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Decision No. 1 of 24 January 2023 on Constitutional Case No. 17/2022            Constitutional Case No. 17/2022 was initiated at the request of the General Prosecutor of the Republic of Bulgaria to establish the unconstitutionality of the provision of Article 240a, paragraph 7 of the Penal Code (CC; prom. No. 26 of 02.04.1968; as amended by No. 53 of 08.07.2022) in the part "and when it is not the property of the offender".          By decision no. 1/2023 in case no. 17/2022 the Constitutional Court declared the provision of Article 240a, paragraph 7 of the Penal Code (CC; prom. No. 26 of 02.04.1968; amended by Supplement No. 53 of 08.07.2022) as unconstitutional in the part "and when it is not the property of the offender".          The grounds for unconstitutionality of the Constitutional Court are as follows: By the provision of Article 240a(7) of the Penal Code, the legislator has deemed it permissible to confiscate the ownership of the vehicle or the means of transport beyond the scope of Article 53(1) and (2) of the Penal Code.          The Penal Code has provided for the restriction of the right to property by confiscation of property as a type of punishment under Article 44 of the Penal Code and by confiscation in favour of the State of property belonging to the offender under Article 53, paragraph 1, of the Penal Code. 1 of the Penal Code and under Article 53, paragraph 2 of the Criminal Code - things, object or means of the crime, possession of which is prohibited, or things constituting direct or indirect benefit from the crime. The hypotheses thus enumerated have at their root the unlawful conduct of the owner and therefore the infringement of his right to property is a consequence of that conduct.          The provision of Article 240a(7) of the Penal Code allows the State to confiscate a vehicle or a means of transport owned by a person who has no relation to the crime and is even a victim of a crime, which is contrary to the principle of the rule of law under Article 4(1) of the Constitution of the Republic of Bulgaria and the principle of justice by providing for no fault liability under the criminal law.          Limiting the possibility for a court to make a case-by-case assessment of the good faith of the third party owner and the proportionality of the confiscation of the vehicles or means of transport not only limits the constitutional right to protection of the owner, but also hinders the mechanisms for the direct application of Article 5(4) of the Constitution in relation to international human rights treaties ratified, promulgated and in force for the Republic of Bulgaria.          In order to hold the above, the Court referred to the second paragraph of Article 1 of Protocol 1 to the the Convention for the Protection of Human Rights and Fundamental Freedoms deprivation of possessions is permissible when it is "in the public interest and in accordance with the conditions laid down by law and the general principles of international law". States enjoy a wide margin of appreciation with regard to measures and means to combat organized crime. At the same time, this does not exempt them from the requirement of legality and of respecting a fair balance between the public interest and individual rights. The norm of Article 240a para. 7 of the Penal Code provides for the more severe of the two forms of state interference with the right to peaceful enjoyment of possessions - deprivation of possessions.          The Constitutional Court has also referred to the case-law of the European Court of Human Rights - according to which the provision of compulsory confiscation (of instrumentum sceleris) belonging to third parties, without any indication of possible guilt on the part of the owner and without the possibility of challenging the confiscation or a realistic possibility of compensation, constitutes a violation of Article 1 of Protocol 1 to the European Convention on Human Rights (B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia, Application no. 42079/12, §§ 48-52).          In view of the foregoing, and with the provisions of the Bulgarian Criminal Law already declared unconstitutional in Case No. 10/2021 by Decision No. 12 of 30 September 2021 on the confiscation of vehicles or means of transport from a third party who did not know, could not have known or ought to have known that his property would be used to commit a crime, the provision of Article 240a, para. 7 of the Penal Code in respect of vehicles or means of transport which are used to move the object of the offence after the commission of the executable act of extraction of natural resources within the meaning of Art. 240a para. 1 of the Penal Code.

