Rapport national / National report / Landesbericht / национальный доклад

Transcription

1 Rapport national / National report / Landesbericht / национальный доклад RÉPUBLIQUE DE BULGARIE/ REPUBLIC OF BULGARIA/ REPUBLIK BULGARIEN PECПYБЛИКA БOЛГAPИЯ/ The Constitutional Court of the Republic of Bulgaria (КонституционенСъднаРепубликаБългария) Anglais / English / Englisch / английский

2 XVIIth Congress of the Conference of European Constitutional Courts Role of the Constitutional Courts in Upholding and Applying the Constitutional Principles Questionnaire I. The role of the constitutional court in defining and applying explicit/implicit constitutional principles 1. Does the constitutional court or equivalent body exercising the power of constitutional review (hereinafter referred as the constitutional court) invoke certain constitutional principles (e.g. separation of powers; checks and balances; the rule of law; equality and non-discrimination, proportionality, reasonableness, human dignity, etc.) in the process of constitutional adjudication? To what extent does the constitutional court go in this regard? Does the constitution or any other legal act regulate the scope of constitutional decision-making in terms of referring to specific legal sources within the basic law that the constitutional court may apply in its reasoning? The adjudication process of the Constitutional Court of the Republic of Bulgaria draws on a series of Constitution-enshrined principles that proclaim the state committed to the rule of law, the separation of powers, political pluralism, the equality of the citizens before the law, exclusion of discrimination, free enterprise and suchlike that are embedded in the basic law of the Republic of Bulgaria. The Constitution-proclaimed principles are underlying principles for Bulgaria s development as a democratic state so any inconsistence of a legal text with a Constitution-set principle shall be a reason to challenge its constitutionality. It is the Constitutional Court s power to ensure the primacy of the Constitution that guarantees that the Constitution-proclaimed principles will be abided by and applied. In that context is may be noted that as per Art. 22, Para 1 of the Constitutional Court Act by its decisions the Court shall rule only on the motion as presented but shall not be limited to the indicated grounds for non-conformity with the Constitution. 2

3 2. What constitutional principles are considered to be organic in your jurisdiction? Are there any explicit provisions in the constitution setting out fundamental principles? Is there any case-law in respect of basic principles? How often does the constitutional court make reference to those principles? The Preamble of the Constitution pledges loyalty to the universal human values: liberty, peace, humanism, equality, justice and tolerance; it proclaims as an underlying principle the rights, dignity and security of the individual; and it expresses the determination to create a democratic, law-governed and welfare state. The fundamental constitutional principles are worded as Constitution provisions: the principle of power that derives from the people Art. 1, Para 2 of the Constitution; the principle of the state committed to the rule of law Art. 4, Para 1 of the Constitution; the principle of supremacy of the Constitution Art. 5, Para 1 of the Constitution; the principle of the equality of citizens before the law and of exclusion of discrimination Art. 6, Para 2 of the Constitution; the principle of the separation of powers Art. 8 of the Constitution, etc. The Constitution officially proclaims the fundamental principles and values in the state, hence virtually each Constitutional Court s ruling on a challenge of constitutionality or on a request to give an interpretation of a constitutional provision analyzes the application, violation or non-violation of a specific constitutional principle. Here are two examples from the Bulgarian Constitutional Court s jurisprudence regarding fundamental constitutional principles. Decision No. 14 of 10 November 1992 on Constitutional Case No. 14/1992. The Constitutional Court interpreted Art. 6 and the principle of the equality of all citizens before the law thus: The equality of all citizens before the law is a fundamental principle of each democratic society. The Preamble of the Constitution proclaims equality a universal human value along with liberty, peace, humanism, justice and tolerance. Art. 6, Para 2 advances the equality of citizens before the law into a constitutional principle that is underlying civil society and the State. This principle is common for the whole legislative system of the Republic of Bulgaria. It is the groundwork for the interpretation and enforcement of the Constitution and for lawmaking. The equality of all citizens before the law in the sense of Art. 6, Para 2 of the Constitution stands for equality before all laws and bylaws. Art. 6, Para 2 of the Constitution thoroughly lists the social aspects to disallow restricting rights or giving privileges. Privileges that are based on the social aspects that are enumerated in Art. 6, Para 2 of the Constitution shall be seen as a violation of the principle of the equality of all citizens before the law. 3

