Decision No. 6 of 11 April 2012 on Constitutional Case No. 3/2012
The case was filed by a group of 61 Members of Parliament who asked the Constitutional Court:
1. To provide a binding interpretation of Art. 98, item 11 of the Constitution of the Republic of Bulgaria concerning the Presidential constitutional power to exercise the right to pardon, including the constitutional purpose, the legal nature and substance of the right to pardon and also the legal effects of the exercise of this right, the questions being: Does the pardoning decree affect the Executive branch of power and shall it be countersigned and promulgated? Who shall be in charge of the execution of the decree? Who is entitled to challenge the decree and on what grounds and what is the institution to be approached? Does the decree need motivation and is it necessary in the event of reelection to reissue a decree with an identical text by which the President devolves powers to the Vice President (Art. 98, items 7, 9, 10 and 11 read in combination with Art. 104 of the Constitution) providing it is their second term in office in succession and such a decree was issued in the first term in office?
2. To rule on the anticonstitutionality of the Decision of the 41st National Assembly of 15 February 2012 to set up an Ad hoc Parliamentary Committee to investigate the legal grounds, facts and circumstances to grant a pardon, write off bad debts (uncollectible State receivables), grant and restore Bulgarian citizenship and relieve from and withdraw Bulgarian citizenship in the period 22 January 2002 – 22 January 2012.
Proceedings under Art. 149, item 1 and item 2 of the Constitution
The MPs wrote that the floor discussion in the National Assembly heard opposite opinions expressed on the question whether in the event of reelection of the President and Vice President for a second term in office in succession the President shall reissue a decree by which he shall, under Art. 104 of the Constitution, devolve again to the Vice President the powers to appoint and dismiss some civil servants who are specified by law, to grant and restore Bulgarian citizenship, to relieve from and withdraw Bulgarian citizenship and to grant asylum and pardon. Since there exists uncertainty on this matter as evident from the election of a parliamentary committee tasked to study and identify the principles and legal grounds for the exercise of these powers, 61 MPs approached the Constitutional Court with a request to provide a binding interpretation of Art. 98, item 11 of the Constitution. Also, the MPs asked the Constitutional Court to declare anticonstitutional the National Assembly’s Decision of 15 February 2012, viz. that an Ad hoc Parliamentary Committee be set up to study the legal grounds, facts and circumstances to grant a pardon, write off bad debts, grant and restore Bulgarian citizenship, relieve from and withdraw Bulgarian citizenship in the period 22 January 2002 – 22 January 2012, as this decision was said to be conflicting with the principle of the law-abiding state (Art. 4 of the Constitution), the principle of separation of powers (Art. 8 of the Constitution) and with Art. 62, para 1 and Art. 103, para 1 of the Constitution.
The challenge noted that the National Assembly’s Decision of 15 February 2012 did not have as a target the Government institutions and was not intended to make them subject to parliamentary control. The Decision ignored the nature of the pardoning decrees that are an expression of “sovereign mercy”, hence they lie within the President’s or Vice President’s power of discretion while the Government is to arrange for their enforcement just as it ignored the circumstance that the decrees that write off bad debts, grant, restore, relieve from or withdraw Bulgarian citizenship shall be countersigned by the relevant minister who by doing so shares in the responsibility of issuance and assumes political responsibility. Given the stated reasons, the MPs insisted that the National Assembly’s Decision was anticonstitutional.
Having discussed the request and the position presented and the written evidence the Constitutional Court considered as follows:
І. On the request for a Constitutional Court interpretation of Art. 98, para 1 of the Constitution:
1. The pardoning act of the Head of State as a legal institute is the successor of the royal prerogative of mercy. That royal prerogative of the sovereign is not bound with any restrictions on the scope and on the motives and reasons to exercise it. The royal prerogative to withdraw death sentences evolved into a Constitution-proclaimed power of the Head of State in modern democratic rule.
Democratic governance presupposes the rule of law and nondiscriminatory application of the law to all persons. As a constitutional institute, unlike the different forms of withdrawal of penalty, as arranged in criminal law, the pardoning act pursues a special goal, viz. to ensure the reign of justice for all with the humanism that it embodies over the abstract justice of law.
The substance of the right to pardon is not expounded in constitutional terms: it is codified in the Criminal Code (Art. 74). The substance of this right is an act whose legal effects result in the withdrawal of verdicts of conviction. These legal effects are the direct and sole purpose of pardon. Pardon is applied to lawful verdicts of conviction for crimes committed and by definition is inspired by humaneness.
