Editor’s Note: Today we publish the 2016 Report on Bulgarian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Ivo Gruev, DPhil Candidate in Socio-Legal Studies at the Law Faculty of the University of Oxford, and Dr. Daniel Smilov, Associate Professor at the Political Science Department of the University of Sofia, and Programme Director at the Centre for Liberal Strategies in Sofia
I. Introduction to the Bulgarian Constitution and Constitutional Court
A. Background and Creation of the Court
The Bulgarian Constitutional Court (BCC) was established under the Constitution of 13 July 1991, which was adopted after the fall of the communist regime.[1] The previous three fundamental laws of the country—i.e. the 1879 Constitution adopted after the liberation from the Ottoman Empire and the two communist constitutions from 1947 and 1971, respectively—did not include a constitutional tribunal or any form of extra-parliamentary constitutional control. The drafters of the 1991 constitution almost unanimously decided to introduce a Kelsenian model of centralised judicial review, exercised exclusively by a specialised tribunal. The new institution was modeled after its German, Austrian, Italian and Spanish counterparts.
B. Characteristics of the Court
The Court consists of 12 judges who are appointed, for a non-renewable period of nine years, in equal parts by the National Assembly, the President, and at a meeting of the judges of the Supreme Court of Cassation (SCC) and the Supreme Administrative Court (SAC). All types of rulings of the Court require a majority of more than half, i.e. seven or more, of the votes of all judges.[2] The Court has the competence to provide binding interpretations of the Constitution to adjudicate upon disputes between the main state institutions; to rule on the congruence between domestic law (including the Constitution) and international law and treaties, to which Bulgaria is party; and to exercise constitutional control (judicial review) of legislation and acts of the President. The latter function encompasses the protection of the constitutional rights and liberties of citizens against encroachments on the part of the Legislator and the President.[3]
The Court exercises a posteriori concentrated review, which is abstract in nature since it concerns the constitutionality of the legislative or presidential act in general and not its concrete application.[4] Unconstitutionality decisions of the Court invalidate such acts with ex nunc binding force. All decisions of the Court are final and binding on all public bodies and persons. The Court does not have the competence to review acts by the other branches of the executive apart from the President, such as, for example, ministerial orders and regulations, and administrative acts. The constitutional review of such non-legislative normative acts is entrusted upon the SAC.
C. Seizing Subjects
The abstract referral procedure can be triggered by one-fifth of all deputies of the National Assembly, the President, the Council of Ministers, the SCC, the SAC, or the Prosecutor General. Lower courts cannot invoke the jurisdiction of the Court. When confronted with the unconstitutionality of an applicable norm in concrete cases, they may notify the corresponding Supreme Court, which, in turn, may request the BCC to rule on the constitutionality of the norm.
There is no individual constitutional complaint mechanism or actio popularis and the BCC cannot act ex officio. In light of the restricted individual access to constitutional adjudication in 2006, the Office of the National Ombudsman, which was established in 2004, was included in the list of seizing subjects. Since 2015, the Supreme Attorneys Council can also challenge the constitutionality of formal statutes which infringe on human rights and freedoms.
Until the end of 2016, the BCC was seized 490 times and delivered 363 judgments. Most referrals were filed by deputies of the National Assembly. The Office of the Ombudsman filed 26 applications and the Supreme Attorneys Council has not yet exercised its newly introduced referral right. Since the beginning of the 2000s, the output of the Court has visibly decreased and now stands at around 10 decisions per year.
D. Brief Overview of the Court’s History
The BCC played a key role in the Bulgarian political discourse in the first decade of the democratic transition. The 1990s were marked by the antagonism between the two main political forces in the country, the Bulgarian Socialist Party (BSP) and the Union of the Democratic Forces (UDF). BSP attempted to retain control over the state apparatus whilst the UDF, founded by rehabilitated dissidents, pursued a pro-Western and anti-Soviet agenda. Against this binary parliamentary setting, the BCC was often instrumentalised by the parliamentary minority as a tool for exerting constitutional checks and balances over the majority and the government, and for challenging legislation. Due to the fact that UDF and BSP were alternating in assuming the minoritarian position in the Parliament, the Court managed to remain largely untainted by political affiliation and to defend its independence.
