DECISION № 5 OF 9 JULY 2009 ON CONSTITUTIONAL CASE № 6/2009
The proceedings were instituted under Art. 149, para 1, subpara 2 of the Constitution.
The case was filed on 29 May 2009 as 49 Members of Parliament challenged the constitutionality of paragraphs 6, 7, 25, 26, 29, 31-36, 39-41, 43, 44, 46, 48, 51, 57, 74, 83, 86, 91, 94 and 108 of the Act Amending the Judiciary Act (AAJA) (DV, No 33 of 30 April 2009 г.), that amended respectively Art. 38; Art . 42, para 4; Art . 136; Art . 138; Art .147; Arts . 148 - 153; Arts . 163-165; Art . 167, para 1; Art . 170; Art . 172; Art . 178; Art . 189, para 1; Art . 209, para 2; Art . 297, para 3; Art . 327; Art . 338; Art . 340, para . 2; Art . 357; Art . 365; Art . 401 of the Judiciary Act and also paragraphs 111 - 113 of the AAJA Transitional and Concluding Provisions.
Having discussed the arguments and considerations in the claim and in the opinions of the parties and the facts and circumstances that were established, the Constitutional Court took into account the following in order to judge:
1. The claim challenges the provisions in entirety and with general arguments . The concrete allegations of noncompliance with the Constitution will be considered one by one.
The fundamental question in this constitutional dispute is whether the law-effected structural change of the investigation authorities is constitutionally admissible.
No doubt, the investigating function is a component of the fundamental nature of the Judiciary and is performed, accordingly, by the ,,investigation authorities” that the Constitution explicitly provides for. The ,,investigation authorities” and the ,,investigating officers” are mentioned in a number of texts in the Constitution's Chapter Six ,,The Judiciary”. It is only Art. 128 that explicitly deals with the investigation authorities: ,, The investigating magistracy shall be within the system of the J udiciary. They shall conduct investigation of criminal cases where it is prescribed by the law. ” Systematically that text comes after the Constitution texts about the Court and the Prosecution with a prescription of their functions and structure. Unlike them Art. 128 is very parsimonious with respect to the investigation authorities and does not determine their structure. Hence the conclusion that the fathers of the Constitution deliberately left that matter to be treated in a law while Art. 133 of the Constitution also makes a reference to that effect.
This specific legislative approach and the overall Constitution regulation of the Judiciary lead to the conclusion that the investigation authorities' organizational structure is not seen as a matter for Constitution regulation; the Constitution text is confined to a description of the investigation authorities' functions. Consequentially, the autonomy of the investigation authorities within the Judiciary is lesser than that of the Court and of the Prosecution.
The Constitution does not resort to a general notion to designate the investigation authorities as a structurally standalone system of authorities. It is noteworthy that over the years, since 1991 when the existing Constitution was passed and subsequently amended, different organizational models codified in the Judiciary Act (JA) and in the Code of Criminal Procedure (CCP) were employed, ranging from excessively centralized to the other extreme, excessively decentralized investigation authorities.
The above-quoted text of Art. 128 of the Constitution is the redrafted version after the Third Amendment to the Constitution (DV, No 27 / 2006). It affected directly Art. 128 but also Art. 127, item 1 with the establishment of obvious relations between the Prosecution and the Investigation and with the provision for the Prosecution to lead the Investigation and to supervise its lawful operation.
To answer the question of constitutional admissibility: following the challenge of amendments, the investigation authorities will not go out of the Judiciary; they will continue to be part of the Judiciary and to perform their Constitution-assigned investigating functions; the exercise of the same functions as part of the structure of the Prosecution and still within the Judiciary will not upset the balance between the Legislature, the Executive and the Judiciary nor will it infringe on the other Constitution principles that are explicitly pointed out in the disposition of Decision № 3 of 2003 on Constitutional Case № 22 / 2002 – the sovereignty of the people, the supremacy of the Constitution, political pluralism, the state committed to the rule of law and the independence of the Judiciary. Concerning the dispute in question, the Court found that even the broadly interpreted in 2003 concept of the form of state power, was not affected by the challenged amendments to the JA as they do not upset the balance between the branches of power; in other words, the Court did not establish the suspension of its Decision № 3 of 2003 as alleged in the claim .
