Decision No. 9 of 22 October 2013 on Constitutional Case No. 18/2013
The case was instituted by a group of 48 Members of the 42nd National Assembly who approached the Constitutional Court with a challenge of the compatibility of MP Ivan Ivanov upon the assumption of office within the civil service as a Deputy Minister of Interior and his divestment of prerogatives before the expiry of his term of office in Parliament.
The Constitutional Court considered the evidence gathered and the positions of the parties and dismissed the challenge on the following grounds:
Premising on the parliamentary election returns of 12 May 2013 in the Republic of Bulgaria the Central Election Commission announced the elected members of the 42nd National Assembly, Ivan Ivanov being one of them. On 21 May 2013 Ivan Ivanov was sworn in as Member of Parliament as required by Art. 76, para 2 of the Constitution.
On 18 June 2013 the Prime Minister appointed Ivan Ivanov Deputy Minister of Interior, reckoned from the date of the assumption of office. Following the release of the news of the appointment which the Government Information Service uploaded on the Council of Ministers Internet site, the media carried articles that revealed that in the past Ivanov had connections with the SIC Group for which he had worked as the manager of the SIC liaison office in the town of Shoumen. On 19 June 2013 the Prime Minister dismissed Ivan Ivanov as Deputy Minister of Interior reckoned from the same date.
In addition to the Prime Minister’s two orders Ivan Ivanov’s complete file of appointment with the Council of Ministers which delivered it to the Constitutional Court upon the Court’s request comprised Ivan Ivanov’s CV in European format and nothing else. In his personal explanation as per Art. 26 of the Constitutional Court Act the MP concerned said that he had no idea as to how his CV, which he had not lodged in person, had been transmitted to the Council of Ministers.
A Council of Ministers’ letter dated 4 October 2013 and signed by the CoM Secretary General ad interim informed the Constitutional Court that the three aforesaid documents were all that Ivan Ivanov’s track record of appointment and dismissal as a Deputy Minister of Interior contained; also the letter informed the Court that the Council of Ministers did not possess any act that Ivan Ivanov should have signed upon the assumption of office and that if any such existed, it should have been filed at the Ministry of Interior. The letter explained that Mr. Ivanov had not submitted his resignation to the Prime Minister and that his contract of employment had been terminated in pursuance to Art. 19а, para 2 of the Administration Act – upon the judgment of the appointing authority.
An Interior Ministry’s letter dated 8 October 2013 informed the Constitutional Court that Ivan Ivanov never signed an act of assumption of office within the Ministry and that he never obtained a personal badge. Enclosures to the letter comprised copies of forms to be filled in, but were not, for the purposes of the appointment.
Legally the incompatibility of MPs is prescribed at constitutional level by Art. 68, para 1 of the Constitution in tune with the principle of the separation of powers as proclaimed by Art. 8 of the Constitution as its concrete materialization. Thus the Constitution prohibition covers two types of incompatibility: a) the assumption of any office within the civil service, and b) the involvement in activities that the law defines as incompatible with the MP status – see Constitutional Court Decision No. 5/1993 on Constitutional Case No. 6/93. The office of a Deputy Minister should unconditionally be termed as the assumption of any office within the civil service in the sense of the quoted Constitution provision. Art. 68, para 2 of the Constitution provides that if an MP is elected as a minister, he shall cease to serve as an MP during his term of office as a minister. The option is arranged as an exception to the general rule and pertains solely to the expressly designated range of officials. For all other MPs who are appointed within the Executive, the deputy ministers included, the principle-abiding solution of Art. 68, para 1 of the Constitution applies. Thus the conclusion of being a Member of Parliament and a member of the civil service within the Executive branch of power all at the same time except for the cases that are not covered by Art. 68, para 2 of the Constitution shall be a reason for divestment (the suspension of an MP’s prerogatives before the expiry of the term of office) as per Art. 72, para 1, item 3, alternative 2 of the Constitution. Drawing on a prerogative in Art. 72, para 2 of the Constitution the Constitutional Court is competent to rule on incompatibility and to divest an MP on the basis of the reasons that were pointed out.
The constitutional concept of “civil service” in the meaning of Art. 68, para 1 of the Constitution has a different scope and a content that is significantly broader than the concept of “civil servant” under Art. 116 of the Constitution and is legally defined in Art. 2, para 1 of the Civil Service Act (CSA) and relates to the performance by an MP of any functions of the State outside the Legislature (see the Constitutional Court’s Decision No. 4/1993 on Constitutional Case No. 3/93, Decision No. 5/1993 on Constitutional Case No. 6/93, Decision No. 2/1992 on Constitutional Case No. 2/92). Though in principle the issuing of an individual administrative act – the Prime Minister’s order of appointment to a pay-rolled position within the Executive – establishes a relation of employment with a Deputy Minister, the Deputy Minister does not and cannot enjoy the status of a civil servant inasmuch as his status attributes him to the range of explicit exceptions under Art. 3, items 1 and 3 of the CSA. A Deputy Minister is not a civil servant for, among other reasons, he is a member of the Minister’s Political Office and thus he cannot be politically neutral as per the explicit requirement of Art. 116, para 1 of the Constitution and Art. 4, para 2 of the CSA. There exists a Constitutional Court’s ruling to that effect (see Decision No. 11/1998 on Constitutional Case No. 10/98).
However, to assume that a contract of employment subject to the specifics of Art. 19а read in combination with Art. 13, para 3 of the Administration Act, the appointee to the position of Deputy Minister shall, in addition to holding the Prime Minister’s order of appointment, possess an act of assumption of office. From that point in time onwards the appointee will face the Constitution-prescribed incompatibility as per Art. 68, para 1 in the hypothesis where the appointee continues to be a Member of Parliament and that is a reason for the Constitutional Court’s interference.
Regarding the incompatibility of an MP that made up the current case that that was brought to the Constitutional Court, the divestment that this incompatibility entails (i.e. the suspension of the MP’s prerogatives before the expiry of the term of office) would have occurred if MP Ivan Ivanov had acted as a member of the civil service within the Executive branch of power – in this particular case if he had been a Deputy Minister. The formulation of the order by which the Prime Minister appointed MP Ivan Ivanov Deputy Minister of Interior marks the starting point of the appointment which is reckoned from the day of the assumption of office. An act of assumption of office has not been drawn up, respectively has not been signed by Mr. Ivanov. This body of evidence leads to the only possible conclusion from a legal point of view: viz. a procedure to make an appointment to the civil service within the Executive has been initiated but has not been completed. Hence the absence of a reason to assume that the MP has performed any function in the civil service to cause the alleged constitutional incompatibility under Art. 68, para 1 of the Constitution and thus to set a precondition for the earlier suspension of an MP’s tenure by the Constitutional Court. This is sufficient to see the MPs’ claim as untenable and to dismiss it.
Given these facts, the issue of Ivan Ivanov’s release from the post of Deputy Minister of Interior remains unrelatable to the specifics of the case. Hence the irrelevance of a detailed analysis and of an assessment of the content and the requisites of the order of his dismissal. The foundation of the Constitutional Court’s decision was the Court’s conclusion of the inexistence of an act of assumption of the office of Deputy Minister of Interior, a conclusion that was drawn on the basis of the overall assessment of the case-related body of written evidence that was gathered.