In its first decision, the Court upheld the constitutionality of a highly contested political party, established soon after the end of communism to represent the interests of the previously persecuted Bulgarian ethnic Turkish minority.[5] The judgment played a crucial role in the reconciliation of the different constitutional interests present in Bulgaria’s multiethnic society and thus sent a clear sign of departure from totalitarianism. This decision of the Court was followed by a number of judgments dedicated to the political process and to the separation of powers. This helped establish the democratic, parliamentary character of the new Bulgarian Republic, and contributed to the demarcation of the responsibilities of the President, the Parliament, and the Executive.
Moreover, the Court hindered a number of governmental attempts to tamper with the independence of the judiciary. These played out against the background of the lingering legal tradition of the authoritarian regime, which used to subject the exercise of judicial power to the unadulterated and arbitrary will of the communist party.
The BCC also upheld a number of laws related to the restitution of property expropriated and nationalised by the totalitarian government. Many lustration laws which attempted to ostracise ex-communists from political and public life, however, were struck down by the Court on equality grounds. The Court’s jurisprudence of the court has been ambiguous to the issue of opening the files of the communist State Security Agency.
Although mainly preoccupied with political disputes, the Court delivered a number of important judgments in the area of constitutional rights and liberties. Most of them concerned freedom of speech and the media, as well as property rights in the context of restitution. The jurisprudence of the Court on other human rights issues has been rather scarce. Although the Bulgarian government has been widely criticised for its discriminatory practices against certain minorities (such as Roma) and socially vulnerable groups (such as persons with disabilities and delinquent youth), very few cases before the BCC have dealt with such issues. The Court also upheld the limitations of what can be considered the Bulgarian affirmative action provision, which allows for the privileged treatment of certain social groups, such as disabled persons, but explicitly prohibits “positive” or “reversed” discrimination on the ground of race and gender.[6]
The Court’s popularity and activism, however, seems to have waned in the 2000s. A possible explanation might lie in the dilution of the binary character of Bulgarian parliamentarism, incurred by the emergence of new centrist political actors. Since the beginning of the 2000s, the most important decisions of the BCC have been in the area of judicial reform: the Court has blocked efforts to make the prosecutorial office a part of the executive branch (at present it is part of the judiciary) by arguing that this would require a very cumbersome constitutional amendment procedure through a Grand National Assembly (GNA). According to this procedure, in order to amend some essential parts of the Constitution (as the form of government, for instance), it is necessary to gather qualified majorities of at least two-thirds in an “ordinary” Parliament, and then dissolve it and call new elections for GNA with the purpose of adopting the suggested amendment. The BCC read the “form of government” provision of the constitution very broadly and included in its meaning the positioning of the prosecutorial office as well. At present, many see the lack of accountability of the Prosecutor General as a main problem of the judicial system. Critics argue that the BCC has contributed to this situation.
II. Constitutional Controversies
A constitutional controversy from the first years of the Court’s existence concerned the judicial review of legislation adopted before the creation of the Court. According to paragraph 3 of the Transitional and Concluding Provisions to the Constitution, only laws passed after the entry into force of the 1991 Constitution are subjected to the jurisdiction of the Court. The Court ascertained that it had no jurisdiction over pre-existing legislation which was no longer in force after 13 July 1991.[7] There was ambiguity, however, with regard to its jurisdiction over legislation which remained in force after that date. Initially, the Court proclaimed that it would not exercise constitutionality control in such cases and that the ordinary judiciary could disapply such unconstitutional legislation in concrete cases with inter partes binding force (admissibility definitions in cases 1/1991 and 11/1992). Moreover, the Court found that only the National Assembly had the competence to repeal such legislation with erga omnes binding force within three years after the adoption of the new Constitution.
This regulation, however, stirred legal uncertainty in light of the potential scenario of regular courts not ascertaining their competence to define whether a persisting law was unconstitutional. In recognition of this uncertainty and the failure of the National Assembly to address the constitutionality of a number of controversial laws inherited from the communist regime within the three-year period, the Court changed its jurisprudence on the matter, proclaiming that the scope of its review powers would also encompass pre-existing laws (admissibility definition in case 31/1995). The controversy was thus resolved by the BCC.
An unresolved constitutional controversy stems from a provision (Art 5.2) stipulating that the Constitution shall apply directly. Art 150 of the Constitution states that only the BCC can invalidate legislation. However, it is unclear whether ordinary courts can disapply unconstitutional laws with inter partes binding force. The Statute on the Normative Acts seems to imply that ordinary courts might have such competence. Several BCC judges have also expressed the view that all courts can and should disapply unconstitutional laws in concrete cases. This, however, often fails to happen in practice due to the lack of explicit procedural regulation.