The National Assembly shall not amend an international agreement by a ratification act. The passage of the bill by the first vote “as a whole and in principle” precludes proposed amendments and supplements regarding the bill’s underlying elements within the framework of the second vote procedure. It is not binding for the decision to approve an act by two votes within one sitting to be taken before the first vote, however, such a modus operandi should not be detrimental to the pluralism of opinions and more specifically, should not curtail the right of a Member of Parliament to come up with proposed amendments and supplements to the bill debated. To check an act that ratifies an international agreement for compliance with the Constitution is to see to both – the formal ratification requirements and the text of the agreement in question.

Whenever the Constitutional Court exercises its prerogative to make binding interpretations of the Constitution, it explains the Constitution content-wise but does not explain the contents of its previous interpretations. The Constitutional Court shall not be approached with requests for ex ante interpretations of specific questions about the compliance with the Constitution of prospective amendments, including amendments to the Constitution, particularly if these are draft amendments that are subject to the legislating process in parliament. The diverse opinions that prevail in the theory of law and the MPs’ differing views about what derives from the Constitution prescriptions don’t constitute a controversial jurisprudence of Constitution enforcement, hence the legal problem that emerged therefrom and the need to provide an abstract interpretation of the particular Constitution provision.

Whenever the Judiciary fails to generate revenue as planned under the annual national budget, the Legislature, that is the National Assembly, shall make an arrangement to fill in the gap with cash, if any such has remained, from the Judiciary’s previous years balances and should the cash thus made available is not sufficient, then the National Assembly shall approve a direct extra Government subsidy.

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.

Whenever a provision against which a challenge has been brought is legislatively reversed, the valid legal interest (the need) to pronounce a judgment on its compliance with the Constitution ceases to exist.

To avoid being an advisory body or a positive legislating authority the Constitutional Court exercises its prerogative to provide binding interpretations of the Constitution only when there arises a valid legal interest that an abstract interpretation should be given.

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 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.

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 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.

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 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 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 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.

To enable the Supreme Judicial Council (SJC) to perform its Constitution-prescribed functions under Art. 130, para 6 of the Constitution a law may be passed to entrust the SJC with the competence to draft and pass secondary legislation.

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.

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 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.

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).

The list of occurrences for an MP to cease to exercise prerogatives before the expiry of his or her term of office in Art. 72, para 1, items 1-4 of the Constitution is not complete. Reasons for an MP divestment are also laid out in Art. 65, para 1 of the Constitution providing the appropriate occurrences came to have relevance after the election. An MP’s prerogatives may cease before the expiry of his or her term of office solely upon reasons that are unambiguously given in the Constitution while the relevant provisions shall not be subject to latitudinarian interpretation. An MP shall cease to exercise his or her prerogatives before the expiry of his or her term of office subject to a National Assembly’s resolution/decision upon any of the following occurrences: resignation submitted to the National Assembly or an entry into force of a final sentence imposing imprisonment for an intentional criminal offence or if the enforcement of the imprisonment sentence has not been suspended. Legal disputes shall be referred to the Constitutional Court to be resolved by it. National Assembly’s resolutions and Constitutional Court’s decisions on an MP’s divestment shall take effect henceforward/ex nunc. Unless the National Assembly adopts its resolution or the Constitutional Court renders its decision on an MP’s divestment, the MP shall continue to enjoy the status. Whenever the National Assembly elects an MP as the head of an institution established by law, the resolution that concerns the election shall not contain any of the elements that make up a resolution under Art. 72, para 2 of the Constitution. The National Assembly shall be free to compress into one resolution the election of an MP as the head of an institution that is established by law and the MP’s divestment on the basis of a resignation that the MP has presented. Whenever the National Assembly elects an MP as the head of the institution established by law and the MP expresses a desire to take public office, he or she shall have to submit his or her resignation to the National Assembly and the Assembly shall be bound to accept it and thereby end the incompatibility. Should the National Assembly reject the MP’s resignation or if a resignation has not been submitted, the dispute is referred to the Constitutional Court to be resolved by it.