Specially the exercise of the prerogative of pardon has specific features that are characteristic of the Bulgarian legal system. What is particular is that it is only crimes subject to the Criminal Code that can be petitioned for pardon. The earliest point in time when a pardon can be granted is on the date on which a verdict is absolute. The sovereign mercy may be shown while the sentence is served but is inapplicable once the sentence has been fully served. Therefore any convict who has not fully served his sentence is entitled to plea for a pardon. Pardon is a moral act and as an expression of mercy shall not be confined to some kinds of verdicts of guilty that the jury has pronounced on crimes committed.
2. Pardon as a Constitution-granted prerogative of the Head of State and as an institute of criminal law is arranged in the Bulgarian legal system as a tool of reprieve. The sentence is withdrawn entirely or partially or else commuted to a more lenient sentence. It is essential that the criminal liability stays. The opposite would mean a President’s interference into the activities of the independent Judiciary concerning the exaction of criminal liability by conviction and enforcement of conviction on persons who have committed crimes. Criminal jurisdiction is entirely within the prerogatives of the Judiciary (Art. 119 of the Constitution). The Judiciary shall be free to indict for, acquit of or convict of crimes committed. No other institution outside the Judiciary shall have any powers in the dispensation of justice. However, when it is a final verdict, the functions of the Judiciary in the enforcement end, as a rule. From that point onward a convict falls within the scope of competence of the enforcement institutions which organizationally and functionally include the Executive branch of power. Thus once a verdict is final the powers of the Judiciary are fully exercised, the scope of competence of the bodies of the Judiciary is “exhausted” and there exists no longer a constitutional barrier to the Head of State to exercise the right to pardon under Art. 98, item 11 of the Constitution.
Pardon is applicable only to sentences that are served and shall not be granted before a verdict is final. This makes it impossible for the President to have whatsoever functions with regard to the verdict. It is not the verdict but the penal measure that the Head of State can withdraw. Therefore, the right to grant a pardon is not interference into the functions of the Judiciary and does not conflict with the principle of separation of powers. Such incongruity would have existed if the right to pardon became an institute that grants a reprieve. As it is, the right does not affect the powers of the courts and is exercised only when there is a final verdict.
In addition to pardon the Bulgarian legal system applies the institute of parole. It is a procedure codified in the Code of Civil Procedure. In the event of parole pardon is inapplicable inasmuch as its effect coincides with that of parole.
3. At first glance Art. 98, item 11 of the Constitution vests the President with unlimited power to exercise the right to pardon. That text does not provide for the President’s power to pardon to be put in legal arrangements that the National Assembly passes. In principle, when the Constitution is to set limits or to prescribe a procedure for the President to exercise his powers, it sets and prescribes explicitly with reference to a special law. Inasmuch as the Constitution does not make pardon conditional on a special law, it refrains from defining the substance of the power to show sovereign mercy by way of a pardoning act, it should be concluded that there exists no barrier to let a law define the procedures that enable pardon. As it is, Art. 74 and Art. 49, para 4 of the Criminal Code and Art. 176, Art. 177, para 1 and Art. 180 of the Implementation of Penal Sanctions and Detention in Custody Act provide a legislative frame that defines the substance and legal effects of pardon. However, it is constitutionally inadmissible to let a law define or restrict the grounds, independence of judgment and the motives of the presidential power that derives from Art. 98, item 11 of the Constitution. Furthermore, the Constitution does not allow to restrict the Criminal Code’s penal measures that are subject to pardon nor does it allow to exclude one category of convicts or another from the field of application.
The right to grant a pardon is a sort of constitutional compromise with the principles of the law-abiding state and the equality of citizens before the law. This compromise is based on the understanding that sometimes it is necessary to allow deviation from the formal and nondiscriminatory enforcement of the law on all men because of the need to extend protection over Constitution-enshrined values that cannot be adequately protected by abstract legislation.
Since the Constitution does not set any limitations to grant a pardon, the conclusion is to be drawn that the President cannot be confined to any reasons when he grants a pardon. Formally speaking, the President might grant a pardon for whatever reasons he deems appropriate. Yet the Constitution that proclaims and protects supreme values normally in this way sets in a most general context the parameters that make up the frame within which the prerogative of pardon should be exercised. Therefore, the Constitution makes it binding on the President to conform to justice, humaneness and mercy when he grants a pardon. The President is bound to strike a balance between fundamental Constitution-proclaimed values and principles in the exercise of this prerogative and given the specific case he should judge to which of those he should give priority. In any case in the execution of the prerogative under Art. 98, item 11 of the Constitution the President should act on the understanding that he shows sovereign mercy while he is bound to guarantee justice.
Therefore it is inadmissible to curtail the presidential prerogative under Art. 98, item 11 of the Constitution by explicitly giving or enumerating the reasons for granting a pardon. Any such curtailment will change the meaning of the constitutional institute of pardon. All that the lawmaker can do is to define its substance while he reasserts its nature as a tool of reprieve.
