Decision No 4 of 4 May 2011 on Constitutional Case no 4/2011
The Constitutional Court has been petitioned by fifty-three Members of Parliament (MPs) with a request that it declares certain provisions laid down in the Electoral Code (IK) (promulgated in the State Gazette (SG) No 9/2011) anti-constitutional on the grounds of being contrary to the universally recognised standards of international law and the international treaties to which the Republic of Bulgaria is a party.
The Court finds the petition meritorious for the following reasons:
1. Article 1 of the Electoral Code sets out its scope and subject matter and the requirements for the election of Members of Parliament and a President and Vice President of the Republic. Without prejudice to the foregoing, these matters are also exhaustively stipulated in Articles 65(1), 93(2) and 94 of the Constitution. The incorporation of the provisions concerned into the Electoral Code is an act of “overwriting” the Constitution, which is unlawful. This means that Article 1(1) of the Electoral Code is partially anti-constitutional.
2. The petitioners contest the provisions according to which the candidates for Members of the European Parliament (MEPs) running in elections for mayors and local councilors as well as voters must have resided in Bulgaria or in an EU member State for at least two years prior to the elections (so-called residency requirement).
The Constitutional Court finds the petition meritorious only in part. The right of citizens to elect representatives in central and local government, i.e. active suffrage, is a fundamental right. Article 42(1) of the Constitution stipulates: “Every citizen above the age of 18, with the exception of those placed under judicial interdiction or serving a prison sentence, shall be free to elect state and local authorities and vote in referendums”. In its jurisprudence the Constitutional Court used to emphasize that the Constitution stipulates (positive and negative) requirements for the exercise of the right to vote per se with a view to ensuring that the electoral right was exercised as intended, i.e. to elect state and local authorities. According to the modern legal doctrine suffrage being a subjective right is universal. This means that any additional requirements (restrictions) apply solely to the act of voting. According to Article 42(1) of the Constitution citizens vote in furtherance of the interests of society. In other words, a link exists between a voter and the community to which he or she belongs and which is governed by elected members of local or central government. This is the traditional rationale underlying the requirement for a voter to be a citizen of the country whose government is to be elected; of an EU Member State in the case of European Parliament elections; or of a certain area in the case of local elections.
This warrants the conclusion that the requirement incorporated into the Electoral Code does not effectively “overwrite” the Constitution insofar as the provisions governing the election of local authorities and MEPs require certain residency conditions to be satisfied. In particular, the exercise of the right to vote is subject to a requirement for voters to have resided in a given area, respectively Member State of the European Union, for a certain period. It should be noted that in the past different forms of residency requirements were a standing feature of national electoral law. Indeed, there is a long tradition of linking the place where a voter may exercise their active electoral right and a set of formal criteria, which have changed and evolved over time in line with the rules governing civil registration matters. In principle, the requirement does not contravene the recognised standards for free and fair elections laid down in international law and the conventions to which the Republic of Bulgaria is a party, and in particular Articles 7 and 21(3) of the Universal Declaration of Human Rights (UDHR), Article 25c of the International Covenant on Civil and Political Rights (ICCPR) and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF). The Code of Good Practice in Electoral Matters adopted at the 51st Plenary Session of the Venice Commission for Democracy through Law to the Council of Europe (5-6 July 2002) expressly notes that the requirement for residency in an area or country for a certain period prior to elections is lawful.
The Constitutional Court finds that the contested requirement does not amount to censure as argued in some of the opinions received. It is neither a prerequisite from which the active right to vote derives nor does it deprive a citizen of that right. In essence, the residency requirement concerns the place where a citizen may vote. Notwithstanding the foregoing, when the law stipulates a requirement for residency periods that are of an excessive duration, i.e. 12 months and two years (see Articles 3, 4 and 5 and paragraph 1(4) and Articles 4(3) and 4 and paragraph 1(3) of the Electoral Code, respectively), then the condition to be satisfied indeed becomes censorious, i.e. a barrier that does not allow citizens to vote. The length of the stipulated periods violates the constitutional principle of proportionality of the requirements for exercising fundamental rights, such as the right to vote. In other words, the length of the residency period as a condition that entitles a citizen to vote is unreasonable and unnecessary.