By its second interpretative decision that the challenge refers to – Decision № 8 of 2005 on Constitutional Case № 7 / 2005 that was pronounced later, the Constitutional Court gives an interpretation of the nature and functions of the Judiciary and its constitutional foundations with the clear understanding that the Constitution does not rule out changes; on the contrary, in principle, it is open to changes, including the internal reorganization of the Judiciary, the investigation authorities included; such restructuring will not change the form of state power and will be approved by an Ordinary National Assembly. Furthermore, the organization of investigation authorities is a matter of legislative advisability; it depends on the overall characteristics, the model chosen, the key priorities and focuses of the reform of the Judiciary and on the place, functions and mostly the relationships between the different participants in the criminal trial and in the long run it is a matter that must be addressed by agreed amendments to the Criminal Code, the Code of Criminal Procedure and the Judiciary Act.
Hence the conclusion that the now challenged organizational restructuring of the investigation authorities, while it saves their Constitution-assigned functions (investigation on crimes), it does not change the form of state power and therefore amendments to the Constitution are not needed. The restructuring that is effected at law level does not contradict the Constitution as the investigation authorities continue to be part of the Judiciary. The balance of functions between the bodies within the Judiciary is not upset as the investigation authorities even as part of the Prosecution, continue to perform their basic Constitution-assigned function.
2. The challenge sees § 112, paras 1, 2 and 3 of the AAJA Transitional and Concluding Provisions as inconsistent with Art. 8, Art . 129, paras 1, 3 and 6 and Art. 131 of the Constitution as by virtue of a law the demotion and relocation of investigating officers can be done solely by the Supreme Judicial Council and not by the National Assembly.
2.1. Given the new structure of the investigation authorities, the investigating officers from the regional investigation services shall be reappointed, without contest, in the regional investigation departments with the regional prosecution offices (§ 112, para 3); a special transitional rule was put in place to exempt from contest for reappointment. So it is pending relations of employment that are the subject of the challenged provision. In the modern lawmaking process their regulation is a responsibility of the lawmaker and is a salient feature of the state committed to the rule of law. Regarding the reappointment itself, it is done by the Supreme Judicial Council as explicitly prescribed in § 112, para 3, and not by the National Assembly as the challenge insists. Therefore there is no usurpation of constitution-enshrined prerogatives of the appointing authority of the Judiciary.
The reappointment of investigating officers from the regional investigation services is not a demotion in the meaning of Art. 131 of the Constitution but a fulfillment of an obligation that the Legislature has set, viz. the rearrangement of relations of employment within the restructuring that the investigation authorities undergo under the umbrella of the Prosecution.
2.2. Paragraphs 2 and 3 of § 112 of the AAJA Transitional and Concluding Provisions are devoted to administrative heads: they provide respectively that the Director of the National Investigation Service shall continue to perform his duties of an administrative head until the end of his election mandate and that the directors of the regional investigation services shall be reappointed without contest as heads of regional investigation departments at the regional prosecution authorities and shall continue to perform their duties of administrative heads until the end of their election mandate.
The Court did not find a Constitution text to corroborate the allegation that the already appointed administrative heads of the investigation authorities will be demoted anticonstitutionally, respectively discharged as administrative heads as per paras 1 and 2 of § 112. The Constitution does not assign the positions of the administrative heads within the Judiciary but for the three top positions – the Chair of the Supreme Court of Cassation, the Chair of the Supreme Administrative Court and the Prosecutor General. Further, Art. 133 of the Constitution leaves it to an Ordinary National Assembly to deal with the organization and activity of the institutions within the Judiciary and with the conditions and procedure of appointment and dismissal of judges, prosecutors and investigating officers.