4 Decision No. 1 of 28 January 2014 on Constitutional Case No. 22/2013. The Constitutional Court declared unconstitutional a 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 (DV, No. 93/25 October 2013) as the moratorium was seen as a violation of constitutional principles by the Legislature. In conclusion: in the exercise of a prerogative that it enjoys as a legislating authority, the National Assembly has approved a Decision to Declare a Moratorium and by doing so has infringed on fundamental Constitution-enshrined principles, namely, the fact that Bulgaria is a law-governed state where there exists separation of powers and where the governance is compliant with the Constitution and the domestic legislation is mindful of EU law. Hence the reason to declare the Decision unconstitutional. 3. Are there any implicit principles that are considered to be an integral part of the constitution? If yes, what is the rationale behind their existence? How have they been formed over time? Do they originate from certain legal sources (e.g. domestic constitutional law or the constitutional principles emanating from international or European law; newly-adopted principles or the ones re-introduced from the former constitutions)? Have academic scholars or other societal groups contributed in developing constitutionallyimplied principles? The principle of proportionality is not explicitly proclaimed by a text to that effect in the Bulgarian Constitution; however, the Constitutional Court s jurisprudence sets it forth as a fundamental constitutional principle that the Legislature is bound to comply with. Art. 5, Para 4 of the Constitution reading that any international instruments which have been ratified by the constitutionally established procedure, promulgated and come into force with respect to the Republic of Bulgaria, shall be considered part of the domestic legislation of the country makes it binding on the Legislature to conform. They shall supersede any domestic legislation stipulating otherwise. The principle of proportionality is a fundamental principle of EU law and is soundly entrenched into the jurisprudence of the European Court of Human Rights. Decision No. 7 of 19 June 2012 on Constitutional Case No. 2/2012. The Constitutional Court ruled thus: In principle restrictions on fundamental rights, including freedom rights, are admissible (Decision No. 15/2010 on Constitutional Case No. 9/2010) providing the principle of proportionality is applied (Art. 5, paras 1 and 4 of the Treaty on EU) which principle is sustained 4

5 in the Constitutional Court s case-law (Decision No. 20/1998 on Constitutional Case No. 16/1998; Decision No. 2/2002 on Constitutional Case No. 2/2002; Decision No. 15/2010 on Constitutional Case No. 9/2010). The Constitutional Court considered the challenged Art. 414a of the Labor Code and found that none of the three components of the principle of proportionality was applied: first, no imperative cause was detected for such curtailment; second, the curtailment in question was definitively inappropriate as it infringed on the security and insurance system whose raison d être is completely different; third, the curtailment is not the most sparing measure that the principle of proportionality calls for. Decision No. 13 of 13 October on Constitutional Case No. 6/2012. The Constitutional Court ruled thus: Despite the different wording as compared to Art. 17 of the Constitution, the protection of property under Art. 1 of Additional Protocol No. 1 to the CPHRFF is essentially similar to it. While the entitlement to the peaceful enjoyment of possessions is proclaimed as a principle, it is not treated as an absolute right. Normally dispossession is admissible when it is for the sake of public interest and subject to the conditions provided for by law and by the general principles of international law. The State is free to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. In that context the sustained practice of the European Court of Human Rights (ECHR) calls for the observation of three criteria whenever unlawfully acquired possessions are subjected to restricted enjoyment or to forfeiture following a civil suit that is brought by the State over unjust enrichment: a) conformity with the law; b) a legitimate goal to be achieved; and c) proportionality. Decision No. 3 of 6 March 2014 on Constitutional Case No. 10/2013. The Constitutional Court ruled thus: It is up to the Legislature to decide whether to make the concession granting procedure subject to the general mode that the law provides for or subject to a special and even preferential mode, yet in any case this should be made on grounds and by a procedure that are explicitly provided for by law and in compliance with the principle of proportionality, i.e. if these are governing provisions for an exception to the general procedure, then it is a must to consider to what an extent it is acceptable to restrict citizens fundamental rights in the field of business predominantly for the sake of public interest. Decision No. 5 of 10 May 2005 on Constitutional Case No. 10/