The standards and recommendations for good practices in electoral matters developed by the Venice Commission for Democracy through Law of the Council of Europe set out the principles of European electoral heritage, including universal suffrage (Code of Good Practice in Electoral Matters). In order to ensure compliance with this principle the cited standards set out a recommendation for the length of the period of residency in an area or country prior to elections not to exceed six months. According to the Venice Commission longer periods are justified only where serving to protect the rights of national minorities. This principle has been replicated in Community law with respect to the election of MEPs. A further consideration to take into account is that the twelve, respectively twenty-four month periods, are not in line with the freedom of movement of people – a fundamental freedom within the European Union.
3. The provisions laid down in Articles 4(3), (4), (5) and (6) of the Electoral Code were contested solely in terms of the requirement for candidates for Members of the European Parliament from Bulgaria and for local councilors and mayors to hold only Bulgarian citizenship, to the exclusion of citizenship of a non-EU Member State.
The Constitutional Court was unable to reach a consensus on the contested matter by a decision of at least 7 votes of the justices. As the vote was split in a 6 to 6 ratio in favour of and against the petition, this part of the motion is dismissed. The decision is based on the following considerations:
Half of the justices consider the petition meritorious. They further maintain that the provisions laid down in Article 4(3), (4), (5) and (6) of the Electoral Code, and in particular the wording “are not citizens of a non-EU Member State” contravene Articles 10, 6(2) and 4(1) of the Bulgarian Constitution. In their opinion the passive suffrage as regards the conditions a candidate must satisfy to run in different elections is governed by the rules laid down in the Constitution. Indeed, Chapter Two “Basic Rights and Obligations of Citizens” does not lay down express rules on passive suffrage unlike Article 42(1), which governs its active counterpart. However, this does not prejudice it as a fundamental right of all Bulgarian citizens. It is therefore unlawful to restrict it on the grounds of arguments relating to the specificity of the statutory arrangements in place, notably the fact that the rules concerned are not included in Chapter Two of the Constitution.
The conditions for the election of Members of Parliament and of a President and Vice President are expressly stipulated in the Constitution. However, the requirements for the election of candidates to other government offices, i.e. local councilors, mayors and Members of the European Parliament from Bulgaria, are not. The lawmaker has determined them in line with the principles of general electoral law. It is unreasonable to assume that compliance with the principles concerned has been achieved solely where the lawmaker has enacted express provisions that govern the eligibility of candidates, i.e. when a set of requirements has been stipulated which entitle a candidate who satisfies them to run in elections. It is beyond the purview and discretionary powers vested in the legislature to determine the requirements for the exercise of passive suffrage insofar as it may thus undermine or restrict the principle of universal suffrage enshrined in the Constitution.
The contested provisions of the Electoral Code introduce different rules for and restrict the passive suffrage, i.e. the right of citizens to vote depending on whether they hold a second citizenship. According to the Constitution the legislative approach of the lawmaker is untoward as Article 25(1) of the fundamental law allows dual citizenship and treats persons who hold such citizenship as equal to Bulgarian citizens in all respects (Article 26(1)). The provisions laid down in Article 4(3) and (5) of the Electoral Code, and in particular the wording “do not hold citizenship of a non-EU Member State” are discriminatory (argument pursuant to Article 6(2) upholding the principle of equality regardless of origin). This is so because according to Article 25(1) of the Constitution dual citizenship may be granted on the grounds of origin only when the national law in force in the country of one of the parents of a child who is not a Bulgarian citizen lays down a provision that is reciprocal to that set out in Article 25(1) of the Constitution.
Creating a link between the restrictions of passive suffrage stipulated in Articles 4(3) and 5 of the Electoral Code and the provision of Article 4(3) of the Bulgarian Constitution is illogical and may not be tolerated from a Constitutional standpoint. Neither will the Constitution tolerate a situation where Bulgaria should take part in building and developing the European Union by granting more rights in the electoral process to citizens of EU Member States who do not hold Bulgarian citizenship than to its own citizens who by virtue of their origin hold dual citizenship from third countries.