Another constitutional ambiguity is related to the ex nunc binding force of the Court’s decisions. This raises questions with regard to the status and applicability of legislation for the period between its entry into force (or the entry into force of the 1991 Constitution in the case of pre-existing laws) and the unconstitutionality decision of the Court, which annuls this legislation. A situation in which only an amendment of an already existing norm is declared unconstitutional can prove to be particularly problematic. The constitutional provision seems to suggest two possible interpretations in such cases. On the one hand, it could be argued that an unconstitutionality ruling of the amendment automatically restores the validity of the original norm in its pre-amendment form. An alternative line of argumentation, however, would be that such an unconstitutionality ruling would create a lacuna in the legal order by virtue of the fact that the legislator repealed the old norm and the BCC invalidated the one intended to replace it. In its jurisprudence (Decision 22/1995), the CC opted for the former proposition and held that an unconstitutionality finding restores the original norm. This, however, has been a matter of academic debate.
III. Major Decisions from 2016
In 2016, the Court was seized 17 times. It delivered a total of 10 judgments. The most important ones are considered below.
A.Political System and Separation of Powers
1. Decision 9/2016, case number 8/2016 (filed by the President)
In this case, the BCC declared three of the six questions for a referendum scheduled by the National Assembly to be unconstitutional. The referendum was a popular initiative which was started by a TV talk show and gathered 600,000 signatures—an enormous number by Bulgarian standards. The President challenged the decision of Parliament to hold the referendum. The most important of the three questions deemed to be unconstitutional was the reduction of the number of MPs in the National Assembly from 240 to 120. The BCC argued that such a reduction would substantially affect the powers of the Parliament and could therefore be considered a change of the “form of government”. In Bulgaria, such a change, however, would require a Grand National Assembly (GNA). Since referendums by law cannot be held on questions within the competence of the GNA, the challenged referendum could not lead to the reduction of the number of MPs.
In its decision, the BCC used a very expansive notion of “form of government”. In the Bulgarian constitutional doctrine, the concept of “form of government” traditionally refers to whether the republic is parliamentary, presidential, semi-presidential, etc. In its jurisprudence on judicial independence, however, the BCC has started to interpret this notion more broadly by including concrete features of the current form of government, such as the exact balance of prerogatives among the state powers. In this case, the Court went as far as to include the number of MPs within this definition.
Following a similar logic, the BCC invalidated a question on whether the regional directors of police should be directly elected. The judges held that the appointment of directors is a prerogative of the Executive, insofar as direct election has the capacity to affect the balance of powers and therefore requires a GNA.
The third invalidated question related to the possibility of electronic voting. A referendum on this question had already been carried out and although its turnout failed to pass the legal threshold for binding referendums, the Parliament deliberated to introduce electronic voting once the technical possibilities had been explored. Mainly because of that, the BCC held that another referendum on the same issue would undermine the principle of legal certainty and thus the rule of law. Also, it would force the Parliament to disrespect its own lawful decisions, which would constitute a violation of the constitutional status of the legislature.
The referendum was ultimately carried out on the three other questions which were upheld by the BCC. These dealt with the character of the electoral system and mandatory voting. The organisers of the referendum bitterly attacked the BCC and the President for trying to “obstruct the will of the people”.
2. Decision 6/2016 from 14 June 2016, case number 1/2016
This case stemmed from the biggest banking crisis in the country since 1997—the 2014 bankruptcy of the Corporate Commercial Bank, the fourth biggest bank in the country. The closure of the bank ultimately led to the resignation of the government and pre-term elections. In this case, the BCC was asked to assess the constitutionality of the law on bankruptcy, according to which only the Prosecutors and the bank syndics (officials appointed by public bodies to be in charge of the insolvent bank) are entitled to judicially challenge the decision to declare the bank insolvent. Shareholders and the owners of the bank were not entitled to appeal this decision, which—as argued by the challengers from the Supreme Court of Cassation—violated their rights and the principle of the rule of law.
The BCC rejected these claims by stating that the declaration of a bank in insolvency is a very specialised procedure in which the interests of depositors are paramount. The Court held that its power to review decisions of specialised bodies is limited in such cases, and although the judges saw flaws in the law, they deferred to the judgment of the legislature. The challengers’ claims of lack of legal protection and violation of the equality of arms principle were also rejected on these grounds. All in all, the BCC declined to protect the rights of the owners and shareholders in this controversial judgment on the basis of the extraordinary character of the situation, which implied greater deference to the discretion of political and expert bodies.
