DECISION No 1 OF 19 JANUARY 2010 ON CONSTITUTIONAL CASE No 14/2009
It will not be in contravention of the Constitution to grant amnesty providing the amnesty complies with the principle of equality while the judgment is made in consideration for the purposes and criteria of the amnesty and the correspondence of the purposes with the criteria of the amnesty implementation.
The proceedings was based on Art. 149, para 1, item 2 of the Constitution. The case was filed on 25 September 2009 following a Council of Ministers challenge of the constitutionality of Art.1 of the Amnesty Act (DV, No 26/2009) whose provisions read thus:
„(1) Amnesty is granted to persons who committed crimes and who are released free from penal responsibility and from the consequences of the conviction if the crimes were unintended for which the law provides for a 5-year term in prison or a less severe sentence.
(2) Paragraph 1 shall not apply to crimes that were committed in a state of intoxication or that caused a grievous bodily injury or death.
(3) The assets forfeited or seized as per Art. 53 of the Penal Code and the fines imposed and paid on the basis of final verdicts prior to this Act's entry into force shall not be recovered. Fines imposed by a final verdict shall be paid.
(4) Belongings and sums of money under still pending trials shall be recovered by rightful claimants unless the acquisition or possession of such is not prohibited or subject to seizure by virtue of a piece of legislation other than this Act.
(5) An amnesty under paragraph 1 shall not impede the exercise of administrative responsibility by virtue of special laws.”
The challenge sees as non-compliant with the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution of the Republic of Bulgaria, hereafter the Constitution) the way of defining what can be amnestied subject to general criteria – the form of guilt and the punishment that the law provides for rather than an explicit mention of concrete crimes and the public life sector which is impacted by the crimes; in this way misdeeds that are treated in different chapters of the Penal Code, including crimes that have been committed in the performance of public functions, are amnestied. Further, the challenge insists that the challenged provisions disagree with the principle of the equality of citizens before the law (Art. 6, para 2 of the Constitution), and Art. 31, para 1 of the Constitution reading that anyone charged with a crime shall be brought before a court within the time established by law. The Constitutional Court was asked to pronounce unconstitutional the provisions of the Amnesty Act in its Art. 1. 1. It is a prerogative of the National Assembly to ,, grant amnesty” (Art. 84, item 13 of the Constitution). Modern constitutionalism takes it for granted that the national representative body shall have this prerogative even when the respective constitution does not explicitly provide for such. The Constitution of the Republic of Bulgaria does not make amnesty subject to any conditions whatsoever. Yet the legislation of any amnesty sets a ,, ceiling” which stems from the nature of amnesty as a legal institute. The legislating technique as applied with Art. 84, item 13 shows that the Bulgarian Constitution contains ,, amnesty” as a legal institute whose characteristics are soundly codified.
Art. 84, item 13 was passed in 1991. The said ,, sound codification” on which the Constitution rests is to be attributed to the Penal Code. This pre-Constitution piece of legislation has been in force since 1968 with a number of amendments made. Amnesty as an institute of substantive criminal law is treated in the Penal Code's General Section – Art. 83 which is from the original Penal Code version, i.e. from 1968. That unchangeable and stable amnesty legislation justified the Constitution text in 1991 and made superfluous any further rules at a Constitution level.
The Constitutional Court saw no reason for a conclusion that the concept of amnesty as put in the National Assembly's prerogative by Art. 84, item 13 of the Constitution is different from that as spelled out by the Penal Code's Art. 83. Given this, to interpret the constitutional concept of amnesty and to rule on the challenge, the Constitutional Court would first focus on the sound codification of the institute.
2. Art. 83 of the Penal Code reads thus: ,, The amnesty shall obliterate the criminal nature of a definite kind of acts or shall release from criminal responsibility and from the consequences from the conviction for definite crimes.”
2.1. Art. 83 is in the chapter titled ,, Acquittal of the Criminal Prosecution and of the Imposed Punishment” along with other reasons (prescription, death). The generic notion is ,, acquittal of criminal responsibility”: amnesty is one of the ways leading to that.
2.2. Amnesty is always abstract and general in contrast to pardon which is concrete and individual. The Constitution does not specifically determine an act by which the National Assembly will exercise the prerogative that Art. 84, item 13 of the Constitution proclaims. Ever since the adoption of the Constitution of the Republic of Bulgaria the National Assembly has granted amnesty by a law, not by a decision.
The amnesty reviews crimes that are a fait accomli. As a rule amnesty is a penal policy which is the government policy at a specific point in time. In fact this holds true of any legislation. However, as amnesty is an exception of the general rule which calls for punishment for any crime, it is logical that such a radical interference should seek to achieve a lofty aim – a political event and/or a legal policy rationale.