According to the remaining six judges the petition is unmeritorious. They maintain that the Constitution lays down a number of conditions upon which the right to run for an elected office, i.e. passive suffrage, may be exercised. Unlike active suffrage, which is governed by the provisions laid down in Article 42(1) of the fundamental law its passive counterpart not subject to express rules such as those set out in Chapter Two “Basic Rights and Obligations of Citizens” of the Constitution, which stipulates the requirements that a candidate wishing to run for and be directly or indirectly elected to a senior central or local government office must satisfy (for example, the directly elected Members of Parliament – Article 65(1) of the Constitution; the President and Vice-President of the Republic – Article 93(2) and 94 of the Constitution; and the Prime Minister or other Cabinet Ministers – Article 110 of the Constitution). In its jurisprudence the Constitutional Court has repeatedly emphasized the very nature of the prerequisites that determine electoral eligibility, i.e. the set of requirements that apply to each candidate running in elections. The Constitution does not stipulate express requirements for being elected to other public offices envisaged therein such as a Member of the European Parliament from the Republic of Bulgaria and local councilors and mayors. According to Articles 42(3), 138 and 139(1) these are within the purview of the legislature, which enacts relevant laws in line with the principle of universal suffrage. In other words, any person who meets the stipulated requirements has the right to run for an elected office. Hence the argument that the contested requirement effectively “overwrites” the Constitution is unfounded. This is so because the fundamental law itself stipulates express requirements for electoral eligibility in respect of the different elected offices a candidate may wish to run for whilst leaving a margin of discretion to the legislature to determine the requirements for other public offices in compliance with Article 10 of the Constitution.
The Constitutional Court has already ruled on the requirement according to which candidates for local councilors and mayors may not have dual citizenship. In its judgment in Case No 21/1995, having conducted an in-depth analysis, the Constitutional Court concluded that the hypotheses set forth in the Constitution that determine whether MPs, the President and Vice-President and Cabinet ministers may hold dual citizenship depend on whether the incumbent of a government office discharges powers in the capacity as a public official. This constitutional stipulation does not prejudice the right of the national lawmaker to enact laws that specify other cases in which the citizenship of another State is a barrier to passive suffrage. This is so because the powers vested in a public office by the Constitution are discharged at both local and regional level. It is not necessary that all hypotheses in this regard be exhaustively stipulated in the Constitution as long as compliance is ensured with the main principle enshrined in the Constitution, which postulates that the relations and governance functions concerned are wholly in the domain of public law. The citizenship of another State is not an extraneous requirement. Where a person wishes to run for a public office it is sufficient that the second citizenship be relinquished. For this reason, the negative requirement essentially does not restrict passive suffrage and is not anti-constitutional. The cited arguments set forth in the judgment of the Constitutional Court are relevant to the case at hand.
The contested provisions do not contradict universally recognised international law standards, including the Conventions to which the Republic of Bulgaria is a party. Article 2 of the Universal Declaration of Human Rights and Article 2(1) of the International Covenant for Civil and Political Rights lay down a requirement for Member States to recognise and safeguard the recognised rights of all persons regardless of race, colour and many other characteristics, to the exclusion of citizenship.
4. The petitioners contest the provision laid down in Article 23(2) of the Electoral Code according to which the Head of the Central Electoral Commission (CEC) is appointed on a proposal from the largest political party or coalition represented in parliament.
The Constitution does not lay down provisions on the Central Electoral Commission. Following the enactment of the current Constitution in 1991, national law has developed in line with certain traditional principles, which the Electoral Code takes into account. According to those principles the composition of the CEC is to be decided on the basis of party-political preference and its Head is appointed by the Head of State, i.e. the President of the Republic, following consultations and due deliberation of proposals received from the political parties and coalitions represented in Parliament (Article 23(1) of the Electoral Code). The Head of the CEC is nominated from the ranks of the Commission and elected by its members on the same grounds on which the members themselves are appointed. The incumbent of the office neither acts as an independent body nor do they discharge specific functions other than those relating to the organisational arrangements enabling the commission to function. The nature of these responsibilities means that the appointment of a Head of the CEC on a proposal from the largest political party or coalition represented in Parliament does not violate any established principles of the Constitution. Furthermore, the powers vested in the CEC are discharged jointly by its Head and the Secretary-General who may represent different political parties or coalitions (Article 15(3) of the Electoral Code). This means that the provision concerned ensures the requisite balance. Hence, in the opinion of the Constitutional Court Article 23(2) of the Electoral Code is not anti-constitutional.