The combination of the two Constitution texts leads to the conclusion that the Constitution leaves the regulation of the ,,administrative heads” positions to a law. This is done by the JA (Art. 167, para 1), and the full enumeration in the law by definition is in unison with what the Constitution provides for the Judiciary. Following the challenged amendments to the JA, the investigation authorities continue to perform the same functions in the Judiciary but as part of the Prosecution whereon the position ,,head of regional investigation department with the regional prosecution office” is not counted among the administrative head positions. The legislating authority complied with yet another rule that the Constitution thrusts upon it by the principle of the state committed to the rule of law: it is compliance with the Constitution-established election mandates of the already appointed administrative heads and the prohibition of earlier termination though the concrete position ,,administrative head” no longer exists following the restructuring of the investigation authorities. The election mandate of the NIS Director is not terminated either – the position continues to be an administrative head position but in addition the NIS Director becomes also a deputy of the Prosecutor General. Accordingly, the reappointment is made by the Supreme Judicial Council similarly to the other magistrate positions.
The Court did not find any violation of the provision of irremovability of investigating officers as per Art. 129, para 3 of the Constitution as they are not discharged as investigators. As already noted, they are not discharged either as administrative heads that they were when the amendments were passed, earlier and before the expiry of their election mandate.
3. The challenge claims that after the amendments Art. 136 has become discordant with Art. 117, para 2 of the Constitution since the investigating officers cease to be independent because of their ,,resubordination” to the Prosecutor General functionally and to the administrative head of the respective prosecution office administratively.
The investigating officers are independent (Art. 117, para 2 of the Constitution) owing to the magistrate status within the Judiciary and not owing to their position within the structures of the Judiciary. Independence is required for any magistrate position, regardless of the authority where the officer serves and of the higher or lower rank of the position. In any case independence has an invariable constitutional content. So any attempt to correlate the independence of investigating officers to the authority where they serve within the Judiciary contravenes, as an idea, Art. 117, para 2 of the Constitution; such an idea could not be traced in the challenged amendments.
The challenge of the double ,,resubordination” of investigating officers – to the Prosecutor General and to the respective administrative heads within the Prosecution – ignores the fact that in principle all magistrates are administratively subordinate to the respective administrative heads within the Judiciary which is a principle of organization of the work in any structure, regardless of the branch of state power it is part of.
4. The challenge claims that the challenged AAJA in its part concerning the investigation authorities was passed on one reading/by one vote which violates the Constitution whose Art. 88, para 1 reads that b ills shall be read and voted upon twice, during different sessions at the National Assembly .
The existing legislating process is prescribed in principle in the Constitution and described in detail in the National Assembly's Standing Orders ( NASO ).
On more than one occasion the Constitutional Court ( Decision № 28 of 1998 on Constitutional Case № 26 / 1998, Decision № 1 of 1999 on Constitutional Case № 34 / 1998, Decision № 14 of 2001 on Constitutional Case № 7 / 2001, Decision № 4 of 2002 on Constitutional Case № 14 / 2002, Decision № 7 of 2005 on Constitutional Case № 1 / 2005, Decision № 6 of 2007 on Constitutional Case № 3 / 2007) examined disputes on the Constitution rule of mandatory reading and voting bills twice (Art. 88, para 1) and ruled as follows: the two readings are the two crucial phases of the lawmaking process in the form of a floor discussion and vote. However, before the ,,floor phase” bills are discussed and voted by the standing parliamentary committees. According to the NASO, before the first reading a bill is discussed by the committees to which it has been assigned by the National Assembly Speaker. On first reading a bill is debated ,,in principle and in its entirety”; there follows a phase for MPs' written proposed revisions and supplements to the bill. That phase is not explicitly mentioned in the Constitution; however, without it the second floor reading is simply useless: what is the purpose of a second reading if a bill shall not be revised and/or supplemented between the two readings? According to the NASO such propositions are discussed by the Standing Committee which is the main rapporteur on the bill whereon changes may be proposed by the Committee members; all propositions from the MPs and from the Committee members are incorporated into the committee's report for the second reading/vote and then introduced in the plenary room for discussion and vote.