6 The Constitutional Court ruled thus: Second, whenever Government-specific functions are delegated to legal entities that are not public authorities, the interplay of the principle of proportionality should be recognized. The traditional positive importance of this principle is demonstrated by weighing up to what an extent the curtailment of fundamental rights for the sake of public interest is permissible, justified, appropriate and optimal in the protection of the common interests. In that sense the principle has been applied by the constitutional jurisdictions in Europe and by the Constitutional Court of the Republic of Bulgaria in Decision No. 20/1998 on Constitutional Case No. 16/1998; Decision No. 1/2002 on Constitutional Case No. 17/2001; Decision No. 5/2003 on Constitutional Case No. 5/2003. In the case in question the principle of proportionality takes on yet another dimension where fundamental rights of citizens are not affected by the delegation of Government-specific functions to be performed by legal entities outside the Executive branch of power. 4. What role does the constitutional court play in defining the constitutional principles? How have basic principles been identified by the constitutional court over time? What method of interpretation (grammatical, textual, logical, historical, systemic, theological, etc.) or the combination thereof is applied by the constitutional court in defining and applying these principles? How much importance falls upon travaux preparatoires of the constitution, or upon the preamble of the basic law in identifying and forming the constitutional principles? Do universally recognized legal principles gain relevance in this process? The Constitutional Court s interpretative work defines the constitutional principles substance and the scope and also the criteria to be met if the legislation is to be seen as consistent with the fundamental constitutional principles. The Constitution lays down the fundamental principles: for instance Art. 4, Para 1: The Republic of Bulgaria shall be a law-governed state. It shall be governed by the Constitution and the laws of the country. The Constitutional Court s jurisprudence clarifies the content, purpose and meaning of this principle. Three Constitutional Court decisions are about the interpretation of the principle of the state committed to the rule of law and illustrate the importance of the Constitutional Court acts for the definition of constitutional principles: Decision No. 1 of 27 January 2005 on Constitutional Case No. 8/2004. I. On the state committed to the rule of law 6

7 1. All complaints about the case lean on arguments that insist that the constitutional principle of the state committed to the rule of law has not been complied with and most such complaints are based on this constitutional principle while the rest mention individual forms of materialization thereof. Hence the attention that the Constitutional Court Justices devoted to the major components of the state committed to the rule of law and, given the subject of the case, also to components that make up criminal law and trial in the examination and adjudication: Nullum crimen sine lege, Nulla poena sine lege, Nulla poena sine culpa, Non bis in idem. The principles of the separation of powers and of the equality of citizens before the law are directly relevant here. The Court believes there is no need to enumerate all elements and forms of materialization of the law-governed state which is a dynamic concept and this in turn explains why the modern constitutions do not have a positive law definition. Historically the substance of the concept was formed by ideas and civilization standards for building a society where man will be paramount. In different periods of history that substance was dominated by various components. The result is that the principle of the state committed to the rule of law as a guiding concept in the modern constitution-governed state has substance that evolved throughout history and a dynamic, value-bound and composite nature. Alongside, the Court is of the opinion that the principle of the state committed to the rule of law should not be unnaturally burdened where any violation of a law will be seen as defiance towards the rule of law, hence the damage to the clear content and applicability of the principle. Today the European legal area broadly shares the understanding of the state committed to the rule of law as inclusive of the principle of legal certainty (the formal element) and of the principle of substantive justice (the substantive element). These key characteristics of the state committed to the rule of law materialize as guiding axioms in the different branches of existing legislation. The sum of formal and substantive elements gives the polyvalent substance of the constitutional principle and highlights its specifics. A state committed to the rule of law stands for the exercise of public power on the basis of the constitution, within the confines of the laws that substantively and formally comply with the constitution and that have been passed to maintain human dignity and to bring about freedom, justice and legal certainty. Competition is possible as is even a conflict between individual components as for any of the components to be applicable guarantees should be provided that the components will be applied. Most frequently such tension is observed between the postulate of legal certainty and the requirement that justice should 7

