not find this text to be in contravention to the Constitution on grounds that are similar to those given for the previous texts.
The new Art. 46a is not anticonstitutional either. It reads that the powers of the delegate mayors shall be defined by the Code of Organization and Operation of the Municipal Council and the Municipal Administration approved by the Municipal Council. As the mayor of a municipality sticks to the Municipal Council decision under Art. 139 para 2 of the Constitution, the delegate mayor shall likewise and even more stick to that.
On the Local Elections Law
Amendments to Art. 1, Art, 3 para 1, Art. 5 and Art. 6 para 1 of the law in question concern the elimination of municipal councils in the administrative and territorial units, the boroughs in Sofia, Plovdiv and Varna as per the Law on the Zoning of the Capital City and Other Cities. The Constitution contains no provisions on the administrative and territorial zoning of boroughs. As the Constitution contains no provision for a zoning status of boroughs, it becomes a matter of statehood consideration of saving and efficiency in local self-government. The mayor’s office, which is the other territorial and administrative constituent, does not have a mayor’s council either.
The new text, para 4 to Art. 42, provides for checking the nominations for mayors and municipal councilors when registered under the Law on Access to the Files of the Former State Security. If the facts that the municipal electoral commission requires are positive, the commission shall inform the parties or coalitions who made the nominations. The Constitutional Court found this not to be in contravention to Art. 6 para 1 of the Constitution. There is no curtailment of rights on the basis of the social criteria that are listed in Art. 6 para 2 of the Constitution. The text does not make the nominees ineligible for the elected positions; it is rather a moral sanction. The parties and the coalitions who make the nomination decide whether a nominee is to remain on the ticket or not if the Law on Access to the Files of the Former State Security provides positive facts.
The amended Art. 73 provides for revision of the ticket of municipal councilors (there is an identical amendment concerning the ballots for the mayor of a municipality or of a mayor’s office). An integrated (common) ballot is introduced for all parties, coalitions and independent nominees with a box to tick before the name of each party, coalition or independent nominee by the voter. Such a ballot paper is common practice in modern Europe.
On Clause 34 (1) and Clause 45 of the Law on the Amendment to the Law on Local Self-government and Local Administration
Clause 34 amends Art. 16 para 1 of the Law on the Administrative and Territorial Zoning of the Republic of Bulgaria. It introduces a condition to have a mayor’s office in areas with a population of at least 500 and not 100 as it was before the amendment. The Constitutional Court noted that the Constitution does not explicitly deal with the mayor’s office as a territorial unit or body of local self-government. The consolidation of mayor’s offices following a requirement of minimum 500 inhabitants is a piece of legislation that does not run counter to the Constitution.
Clause 45 codifies the procedure of abolishing mayor’s offices with a jurisdiction over fewer than 500 by a decision of the Municipal Council within three months of the law’s entry into force and in the interim period pending the adoption of the decision there shall be no elections for mayors in municipalities that fail to meet the requirements. The Constitution contains no rules of establishing or abolishing mayor’s offices and has left that to the legislator. Therefore the legal text is not in contravention to the Constitution.
The Constitutional Court assumed that both texts (Clause 34 (1) and Clause 45) do not disagree with the European Charter of Local Self-government and conform to Art. 3 para 2 and Art. 5 of the Charter.
Fifty-four Members of the 38th National Assembly challenged the constitutionality of the National Assembly’s decision of March 10, 1999, to close down the Slav University.
The decision was based on Art. 86 para 1 of the Constitution and Art. 18 para 1 subpara 1 of the Higher Education Act which reads that the National Assembly shall close down higher educational institutions when and if they violate this very law or other bylaws on higher education.
The MPs challenged the decision on the basis of the assumption that a breach that entails the closure of a higher educational institution must have been perpetrated when the decision is taken. In the case in question, the MPs claim, a breach, if any, is a breach of the past and not a breach on the day the decision challenged was taken.
The challenge did not get the required seven ballots and was dismissed. However, the shortage of seven votes to support the National Assembly decision’s compliance with the Constitution prevents the Constitutional Court from forming motives. Each group of justices expressed their stand separately.
The Constitutional Court decision dismissed the challenge of 49 Members of the 38th National Assembly who asked to rule on the non-compliance with the Constitution of the Law on the Ratification of the Agreement and of the Protocol on Cooperation in the Energy Sector and in Infrastructure between the Government of the Republic of Bulgaria and the Government of the Republic of Turkey.
International instruments that have been ratified, promulgated and come into force with respect to the Republic of Bulgaria, are part of the national legislation as provided by Art. 5 para 4 of the Constitution and therefore are subject to control for compliance with the Constitution just like all pieces of the national legislation. The Law on Ratification incorporates the international instrument ratified and the two should be considered as an integral act that can be challenged for compliance with the Constitution in all its components.
Art. 85 para 1 of the Constitution lists in detail the international instruments that shall be subject to ratification by the National Assembly. There is no valid reason why Parliament should not consider that another international instrument be ratified correspondingly. In the absence of a Constitution text to bind the National Assembly to refrain from doing so, Art. 86 para 1 of the Constitution empowers the National Assembly to pass pieces of legislation on any matter without any conditions or requirements whatsoever concerning the substance and content as long as these pieces of legislation do not disagree with the general principles and rules of the Constitution.