5. According to Article 25(1)(6) of the Constitution the HEAD of the CEC may be dismissed prior to the expiry of their mandate on a proposal from the political party or coalition that nominated them for the position (so-called “recall”).
The contested grounds for the recall of a member of the CEC violates the principle of a mandate in holding a government office and effectively allows officials to be dismissed at the arbitrary discretion of the political entity that put forth their nomination. For this reason, the provision is anti-constitutional. The possibility available to the political party that nominated a member of the CEC to recall them at any time creates uncertainty and dependence based on political considerations. The members of the CEC are not political appointees and their mandate should not depend on the political party that put forth their nomination. They are members of a central body that discharges public functions and in that they carry a great responsibility. It should be emphasized that following their appointment CEC members no longer serve a political party but act independently and impartially in electoral matters. Should the link to a political party fail to be severed the CEC will not be able to discharge the functions vested in it by law. This conclusion is corroborated by the Constitution itself, which lays down clear principles on the freedom of the mandate of government officials (Article 67) and political pluralism (Article 11).
Only by being able to discharge their functions freely and independently from political influence can the members of the CEC collectively act as an independent and impartial body, organise and conduct free and fair elections in line with the principle laid down in Article 3 of the Additional protocol to the CPHRFF.
6. The petitioners allege that the methodological guidelines and methodology for calculation of election results are outside the purview of judicial review, which is a violation of the fundamental law. In the opinion of the Constitutional Court this is indeed the case. The methodological guidelines for electoral committees are not a statutory act and as such are excluded from the scope of judicial review. In other words, they are not covered by the rule laid down in Article 120(2) of the Constitution. Unlike the guidelines, the methodology for calculation of election results lays down rules, which may effectively alter electoral votes into mandates, including those of the President of the Republic and mayors. The methodology should be developed and adopted in compliance with the Electoral Code. Furthermore, it concerns rights and legal interests and is therefore subject to a requirement for promulgation in the State Gazette pursuant to Article 120(2) of the Constitution.
The contested provisions lay down the procedure for challenging certain administrative decisions of the CEC before a court of law and do not lay down a derogation clause. The newly enacted Electoral Code in its entirety makes it clear that the approach followed by the lawmaker is to include express derogations where it wishes to preclude the possibility of an administrative decision being challenged in court. In the case at hand no such derogation has been included. This warrants the conclusion that the contested decisions of the CEC, except for the methodological guidelines referred to in Article 23(1)(3) of the Electoral Code, are subject to judicial review in accordance with the general procedure laid down in the Administrative Procedure Code. Therefore, the alleged contradiction between the enacted provisions and Article 120 of the Constitution is unfounded.
7. The petitioners contest the enacted provisions concerning the right of citizens to vote in Parliamentary elections abroad, maintaining that they are contrary to the Constitution and to the international treaties to which the Republic of Bulgaria is a party. According to the petition the provisions concerned are not in line with the principle of equal treatment and prejudice the rights of Bulgarian citizens residing abroad in violation of Articles 6(2), 10 and 26(1) of the Constitution.
According to the Bulgarian Constitution the right to vote in national parliamentary elections abroad derives from a tradition aiming to ensure Bulgarian nationals residing or travelling outside of Bulgaria can exercise their active right to vote. In furtherance of that tradition, the Electoral Code lays down detailed provisions on the arrangements for voting overseas in parliamentary, presidential and European Parliament elections. At the same time, it has to be clearly recognised that voting abroad entails certain specificities – election campaigns are conducted in a different country, there are no electoral districts etc. This warrants the conclusion that the exercise of the right to vote in another country is by default specific, which means that it is governed by distinct rules. The differences with implications for the electoral process aim to ensure compliance with Article 26(1) of the Constitution according to which all Bulgarian citizens, regardless of where they are in the world, are able to exercise their constitutional right to vote. There is no possibility to make arrangements for a preferential casting of ballots abroad as formerly enacted legislation does not make provisions for setting up electoral districts outside of Bulgaria.
