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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.

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 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.

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.

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 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.

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.

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.

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.

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.

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.

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 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 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.