Decision

The case relates to Art. 149, para 1, subparas 2 and 4, sentence two of the Constitution.

The Constitutional Court filed the case on 16 November 2006, being approached by the General Meeting of the Penal Panel of the Supreme Court of Cassation (SCC) with a challenge of the constitutionality of § 54 of the Transitional and Concluding Provisions of the Law on the Amendment to the Law on Serving Sentences (LALSS, promulgated, DV, No 103/2004), and of its compliance with the international instruments of which the Republic of Bulgaria is a signatory. The text challenged (effective from 1 January 2005) reads as follows: „The penalties correctional labor without deprivation of liberty, necessary domicile and deprivation of the right to reside in certain places decreed by a verdict pronounced before this law's entry into force shall be substituted by probation by the court in the procedure of Art. 304 of the Criminal Procedure Code”. Later Art. 304 of the Criminal Procedure Code (CPC) was updated to make it compliant with the new CPC that became effective (DV, No 86/2005) and in the existing challenged provision of § 54 Art. 306 it became effective from 29 April 2006.

As there was not the majority required to respect the challenge it was dismissed accordingly. As neither view was supported by a majority vote, the Court could not formulate a commonly agreed stand, hence the separate presentation of the positions of the groups of justices.

I. In the view of Justices Lazar Grouev, Emilia Droumeva, Evgeni Tanchev, Dimiter Tokoushev, Plamen Kirov and Krassen Stoichev § 54 of the LALSS does not contravene the international instruments of which the Republic of Bulgaria is a signatory and the challenge is to be dismissed with the following arguments:

1. Amendments were made in the Penal Code in December 2002-June 2004 and these amendments went in parallel with amendments to other laws that effect a reform of the system of sanctions: certain types of penalties that go without deprivation of liberty were deleted as follows: necessary domicile, deprivation of the right to reside in certain places and correctional labor for reasons of inadequacy and ineffective function in the new reality; and a new penalty was codified – probation.

Probation which is a new penalty in the Bulgarian criminal law is defined as a set of measures of control and pressure without deprivation of liberty and these measures are imposed together or separately (Art. 42а, para 1 of the Penal Code).

Apart from the removal of certain types of penalty without deprivation of liberty and the incorporation of probation measures, the legislating policy takes some other methods: with the probation the legislating authority uses the method of the general substitution with probation of the penalties in the special section of the Penal Code – correctional labor, necessary domicile and deprivation of the right to reside in certain places.

The challenge did not touch the nature of probation that is fundamentally new in the Bulgarian criminal law tradition nor did it touch the characteristics of this new type of sanction; the challenge was confined to one aspect (non-permanent at that) of the said sanction.

2. Art. 5, para 3 of the Constitution contains the classic principle “No one shall be convicted for action or inaction which at the time it was committed, did not constitute a crime.” However, it is not to be surmised that the execution of a sentence decreeing a penalty that later was reversed can be banned. Such a ban cannot be deduced from Art. 4, para 1 of the Constitution as it will conflict with an underlying principle of the state committed to the rule of law – punishability as the main feature of the crime. Therefore the legal act of the substitution under § 54 of the LALSS does not violate the classical principle that Art. 5, para 3 of the Constitution proclaims. In this specific case the achievement of the criminal law objectives calls for the execution of the sentence for a crime committed, therefore § 54 of the LALSS does not violate but furthers the principle of the law-abiding state vis-à-vis the execution of sentences imposed whose term has not expired.

3. § 54 of the LALSS is not in conflict with the principle of the legal effect of the sentences implemented nor is it in conflict with Art. 119, para 1 of the Constitution with respect to the courts and the stability of their acts. The Constitutional Court has expressed a clear stand on the enforcement of sentences and on the legislating authority's prerogative to review quarrels: if by a mere hypothesis a law reverses a verdict pronounced by a court, this will be anticonstitutional. However, the provision challenged does not affect the stability of the execution of sentences as § 54 does not reverse the sanctions that the sentences decree; the court resorts to substitution in order to let the convict serve the sentence in the new legal environment.

Therefore, § 54 does not provide for hearing res judicata but for the reconsideration of already existing cases (in the course of the execution of the sentence).

Therefore § 54 of the LALSS does not ignore the legal effect of the court decisions – the legislating authority empowers the court to substitute imposed sentences whose term has not expired and subsequently deleted as types of penalty with probation and this is not a violation but enforcement of Art. 119, para 1 of the Constitution reading that justice shall be administered by the courts.