As the reasons for granting a pardon are judged by the President or the Vice President, it will be inadmissible to put a requirement that they should be motivated and that the motivation should be made public. The pardoning decrees should not go with motives as an attachment inasmuch as the Constitution makes it binding to state the motives of the presidential decrees in one single case. These are the decrees under Art. 101, para 1 of the Constitution by which the President is free to return a bill together with the motives to the National Assembly for further debate. Hence, all other decrees of the Head of State may not be supported by motives. Next, the pardoning decree with motivation attached shall not be promulgated as, it is believed, in the future this may oblige the President or the Vice President to respond positively to petitions for pardon when the petitioners are in circumstances identical with those of petitioners who have already benefited from sovereign mercy. It is more than evident that the President has serious reasons when he issues a pardoning decree but the motivation should not be made public even if the lawmaker sees it appropriate to promulgate these decrees in Durzhaven Vestnik.
4. The President exercises the right to pardon on the basis of balance between the requirement to apply the law in a nondiscriminatory manner and other constitutional goals that are more important in the specific case. To prevent drastic retreat from the principle of equality and objectionable privileges or curtailment of the rights of citizens, all citizens shall be placed in an equal legal situation before the President and shall be subject to pardon under identical circumstances. Guarantees of most general nature are needed that the President shall take an identical approach to all such citizens and shall draw on identical criteria when he considers the pleas for pardon. Understandably, such criteria shall not be thrust on the President by a National Assembly law. That would be in contravention of the Constitution and especially of the Constitution-proclaimed principle of the separation of powers (Art. 8). At the same time the Head of State can and should make public the procedure by which he will exercise this presidential power and the general criteria he will draw on to secure the equality of citizens.
5. According to Art. 104 of the Constitution the President shall be free to devolve to the Vice President the prerogative of pardon. In this case the prerogative is exercised in the same way, amount and form as when exercised by the Head of State. The Constitution explicitly provides in its Art. 92, para 2 that the President shall be assisted in his actions by a Vice President. The Vice President shall not be seen solely as a “guardian of the tenure” and can take an active part in the exercise of the presidential prerogatives on the basis of coordinated positions. The President shall be free to assign to the Vice President a broad range of political tasks; however, regarding the prerogatives of the Head of State, Art. 104 of the Constitution permits to devolve to the Vice President only four of the prerogatives deriving from Art. 98 of the Constitution: to appoint and remove from office state officials, established by law (item 7); to grant, restore, relieve from and withdraw Bulgarian citizenship (item 9); to grant asylum (item 10); to exercise the right to pardon (item 11). The President shall issue a special decree to devolve the listed powers to the Vice President. The devolution may take place at any time: at the start of the term in office for which they were elected or later. The Head of State shall be free to devolve to the Vice President all prerogatives that Art. 104 of the Constitution lists, or if he sees it appropriate, he may confine to some.
The President shall be free to withdraw all devolved powers subsequently. There is no Constitution text precluding a multiple devolution or withdrawal of the powers that Art. 104 of the Constitution provides for. There exists no constitutional barrier either for the President to exercise on his own the powers that he has devolved to the Vice President.
6. The decree by which the Head of State grants pardon shall not be subject to reconsideration by another State institution or by the Head of State himself once it has taken legal effect. The issuance of a pardoning decree invalidates the reasons for continuing to serve a sentence term. The pardoning decree is final and once it takes effect, withdrawal is not possible. From that moment onwards the decree is a stable act in the sense that the President has no authority to unmake it or change it.
The decree by which a person is fully or partially pardoned takes effect as soon as it enters into force. There exists no legal tool to make the person serve the sentence again. Formal reversal of the decree is impossible as it will be invalid. The legal effect of the pardoning ceases. Once granted a pardon shall be final and irreversible. It is this effect of the pardoning decree that allows defining it as an irreversible reprieve. The nature of the pardon as an act that rests on universal human values – humanism, tolerance, justice, protection of the individual’s dignity – rules out the withdrawal of sovereign mercy once it is shown.
A pardoning decree takes effect upon signature. To validate it, a copy shall be delivered to the petitioner and to the relevant Government law-enforcement agencies. The Prosecutor General shall be informed about the pardoning decree for Art. 127, item 4 of the Constitution makes it binding on the Prosecution Office to ensure that legality is observed by overseeing the enforcement of penalties and other measures of compulsion. The decree might have taken effect, however, for its objectives to materialize, it shall be executed by the competent Government institutions. While the issuing procedure of the presidential decree shall not be subject to legal arrangement, the enforcement procedure for the pardoning decree shall be.
