Decision No 8 of 29 June 2011 on constitutional case no 5/2011
Proceedings were instituted on the case on a petition filed by 52 Members of Parliament (MPs) setting out a request for the Constitutional Court to declare paragraph 55 of the Law amending and supplementing the Penal Procedure Code (ZID NPK) (promulgated in the State Gazette (SG) No 32/2010), which revokes Article 369a NPK, anti-constitutional. The petitioners allege that the contested provision has been promulgated without being enacted by Parliament.
The petition is hereby dismissed for the following reasons:
An appraisal of the facts of the case demonstrates that acting in accordance with the powers vested in it under Article 87(1) of the Constitution the Council of Ministers has exercised its right to legislate and submitted to Parliament a Law amending and supplementing the Penal Procedure Code (ZID NPK). The proposal includes paragraph 57 (promulgated as paragraph 55) that amends Article 369a laying down the rules for the accelerated procedure envisaged in Article 371(2) ZID NPK. In accordance with the established parliamentary procedure and following deliberation by the competent parliamentary groups, the draft law was endorsed at first hearing. No proposals for further amendments were received from MPs in the interim period between the two hearings, which is stipulated in the Rules of Procedure of the National Assembly (PODNS), including proposals that concern paragraph 57 ZID NPK. On 19 March 2010 the Legal Affairs Committee submitted to Parliament a reasoned report on the second hearing of the draft law. Page 29 of the report expressly indicates that the Legal Affairs Committee does not approve the provision set out in paragraph 57 of the draft law and proposes that it be replaced by the following: “Paragraph 57 Article 369a shall be repealed”. During the second hearing of the law in plenary the chair of the LAC presented a report on the draft law. The stenographic records from the plenary session of 25 March 2010 set out a literal transcription of the deliberations relating to paragraph 57. In addition the proceedings in the parliamentary hall have been taped and a video recording is available and has been uploaded on the website of the National Assembly. There is a minor discrepancy between the video recording and the stenographic record, which does not have any implications for meaning.
From a legal standpoint and prior to conducting an appraisal of the facts of the case, it should be noted that according to the consistent jurisprudence of the Constitutional Court the constitutional review of the process of lawmaking may be based on the stenographic records from the plenary sessions of Parliament. They set out information that allows the Court to appraise compliance with various requirements such as whether a decision was adopted with the necessary quorum, the number of hearings leading up to the enactment of a statutory act, specific provisions seconded by Parliament, their precise content etc. Stenographic records are official documents with a recognised evidential value in respect of the statements, facts and findings set out therein.
The petition by which the MPs request that paragraph 55 ZID NPK be declared anti-constitutional sets forth arguments based on certain provisions of the preamble to the Constitution. As noted earlier, the petitioners allege that a statutory provision has been promulgated in the State Gazette without having first been enacted by Parliament. Those petitioners who have signed the petition but have not participated in the deliberations prior to the enactment of the paragraph concerned maintain that a text, which radically departs from that proposed by the Council of Ministers, has been endorsed at second hearing and subsequently enacted in the State Gazette. They incorrectly allege that the chair of the Legal Affairs Committee, acting in breach of Article 74 PODNS, failed to read out the provision concerned. The stenographic record shows that this is not the case. It expressly indicates that the LAC failed to endorse the initially proposed wording and that the amended version of paragraph 55 was read out loud in plenary in its entirety.
The report on the second hearing of the ZID NPK further expressly states that the LAC does not approve the proposed wording and includes the exact wording of the proposed amendment. In plenary the LAC Chair read the proposed amended wording of paragraph 55 out loud in its entirety. In accordance with Article 59(1) in conjunction with Article 74(4) PODNS the MP chairing the plenary session had to first put the proposal made by the LAC to the vote (Article 59(1)(3)) and then put the provision as originally worded to a second vote only in case the amended version failed to be endorsed (Article 59(1)(7)). An analysis of the stenographic records warrants the categorical conclusion that the plenary vote conforms to the rules of procedure laid down in the PODNS. None of the facts of the case nor any other evidence support a conclusion that the provision concerned was endorsed as originally worded in the proposal submitted to Parliament by the National Assembly as alleged by the petitioners. This is further corroborated by the stenographic record setting out the sequence of events and the actions of the rapporteur chairing the plenary session and by the words of the Speaker of Parliament, which have been analysed separately. Moreover, the stenographic records setting out the proceedings relating to other provisions of the same draft law show that when the wording proposed by the party that submitted the draft law is put to vote this is expressly stated both by the rapporteur and the Speaker of Parliament.
The above warrants a conclusion that there is no discrepancy between the provision endorsed in plenary session and that promulgated in the State Gazette and hence the alleged breach of Articles 4(1), 84(1) and 88(1) and (3) of the Preamble of the Constitution should be dismissed on the grounds of being unmeritorious.
Председател: Евгени Танчев