DECISION No 8 OF 12 JULY 2007 ON CONSTITUTIONAL CASE No 5 / 2007

The Prosecutor General asked for an interpretation of Art . 1 30а, item 2 of the Constitution regarding the extent and meaning of the Justice Minister ' s prerogative ,,to manage the property of the Judiciary”.

The Prosecutor General wrote that he saw two possible conceptions with regard to the application of the Constitution's Art. 130а, item 2 , viz. the management of the property of the Judiciary by the Minister of Justice. The one conception stands for ,,the exercise of a set of powers over all the assets of the Judiciary: all the immovable property – the buildings of the courts of justice and related real rights, funds and any immovable property needed for the functions of the Judiciary.” The other conception of the application of the Constitution text sees the Minister's prerogative as ,,competence to exercise on behalf of the State the right to ownership on the Judiciary's immovable property”. This includes the acquisition of buildings – either built by the Judiciary or given it by the Government – plus the overhaul or renovation, the vertical extension and refurbishment of buildings.

The Prosecutor General thinks that the latter conception fits into the principle of the separation of powers ( Art. 8 of the Constitution) and of the independence of the Judiciary as guaranteed by Art. 117, paras 2 and 3 of the Constitution. This conception presupposes that financial independence is a factor for the organizational independence of the Judiciary.

Having discussed the arguments and opinions the Constitutional Court ruled as follows:

The interpretation of Art. 130а, item 2 reading that ,,the Minister of Justice shall manage the property of the Judiciary” cannot be confined solely to the phrase and words ,,manage the property” but should extend and compare with other Constitution provisions that express the fundamental principles on which the State in general and the Judiciary in particular rest. ,,The property of the Judiciary” in Art. 130а, item 2 of the Constitution comprises the property which is given to the bodies of the Judiciary – the courts, the prosecution offices and the investigating authorities as separate legal entities for the Judiciary is a multi-prong institution that comprises them all and is not personified as an autonomous legal entity. What were listed above are state assets whose management is organized by the Council of Ministers as Art. 106 of the Constitution prescribes.

Art. 18, para 6 of the Constitution reads that ,,the State shall utilize and manage all the state's assets to the benefit of individual and society. ” Hence the deduction that when, in his capacity of a member of the Council of Ministers, the Minister of Justice is entrusted with the management of the property of the Judiciary ( Art. 130а, para 2 of the Constitution ) the management must be to the benefit of the individual and society. Further, the management must be in harmony with the other Constitution provisions ( an argument deriving from Art. 105, para 1 of the Constitution).

The interests of the individuals and of society call for an independent Judiciary in line with the principle of the separation of powers as laid down in the Constitution's Art. 8. The independence of the Judiciary wants sufficient resources given by the Government, respectively by the Minister of Justice, so that it can perform its functions without being deprived of its independence.

The management of property of the Judiciary as entrusted by Art. 130а, item 2 of the Constitution to the Minister of Justice cannot be confined to the immovable property only that the Government has given nor can it extend to all movable property, the funds included. Otherwise, the independence of the Judiciary will be affected. The allocation of resources and the maintenance costs must be made with the independence in mind.

All this implies that the management of the property of the Judiciary by the Minister of Justice is management with consideration for the maintenance of balance within the Judiciary and respect for the independence of the Judiciary. While the management covers the assets that the Government allots the Judiciary, it impedes in no way the efficient performance of the Judiciary's functions nor does it compromise its independence.

In view of the above and on the basis of Art. 149, para 1, subpara 1 of the Constitution the Constitutional Court ruled that the management of the property of the Judiciary by the Minister of Justice as prescribed by Art. 130а, item 2 of the Constitution is observant of the balance with Art. 117, paras 2 and 3 of the Constitution and pertains to the property whose management by the Minister of Justice does not impede the normal function of the Judiciary, does not make the performance of the functions less efficient and does not affect in whatever way the independence of the Judiciary.

Justices Roumen Yankov, Vladislav Slavov and Blagovest Pounev signed the decision with dissenting opinion.



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