The pardoning decrees of the President and Vice President are the legal form in which an exclusive Constitution-granted power (Art. 98, item 11) is exercised. The decrees embody independent judgment and will to show sovereign mercy. When the Head of State makes his judgment and forms his inner conviction he shall not be chained by preset options or rules of procedure nor shall he be dependent on any State institution. In the exercise of his prerogative the Head of State shall be constrained solely by the Constitution-proclaimed values and principles.
7. The exercise of the right to pardon is an element of the Head of State-Judiciary relationship. This prerogative is exercised without any interference in the Judiciary’s activity. Pardoning does not affect the functioning of the Executive branch of power though the enforcement of sentences is ensured by specialized authorities that organizationally are an arm of the Judiciary. The pardoning decree is an act based on the Head’s of State personal will and judgment in the exercise of a Constitution-granted prerogative. The pardoning decree invalidates or changes the enforcement relationship. Such decrees are not to be countersigned by the Minister of Justice though in most cases the Minister is in charge of the enforcement inasmuch as the nature of this prerogative will preclude the interference of a Government institution other than that. Essentially, the exercise of the right to pardon impacts the outcome of the Judiciary’s activity while it does not impact the Executive branch of power.
8. Pardon is the manifestation of sovereign mercy and though it rests on the Head’s of State judgment, essentially it is sovereign mercy. Hence, it is a matter that has nothing to do with a secret power or a power whose legal effects shall remain undisclosed to the public. The question of publicity in the exercise of the right to pardon is complicated as is the very legal nature of this presidential prerogative. This is so as a collision arises between the rights and interests of the convict concerning his dignity, inviolability of privacy and personal data, on the one hand, and the citizens’ right to obtain information about what the State institutions do on matters of public interest, including the exercise of the Head’s of State prerogatives. It is for the Legislature to judge whether the decrees shall be made public by their promulgation in Durzhaven Vestnik (the State Gazette), similarly to most of the Head’s of State decrees. As of this date, the Durzhaven Vestnik Act does not prescribe for the promulgation of pardoning decrees. It is a fixed practice that evolved over the past 20 years. To support this legislative decision, it is insisted that the promulgation of pardoning decrees infringes on the privacy of the petitioners whose petitions for pardon have been resolved positively and might disclose facts of their private and family life, health, problems with the progeny and other friends and relatives of the reprieved petitioners. Owing to that currently the pardoning decrees are given publicity providing the individual, who has received a pardon, has given an explicit consent. A legislative amendment may make binding the promulgation of the pardoning decrees in Durzhaven Vestnik. The pros in favor of promulgation are inspired by an understanding that there should be legal symmetry inasmuch as the trial and the verdicts are public. Therefore pardoning decrees should be released for the general public. It is up to the Legislature to decide whether the pardoning decrees should be promulgated in Durzhaven Vestnik.
9. The pardoning decrees enforcement lies with the competent State authorities depending on the kind and nature of the verdict.
10. Pardoning decrees, like all other decrees of the President and the Vice President, do not have the juristic characteristics of administrative acts and shall not be seen as an equivalent. Hence they remain outside the scope of the Administrative Procedure Code (APC) (Art. 2 of the APC). As Constitution-granted powers of the President and the Vice President are exercised by these decrees, they shall not be challenged for compliance with the law. They shall be checked only for compliance with the Constitution in line with an argument in Art. 149, para 1, item 2 of the Constitution.
11. According to Art. 92, para 1 of the Constitution, the President is the Head of State who shall embody the unity of the nation and represent the Republic of Bulgaria in its international relations. His legal status and the role that the Constitution assigns to him make it imperative for him to perform his functions continuously. Several Constitution texts give an expression of this idea and in this way confirm that it is a matter of a fundamental rule. The President Elect shall assume office on the day following the day on which the term in office of the incumbent President expires. (Art. 93, item 5 of the Constitution). In the event of earlier end of the Presidential tenure, the Vice President shall assume the office of the President (Art. 97, para 3 of the Constitution). In the event the Vice President cannot take office, the presidential powers shall be vested in the Speaker of the National Assembly who will act as President until a new President is elected. (Art. 97, para 4 of the Constitution), i.e. the principle of continuity.
A special case of the imperative of continuous function of the President in his capacity of top-level State authority is the possibility for his reelection, i.e. the President is reelected to serve a second term in office without an intervening term between the two. Art. 95, para 1 of the Constitution reads thus: “The President and the Vice President shall be eligible for only one reelection to the same office.” Evidently even merely terminologically, the fact that the coincidence of persons who so far were the incumbent President and Vice President and the persons who are to reassume office did not escape the Constitution’s attention. The reelection of the President and the Vice President is a fact which is not irrelevant to law.