2.3. Invariably and solely amnesty is granted to absolve from crimes that were committed at a certain point in time in the past. While such doings are treated as ,, non-criminal” only in the period that the amnesty covers, they will be counted again as crimes in the future. Amnesty is retroactive at all times. Any amnesty act adds to the application of the substantive criminal law provisions affected. An amnesty act won't abolish these provisions: by way of exception and retroactively it renders unpunishable certain crimes that have been committed prior to a fixed date. Thus amnesty does not touch criminal law and its effect on it is external.
2.4. The new (then) Penal Code that was passed in 1968 made the differentiation that the Amnesty Act of 1964 provided for a general rule (Art. 83): the two hypotheses were brought into the amnesty legislation with the conjunction ,, OR”; that legislation is still in force non-amended. The following terminology was brought into the doctrine: ,, decriminalizing amnesty” that covers the former hypothesis of the Penal Code's Art. 83 which obliterates the criminal nature of a definite kind of doings, and ,, pardoning amnesty” that covers the latter hypothesis in the same provision which, while it does not explicitly obliterate the criminal nature of certain doings, releases from criminal responsibility and from the consequences of the conviction for definite crimes.
The doctrine predominantly maintains that decriminalizing amnesty is more powerful and radical as it renders nonexistent a crime that the amnesty covers and that otherwise would have been subject to the criminal law. Pardoning amnesty is a form of mercy from the State, i.e. a general retroactive pardon which is confined solely to the release from the consequences of criminal law enforcement; pardoning amnesty won't make a wrongdoing lawful; it just makes possible to leave the doing unpunished whereas a crime committed after the limitation date will be punishable as any other. Whichever of the two, amnesty absolves criminals who committed the crimes that are amnestied. Amnesty suppresses any of the government's effort to hold criminals responsible and to punish them; amnesty puts down any of the prerogatives of the State to arraign.
2.5. Drawing on Art. 84, item 13 of the Constitution reading that it is the National Assembly that grants amnesty, the Constitutional Court cannot but conclude that it lies entirely with the National Assembly to decide which of the two amnesty options that Art. 83 of the Penal Code provides for is to be applied. The Constitution sets no restriction to that exclusive prerogative of the National Assembly. Compliance with the Constitution will be checked on the basis of the key components that any functioning constitution contains, including the Constitution of the Republic of Bulgaria – the state committed to the rule of law, the separation of powers and the fundamental rights of citizens, notably the equality before the law.
3. The principle of the separation of powers is a key component of the nature of a state committed to the rule of law. Amnesty is a special legal institute that respectively holds a special place in the separation of powers – amnesty is the legislative interference into the field of application of substantive criminal law, i.e. in the field of the Judiciary; the reconsideration that the legislating authority does vis-à-vis certain criminal doings and their punishability is tantamount to direct intrusion into the prerogatives of the Judiciary.
However, amnesty is intended to exercise another component of the multiple fundamental nature of the state committed to the rule of law; that nature evolved from ideas and civilization standards of building a society where human rights are paramount.
4. The legislating authority can broadly reconsider the scope of an amnesty in terms of crimes and criteria to see whether the amnesty should cover certain types of crimes or under what conditions it can be granted and suchlike while it sticks to the rule that the more differentiated an amnesty is, the narrower the scope of crimes that it covers.
The specific nature and the result that an amnesty seeks to achieve require that the crimes that the amnesty covers should be defined in a law. A review of the Bulgarian amnesty acts so far shows that the definition of crimes amounted either to enumeration of criminal law specific texts or to indication of other attributes of the corpus delicti – the form of guilt, the punishment provided for or other general attributes, i.e. while a varying legislating technique was employed in view of the specific objectives of each amnesty, it does not change the amnesty's criminal law-related effect. The Court drew the conclusion that there exists compliance with the principle of the state committed to the rule of law if the approach used had met the requirements of clarity and precision of the law to an extent that makes it possible to specify the crimes and criminals to be covered by the amnesty. These requirements have been met with respect to Art. 1 of the challenged Amnesty Act. The scope of amnesty, the crimes that the amnesty covers and the Penal Code chapters where the crimes and criminals are treated is determined solely by the penal policy of the majority in Parliament and is not determined by the criterion that was employed for their definition.
5. No doubt pursuit of equality before the law is a key engine in a state where the Constitution reigns supreme.
5.1. On several occasions the Constitutional Court has considered different aspects of the principle of equality before the law (Art. 6, para 2 of the Constitution) and its manifestations as defined in individual Constitution texts – Art. 10; Art. 46, para 2; Art. 47, para 3, etc. Hence the ,, fields of equality” in the legal domain where the application of the principle of equality is specific and distinctive. The question is raised whether such a standalone ,, field of equality” could take shape within the domain of an amnesty act in order to check the specific and concrete application of the principle of equality. The answer lies in the nature of amnesty as a legal institute: by definition any amnesty is inequality per se inasmuch as it enables individuals who are eligible to be covered by the amnesty to be spared punishment; however, the rule that applies is that all crimes and criminals that favor from the amnesty are to receive equal treatment.