The Constitutional Court finds that Articles 44(2), 74(4)(1) and (2) and 166(5) and (6) of the Electoral Code do not contravene the Constitution. However, they are not in line with Article 3 of the Additional Protocol to the CPHRFF, which requires free elections to be held at reasonable intervals “under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” as well as Articles 2, 7 and 21(3) of the Universal Declaration of Human Rights and Article 25 of the International Covenant for Civil and Political Rights.
8. The petitioners further contest the interest-free deposit, i.e. the statutory sum of money to be paid into a dedicated account at the Bulgarian National bank for the purposes of a political party or an initiative committee participating in presidential, parliamentary European Parliament from elections (Article 78 of the Electoral Code). The amount of the deposit to be paid in each case (BGN 10 000) is reimbursable upon certain conditions laid down by law (Article 79). The petitioners allege that the payment of a deposit as a condition for participation in parliamentary and local elections is not envisaged in the Constitution and that as such it is censorious some political parties and candidates because under certain conditions the deposits concerned may be retained. On those grounds they maintain that the provisions are discriminatory and constitute a breach of the principle of equality before the law, equal suffrage and political pluralism (Articles 6(2), 10 and 11 of the Constitution).
The petition is meritorious in part.
Article 6(2) of the Constitution does indeed prohibit any privilege or restriction of rights on the grounds of property status. However, that provision applies to natural persons only unlike Articles 78 and 79 of the Electoral Code, which apply to political parties and initiative committees. In the wider context of the Electoral Code, and particularly when compared to the maximum amount of the funds to be spent on election campaigns (Article 155 of the Electoral Code), the interest-free deposit is equal to the maximum amount of an individual donation to be made to a political party, coalition or initiative committee (Article 151(1) and (2) of the Electoral Code). In the opinion of the Constitutional Court the amount concerned does not pose a barrier to the participation of recognised political entities in elections provided they have a broad support base and are committed to pursuing responsible politics at national level. According to the jurisprudence of the Constitutional Court electoral deposits are legitimate from the point of view of the fundamental law insofar as they ensure that in the context of political pluralism a limited number of political parties compete in elections. In other words, its function is to ensure that the electoral competition is open to only serious contesters only. It also consolidates the party-political system and safeguards it against parties that fragment the political space. It is therefore reasonable that barriers be placed before political candidates without a discernible chance for success in the form of a deposit to be reimbursed solely in the case of an electoral victory (Judgment No 8/2001 in Case No 10/2001).
At the same time, the Constitutional Court is of the opinion that the deposit should be in a reasonable amount as a condition for political pluralism. Reasonable should be construed in light of the conditions for reimbursement of deposits and the so-called “threshold” for reimbursement. According to the contested provision (Article 79(2) of the Electoral Code) in order to be reimbursed a political party must receive at least 2% of the valid votes at national level or, where a candidate for a Member of Parliament has been nominated by an initiative committee – at least ¼ of the district electoral quota. In the case of candidates for President and Vice-President or a Member of the European Parliament the threshold for deposit reimbursement is at least 2% of the electoral vote.
The threshold is equal to half of the traditional four-percent ceiling for entry into Parliament stipulated in national electoral law, which does not fully conform to the recommendations of the Venice Commission (Council of Europe). Setting a threshold is not against the law per se but for reimbursement purposes it should be set at a reasonable level (Code of Good Practice in Electoral Matters). The Constitutional Court takes the view that in terms of denoting electoral success the two-percent threshold does not necessarily indicate a failed candidate but rather one with a significant contribution to democracy as the percentage translates into a significant number of citizens who have supported the programme, policies and intentions of the candidate concerned.
A higher reimbursement threshold also contradicts other provisions laid down in law. For example, political parties that are not represented in Parliament but received at least 1% of the electoral vote in general elections are entitled to an annual subsidy under Article 26 of the Political Parties Act. According to the enacted amendments of the Electoral Code such parties will no longer be able to have their deposits reimbursed. The introduction of a two-percent threshold is not in line with the principle of political pluralism. Hence the provision laid down in Article 79 of the Electoral Code is anti-constitutional in part.
9. Article 264(1) of the Electoral Code lays down the procedural rules for contesting the legality of conducted elections for MPs and MEPs, including individual members of the national and European Parliament, in line with the procedure laid down in Article 150(1) within the period stipulated therein. The petitioners allege that the rules concerned are contrary to the Constitution because the powers vested in the Constitutional Court under Article 149(1) of the fundamental law do not envisage a procedure for contesting the legality of the election of elected Members of the European parliament whereas Article 149(2) thereof prohibits granting or detracting from the powers vested in the Constitutional Court.