Term in office in the legal sense means to exercise mandated powers over a definite period of time; however, it is always related to a definite person when a one-man State institution is involved. This term had temporal, substantive and personal parameters. In other words, the term in office of the President and the Vice President is always intuitu personae, which in general is characteristic of each top-level State one-man institution. It is the personal aspect of the term in office of the President and Vice President that comes to the forefront in their reelection and leaves its imprint on its legal mode. Hence the conclusion that their reelection automatically leads to sort of a “linkup” between the two terms in office in a row given the sameness of the holders of the posts in contrast to the hypothesis where the President Elect and the Vice President Elect are other than the incumbent President and Vice President.
Specifically, when the President Elect and the Vice President Elect are the incumbent President and Vice President, there is no need to reassume office. The purpose of the constitutional concept “re-assumption of office” is to “herald” the assumption of prerogatives that relate to the exercise of public power. This is needed as the intervening period between the date of the election of a new President and expiry of the term in office of the incumbent President shall be at least two months (Art. 93, para 5 of the Constitution). However, the Constitutional Court has previously judged that the fact of reelection is a proof that the Constitution disallows intermission in the President’s term in office. That is why there is no sense for a reelected President and a reelected Vice President to declare that they take over powers from themselves. These powers never ceased to be exercised. It is precisely the fact of reelection that is the reason for the President and the Vice President to continue exercising their powers without any need to make a declaration of will that “bridges” the two terms in office in succession. The second term in office starts on the day following the end of the first term in office.
The fact of reelection of both the President and Vice President impacts the relations arising from the exercise of their specific powers. As a general rule once arranged, relations that are subject to public law including relationships arising out of a presidential decree continue to act in time unless a cut-off or a condition are set on their action or else it is an onetime action. That is why decrees under Art. 102, para 3, item 5 of the Constitution can take effect while the content stays unchanged with different presidents in different terms in office when they do not see any necessity to change the organization and manner of action of the offices of the Presidency as established by their predecessors. It is not necessary nor is it obligatory for each new President to approve a new structure and a new modus operandi for the offices in the Presidency that assist him in his duties. Drawing on the same logic, the decrees issued under Art. 102, para 2 item 5 of the Constitution during the President’s first term in office shall be valid during his second term in office in the event of reelection.
Concerning the President-Vice President relationship vis-à-vis the devolution of certain powers, the fact of reelection impacts its development. Given such a hypothesis, it is normal to expect that the way in which the President-Vice President relationship will develop, will be identical with the way in which it developed during their first term in office. With the same persons reelected for a second term in office as President and Vice President, it is normal for the relationship that evolved during the first term in office to move to the second term in office. In that sense the decree by which the President devolved to the Vice President certain powers as per Art. 104 of the Constitution continues to be valid, providing it was not confined to a cut-off date or conditionality and the persons who performed and perform the functions of President and Vice President are the same.
ІІ. On the request to declare anticonstitutional a National Assembly’s decision:
1. On 15 February 2012 the 41st National Assembly adopted a Decision to Elect an Ad hoc Parliamentary Committee to examine the legal framework, the facts and circumstances of pardon, cancellation of bad debts to the State, granting, restoring, relieving from and withdrawing Bulgarian citizenship in the period 22 January 2002 – 22 January 2012 (DV, No. 15/2012). The decision tasks the Commission “to examine and identify the principles, legal framework and modus operandi and the real circumstances under which a pardon has been granted, uncollectible (bad) debts to the State have been written off, Bulgarian citizenship has been granted, restored, relieved from and withdrawn in the period in question: to find out all cases of pardoning as it examines the facts and circumstances related to the legal grounds on which the Pardoning Commission based its decisions, on a case-by-case basis, especially to identify the real initiator for each pardoning act and also the Commission’s relationship with the Chief Directorate “Serving Sentences” with the Ministry of Justice; to identify the motives, legal grounds and circumstances under which each pardoning act has been signed and to find out unlawful actions afterwards by the already pardoned persons”. The decision took effect upon signature and the elected Ad hoc Parliamentary Committee was given a three-month period to report on the assignments.