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.

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.

To pronounce 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.

To pronounce 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.

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.

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 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 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).

The prescriptions of § 6, item 18, littera “a” and littera “b” of the Transitional and Concluding Provisions of the 2012 Public Social Security Budget Act that amend para 1 and para 2 of Art. 68 of the Social Insurance Code and provide for a higher retirement age are not anticonstitutional. They are not in contravention of Art. 51, para 1 of the Constitution which proclaims the civil right to social insurance. This right and the respective responsibility of the State to enable it to materialize is translated in reality by the measures that the State takes to ensure the financial stability of the insurance system as the retirement age goes up step by step to parry the adverse demographic developments in the country. An older retirement age is not discordant with the international treaties to which Bulgaria is a signatory and is consistent with the minimum standards of social security that are set out by Art. 26, para 2 of Convention No. 102 adopted by the International Labor Organization in 1954.

The prescriptions of § 6, item 18, littera “a” and littera “b” of the Transitional and Concluding Provisions of the 2012 Public Social Security Budget Act that amend para 1 and para 2 of Art. 68 of the Social Insurance Code and provide for a higher retirement age are not anticonstitutional. They are not in contravention of Art. 51, para 1 of the Constitution which proclaims the civil right to social insurance. This right and the respective responsibility of the State to enable it to materialize is translated in reality by the measures that the State takes to ensure the financial stability of the insurance system as the retirement age goes up step by step to parry the adverse demographic developments in the country. An older retirement age is not discordant with the international treaties to which Bulgaria is a signatory and is consistent with the minimum standards of social security that are set out by Art. 26, para 2 of Convention No. 102 adopted by the International Labor Organization in 1954.

The provisions of Art. 1, para 2, line 5 and § 5 of the National Health Insurance Budget Act are anticonstitutional as they conflict with the principle of state governed by the rule of law – Art. 4 of the Constitution and with the proclamation of the citizens’ right to health insurance – Art. 52, para 1 of the Constitution. By virtue of these provisions a sum of BGN 100 million earmarked for a special purpose is transferred from the NHIF Budget to the Ministry of Health in its capacity of an arm of the Executive branch of power, i.e. it is inconsistent with the Constitution for the NHIF Budget to finance the National Budget and to make reallocations to meet demands other than what the initial allocation was to meet.

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.

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.

Tax establishment and tax assessment and tax concessions and surtaxes shall be determined only by Parliament which shall pass laws to that effect. The Constitution calls for a clear demarcation line between income tax and property tax, hence it is inadmissible for a tax-specific regulatory arrangement to mix elements of the two categories of direct taxes.

Art. 25, item 3 of the Access to and Disclosure of the Documents and Announcing the Affiliation of Bulgarian Citizens with the State Security Service and the Intelligence Services of the Bulgarian People’s Army that reads “documents written by his/her immediate superior salaried or non-salaried officer, as well as by the available data on this person in the reference data bases (registration journals and card indexes), in the protocols for destruction of documents or on other information carriers” is not anticonstitutional as it is only persons who occupy public posts as listed in the Act or who perform public activities as listed in the Act who can be subject to public criticism at a level higher than that to which private persons are subjected who suffer encroachment on their personal data. Besides all guarantees are planned for the persons affiliated with the State Security services in the form of a right to legal defense and in view of the note that that it is based solely on these documents because of the inexistence of other documents that directly indicate the affiliation. The provision in question is not anticonstitutional as there is no violation of the principle of equality before the law which calls for a nondiscriminatory treatment of persons whose dossiers have been destroyed and persons whose dossiers have been saved who occupy public posts or perform public activities with disclosed affiliation to the intelligence services.

The purpose and meaning of waste management is to ensure the needed and rational balance between the interests of the State, the municipalities and the waste operator. When a waste operator’s license (permit) is issued or extended the stakeholder (person or entity) shall not be asked to meet requirements that are impossible to meet as legal entities other than the stakeholder are in control since equal legal conditions for the development of the said activity are not ensured and the principle of the state committed to the rule of law is discredited.

