With reference to Art . 149, para 1, subpara 2 of the Constitution the Prosecutor General of the Republic of Bulgaria approached the Constitutional Court with a challenge of the constitutionality of Art . 191 of the Act on Defense and the Armed Forces of the Republic of Bulgaria (ADAF).
The Constitutional Court concluded that Art. 191 of the ADAF, viz. the provision that the Judiciary shall ask for the Defense Minister's sanction to detain an officer or an NCO of the Armed Forces of the Republic of Bulgaria, is in conflict with Art. 8 of the Constitution which proclaims the separation of powers and with Art. 117, para 2 of the Constitution which guarantees the independence of the Judiciary.
Decision № 3 on Constitutional Case № 1 / 1998 is analogical to the provision, which is challenged in the case in question: Art. 206, para 1 of the Ministry of Interior Act prescribed that the Minister of Interior should endorse the detention of police officers and sergeants and was found to be anticonstitutional. The Constitutional Court then and this time insisted that to make the detention operations of the law-enforcing authorities subject to a prior authorization from the Executive is in conflict with the principle of the separation of powers in Art. 8 of the Constitution. The prevention of conflicts, the actions that go beyond the limit of the Constitution-vested powers and the optimum function of institutions presuppose independence and cooperation and mutual control and deterrence. In the primary separation, the constituent authority gives independent functions to different holders of power: the Legislature, i.e. the National Assembly, the Executive, i.e. the Council of Ministers, and the Judiciary, i.e. the Court, the Prosecution and the Investigation. In parallel, the constituent authority draws, by secondary horizontal separation in the Constitution, the balances and tools of mutual deterrence between the constituted powers. Thus, each institution derives powers outside its primary domain to deter institutions that are holders of the primary separation of powers when and if these overstep their power functions. The objective is to ensure the Constitution-enshrined powers and fundamental rights. The authorization from the Executive thwarts prosecution; however, this authorization could not otherwise be one of the tools to balance the doings of the primary holders of power inasmuch as this paralyzes one of the powers.
Next, the Constitutional Court insisted that the efficient counsel for the defense of fundamental rights and the activities of the Judiciary in conformity with the Constitution relate directly to the principle of the independence of the Judiciary. Inasmuch as the Judiciary is independent, as provided by Art. 117, para 2 of the Constitution, and the judges, prosecutors and investigating officers obey nothing but the law in the discharge of their duties, to make their activities subject to authorization or discretion from other institutions or officials is a violation of the unconditional Constitution imperative.
On the other hand, the Constitutional Court thinks that in line with the international and European standards of the protection of fundamental rights, the Constitution of the Republic of Bulgaria proclaims the H abeas corpus as the conventional assurance of the freedom of the individual in Art. 30, para 3, therefore, the competent authorities of the State have the power to detain citizens, providing they notify the detention immediately to the Judiciary which is bound to rule on the legality of the detention. With the mission to protect the interests of detainees and of the rest of individuals and to protect the freedom of all citizens against possible consequent offenses by the suspects who have to be detained , the Habeas corpus is a universal individual human right and being such, extends over the Armed Forces officers and NCOs in the measure it is valid for all Bulgarian citizens and non-Bulgarians in the Republic of Bulgaria. The Constitution does not provide for special treatment, i.e. immunity to be enjoyed by officers and NCOs against detention in the way it provides for the Members of Parliament in Art. 70, for the President and Vice-President in Art. 103 and for justices in Art. 132. Further , the latest amendments to the Constitution constricted the scope and substance of immunity whereas Art. 191 of the ADAF goes beyond the immunities that the Constitution grants. Therefore Art. 191 of the ADAF is not compliant with the Constitution.
Председател: Румен Янков