A major characteristic of the Bulgarian constitutional model is that Bulgaria is a republic with a parliamentary form of government (Art. 1, para 1 of the Constitution). The Constitution provides for the form of government of the State and defines the legal status of Parliament. The Parliament is the national legislating body which holds a key position in the constitutional system by the passage of laws and by the formation of a government and control on that government. However, the fact that the form of government makes Bulgaria a parliamentary republic is not to lead to the conclusion that it is governed by the National Assembly. Parliamentary rule is not to be understood as rule by parliament. The Constitution reads that the National Assembly shall be a national representational body and divides the power of the State between Legislative, Executive and Judicial branches (Art. 8 of the Constitution) and disallows either of the three to dominate over the other two; on the contrary, the Constitution calls for their mutual balance and deterrence. Moreover, in the spirit of the separation of powers the Constitution defines at length the competence of Parliament and this shows that the Parliament shall not interfere in nor shall it usurp any aspect of governance. According to the Constitution the major powers of the National Assembly are to legislate and to exercise parliamentary control (Art. 62, para 1 of the Constitution) and other expressly listed powers (Art. 84 ff. of the Constitution) that cover these two functions. In general, the Constitution rejects the idea of a Parliament that has a general competence and enjoys the freedom to interfere into any sector of governance.
2. The motives attached to the draft decision and the discussion preceding its adoption clearly show the purpose of the National Assembly’s interference: it is to make the activity of Constitution-established top-level State institutions transparent so as to prevent a possible abuse of power. However, this view should combine with the circumstances that the Constitution consistently upholds the principle of separation of powers (Art. 8 of the Constitution). The purpose of this principle is to proclaim the separation of powers – the Legislature, the Executive and the Judiciary, name the “titleholders” and further, in more specific terms, to strike a definite balance between the powers of Parliament and the powers of other top-level governance institutions so that they balance and deter each other in the exercise of sovereign power. The goal pursued by the principle of separation of powers is to prevent the domination of the one over the other two and to establish interaction that will not preclude domination. While the Constitution divides State power into Legislature, Executive and Judiciary, on the one hand, and establishes a system of division of powers among individual top-level State institutions, where, in addition to the prerogatives that are typical of the respective “titleholder”, grants prerogatives to balance the other powers, free of domination and control, it firmly states that it abides consistently and deeply by the principle of separation of powers. That is why, if under a pretext that the activities of a top-level State institution need to be transparent, any other top-level State institution, drawing on a loose construction of the constitutional frame, tries to usurp additional powers, i.e. powers that are not expressly mentioned in the Constitution, and to ”implant” these powers in the established constitutional frame, that institution will decompose the established model of interrelationship between the top-level State institution and in this way will disturb the system and denounce more or less, the central idea of the principle of separation of powers, viz. that none of the powers shall be dominated by either of the other two.
On the other hand, given the need to guarantee the balance of powers of the top-level State institutions and to prevent the domination of any, the Constitution deliberately adopts a definite regulatory approach. The powers of some top-level State institutions are specially enumerated and with this way of regulation there is no other aim but to mark the confines of power that this institution will exercise and hence, to prevent, inasmuch as the position of a “titleholder” of a power allows, a possible interference with respect to another top-level State institution and vice versa, interference by another top-level State institution into its activity. In other words, the distribution of powers that the Constitution makes as it uses such an approach of arrangement draws a clear demarcation line in the legal status of the top-level state institutions and strengthens their stability and independence of other top-level State institutions. An opposite approach, namely the general definition of competence that the Constitution gives regarding the Council of Ministers may also be an option, yet just because it is a generally defined competence, its counterbalance is the possibility to make the activities of this institution of the State subject to special control by another top-level State institution.
That is why it is inadmissible, under a pretext that the activity of a definite top-level State institution needs control and transparency, for another top-level State institution to draw on a loose construction of constitutional arrangements that define its legal status and powers, to impart to them broader meaning that they really have. Such an approach is nothing but rewriting a text and this constitutes a challenge against the Constitution-entrenched formula in line with which the governance of the State should function. That is why inasmuch as the National Assembly is the holder of the Legislative branch of power and with powers that are listed in detail, it is not explicitly empowered by the Constitution to control how the President of the Republic of Bulgaria exercises his powers; the National Assembly is not to ascertain and generally, not to examine the motives, legal grounds and circumstances in which a presidential decree was signed since, if it does so, it will exercise powers that the Constitution has not vested in it.
3. In addition to the legislative authority, the function to exercise parliamentary control is vested in the National Assembly (Art. 62, para 2 of the Constitution). It is its second fundamental function. Sometimes parliamentary control is seen solely as a question time in Parliament (questions, interpellations and related debate) (Art. 90 of the Constitution). However, parliamentary control in the definition of Art. 62, para 1 of the Constitution has a broader meaning: what is meant is a check and assessment of actions and policies, planned or implemented, of the Government and its administration to see whether they are law-abiding as well as appropriate. In this spirit the Constitution arranges the legal status of the standing parliamentary committees: it explicitly states that, apart from aiding the work of the National Assembly, they shall exercise parliamentary control on its behalf (Art. 79, para 2 of the Constitution).