3. Decision 3/2016 from 8 March 2016, case number 6/2015
In the area of healthcare rights, the BCC has been traditionally deferential to the legislature. In this case, however, the judges overruled a relatively central element of a healthcare reform proposed by the government. The reform aimed at introducing two distinct tiers of public medical services. Under the first tier, supposed to cover the most common and most serious medical conditions, all citizens would have instant access to services as guaranteed by their standard healthcare insurance. For the second tier, they would either have to enter a waiting list or pay an additional amount of money in order to gain immediate access to healthcare. The judges agreed that the Parliament had the right to introduce such a reform. The BCC found, however, that it was for the Minister of Healthcare to define the services under the two tiers. The Court argued that the Constitution required that such decisions needed to be taken only through the passage of parliamentary legislation and not by an administrative normative act because they affect inalienable rights. As to other aspects of the healthcare reform, the Court again showed a considerable deference to the will of the legislator.[8]
B. Rights and Freedoms
1. Decision 11/2016 from 4 October 2016, case number 7/2016
In a concrete referral from 28 April 2016, the SAC challenged the procedural lack of an appeal mechanism against juvenile detention orders. This constituted a possible violation of the Constitution, which requires judicial control to be exercised over the legality of any detention. In support of its application, the SAC invoked the judgment in the A and others v. Bulgaria case where the ECtHR held Bulgaria in violation of the ECHR for not providing a legal remedy for detainees to judicially appeal juvenile detention orders.[9]
The BCC proclaimed that the Prosecutor’s Office, which authorises juvenile detentions, belonged to the judiciary so that, strictly speaking, a judicial body was involved in the detention process. Notwithstanding this finding, the Court qualified detention orders by the Prosecution as individual administrative acts which are challengeable before the regular courts. Although the challenged norm did not explicitly mention an appeal mechanism, the Court ruled that such remedy was implied in the constitutional order on the grounds mentioned above. The contested norm was thus declared not to be unconstitutional. The Court explained that ECtHR’s opposite finding was related to the fact that the Bulgarian Government, in its role as defendant in the A. and others v. Bulgaria case, had argued mistakenly that detentions could not be judicially appealed, while in fact, the constitutional order implicitly allowed such challenges before the ordinary courts.
This decision raises several concerns with regard to the legal regime of juvenile detention in Bulgaria. On the one hand, the Prosecutor’s Office, when exercising its detention authority, is considered part of the judiciary and thus exempted from additional judicial scrutiny under article 30.3 of the Constitution. At the same time, however, juvenile detention acts of the Prosecutor are considered ordinary administrative acts, which are individually challengeable under Art 120. The Office of the Prosecutor thus seems to act in a twofold capacity, both as part of the judiciary and as a regular administrative body. This not only raises concerns with regard to the separation of powers doctrine but also creates legal uncertainty for individuals confronting detention orders in light of the lack of an explicitly regulated procedure for appeal. Whilst the BCC seems positive about the presence of sufficient guarantees for the judicial review of juvenile detention and the constitutional conformity of its legal regulation, regular courts seem to continue to incorrectly reject such challenges. In January 2017, the ECtHR once again found Bulgaria in violation of the ECHR for the lack of appeal mechanisms in juvenile detention procedures in a case almost identical to A and others v. Bulgaria.[10] There also seems to be a striking divergence between the BCC’s position and the Ministry of Justice. The latter, in clear contradiction to the BCC’s ruling, admitted in both ECtHR cases that juvenile detention acts of the Prosecutor are not administrative acts and thus cannot be challenged in the courts.
3. Decision 10/2016 from 29 September 2016, case number 3/2016
Later in 2016, the Office of the Ombudsman challenged a law which ordered the losing party of a judicial trial to compensate the legal representation expenses of the winning litigant. According to the contested norms, state institutions, tradespersons, and legal persons could claim expenses for legal counselors, notwithstanding the fact that legal counselors are not paid on an ad hoc basis but within an employment contract. The Office of the Ombudsman argued that this arrangement privileged legal persons and state institutions to the detriment of private citizens, since only the former would regularly have employed legal counselors. Therefore, private citizens would be less likely to claim such expenses and benefit from the challenged provision. The Ombudsman thus claimed a violation of the rule of law principle.