Art. 19 para 2 of the Constitution provides for conditions and guarantees for the promotion of free enterprise only when it is based on private ownership. Therefore, it is relevant to the State if it acts in a market environment, i.e. as a private owner. The same Constitution text does not cover entities that are public property of the State. They are covered by Art. 18 para 15 of the Constitution, which requires solely use and management that are treated in a law.
Fifty-seven Members of the 38th National Assembly challenged texts from the Law on the Amendment to the Law on the Transformation and Privatization of State- and Municipality-Owned Enterprises. (Darzhaven Vestnik, No 12/1999).
Clause 13 (2) and Clause 17 of the Transitional and Concluding Provisions of the Law were found to be in contravention to the Constitution.
The former provision creates a Clause 5-f of the Additional Provisions of the Law on the Transformation and Privatization of State- and Municipality-Owned Enterprises. Under this provision the acts of the bodies under Art. 3 as issued under this Law and the bylaws on implementation are not subject to appeal under the Administrative Proceedings Code and Supreme Administrative Court Law while pointing out that actors in privatization whose rights and legitimate interests have been infringed upon can take legal action. The Constitutional Court ruled it is inadmissible under the Constitution on grounds of Art. 120 para 2 to exclude the appeal not of “listed expressly” administrative acts but of all administrative acts of a wide range of administrative institutions. The power of the National Assembly under Art. 120 para 2 of the Constitution is an exception of the general rule of appeal of administrative acts and cannot be applied on a permission basis.
The latter provision qualified as anticonstitutional a text (Clause 17) reads that administrative action under the Administrative Proceedings Law and the Supreme Administrative Court Law against acts by bodies under Art. 3 of the Law on the Transformation and Privatization of State- and Municipality-Owned Enterprises shall be suspended. It is noted that the anticonstitutionality of the text derives from the anticonstitutionality of Clause 5-f of the Additional Provisions.
The Constitutional Court found the text that suspends the going cases on complaints already lodged to be in contravention to the requirement of a state committed to the rule of law to respect acquired rights, to enjoy legal security and predictability. By granting the persons concerned the right to defend their rights by taking legal action, the legislator assumes that their acquired retroactive rights have been impaired whereon there follows the suspension of complaints lodged against administrative acts concerning them instead of extending the ban on appealing against a certain category of administrative acts, as required by the principles of a state committed to the rule of law.
The Constitutional Court dismissed the remaining part of the challenge concerning the anticonstitutionality of Clause 5-e of the Additional Provisions of the Law on the Transformation and Privatization of State- and Municipality-Owned Enterprises in the section of the phrase “or its buyer” and of Art. 12a of the Law on Non-Performing Credits agreed prior to December 31, 1990.
Fifty-nine Members of the 38th National Assembly approached the Constitutional Court on grounds of Art. 149 para 1 subpara 4 of the Constitution and asked to qualify the Agreement between the Republic of Bulgaria and the North Atlantic Treaty Organization Regarding Transit of NATO Aircraft Within the Framework of Operation “Allied Force” using the airspace of Bulgaria as non-compliant with the Constitution.
The Constitutional Court decision found the above agreement to be compliant with the Constitution of the Republic of Bulgaria.
The Constitution explicitly provides for foreign troops’ deployment on or transit via the country’s territory. The National Assembly (Parliament) which gives the permission can decide on the declaration of war or conclusion of peace, ratify international instruments of political or military nature. When Parliament exercises these powers the violation of the Constitution and usurpation of the national sovereignty are out of the question.
The Constitution differentiates between a decision to allow transit and to conclude international instruments of political or military nature on the one side, and the declaration of war and conclusion of peace on the other and for this reason they are listed as separate powers of the National Assembly. The agreement between the Republic of Bulgaria and NATO does not treat any involvement of Bulgarian troops in armed operation. Therefore the provisions of the Constitution concerning the powers of the National Assembly on the issues of war and peace have no relevance in the case considered and there can be no question of their violation.
Under the Constitution the Council of Ministers directs and pursues the country’s foreign policy, guarantees the national security, concludes international instruments of political or military nature to submit them to Parliament to be ratified. These Constitution requirements have been abided by when the agreement challenged was concluded and when it was submitted for ratification to the National Assembly.
The decision provides binding interpretation asked by the Council of Ministers for Art. 85 para 1 subpara 2 of the Constitution in relation to Art. 84 (11) and Art. 5 para 4 of the Constitution.
The Constitutional Court ruled as follows:
1. The National Assembly is vested by Art. 85 para 1 subpara 1 of the Constitution with the exceptional competence to ratify by a law international instruments of political or military nature. These instruments may specify the objectives, proceeding, conditions and the duration of the foreign troops’ deployment on the country’s territory or their transit in view of the national security of the Republic of Bulgaria and in meeting her international commitments.
If there is an international instrument of political or military nature of the Republic of Bulgaria that Parliament has ratified by a law, and that has been promulgated and entered into effect and that contains the above terms of the foreign troops’ deployment on the territory of the country or their transit, then there is no need for a separate decision of the National Assembly under Art. 84 (11) of the Constitution in fulfillment of the instrument.
2. It is possible for an international instrument of political or military nature that Parliament has ratified by a law and that has been promulgated and become effective for the Republic of Bulgaria, to foresee instant military assistance and military defense of the country in the event of armed attack against it. If such an instrument provides for the deployment on the country’s territory or the transit via the country’s territory for the negotiating ally or for an international organization, then there is no need to have a decision under Art. 84 para 11 of the Constitution.