In turn, the election of ad hoc committees is a special kind of parliamentary control as in this case they do not exercise control in the narrow sense of the word (Art. 90 of the Constitution) but collect information in order to make the governance more transparent and in the long run, to impact the Government’s policy. In any case, the activity of any ad hoc parliamentary committee is targeted in principle, at concrete aspects of the implemented domestic and foreign policy and that is a constitutional function of the Government in order to engage its collegiate or individual political responsibility.
Therefore, the idea launched in the course of the discussion on the election of the Ad hoc Parliamentary Committee of 15 February 2012, viz. that its formation should not be seen as a form of parliamentary control, is unacceptable.
The Parliament’s Decision of 15 February 2012 tries, to a certain extent, to "shatter" the understanding of the function of ad hoc parliamentary committees within the framework of the National Assembly’s powers and to relate their activities primarily with the improvement of the legislation that grants a pardon, writes off bad debts, grants and restores Bulgarian citizenship and relieves from and withdraws Bulgarian citizenship. Inasmuch as each MP is entitled to initiate a legislating process except for the budget bills, it remains dubious whether it is necessary for the Parliament to organize a group of MPs to prepare conclusions on which the National Assembly, in the long run, is to have its say, including the need of amendments to pieces of legislation. Such understanding of the legislating process, i.e. to make a bill subject to preliminary approval by the Parliament and only after that to submit it to floor discussion, definitively goes beyond the meaning and purpose of this legal institute.
4. As evident from the floor discussion in Parliament and the proposed changes in the draft decision, the Decision of 15 February 2012 that was adopted, was based on the understanding that an ad hoc parliamentary committee that examines a certain matter is not an inquiry committee. The presumption that it is the inquiry and not the examination that constitutes parliamentary control was launched also during the discussion within the framework of the Ad hoc Parliamentary Committee that was elected on 15 February 2012. It is a matter of a case-by-case judgment whether a certain ad hoc parliamentary committee is tasked to investigate or to inquire. The Rules of Organization and Procedure of the National Assembly (Chapter Five) do not invite a conclusion that such a differentiation will have a legal effect. In turn, when the Constitution provides for investigations and inquiries (Art. 79, para 3) it is not any specifics of the concept “parliamentary control” that is meant; it is the methods of collection of information that are meant. The Constitution (Art. 79, para 2) reads that ad hoc parliamentary committees shall be elected for investigations and inquiries in order to define their legal status in comparison to the standing parliamentary committees that are involved in the legislating process (Art. 26 ff. of the Rules of Organization and Procedure of the National Assembly).
The task assigned to one ad hoc parliamentary committee or another should not go beyond the scope of powers that the Constitution vests in the National Assembly. What is valid for the National Assembly as a whole shall be valid for the parliamentary committee that it elects. The Constitutional Court has previously ruled on the interdependence of the National Assembly’s powers and the parliamentary committees’ activities. The Court has ruled that neither the Parliament nor the parliamentary committees shall make it binding on the President, the Vice President, the Constitutional Court Justices and the magistrates to be accountable to Parliament as this is in contravention of the principle of separation of powers. Drawing on the Per argumentum a fortiori, i.e. from smaller to greater, the National Assembly or its committees, no matter standing or ad hoc, should not interfere into or discuss the activities of other top-level State institutions unless the Constitution empowers them accordingly.
5. Art. 62, para 1 of the Constitution grants to the National Assembly the right to exercise parliamentary control. This control has different forms but always one basic target – the activities of the Government that is in office and its political responsibility. The raison d’être of parliamentary control lies in the Parliament’s power to elect and remove the cabinet (Art. 84, item 6 of the Constitution). The nature of the relationship therefore determines the “target” of parliamentary control and rules out the possibility to extend it onto the activity of other top-level State institutions outside the Executive branch of power personified by the Government and its administration. According to the Decision of 15 February 2012 the “target” of investigation is the powers that the Constitution vests in the President.
The Constitutional Court believes that the activity of the Ad hoc Parliamentary Committee that it elected on 15 February 2012 is a kind of parliamentary control. In turn, the “target” of parliamentary control, as defined by the Constitution, should determine the tasks that the National Assembly is free to assign to this ad hoc parliamentary committee. Given the legal status of an institution that embodies the unity of the nation, the Constitution assigns to the Head of State a consolidating role in the Constitution-established system of State governance and the President, while he stands side by side with the other top-level State institutions that the Constitution tasks to exercise the Legislative, Executive and Judicial power, he cannot engage or identify with any of these three powers. The President is a standalone State institution and draws his powers directly from the Constitution. The Constitution grants the President powers that derive from his legal status and also powers that have bearing on the domain of each of the separate powers. Thus the Constitution expects from the President to ensure the balance between the three powers.