8 prevail, especially in periods of transition and also when dynamic legislation is in place. Decision No. 2 of 4 February 2014 on Constitutional Case No. 3/2013. The Constitutional Court ruled thus: The Constitution defines the Bulgarian State as a state committed to the rule of law. Abidance by the Constitution and by the laws is the core of any state committed to the rule of law. The laws shall express the Constitution-proclaimed principles and put forward fair and socially justified solutions within the framework of the matter that they treat. The rule of Art. 4, Para 1 of the Constitution is the underlying principle of constitutional order and the basis on which all relations within a society are legitimately regulated whereas the concept of the state committed to the rule of law undoubtedly poses the requirement that the bodies and their functions and interrelations should be clearly and precisely defined (Decision No. 17/1997 on Constitutional Case No. 10/1997; Decision No. 13/2010 on Constitutional Case No. 12/2010). The deficiency of the law and the contradictions between its provisions violate the principle that Art. 4, Para 1 of the Constitution sets forth. This constitutional principle could be complied with only if the provisions of statutory legislation are unambiguous, precise and uncontroversial. Otherwise they would be unfit to regulate the essential relations within society (Decision No. 9/1994 on Constitutional Case No. 11/1994; Decision No. 5/2002 on Constitutional Case No. 5/2002; Decision No. 4/2010 on Constitutional Case No. 1/2010; Decision No. 8/2012 on Constitutional Case No. 16/2011). Decision No. 10 of 3 December 2009 on Constitutional Case No. 12/2009. The Constitutional Court ruled thus: Naturally the Constitution does not give an exhaustive and systematically knit catalog of the different aspects that the legislating process in a state committed to the rule of law shall respect. Yet these aspects can be inferred from the logic and the set of principles that the Constitution stands upon. The principle of the state committed to the rule of law makes it binding on the legislating authority to be consistent and predictable and to prevent the passage of pieces of legislation that contradict each other (Decision No. 5/2000 on Constitutional Case No. 4/2000; Decision No. 9/1994 on Constitutional Case No. 11/1994). The pieces of legislation that the legislating authority passes shall guarantee legal security, including the respect for rights that individuals and corporate entities have acquired under the law while the legislating authority shall abstain from amendments that are beneficial to the State but detrimental to the individuals and corporate entities (Decision No. 7/2001 on Constitutional Case No. 1/2001). In a state committed to the rule of law the legislating authority shall draft pieces of legislation that are in tune 8

9 with the rightful interest (see the Preamble of the Constitution and Decision No. 1/2005 on Constitutional Case No. 8/2004) within the model that the Constitution sets rather than bring in restrictions and privileges incidentally or haphazardly or grant privileges and rights that cannot materialize. And finally, in a state committed to the rule of law such cases must be treated in a way which is one and the same for all rather than let differentiation in the pieces of legislation on the basis of criteria that are non-inherent to the Constitution. To give interpretations the Constitutional Court resorts to diverse methods in view of the nature of the question that has been brought to it. For instance the Court s Decision No. 2 of 18 February 1998 on Constitutional Case No. 15/1997 on the compliance of the Bulgarian Constitution with the Framework Convention on the Protection of National Minorities draws on the method of the interpretation of conformity: d) The Court recognizes that the ECHR provisions about human rights have pan-european and universal civilizationrelated importance for the legal systems of the states that are parties to the ECHR and are provisions of the European social system. Therefore the interpretation of the relevant Constitution provisions concerning human rights should conform, to the highest extent possible, to the interpretation of the ECHR provisions. This principle of interpretation of conformity complies with the internationally recognized, by Bulgaria too, binding jurisdiction of the European Court of Human Rights in the interpretation and enforcement of the European Convention on Human Rights. In view of the stated reasons the Court concluded that the substance of the rights and freedoms that derive from the principles of the Convention should be an outcome of interpretation, respectively the interpretation of the Constitution texts and the ECHR texts. In view of the need to make the interpretation of the Constitution conformant with the purpose and the rationale for the passage of a certain constitutional provision, the Constitutional Court took into account, inter alia, how and when the provision was drafted. For instance, in its Decision No. 7 of 4 June 1996 on Constitutional Case No. 1/1996 to give a binding interpretation of the texts of Articles 39, 40 and 41 of the Constitution the Constitutional Court paid serious attention to the debate to word and pass the texts: The analysis of the debate as held by the Grand National Assembly s Constitution Drafting Committee about the approval of these three texts and in general of Chapter Two of the Constitution shows that the fathers of the Constitution followed and transposed into Chapter Two ideas and authorizations from the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) the two international instruments (covenants) that had been ratified and come into force with respect to the Republic of Bulgaria as of the time of the debate. 9