The powers vested in the Constitutional Court are stipulated in a number of articles of the fundamental law and not only in Article 149(1) thereof as alleged by the petitioners (cf. Articles 72, 97 etc.). According to Article 149(1)(7) it rules on disputes concerning the legality of the election of members of the National Assembly. The provision was enacted in 1991 when the new Constitution was adopted and has not been subsequently amended to take into account the new realities following Bulgaria’s accession to the European Union. The latest series of amendments (SG No 18/2005) had implications for a number of provisions, including Article 42 of the Constitution, to which a third paragraph was added laying down the rules for electing Members of the European Parliament from Bulgaria according to a procedure stipulated by law. In other words, the Constitution contains an express reference to the European Parliament. In 2005, when the “European” amendment of Article 42 was enacted, 149(1)(7) of Chapter “Constitutional Court” was not altered because it was generally understood that a blanket provision had been enacted, which applied equally to the election of MEPs from Bulgaria. This and the deliberations prior to the enactment of the Election of Bulgarian Members of the European Parliament Act (repealed) warrant the conclusion that the second amendment of the Constitution (2005) and the recently enacted Electoral Code are underlined by the understanding of the lawmaker that MEPs from Bulgaria have the status and ranking of Members of the National Assembly. This argument is supported by the EC Treaty insofar as the European Parliament is composed of representatives of the citizens of the European Union (Articles 9 and 14(2) of the EC Treaty). The fact that MEPs, including those from Bulgaria, represent the peoples of the EU means that Article 149(1)(7) of the Constitution, fully applies to the election of MEPs from Bulgaria and hence Article 264 of the Electoral Code per se is not anti-constitutional.
10. The provisions concerned, which are laid down in 21 paragraphs, are transitional in nature and apply only to the elections for President and Vice President of the Republic to be conducted in 2011. They also provide for online voting on a trial basis at a maximum of 5 electoral districts in Bulgaria and abroad, respectively.
In principle, online voting is neither anti-constitutional – being a form of remote casting of ballots practiced in other countries (for example voting by post) – nor does it contradict any of the international treaties to which the Republic of Bulgaria is a party. However, the secrecy of the ballot presents challenges of an entirely different nature. The safeguards envisaged in the Electoral Code raise reasonable doubts as regards the risks relating to the electronic transmission and storage of data. Moreover, the voluntarity and genuineness of cast votes are not sufficiently safeguarded. The Electoral Code allows a vote to be cast more than once (Article 12) in blatant contravention of the classical “one person, one vote” electoral rule. No controls have been set in place as regards the option to cancel the electronic vote and vote subsequently under the general electoral procedure (Article 14). This requires capacity to store information about electronic votes cast until the end of the day of elections. Furthermore, according to the Electoral Code should the secrecy of a single vote cast online be compromised the entire online vote is to be cancelled (Article 19). In effect this is tantamount to disenfranchisement, which the Constitution expressly prohibits. According to the Constitutional Court the enacted provision does not safeguard the right of citizens to vote and the secrecy of the ballot in line with fundamental principles laid down in the Constitution (Article 10) and hence finds paragraph 11 of the Election Code anti-constitutional in its entirety.
11. The petitioners contest the amendment of Article 19(1) of the Local Governance and Local Administration Act (ZMSMA) whereby the number of local councilors in municipalities whose population is less than 30 000 people is reduced.
The local council is the representative body of local government. As such it is essential for democratic rule as it ensures the equal representation of citizens on local councils on a prorated basis depending on the number of votes cast for each councilor. Reducing the number of local councilors below a certain threshold compromises the representativeness of the principle body of local government and jeopardises the principles of a democratic state and political pluralism. The fewer local councilors that sit on a local council the higher the probability the council will be composed of the local leaders of political parties. This means less opportunity for a systemic or partial change in political elites at local level at regular intervals – a development that, in extreme cases, may result in local councilors becoming irreplaceable and exposing the system of local government to a risk of becoming an oligarchy. This warrants the conclusion that local councils composed of fewer members in large municipalities, unless new standards for representation are introduced in parallel, constitutes a breach of the constitutional principles of the democratic State and representative democracy (Article 11 of the Constitution). Hence the contested amendments are anti-constitutional.