The legal status of the President of the Republic of Bulgaria as the Head of State and a body that performs integrating functions in the governance of the State precludes a possibility of being a “titleholder”, even figuratively or partially, of any of the powers, including the Executive branch of power. None of the three powers dominates over the President hierarchically; none of the three powers is dominated by the President. Therefore, the President shall not be subject to parliamentary control inasmuch as the Constitution defines parliamentary control as a power of the National Assembly to be exercised solely on the Government that it has elected. Hence, all forms of parliamentary control, including ad hoc parliamentary committees set up to examine the presidential functions, shall be inadmissible from the perspective of the Constitution.
The legal status of the President disallows the exercise of parliamentary control on his acts. However, it is not to be concluded that the President is a State institution that is beyond control and that the presidential decrees are not subject to control at all. While the Constitution allows control on the President, it arranges this in a way that precludes his dependence on any of the three separated powers. That is why the Constitution grants the right to a body like the Constitutional Court that was constitutionally established and independent of any of the three powers, to rule on the presidential acts’ compliance with the Constitution (Art. 149, para 1, item 2) and to judge whether the President has violated the Constitution or committed high treason (Art. 149, para 1, item 8 read in combination with Art. 103, para 3 of the Constitution). Regarding the lawfulness of presidential acts concerning the domain of the Executive, control on them is exercised in the form of parliamentary control on the Executive since the interference of the Executive is a condition for their enactment.
Given the above stated, a conclusion can be drawn that the setting up of an ad hoc parliamentary committee to examine the President’s actions creates unacceptable, from the perspective of the principle of separation of powers, imbalances in the system of mechanisms that the Constitution has established under his influence.
6. Some of the President’s powers are explicitly listed in Art. 98 of the Constitution. They can be classified in different ways based on different criteria. The Decision of 15 February 2012 refers to three of them: the nature of the powers, specifically the powers intrinsic to the President’s legal status of Head of State or powers that fall into the domain the Executive. Such a distinction has its legal importance with a view of the institute of countersigning the presidential decrees but is irrelevant in view of the admissibility of parliamentary control. Those of the presidential powers that fall into the domain of the Executive are likewise beyond parliamentary control inasmuch as they are part of the mechanism of balance and deterrence of powers. The principle of separation of powers calls for a clear foregoing definition of the legal status of top-level state institutions while the nature of the powers granted to these institutions is unable consequently to impact their legal status within the system of State governance.
7. In the MPs’ opinion the Ad hoc Committee that was set up on 15 February 2012 conflicts with Art. 103, para 1 of the Constitution. The cited text reads that the President and Vice President shall not be held liable for actions committed in the performance of their duties, except for high treason, or a violation of the Constitution. The text covers their criminal and also proprietary and political liability. Moreover, they should still enjoy the protection extended by this text after their term in office ends. As the Constitutional Court has previously ruled, MPs shall not face criminal or other kinds of charges when they cease to be MPs. There is no reason why the same approach should not be valid with respect to the President and the Vice President. Therefore, they can be only politically accountable to the Constitutional Court for their actions and on definite grounds at that. Moreover since the meaning of political liability is reduced to an earlier termination of the term in office of the President and Vice President, it would be contradictioinadiecto for this liability to continue after the expiry of the term in office.
Art. 103, para 1 of the Constitution is also in favor of the assertion that the Constitution disallows exercising parliamentary control on the President. Premising on the fact that the National Assembly shall not hold the President politically liable, there is no reason why it should enjoy the right to start the parliamentary control process on him. The only measure that the Constitution allows the National Assembly regarding the President’s political liability is to lodge an impeachment to be tried by the Constitutional Court (Art. 103, para 2 of the Constitution). Parliamentary control in the sense of Art. 62, para of the Constitution makes it imperative to grant a power to seek and assume political liability. The split between these two as sensed from the debate in Parliament and in the Ad hoc Parliamentary Committee that was elected on 15 February is not in tune with the logic of law.
It is to be concluded from the stated reasoning that the National Assembly went beyond the confines of its powers when it elected an Ad hoc Parliamentary Committee inasmuch as this committee was assigned tasks that treat actions of the President of the Republic of Bulgaria. The National Assembly may elect ad hoc parliamentary committees that will stay within the confines of its powers and specifically concern itself with the actions of the Government – the Prime Minister and the cabinet members who initiate the respective proceedings that are finalized by decrees that are issued by the President of the Republic of Bulgaria, that are countersigned to be made valid or that arranged that the decrees issued take legal effect. However, the freedom to exercise parliamentary control on the President remains beyond the confines of the National Assembly’s powers.