10 The ambition to stick to international standards is obviously shown by the idea that the provisions concerning fundamental rights should be compliant with, inter alia, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) that was not signed as of the time of the debate and by the note made that this chapter of the Constitution is most relevant to the country s international obligations and to international law. The question of the nature of rights was discussed one by one to determine to what an extent they are absolute and whether curtailment can be allowed to be made either by the Constitution or by a law, as was discussed the scope of the constitutional arrangement of fundamental rights in view of having in place a constitution-provided guarantee that the rights will be exercised and that the possibility to curtail them by a law will be minimized. 5. What is the legal character of the constitutional principles? Are they considered to be the genesis of the existing constitutional framework? What emphasis is placed upon the fundamental principles by the constitutional court in relation to a particular constitutional right? Are basic principles interpreted separately from the rights enumerated in the constitution or does the constitutional court construe fundamental principles in connection with a specific constitutional right as complementary means of latter s interpretation? Can the basic principles in your jurisprudence constitute a separate ground for unconstitutionality without their connection with a concrete constitutional norm? Is there any requirement in law placed upon the judicial acts of enforcement of constitutional principles? Being the basic law the Constitution determines the form of state structure and the form of government, the government institutions and the guiding principles of law. The primacy of the Constitution (as per Art. 5, Para 1) makes it the supreme law. The constitutional principles are the fundamentals that determine the essence and nature of the political and economic system of the State. They are valid for all persons and institutions. The interpretation and application of the constitutional principles shall seek to strike a balance between the individual principles so as to ensure and guarantee the primacy of the Constitution in its entirety. In that sense none of the Constitution provisions that determine a fundamental principle or that guarantee a specific right shall be interpreted or applied detachedly. The Constitutional Court s Decision No. 3 of 17 May 1994 on Constitutional Case No. 1/1994 reads that The right to legal defense as per Art. 56 of the Constitution is a fundamental and universal right while it is a private right of procedural nature as it is an instrument of defense whenever an individual s other right is violated or endangered. Therefore while Art. 56 of the Constitution does not specify the scope of rights, it provides a guarantee and a 10

11 tool to enable the individual s right to legal defense, free development and protection of rights that the individual is endowed with: life, dignity, honor and safety (Art. 4, Para 2 of the Constitution). The right to legal defense is primarily a fundamental right that citizens enjoy and that protects their rights and legitimate interests. That the entitlement to legal defense is treated in the Constitution s chapter on fundamental rights indicates the special importance that the Lawmaker attaches to it. Then, the right under Art. 56 of the Constitution is general and universal. It is enjoyed by any citizen in the defense of rights violated or legitimate interests infringed on. Whenever a legal interest exists, the right to legal defense shall include the subjective right as an opportunity that the law guarantees to act in addition to the right to defend any legitimate interest that may be threatened. Therefore the right as per this text is a typical personal right of the citizen. Rights and legitimate interests make up an aggregate irrespective of the piece of legislation that proclaims them, and so the exercise of the right that Art. 56 of the Constitution provides for shall follow from a threat to a constitutional right or a constitutionally recognized interest but also it shall be contingent on a right that is recognized in another piece of legislation. Decision No. 9 of 28 July 2016 on Constitutional Case No. 8/2016. There the Constitutional Court laid an emphasis on the interplay of the fundamental constitutional principles: The national sovereignty shall not act aloof from nor shall it dissociate itself from the rest of the fundamental principles but shall form an aggregate set with them. The interaction of the national sovereignty, the separation of powers, the state committed to the rule of law shall be at the heart of a democratic government which may face constraints on the basis of the consent of the ruled as the holder of the sovereignty. The principle of separation of powers is the guarantee that the principle of national sovereignty will be applied and that a barrier will be placed to absolute power in the constitutional systems. As constitutionalism evolves the basic laws will reign supreme in society and in the state and will be binding on all and thus will place barriers to disable the constituent power to become absolute power. The violation of a constitutional principle is a reason to proceed with constitutional adjudication. As pointed out in the answer to questions І. 2. by Decision No. 1 of 28 January 2014 on Constitutional Case No. 22/2013 the Constitutional Court declared unconstitutional a 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 (DV, No. 93/25 October 2013) since the moratorium was seen as a violation of constitutional principles by the Legislature. To summarize in conclusion: in the exercise of a prerogative that it enjoys as a legislating authority, the National 11