The BCC, however, proclaimed that this principle should be interpreted narrowly in order to prevent its use as a sweeping clause. Moreover, the Court justified the differential treatment of private and legal persons by claiming that the latter would be put at a disadvantage if they were not allowed to claim legal counseling expenses simply due to their separate contractual relationship with the counselor. Therefore, the challenge failed.
4. Decision 7/2016 from 21 June 2016, case number 8/2015
On 21 June 2016, the President challenged the constitutionality of two norms, which regulated the eligibility criteria for obtaining a license to access and deal with classified information. Such license is issued by the National Information Security Commission (NISC), a State agency, and must be obtained by civil servants as a condition for exercising jobs dealing with classified information, such as certain jobs related to the military or public service. The challenged norms stipulated that the issuance of such a license had to be denied by the NISC if the applicants in the procedure of issuing this document were involved in criminal proceedings. Such license rejection would bar the concerned person from accessing classified information and would thus effectively prevent her from exercising a job which requires such access. The law allowed for the rejection to be appealed within seven days, otherwise the concerned person would be barred from holding a position related to classified information for a period of one to three years. The President’s Office argued that these provisions treated accused persons as convicted criminals and were thus in violation of the constitutional presumption of innocence. Moreover, the Office challenged the constitutionality of the seven-day preclusion period, since no verdict on the guilt or innocence of the accused could be expected in such a short time.
The Court held that the opening of a criminal investigation manifested sufficient probability of the criminal liability of the applicants concerned. Therefore, the restriction of their access to sensitive classified information was found to be proportionate to the legitimate aim of the protection of national security. However, the Court agreed with the President’s argument that the seven-day preclusion period was disproportionate. Therefore, it upheld the norm but nullified the preclusion provision.
5. Decision 5/2016 from 12 May 2016, case number 2/2016
Several months later, a similar provision was to be challenged by the SAC. The contested norm ordered that civil servants be suspended from their occupation and prohibited to work if accused of criminal malpractice. The latter were also excluded from the social security system until the delivery of the verdict. The SAC judges held this norm in violation of both the constitutionally guaranteed right to work and the presumption of innocence. They argued that such treatment was disproportionate given that even convicted criminals were allowed to deliver paid work while civil servants were denied this right without a verdict. The Court agreed with the SAC’s arguments and declared the norm unconstitutional. However, the BCC did not engage with the alleged violation of the invoked concrete constitutional rights. Instead, it referred to the sweeping clause of a general violation of the rule of law principle.
In a somewhat contradictory fashion, later in the year (in decision 10/2016 on case 3/2016, discussed above) the Court advocated for a narrow interpretation of the rule of law principle in order to discourage its use as a sweeping clause in constitutionality challenges.
[1] A Constitutional Court Act was passed on 16 August 1991 and the Court was constituted on 3 October 1991.
[2] This provision has stirred controversies in cases where judges were split in 6:6 or even in 6:5 votes in favour of a constitutionality challenge. In such cases, the challenge would fail due to the lack of a seventh vote, despite the fact that a simple majority of the judges supported the challenge.
[3] Most of the fundamental rights of citizens are listed in Chapter 2 of the Constitution.
[4] The only instance where the Court exercises a priori judicial review is when ruling on the constitutionality of international treaties concluded by the executive prior to their ratification, Art 149.1.4.
[5] Decision 4/1992, case number 1/1991. It must be noted, however, that the unconstitutionality challenge failed only due to the lack of a 7th vote. 6:5 judges voted for the unconstitutionality of the party.
[6] Decision 14/92, case number 14/92.
[7] Decision 12/1992, case number 7/1994.This practice of the Court constituted a problem with regard to state acts in application of such expired laws, which, however, were never officially repealed by the new democratic regime. A famous case concerns the verdicts of the revolutionary tribunal created by the communist regime after it took power in 1944. The so called “People’s Court” is notorious for its arbitrary mass trials, which were aimed at eradicating the political opposition after the communist coup d’etat. The Constitutional Court found that it had no temporal jurisdiction over the law which created the People’s Court since its mandate expired in 1945. Therefore, many convicts of the People’s Court were never granted official exoneration from their trumped-up crimes.
[8] See decision 8/2016, case 9/2015.
[9] ECtHR, A. and Others v. Bulgaria, no. 51776/08, 29 November 2011.
[10] ECtHR, I.P. v. Bulgaria, no. 72936/14, 19 January 2017.
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