5.2. The Constitutional Court believes that the specific application of the principle of equality within the scope of a concrete amnesty, the challenged Amnesty Act as it is in this case, must be checked for the purposes of the amnesty, the criteria of the differentiation made and the correspondence of the purposes with the criteria. In fact these are the three limitations to which the lawmaker's free judgment is subject to in order to grant an amnesty.
It is the legislating authority that determines the amnesty's purpose which must comply with the Constitution – e.g. the more efficient criminal and penitentiary law enforcement. Again it is the legislating authority that sets the criteria. The legislating authority is free to leave certain types of crimes out of the amnesty; also the legislating authority is free to pass special arrangements for certain corpus delicti. In Art. 1, para 1 of the challenged Amnesty Act the criteria are the ,, ceiling” of the prison term and the form of guilt and crimes committed prior to 1 July 2008. The correspondence of the criteria selected with the purpose to be served must legitimize the amnesty in that the concrete amnesty act is not a discretionary privilege. Thus despite the nonexistence of explicit conditions and requirements in the exercise of the Constitution-proclaimed prerogative of the National Assembly (Art. 84, item 13) to grant amnesty, any amnesty act has specific limitations in the specific application of the principle of equality in the field of the concrete amnesty.
The Constitutional Court does not exercise control on an amnesty act to make sure that its provisions are indispensable and appropriate. Neither can the Court form a judgment in view of the legal certainty and predictability as characteristics of a state committed to the rule of law which characteristics prohibit that subsequent changes in the legislation should put the accused in a more vulnerable position and require that the accused are subject to the most favorable piece of legislation: in the case in question it is the challenged Amnesty Act. The Constitutional Court can but make sure the legislating authority stayed within the Constitution-established range when it formed its judgment. The general principle of equality is viewed as violated only when a law-granted amnesty fails to focus on justice and that failure is evident and when no rational explanation arising from the nature of the amnesty can be given. Regarding the challenged Art. 1 of the Amnesty Act, the Court did not find any violation of the principle of equality before the law as laid out in the Constitution and of the concept of amnesty as expounded here. With the criteria that the challenged Art. 1 of the Amnesty Act contains, no preconditions are created to allow unequal treatment of the perpetrators of the crimes that the amnesty covers. Therefore the Court disagreed with the claimant's position that the Amnesty Act tolerates unequal treatment between perpetrators of crimes prior to 1 July 2008 and after that date.
6. The challenge maintains that further the challenged Art. 1 of the Amnesty Act contravenes Art. 31, para 1 of the Constitution as it will strip the Judiciary of the power to exercise control on the perpetrators of crimes that the amnesty covers. Systematically, Art. 31, para 1 belongs to the Constitution's Chapter Two, ,, Fundamental Rights and Duties of Citizens”, and provides for a fundamental judicial right to be enjoyed by any accused, viz. ,, Anyone charged with a crime shall be brought before a court within the time established by law.” The essence of that fundamental right lies in the procedural obligation of the Judiciary to ensure that anyone charged with a crime is heard within a reasonable time limit. The Constitutional Court is of the opinion that this essence cannot correlate to any amnesty act whatsoever as an amnesty act is retroactive both when it terminates substantive criminal law-related proceedings that emerge and procedural legal relations that it conditions.
7. Regarding the justification for the submission of the challenged draft Amnesty Act version to the National Assembly, the challenge harbors a suspicion that ,, it covers up the real motives for the passage of this act, viz. the exculpation of senior government officials who served prior to 1 July 2008 ” . The supposition is made to support the challenge of the constitutionality of the Amnesty Act's Art. 1.
The classical principles of law prescribe that no man, a lawmaker included, shall be the judge in his own trial; therefore lawmakers shall not grant amnesty that may cover them; as a rule the will of parliament as a national representative body must be directed to the general wellbeing; a Member of Parliament is a representative of the whole nation and not just of the constituency (Art. 67, para 1 of the Constitution). These principles underlie the constitutional order of any modern democratic state. They were created to be fulfilled and the hypothetical assumption that they will be ignored deliberately is untenable.
In general, propositions for an amnesty to the benefit of the proposing party boil down in principle to the quaestio facti , i.e. to the consideration of the factual situation which matters for the judgment.
The arguments of the now challenged Amnesty Act (Council of Ministers Bill 802-01-90 of 26 November 2008) stress on the purpose of the intended amnesty – ,, to an extent, to take away some of the workload of the Judiciary which has to hear petty crimes trials that often conclude with administrative sanctions and to relieve, insignificantly though, the judgment enforcement authorities ” . The challenge brought to the Constitutional Court claims that such arguments can justify solely measures that will optimize the Judiciary and cannot justify an amnesty and harbors the suspicion that the real arguments are suppressed.
While the Constitutional Court concluded that the examination of the facts and of the legal evidence concerning the parliamentary debate and passage of the challenged Amnesty Act precludes such an assumption, it insisted that the question raised of possible ulterior motives that are the genuine motives in granting an amnesty undoubtedly commits the political mind and stirs up the public attention in the cause of justice and morals.
Председател: Евгени Танчев