12 Assembly has approved a Decision to Declare a Moratorium and by doing so has infringed on fundamental Constitution-enshrined principles, namely, the fact that Bulgaria is a law-governed state where there exists separation of powers and where the governance is compliant with the Constitution and the domestic legislation is mindful of EU law. Hence the reason to declare the Decision unconstitutional. 6. What are the basic principles that are applied most by the constitutional court? Please describe a single (or more) constitutional principle that has been largely influenced by constitutional adjudication in your jurisdiction. What contribution has the constitutional court made in forming and developing such principle(s)? Please provide examples from the jurisprudence of the constitutional court. During its 25-year jurisprudence the Constitutional Court handed down decisions on the application of different constitutional principles. The Court s adjudication did not rank the constitutional principles in terms of importance. The nature of the question that the Constitutional Court was approached with determined the application of the relevant constitutional principles. Yet a sorting may be made as follows: The principles that were frequently applied appear to be: the principle of the state committed to the rule of law; the principle of national sovereignty; the principle of separation of powers; the principle of political pluralism; and the principle of equality before the law. These are the fundamental principles that are underlying the rest of the principles that are embedded in the Constitution. The Constitutional Court s jurisprudence makes clear the constitutional principles content, meaning and scope and guarantees that the Legislature will comply with them (see the answers to questions 3, 4 and 5 for examples from the jurisprudence). ІІ. Constitutional principles as higher norms? Is it possible to determine a hierarchy within the Constitution? Unamendable (eternal) positions in constitutions and judicial review of constitutional amendments. 1. Do the constitutional principles enjoy certain degree of superiority in relation to other provisions of the basic law? How are constitutional principles and other constitutional provisions related to international law and/or to the European Union law? Are there any provisions in international or the European Union law that are deemed superior than the national constitutional principles? If yes, how are such higher international provisions 12

13 applied with regard to the national constitutional principles? What is the prevailing legal opinion among both academic scholars and practitioners in your jurisdiction about attaching higher value to certain constitutional principles over other provisions of basic law? The primacy of the Constitution as per Art. 5, Para 1 makes it an act that reigns supreme in legal terms. Art. 5, Para 4 of the Constitution reads that any international instruments which have been ratified by the constitutionally established procedure, promulgated and come into force with respect to the Republic of Bulgaria, shall be considered part of the domestic legislation of the country. They shall supersede any domestic legislation stipulating otherwise. The Constitutional Court ruled thus in its Decision No. 7 of 2 July 1992 on Constitutional Case No. 6/1992: The international instruments which have been ratified and come into force with respect to the Republic of Bulgaria but which have not been promulgated in Durzhaven Vestnik shall not be considered part of the domestic legislation of the country unless they had been adopted and ratified prior to this Constitution s entry into force when under the legislation then in force promulgation was not binding upon ratification. The latter shall not supersede the domestic legislation in the meaning of Art. 5, Para 4 of the Constitution. They shall supersede the domestic legislation upon promulgation. In other words, the international instruments which have been ratified, promulgated and come into force with respect to the country shall become part of the domestic legislation without any need to adopt any supplementary act and shall supersede the domestic legislation texts that are in contravention of international law. To avoid a collision between international instruments texts and Constitution texts Art. 149, Para 1, subpara 4 of the Constitution reads that the Constitutional Court shall have the power to rule on the compatibility between the Constitution and the international instruments concluded by the Republic of Bulgaria prior to their ratification. The Constitution does not contain any explicit text to treat the correlation between the EU law and the Constitution of the Republic of Bulgaria. By Decision No. 3 of 5 July 2004 on Constitutional Case No. 3/2004 the Constitutional Court ruled thus on the passage of a Constitution text that provides for the EU institutions to take decisions and to draft and pass legal acts which will have supranational, direct and universal effect with respect to the Republic of Bulgaria: By signing the Treaty Concerning the Accession of the Republic of Bulgaria to the European Union and by its ratification, promulgation and entry into force Bulgaria became a party to the Constituent Treaties of the European Communities and of the European Union (along with the amendments and supplements to the treaties) and agreed to their substance which is primary Community law that thoroughly provides for the Union institutions and bodies, their powers and their legislative acts. EU acts of the 13