Art. 88b, para 1 and para 2 of the Merchant Shipping Code that provide that the employment relationships and the relationships directly related thereto between ship crew members and the shipowner shall be regulated by an ordinance of the Council of Ministers is not discordant with Art. 48, para 5 of the Constitution that reads that the basic labor rights of workers and employees shall be subject to conditions and procedures established by law. These rights are treated in the Labor Code and the Labor Safety Act, hence the passage of an ordinance concerning the merchant ships crews is not a usurpation of the Parliament’s legislating powers as the above-noted pieces of legislation deal with the primary regulation of this matter. The ordinance will not replace but further develop the general legal rules in the consideration of the specific working conditions for merchant ships crew members.

The sanction for an administrative breach constitutes dispensation of justice and given that fact, legal defense is existing as an option that no reasons whatever can rule out for the courts are the institutions that the Constitution vests with the power to dispense justice. The imposition of a fine as an administrative sanction for a breach of the traffic rules pertains to criminal doings. Therefore, the Constitution-enshrined right to legal defense as interpreted in the light of Art. 6, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms includes, inter alia, the entitlement to a hearing and that entitlement shall not be eliminated because of the small amount of the fine or because of the high degree of reliability of the equipment that is employed to video record the breach. The curtailment of fundamental rights where appropriate and for no other reason shall be barred as it infringes on the principle of the state committed to the rule of law and brings about a tip in the balance between the Executive and the Judiciary.

The Diplomatic Service is a specialist public administration under the jurisdiction of the executive power whose principal is the Council of Ministers. The contested provision of the Diplomatic Service Act (ZDS) is anti-constitutional as it contravenes Articles 105(2) and 92(1) of the Constitution. This is so because the Diplomatic Service does not independently govern, plan, coordinate and implement foreign policy but only carries out the political decisions made by the public institutions and bodies established by Constitution in the foreign policy domain. More specifically, it implements the decisions adopted by the Council of Ministers and facilitates the President of the Republic who represents Bulgaria in international relations. The organisational and functional principles underlying the Diplomatic Service, including the criteria for the appointment of professional diplomats and non-diplomatic staff, is to be decided by the legislature. Hence, the enacted amendments to the Diplomatic Service Act are not-anti-constitutional. The appointment and dismissal of ambassadors extraordinary and plenipotentiary and officials representing Bulgaria in international organisations is a shared responsibility of the President and the Council of Ministers. Hence it follows that a dispute arising between them in respect of the competence concerned may not be settled by an order terminating the mandates of the officials concerned issued by the Minister of Foreign Affairs as this would be tantamount to dismissal without a dedicated Presidential decree. Hence the contested provision laid down in the Diplomatic Service Act, which envisages a possibility to do so, is anti-constitutional as it detracts from the sovereign powers vested in the Head of State. The provisions introducing a ban on a certain category of persons to hold senior offices in the Diplomatic Service or the dismissal or demotion of diplomats who are former collaborators of the secret services of the totalitarian communist regime are anti-constitutional on the grounds of being discriminatory. Hence they contravene Article 6(2) of the Constitution.