12. The petitioners further contest the newly enacted Articles 37a and 37b ZMSMA, which introduce the legal concept of a “group” as an alliance of councilors within each local council. However, neither the chapter of the law concerned nor the ZMSMA in general stipulates a requirement for local councilors to belong to a group. The contested amendment fails to specify the determinant characteristics on which membership of a particular group depends. In addition, should a local councilor leave a group their rights would be significantly curtailed. For example, the enacted provisions envisage levying sanctions for a conduct that is neither a requirement of the law nor a statutory obligation of individual councilors. This means that they constitute a violation of the principles of a democratic State (Article 4(1) of the Constitution).
It is possible to make an analogy to Parliamentary groups. However, the latter are expressly provided for in Article 99(1) of the Constitution and the applicable rules governing their composition and proceedings are laid down in the Rules on the Organisation and Proceedings of the National Assembly (Article 13(1) of the fundamental law). According to the cited provisions, parliamentary groups are formed on the basis of the electoral lists of candidates registered with the Central Electoral Commission, i.e. they are linked to the political parties/coalitions to which a Member of Parliament belongs. However, constitutional law expressly prohibits legislating by analogy, particularly where this causes rights to be restricted.
13. The petitioners also contest the amended Article 39(1) ZMSMA, which provides for reducing the number of deputy mayors appointed by the mayor of the district or municipality. In line with constitutional principles and the meaning and intended purpose of local government (first sentence of Article 136(1) of the Constitution), which is to ensure citizens participate in the governance of the municipality, the Court neither sees the rationale for the proposed reduction nor finds any arguments in the Constitution that support the arrangement concerned. In a municipality, the functions of the executive power are vested in and discharged by the mayor (Article 139(1) of the Constitution). They do so in accordance with the law, the regulations adopted by the local council and the decisions of the population (Article 139(2) of the Constitution). However, the Constitution does not prescribe specific rules for the structure and organisation of the executive power at local and central level (i.e. of the local and central government). In other words, the Constitution neither restricts the number of deputy mayors nor that of deputy Prime Ministers (Article 108(1) of the Constitution).
Local government means that citizens can be involved in decision-making in all matters of local significance (Articles 2 and 3 of the European Charter of Local Self-Government). The matter concerning the number of deputy mayors in municipalities and their functions is of local significance, which should be decided within the framework of local self-governance. The decision to be made must take into account the needs of the specific municipality, its budget etc. The applicable statutory provisions are laid down in Article 21(1)(2) ZMSMA according to which the headcount and structure of the municipal administration or of a district or mayoralty are approved by the local council acting on a proposal from the mayor of the municipality/district/mayoralty concerned. This fully applies to the number of deputy mayors and their functions. Local government bodies should be able to freely decide on their administrative structure with a view to ensuring they function efficiently. This means that the contested amendments represent an attempt on the part of the lawmaker to intervene into local government, which the Constitution does not tolerate.
14. Lastly, the petitioners contest the possibility for the mayors of municipal districts to be elected directly. The Constitutional Court has already ruled on the matter, and in particular on the proposal that the mayors concerned are appointed from the ranks of the local council on a proposal from the mayor of a municipality for a term that coincides with that of the local council (Judgment No 12/1999 in Case No 12/1999 on the record of the Constitutional Court). According to the cited judgment the contested provision is not anti-constitutional.
The Constitution does not lay down rules on the mayors of municipal district and districts as a unit in the administrative division of the country’s territory. In other words, the incumbent of a mayoral office discharges the functions of a municipal body. According to Article 139(1) of the Constitution the mayor of a municipality may either be elected directly by the population or indirectly by the local council in accordance with a procedure laid down by law. Given the cited provisions of the Constitution, the Court is of the opinion that the contested arrangement is in line with the rules laid down in the fundamental law, which allow the mayors of a district to be elected by the municipal council. However, the Constitutional Court notes that the contested provision laid down in paragraph 19(8) of the Electoral Code is a step back in the process of decentralization of local government and decreases the democratic legitimacy of municipal bodies.
Председател: Евгени Танчев