Thus while the Constitution and the NASO are observed, it is practically always sure that among the legal texts some will be based on propositions made between the first and second reading of the bill though they were not in the original draft of the bill. This is a fundamental postulation in the modern legislating process. It is applied in combination with the rule that such propositions shall be discussed and voted on second reading providing they do not disagree with the principles and do not go beyond the scope of the bill that was approved on first reading ( Art. 71, para 1 of the NASO) ; the judgment whether a contradiction exists or does not exist is a prerogative of the National Assembly. So on second reading each piece of legislation is treated as an aggregation of individual provisions and attention is focused on the individual provision and its relative autonomy.
Regarding the dispute in question the Constitutional Court did not judge the strengths or weaknesses of the legislating procedures as prescribed in the NASO. The National Assembly's verbatim records show that the procedures were observed, that the bill challenged was passed on two readings/votes and therefore, Art. 88 , para 1 of the Constitution has not been trampled on.
5. On the claim that the challenged provisions violate the principle of the state committed to the rule of law proclaimed by Art. 4, para 1 of the Constitution as they cause chaos of controversies that make various laws unenforceable. In general contradictions in two different pieces of legislation are not tantamount to a violation of the Constitution. The Constitutional Court has an unambiguous and categorical understanding on that matter: if such contradictions are traced it is within the competence of the National Assembly to eliminate them. To consistently proceed with the opposite would recognize a competence for the Constitutional Court which will have to check the compliance of one law with another whereas the Constitution has no provision to that effect. The enforcement of a requirement of internal concurrence of the legislation relates to the principle of the state committed to the rule of law on the condition that the nature and scale of the established contradiction are constitutionally intolerable. The inner contradiction in the law must affect Constitution-proclaimed values and norms if it is to be a justification of a decision that pronounced the specific norms anticonstitutional (Decision № 14 of 2000 on Constitutional Case № 12 / 2000).
5.1. Concerning the requirements regarding the appointment of investigating officers in the regional investigation departments, the challenge explains that given the legally required 8-year service record, the irremovable investigating officers who were already holding the positions when the amendments were passed and who have worked for more than 5 years but for less than 8 years shall be ineligible for reappointment at the prosecution services; the claimants think that this makes the law unenforceable and its violation unavoidable.
The conclusion is unjustified and disagrees with legal logic: it derives from the provision of § 112, para 3 of the Transitional and Concluding Provisions of the challenged amending act: ,, The Supreme Judicial Council shall reappoint without contest the investigators from the regional investigation services to the regional investigation departments at the regional prosecution authorities.” The challenge of that provision was already considered (item 2). What is noteworthy here is that the reappointment in question is a legal construct of transitional nature and accordingly treated in the Amending Act's Transitional and Concluding Provisions while the appointments already made are not covered by Art. 164, para 2 of the JA that treats the general procedure of appointment. There is no contradiction nor are there any preconditions to breach the law.
5.2. The challenge claims that the challenged amendments to the JA will provoke violations in the enforcement of several pieces of legislation that deal with the provision of information on instituted penal proceedings for deliberate crimes of general nature. The Court established that the provision of certifying documents is treated in the Implementing Regulation of the Classified Information Act, the Private Guarding Activity Act, the Act on Defense and Armed Forces, the Bulgarian Citizenship Act, the Act on Control over the Explosives, Firearms and Munitions and its Implementing Regulation; some of these acts explicitly read that certificates shall be issued by the National Investigation Service. The Court found that the relevant legal texts that the challenge does not mention are to be found in the JA, Arts. 378 - 386, and referred to the Integrated Information System for Crime Prevention ( IISCP) and to the regulation that was passed on the basis of one of these legal texts.
The challenge claims that the ,,liquidation” of the National Investigation Service will result in a failure to meet the said obligation.