4. It is the national legislation, not international law, that defines which type of penalty is heavier. It is not for a Constitution to compare the severity of punishments. The law enumerates explicitly, line by line, the types of sanctions – penalties and measures.

Indeed, by way of comparison, the severity of probation, if it is seen as complex punishment, shows that it is not commensurate with any of the deleted sanctions in question. However, probation is not a complex sanction and it is this specifics that cannot be ignored: the substance of probation is not implemented cumulatively as certain measures exclude each other, which calls for a combination of measures that are sharply individualized for each specific case. Probation as such is divergent in content and is not applied as such, hence the question that arises of the comparative severity of probation and the decision to apply probation on a case-by-case basis.

Therefore § 54 of the LALSS cannot lead to the conclusion that the substitution that the legislating authority has passed is in contravention to Art. 7, para 1 of the European Convention on Human Rights and Art. 15, para 1 of the International Covenant on Civil and Political Rights unless the competent court has ruled on each concrete case while it recognizes the specific nature of probation as a divergent sanction and applies the general legal rules of the appropriateness of penalties, including the non-imposition of a heavier penalty in case of the substitution that § 54 of the LALSS provides for.

II. In the view of Justices Vassil Gotsev, Lyudmil Neikov and Vladislav Slavov, § 54 of the LALSS is anticonstitutional and noncompliant with international instruments of which Bulgaria is a signatory and the challenge should be honored on account of:

On the challenge of constitutionality

Art. 4, para 1 of the Constitution has been violated.

The paragraph challenged revises by legal process an absolute verdict. The prescribed obligation that the court should substitute the previous penalties in a verdict with probation is in fact an obligation for retrial.

The provision is dissonant with Art. 4, para 1 of the Constitution reading that Bulgaria is a state committed to the rule of law. The principle of legal security of citizens is an element of the criterion of the law-abiding state. Respect by the State and by the law of the principle of the binding force of the matter already judged is a prerequisite for that. Noncompliance with this rule will result in instability of the judicial acts, hence to insecurity for the individual.

Art. 8, Art. 117, para 2 and Art. 119, para 1 of the Constitution have been violated.

The principle of the separation of powers, of the independence of the Judiciary and of the administration of justice by the courts has been violated.

It is intolerable from this perspective to modify or reverse sentences by a law except for the cases of amnesty.

The challenged legal text makes it binding on the court to replace a sanction it has imposed with a sanction that was nonexistent at the time when the crime was committed or when the verdict was pronounced. Therefore, the jury must go into the details of the quarrel and decide again on the individualization of the penalty while the sanction is determined in keeping with an imperative precept from the legislating authority. The latter interferes into the court's activity, which is already over.

The imperative process by which the legislating authority makes it binding on the court as an arm of the Judiciary ignores an underlying principle of the state committed to the rule of law: that the matters of crime and punishment are a prerogative of the Judiciary and that the Judiciary shall be independent as proclaimed by the Constitution. Thus, it is flagrantly conflicting with Art. 4, para 1, Art. 8, Art. 117, para 2 and Art. 119, para 1 of the Constitution.

On the challenge of compliance with the international instruments of which the Republic of Bulgaria is a signatory – the Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights

As per Art. 7, para 1 of the Convention and Art. 15, para 1 of the Covenant a heavier penalty shall not be imposed than the one that was applicable at the time when the criminal offence was committed.

In this case, the comparison of the individual probation measures with the previous penalties imposed shows that some of these previous penalties have definitely been heavier. Probation includes, inter alia, measures that are imperative.

Art. 42а, para 1 of the Penal Code which lists the probation measures reads that they can be imposed together or separately. This means that they can be cumulative.

Correctional labor prior to 29 September 2002 had duration from three months to one year. Now that probation exists, its duration is from three months to two years.

Community labor under Art. 42а, para 2, subpara 6 of the Penal Code is a heavier penalty than correctional labor where only deductions are made from the remuneration.

III. In the view of Justices Roumen Yankov, Maria Pavlova and Blagovest Pounev § 54 of the LALSS is partly anticonstitutional and partly inconsistent with international instruments of which the Republic of Bulgaria is a signatory.