Creating specialist courts, tribunals and other services within the system of general courts and the prosecution service is within the remit of competence of the National Assembly. A specialist court cannot be described as an “extraordinary tribunal” as long as it operates according to the same set of material and procedural rules that apply to general courts, including in terms of the conditions for the appointment of judges. The type of cases for which specialist criminal courts have material competence is to be decided by the lawmaker in line with government policy. The specialist criminal court may not hear cases outside of its material competence as defined by the lawmaker on the strength of charges being brought against a defendant already on trial by that court. An exception to this rule is allowable solely where there is substantial or partial similarity between the facts and circumstances to be proven during the trial. The specialist court is an ordinary tribunal within the system of general courts and the parties to cases tried by it are not obligated to appear before it as a matter of priority when parallel hearings at ordinary courts have been scheduled. Local councilors may put forth nominations for jurors because the appointments are subject to confirmation by the judiciary. The requirement for the judges to be appointed at the specialist court to be acting as judges or prosecutors immediately prior to taking up their appointment is discriminatory. The manner of calculating the remuneration of judges and prosecutors is a matter to be decided by the lawmaker. The Constitution does not allow the members of the Supreme Judicial Council to be subjected to the administrative procedure for credibility verification (vetting) for the purposes of obtaining access to classified information. A member of the Supreme Judicial Council – a body established in accordance with the Constitution – may not be excluded from deciding a matter by a majority of the other members of the same body. By Constitution a uniform procedure for appointing, promoting, seconding and dismissing magistrates is followed, which requires voting by secret ballot, including in respect of the administrative managers of courts. The Supreme Judicial Council does not have powers to enact bylaws but may adopt rules of procedure governing its work. The requirement for the Inspector General of the Judiciary to be an acting judge, prosecutor or investigating magistrate is discriminatory. The law may be applied retroactively solely where this does not carry a penalty or affect subjective rights and the stability of legal order.

The obligation for the bodies of the judiciary to disclose confidential information and documents relating to criminal investigations constitutes an unlawful intervention on the part of the legislature in the work of the judiciary and undermines its independence (Article 117(2) of the Constitution). The protection of the confidentiality of information relating to criminal investigations is an essential part of justice administration and a standing duty of the bodies of the judiciary who carry out their functions independently. Hence it follows that the requests for the judiciary to disclose confidential information or documents to the legislature is a matter that goes to the very core of the principle of separation of powers. Such requests may prejudice the judgment of the bodies conducting an investigation as an expression of interest undoubtedly raises doubts as to their impartiality and hinders the normal functioning of public institutions.

The stenographic records from the plenary sessions of the National Assembly are official documents with a recognised evidential value in respect of the statements, facts and findings set out therein.

According to Article 19(2) of the Constitution by law “the State shall establish and guarantee equal legal conditions for economic activity to all citizens and legal entities by protecting the consumer”, ad hoc the consumer of financial services. The protection of the monies paid and accumulated in private pension funds is ensured by making the economic activity of the funds concerned conditional upon compliance with strict regulatory controls. The transfer of monies accumulated in private pension funds into the budget of the National Insurance Institute (NOI) exceeds the remit of permissible government intervention and regulation. It undermines the financial performance of the funds concerned and the income generated from investing the monies paid by insured persons into them whilst also depriving the funds of an opportunity to pursue an independent investment policy that generates a return. Being a non-market economy measure, the transfer of accumulated monies into the budget of the NOI is a violation of Article 19(1) of the Constitution postulating the principle of free economic initiative – the underlying principle of the national economy – and Article 19(3) of the Constitution according to which the investments and economic activities of Bulgaria and foreign citizens are protected by law. The expanding reach of government regulation in the form of imperative rules that apply to transactions and activities which are partially within the domain of private law, and in particular the termination of the legal relations pertaining to pension insurance by making arrangements for accumulated monies to be transferred into the budget of the NOI, contravenes the principle of a State based on the rules of law postulated in Article 4(1) of the Constitution.

The Rules of Procedure of the National Parliament cover matters solely relating to the organisational arrangements set in place and the activities of the institution where they are not expressly governed by the Constitution. A no-confidence vote in Parliament initiated by the Council of Ministers does not impose any time limits on the right of one-fifth of the Members of Parliament to pursue a no-confidence vote on their own initiative.