Such a conclusion concerns the organization of public functions, i.e. competences. Even after the challenged amendments to the JA, the National Investigation Service continues to exist and to function as an investigation authority according to Chapter VІІ, Art. 148 ff. of the JA in the meaning of Art. 128 of the Constitution; the NIS remains within the Judiciary, within the system of the Prosecution. And the obligation to build, maintain and develop the IISCP core is assigned exactly to the Prosecution that is explicitly mentioned in the challenged amending act (Art. 379, paras 1 and 2 of the JA ); the information system of the investigation authorities is, among other, in that core, in line with the above mentioned provisions. However, all these legal texts are not covered by the challenge. The comparison of Art. 379, paras 1 and 2 of the JA and § 111 от the AAJA (DV, No 33 / 2009 , see 5.3 below ) leads to the conclusion that the lawmaker assigns to the Prosecution, respectively to the Prosecutor General, to assign functions in a way to cover each activity that the law explicitly provides for. If difficulties arise in the enforcement of other pieces of legislation, it is within the competence of the National Assembly to eliminate them. There is nothing anticonstitutional.
5.3. The claim insists that the challenged amendments to the JA conflict with the 2009 State Budget Act (SBA) and with the budget rules regarding the daily costs of investigation and that breach of law is inspired: ,,if the financing is cut off, the investigating officers' functional obligations will be encumbered; if the financing continues, the rules of spending budget money will be broken.” § 111 is one of the challenged texts: ,, The Prosecution Authority of the Republic of Bulgaria shall be successor of the assets, liabilities, archive and the other rights and obligations of the National Investigation Service and of the regional investigation services at the day of entry into force of this Act.”
The allegation is untenable and unable to find a prop in the budget legislation. The guiding rule there is that in the event of functional/structural changes of state institutions the money, i.e. the budget credits follow the changes made rather than vice versa. The lawmaker has seen to that with the option as per the Organic Budget Law to adjust the budget accounts of the second-level spending units of budget credits within the framework of the approved annual budget (Art. 34, paras 4 and 5). The basic pattern is that in such a hypothesis the first-level spending unit that disposes with budget credits makes the adjustments and sends them to the Minister of Finance to be incorporated in the annual state budget implementation schedule. Therefore the financing for the investigating officers' daily operation cannot be cut off for the 2009 BSA expenditure items are transferred accordingly as they follow the structural changes while a guarantee is provided for the specifics of such financing with, inter alia, the possibility to institute a third-level spending unit (Art. 6, para 3 of the Organic Budget Law). Thus the budget legislation sees that the budget law-provided sums can neither be decreased nor cut off.
5.4. The challenge insists that the amendments result in ,,controversies in the CCP procedure”.
The JA and the CCP are related pieces of legislation and this justifies the attention to the alleged contradiction between the JA and the CCP. The claimants insist that the amended version of Art. 52, para 2 of the CCP vests investigating officers with the general competence of prosecutors and thus disputes might arise from complaints of incompetent investigation and ambiguity in the assignment of cases to investigating officers and to enquiring policemen. Art. 52, para 2 of the CCP reads that w hen conducting the investigation the investigating officers shall have the rights of the prosecutors as per Art. 46, para 2, subpara 2 of the CCP, viz. to carry out investigation or separate actions of investigation and other procedural actions including cases that are investigated by enquiring policemen.
The Court concluded that these are functions that fit into the investigation authorities' powers that the Constitution vests to them. The amendments to the CCP that are the subject of this dispute are in compliance with the Constitution changes made by the Third Amendment (2006) and intended to improve the quality of the investigation.
As the focus of the dispute is on the challenge of the legal texts in their entirety and with general arguments (see item .1) the Court also concluded its motives with a conclusion ,,in entirety and with general arguments”, the conclusion being: while it is a Constitution rule that the investigation authorities shall not be outside the Judiciary, the Constitution leaves it to the lawmaker to judge what constitutionally admissible structure should be created so that the investigation authorities can optimally perform their Constitution-assigned functions.
Председател: Румен Янков