1. In the view of Justice Roumen Yankov § 54 of the LALSS partly disagrees with the Constitution principle.

The classical definition of punishment is the enforcement of the will of the State in a most brutal form. That is to say, people are treated unkindly with dispossession, imprisonment or pain of death (the latter no longer exists in our law).

According to the classical definition of liberty, liberty is so essential for any adult individual and for all matters related to the individual's interests that no one but the State could have the right to interfere in the individual's privacy and the laws that permit such interference must be transparent, clear and relatively stable.

From this perspective the hypotheses in Art. 42а of the Penal Code viz. that the probation measures shall be obligatory registration at the present address, obligatory regular reporting to a probation officer, restriction of the free movement, attendance of training courses unwillingly though, are tantamount to curtailment, limited as it may be, of liberty.

Regarding correctional and community labor, these two measures are sort of a hybrid between deprivation of liberty and infringement on possessions.

With this premise, probation is a penalty par excellence.

As probation is a penalty, a comparative analysis should be made. This analysis shows that the penalties codified – necessary domicile and deprivation of the right to reside in certain places in § 54 of the LALSS – are in fact as heavy as the obligatory registration at the present address, the obligatory regular reporting to a probation officer and the restriction of the free movement that are listed in Art. 43а of the Penal Code and that they are to replace. From that perspective § 54 of the LALSS which refers to Art. 42а, para 2, subparas 1-4 of the Penal Code is not dissonant with the Constitution.

Correctional labor is a different case. Prior to 27 September 2002, its duration was from three months to one year whereas the duration of probation is longer and must be from three months to two years.

Apart from being a newly codified penalty, community labor is heavier than correctional labor for it is unsalaried.

In conclusion, in two of the hypotheses in Art. 42а, para 2, subparas 5 and 6 of the Penal Code a substitution of the penalty of a person sentenced as prescribed by the law at the time of the commission of the crime may result in a heavier penalty.

The principle of punishment that is prescribed by law has been valid since ancient times. In the case considered here the prescription of the law is ignored as a heavier penalty may be imposed on a convict by virtue of a subsequent law.

This situation is intolerable in a state committed to the rule of law. With such a logic, it is in contravention to Art. 4, para 1 of the Constitution.

2. Justice Maria Pavlova finds § 54 of the LALSS to be partly in contravention to the Constitution and to Art. 7, para 1 of the European Convention on Human Rights and Art. 15, para 1 of the International Covenant on Civil and Political Rights (the Republic of Bulgaria is a signatory of both).

Art. 31, para 4 precludes curtailment of the rights of an accused, a measure that goes beyond what is necessary for the administration of justice. This text gives rise to requirements that are addressed to the government institutions involved in the process of the administration of justice. The text is of legal importance in the determination of the penalty. The conclusion to be drawn from this text is that the penalty must be commensurate with the seriousness of the crime and in line with the main goal pursued – the reformed convict. An excessively heavy penalty that seeks maltreatment and harassment would be discordant with the said Constitution principles.

A conclusion about the cases subject to § 54 of the LALSS can be drawn from Art. 31, para 4 of the Constitution. The text referred to deals with the need to substitute penalties that have been decreed by a judgment-at-law and that later have been recalled: correctional labor without deprivation of liberty, necessary domicile and deprivation of the right to reside in certain places with the newly codified penalty, probation. That penalty has certain peculiarities in comparison to the rest of the Penal Code penalties as it includes a number of penal measures of which some are a must and one or more of the other measures are decided together with the former as seen appropriate by the judge who rules on the substitution. It is impossible to judge whether probation is heavier than the three other penalties that cease to apply without individualization by the court of the specific penalty. As § 54 of the LALSS prohibits a heavier penalty, probation, compared to the extinct penalties, by, for example, the addition of correctional labor or community labor to the compulsory measures, there is the option of a penalty which is heavier than the one it replaces on the basis of the said text. Hence the partial unconstitutionality of § 54 of the LALSS and its incongruence with Art. 7, para 1 of the European Convention on Human Rights and Art. 15, para 1 of the International Covenant on Civil and Political Rights reading that a heavier penalty shall not be imposed than the one that was applicable at the time when the criminal offence was committed.