14 primary law constitute international instruments in the sense of Art. 5, Para 4 of the Bulgarian Constitution and by the acceptance of the conditions of accession these provisions shall become part of the domestic legislation of Bulgaria. Further the European Union adopts what is termed secondary legislation. Art. 249 (1) of the Treaty Establishing the European Community (TEEC) reads that the EU institutions shall make regulations and issue directives, take decisions, make recommendations or deliver opinions (secondary legislation). The passage of these acts shall be subject to the explicit provisions that are incorporated in the primary law. Regulations are on the top of the rank of EU secondary legislation. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States (Art. 249 /2/ TEEC). Directives make up another essential set of secondary legislation acts. While a directive shall not be directly (immediately) applicable, as Art. 249 (3) TEEC reads that it shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods to be employed to achieve the goal that the directive is intended for. A decision shall be binding in its entirety upon those to whom it is addressed (Art. 249 /4/ TEEC). The secondary legislation comprises what is termed acts that shall have no binding force recommendations and opinions that are the European institutions instruments of policy statement in addition to framework decisions, common strategies and positions, resolutions, conclusions and declarations. A salient feature of secondary legislation is that secondary legislation acts are not international instruments in the sense of Art. 5, Para 4 of the Constitution and therefore after their adoption they shall not be subject to ratification by the national parliaments. The pieces of secondary legislation shall not be directly applicable and shall not need explicit transposition into the national legislation. This is so because the European Communities institutions operate within the scope of their competence with directly binding legal effect with respect to the institutions and the citizens in the member states. Alongside however, it should be remembered that the modes and tools of secondary legislation acts adoption and scope are determined by primary law which, being comprised of international instruments, shall be subject to binding ratification. 2. How are the constitutional principles related to each other? Is there any hierarchy within those principles? What approach has the constitutional court taken in terms of determining a hierarchy within the constitution? Is it 14

15 possible to conclude from the jurisprudence of the constitutional court that it has given principal status to some constitutional principles over the rest of the basic law? The Constitutional Court does not put the constitutional principles on rungs of hierarchy. The Court makes an assessment of the need to let a certain constitutional principle prevail over another in order to strike a balance between the different principles and to ensure and guarantee the primacy of the Constitution in its entirety and makes the assessment on a case-by-case basis. 3. How is the constitution amended in your jurisdiction? What is the procedure for the constitutional amendment set out in the basic law? How was the constitution established originally and does it explicitly provide for unamendable (eternal) provisions? Is there any difference between the initial manner of constitutional adoption and the existing procedure of the amendment to the basic law? Have the constitutional principles ever been subjected to change in your jurisdiction? If yes, what were the reasons behind it? The Constitution of the Republic of Bulgaria was established by the Seventh Grand National Assembly in Chapter Nine AMENDMENTS TO THE CONSTITUTION. ADOPTION OF A NEW CONSTITUTION provides for an amending procedure. The National Assembly shall be free to amend all provisions of the Constitution except those within the prerogatives of the Grand National Assembly. A constitutional amendment shall be initiated by at least one-fourth of the Members of the National Assembly or by the President. The Law Amending the Constitution shall be signed and promulgated in Durzhaven Vestnik by the National Assembly s Speaker within seven days following its passage. Art. 158 of the Constitution vests the Grand National Assembly with the power: 1. to adopt a new Constitution; 2. to resolve on any changes in the territory of the Republic of Bulgaria and to ratify any international instrument envisaging such a change; 3. to resolve on any changes in the form of state structure or form of government; 4. to resolve on any amendment to Art. 5, paras 2 (The provisions of the Constitution shall apply directly) and 4 (Any international instruments, ratified, promulgated and come into force, shall supersede any domestic legislation stipulating otherwise) and to Art. 57, paras 1 and 3 (the irrevocability of fundamental civil rights and the circumstances under which some of these rights may be temporarily curtailed by a law and which are thoroughly enumerated) of the Constitution; 5. to resolve on any amendment to Chapter Nine of the Constitution. A Grand National Assembly shall consist of 400 Members elected by the generally established procedure. The initiative to introduce amendment bills or to adopt a new Constitution within the vested 15