Misdemeanor is an offence against public order, which carries a criminal charge within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF). As such it requires qualification because of the severity of the potential punishment to be imposed, i.e. detention by the services of the Ministry of Internal Affairs (MVR), which is equivalent to imprisonment. Limiting the right of a defendant to contest the court order by which they were detained by lodging an appeal with a higher tribunal is excessive vis-à-vis the achievement of the legitimate aims of justice although the order may be issued in administrative and penal proceedings. This constitutes a violation the right to a fair trial of a detainee under Article 31(4) of the Constitution and Article 6(1) CPHRFF.

The National Audit Office (NAO) is a public institution established in accordance with the Constitution. It is a collegiate body responsible for the audit of public finance. However, unlike other constitutional bodies, the structure and powers vested in the institution are not exhaustively stipulated in the fundamental law. The basic rules governing the organisational structure, competence and functioning of the NAO are to be determined by a dedicated law. Hence, it is for the central government and legislature to choose a specific model that governs the structure and functioning of the institution as long as compliance is ensured with the main characteristics of the body as envisaged in the Constitution. The same margin of discretion would also determine the possibility for an early termination of the mandate of NAO board members as presently structured insofar as such early termination is dictated by the incompatibility at conceptual level between the former and current statutory rules governing its activity. Without prejudice to any such incompatibility, the current mandate of the NAO must first be terminated as the opposite would cause a delay in the application of the newly enacted law.

The Electoral Code may not lay down provisions on matters that are exhaustively stipulated in the Constitution. In principle, the requirement for a voter in local elections to have resided in a particular electoral district for a certain period of time, respectively EU Member State in the case of European Parliament elections, is not anti-constitutional and does not contravene international legal standards although the length of the requisite period must be reasonable. The appointment of the Head of the Central Electoral Commission on a proposal from the largest political party or coalition represented in national Parliament does not prejudice the fairness of elections because the incumbent of the office concerned carries out functions that are primarily of an organisational nature. The dismissal of a member of the Electoral Commission prior to the expiry of their mandate on a proposal from the political party or coalition that put forth their nomination is anti-constitutional. In principle all decisions of the Central Electoral Commission are subject to judicial review. The right to vote in another country is subject to specific requirements hence the specificity of the rules laid down by law. Requiring a deposit of a sum of money as a condition to participate in elections is lawful from a constitutional standpoint. However, the minimum non-reimbursable deposit, which depends on the electoral outcome, should be reasonable. According to the fundamental law the election of a Member of the European Parliament may be contested before the Constitutional Court. Online voting is lawful only if proper safeguards have been set in place that ensure votes are cast in person and the secrecy of the ballot is reliably protected. Reducing the number of councilors below a certain number has detrimental implications for the representativeness of the principal body of local government. Hence it jeopardises the founding principles of a democratic State and political pluralism. No penalties may be levied on a local councilor where they leave the political group to which they formerly belonged in the municipal council or where they are expelled from such a group. The number of deputy mayors may not be limited by law because it is a matter of local government. According to the Constitution the mayor of a district may be appointed and not directly elected by voters.

The funding of government bodies is not a matter of discretion but an obligation. For this reason, the wording “[funding to be provided] where possible” renders the line of conduct, which the government must follow by law, ambiguous and uncertain. This constitutes a breach of the principle of a State based on the rule of law (Article 4 of the Constitution). The cited wording incorporated into the Film Industry Act further contravenes Article 23 of the Constitution according to which the State creates an environment that is conducive to and supports the free development of the arts. In other words, it is obligated to do so and to implement certain cultural policies and may not relinquish that obligation on the grounds of economic or financial feasibility depending on the situation in the country at a given time.

The right of citizens to travel abroad freely is not absolute. However, it may be restricted by an enacted statute only where that statute seeks to adequately and proportionately protect certain values enshrined in the Constitution such as national security, public health and the rights and freedoms of other citizens. According to the enacted provision, which lays down an administrative prohibition, citizens may not travel abroad freely when they have incurred a significant public or private debt. The measure is excessive and hence anti-constitutional. It is an unlawful instrument of coercion as it is to be applied indiscriminately and for an indefinite period.