3. In the view of Justice Blagovest Pounev the challenge is to an extent justified:

The text challenged is not in conflict with Art. 8 of the Constitution as it does not violate the principle of the separation of powers or with Art. 119, para 1 of the Constitution reading that justice shall be administered by the courts for § 54 of the LALSS does not reverse judgments-at-law nor does it usurp functions of the court but in abidance with and in the procedure of Art. 306 of the Criminal Procedure Code it assigns to the courts to substitute the sentences that have been partially served or that have not been served and that have been reversed by the National Assembly due to the change in the penal policy of the State.

The conclusion that the substitution of sentences reversed as § 54 provides for is compliant with the Constitution makes the text challenged partly anticonstitutional and partly noncompliant with Art. 15, para 1, sentence 2 of the International Covenant on Civil and Political Rights and Art. 17, para 1, sentence 2 of the European Convention on Human Rights. The recognition of the partial relevance of the challenge of the General Meeting of the SCC Penal Panel is sustainable as probation is a multipart criminal law tool. This tool comprises measures and sanctions some of which are binding for the law prescribes that some other optional measures and sanctions shall also be applied at the court's discretion. The latter include penalties, that is coercion on the part of the State, against the will of the convict and thus encroaching on his legal domain – his rights to liberty and to the possession of assets – and these must be juxtaposed to the reversed sentences in order to see whether the substitution of the sentences by the court will lead to a penalty which is heavier or longer than the penalties in the sentence which has not been served.

The substitution cannot be done solely on the basis of the individualization of the penalty at the court's discretion; it can also be done on the basis of the differentiation of the measures prescribed and the differentiation must result from a law. However, such a law is not in place. In that case the Constitutional Court would not step into the domain of the National Assembly's powers by becoming a positive legislator because the conclusion that some of the prescribed probation measures might be heavier or longer than the reversed measures and would declare their application by the courts anticonstitutional when the rulings do not comply with the requirement that there should be a differentiation of penalties and tolerate the application of the whole set that makes up the probation. This contravention to the Constitution is deduced from the inconsistence of some of the probation measures applicable in the substitution with Art. 4, para 1 of the Constitution which calls for legal security and stability for the legal relations that were the target of criminal proceedings as an essential element of the state committed to the rule of law. Such a result can be achieved if the criminal law is predictable which means that if probation calls for penalties that are heavier and longer than the penalties reversed, their substitution would be dissonant with the principle of the state committed to the rule of law. If the compulsory probation measures – “obligatory registration at the present address” and “obligatory regular reporting to a probation officer” – are measures of impact rather than penalties, no doubt they are more lenient than the penalties reversed – “necessary domicile”, “deprivation of the right to reside in certain places” and “correctional labor” – then some of the optional probation measures become heavier and longer than those that the preceding legislation provided for. In view of the gradation of the penalties in Art. 37 of the Penal Code “correctional labor” and “community labor” are heavier and longer than the reversed penalties “necessary domicile” and “deprivation of the right to reside in certain places” and the latter, apart from being heavier, was nonexistent in the penal system in the enforcement of the penalties subject to substitution. “Community labor” is heavier than “correctional labor” in the previous legislation as it is also termed “gratuitous labor in favor of the community”, i.e. the convict does not get any remuneration for his labor and such a penalty, according to Art. 8, para 3 of the International Covenant on Civil and Political Rights and Art. 4, para 3 of the European Convention on Human Rights is related only to the penalty “deprivation of liberty” when the sentence is served or during the parole. As a probation measure “correctional labor” is heavier and longer than the reversed “correctional labor” prior to the amendment of Art. 43, para 1 of the Penal Code (DV, No 92/27 September 2002) when probation was introduced and its duration was extended from one year to two years for this is also the duration of the analogical probation measure that was codified after the abolition of correctional labor as an autonomous penalty – Art. 43, para 3, subpara 2 of the Penal Code (DV, No 103/2004). For this reason in view of the substitution with the two probation measures in Art. 42а, para 2, subparas 5 and 6 of the Penal Code that § 54 of the LALSS refers to, the conclusion is that that the Constitution is not complied with because of noncompliance with Art. 4, para 1 of the Constitution, with Art. 15, para 1, sentence 2 of the International Covenant on Civil and Political Rights and Art. 7, para 1, sentence 2 of the European Convention on Human Rights while the rest of the challenge in relation to Art. 149, para 1, subparas 2 and 4 of the Constitution by the General Meeting of the Penal Panel of the Supreme Court of Cassation was dismissed.