16 prerogatives of a Grand National Assembly shall belong to half of the Members of the Assembly and to the President. 4. Should constitutional amendment procedure be subjected to judicial scrutiny or should it be left entirely to the political actors? What is the prevailing legal opinion in this regard among academic scholars and other societal groups in your jurisdiction? The constitutional amendment procedure shall not be subjected to judicial scrutiny. If approached with a challenge of constitutionality of the Law Amending the Constitution the Constitutional Court may proceed with constitutional adjudication. 5. Does the Constitution in your jurisdiction provide for constitutional overview of the constitutional amendment? If yes, what legal subjects may apply to the constitutional court and challenge the constitutionality of the amendment to the basic law? What is the legally-prescribed procedure of adjudication in this regard? The Law Amending the Constitution shall be subject to a check for compliance with the Constitution to be made by the Constitutional Court. The Constitutional Court shall act on an initiative from not fewer than one-fifth of all Members of the National Assembly, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court and the Prosecutor General. The National Ombudsman and the Supreme Bar Council may approach the Constitutional Court with a request to declare unconstitutional a law whereby any rights and freedoms of citizens are violated. 6. Is the constitutional court authorized to check constitutionality of the amendment to the basic law on substantive basis or is it only confined to review on procedural grounds? In the absence of explicit constitutional power, has the constitutional court ever assessed or interpreted constitutional amendment? What has been the rationale behind the constitutional court s reasoning? Has there been a precedent when the constitutional court had elaborated on its authority to exercise the power of judicial review of constitutional amendments either on substantive or procedural grounds? What is the legal effect of a decision of the constitutional court finding the constitutional amendment in conflict with the constitution? Please, provide examples from the jurisprudence of the constitutional court. 16

17 Between 1991 and 2016 five amendments to the Constitution of the Republic of Bulgaria were adopted. The latest amendment was adopted by the Law Amending the Constitution of the Republic of Bulgaria: it was promulgated in Durzhaven Vestnik, No. 100/18 December 2015, and was intended for a reform of the Judiciary. The Constitutional Court shall not act on its own initiative; it shall act solely on an initiative from the authorities that are explicitly enumerated in the Constitution. The Constitutional Court s case-law contains two petitions from the Supreme Court of Cassation about texts that were enacted by the Law Amending the Constitution of the Republic of Bulgaria (DV, No. 27/31 March 2006). Constitutional Court s Decision No. 7 of 13 September 2006 on Constitutional Case No. 6/2006 ruled on the unconstitutionality of Art. 4, Para 129 of the Constitution reading that apart by the Supreme Judicial Council the heads of the supreme courts and the Prosecutor General can be removed from office, in the case of any grave infringement or systematic failure to perform their office duties as well as committing acts impairing the reputation of the judicial power, by the President who will act on a proposition from two-thirds of the Members of Parliament as it violates the Constitution-set model of the functioning of powers and conflicts with the principles of the state committed to the rule of law. Constitutional Court s Decision No. 8 of 13 September 2006 on Constitutional Case No. 7/2006 overruled the challenge of the constitutionality of Art. 130а, Item 3 of the Constitution where by Paragraph 7 of the Law on Amending the Constitution of the Republic of Bulgaria (DV, No. 27/31 March 2006) the Minister of Justice had the authority to make proposals for the appointment, promotion, demotion, transfer and removal from office of judges, prosecutors and investigating officers. The Constitutional Court s decisions shall be promulgated in Durzhaven Vestnik within 15 days from the date on which they are handed down and shall come into force three days after the promulgation. Any act found to be unconstitutional shall cease to apply as of the date on which the decision shall come into force, i.e. as the case stands, the constitutional amendment shall cease to apply if the Constitutional Court has found it to be in conflict with the Constitution. The Constitutional Court s interpretations likewise set the limits within which the Legislature shall be free to amend the Constitution. By its Decision No. 3 on Constitutional Case No. 22/2002 and Decision No. 8 on Constitutional Case No. 7/2005 the Constitutional Court which had been approached by the Prosecutor General and by the Supreme Court of Cassation gave a binding interpretation of Art. 153 and Art. 158, Item 3 of the Constitution of the Republic of Bulgaria with respect to questions pertaining to the form of state structure and the form of government. By its Decision No. 3 on Constitutional Case No. 3/2004 the 17

18 Constitutional Court which had been approached by the President of the Republic of Bulgaria gave an interpretation of Art. 153 of the Constitution read in combination with Art. 158, Item 3 of the Constitution and vis-à-vis Bulgaria s membership in the European Union. 7. Is there any tendency in your jurisdiction towards enhancing constitutional authority in respect of constitutional court s power to check amendments to the basic law? Do academic scholars or other societal groups advocate for such development? How is the judicial review observed in this regard? Would the expansion or recognition of constitutional court s authority encourage the realization of constitutional ends or threaten its viability? Please, elaborate on existing discussion in your jurisdiction. The Constitutional Court s power to check conforms to the existing Constitution (cf. Point 6). 18