decision nO. 1
Sofia, 11 January, 2024 г.
Prom. SG, 5/16 Jan 2024
The Constitutional Court composed of:
Pavlina Panova, President,
Mariana Karagyozova-Finkova,
Konstantin Penchev,
Phillip Dimitrov,
Tanya Raykovska,
Nadezhda Dzhelepova,
Atanas Semov,
Krasimir Vlahov,
Yanaki Stoilov,
Sonya Yankulova, judges,
in the presence of recording clerk Rositsa Simova examined in closed session on 11 January 2024 Constitutional case No.17/2023 г., reported by judge Tanya Raykovska.
The proceedings are under Art. 149, para. 1, item 1 of the Constitution of the Republic of Bulgaria.
The case was initiated on 13 October 2023 at the request of the President of the Republic of Bulgaria for giving a binding interpretation of Article 147, paragraph 2, Article 148, paragraph 1, item 1 and Article 148, paragraph 3 of the Constitution of the Republic of Bulgaria in their interrelation on the question "What is the duration of the term of office, its beginning and end, when a constitutional judge is elected (appointed) and assumes office after the renewal of the composition of the Court provided for in Article 147, paragraph 2 of the Constitution?".
The petitioner arguments the need of a binding interpretation based on his assessment of a significant constitutional problem related to the passivity of the National Assembly, which in "several successive legislatures have perpetuated its practice of inaction by failing to fulfil its obligations under the Constitution and the laws to promptly replenish and renew the membership of bodies whose members have expired terms of office. "He emphasises that this passivity on the part of Parliament is manifested also as regards the renewal of the Constitutional Court, the composition of which is formed through the participation of several different bodies at a specific time and in a specific manner.
According to the President, in the absence of a binding interpretation on the term of mandate of a constitutional judge who is elected (appointed) later than intended, and in light of the constitutional requirement of periodic renewal of one-third of the judges, the President of the Constitutional Court will have to choose between two competing principles – the duration of the term of mandate, and the periodic renewal of each quota. The petitioner points out that "since it could hardly be justified that the President of the Constitutional Court is empowered unilaterally to hold that the term of office shall be terminated after less than 9 years, the past practice is in favour of full duration. Whether this is the correct application of the Constitution and how it should be proceeded in similar cases could only be clarified through interpretation by the Constitutional Court itself."
The petitioner argues that "when the electing (appointing) authorities fail to fulfil their "right - duty" to fill their own quotas in due time through inaction without objective justification, this conduct would clearly violate the requirement of periodic renewal, once every 3 years, of the composition of the Court, established in Article 147, paragraph 2, second clause, should the appointed (elected) judges enjoys the full 9-year individual term of mandate. This would, however, affect the periodic renewal which guarantees the quota principle, which guarantees the independence of the Court and the separation of powers". The petitioner emphasises that "The principle of periodic renewal is intended to ensure balance of powers within the constituting of the Court [...] violation of the principle could lead to the simultaneous appointment of all four judges from a single quota, formally still preserving the institutional independence of the Court, but this is clearly not what was intended by the provisions of the Constitution [...] Therefore, in these cases too, priority should be given to renewal at the expense of the individual mandate of the judges."
According to the President, when, due to inactivity on the part of the electing (appointing) authority, a Constitutional Court judge was elected (appointed) and assumed office after the renewal of the composition of the Court, provided for in Art. 147, para. 2 of the Constitution, "the beginning of their term of mandate should be established at the precise moment when the renewal was due, which the electing (appointing) authority has omitted. Thus, the constitutionally determined 9-year length of the term of mandate which every Constitutional Court judge is due, would not be altered, but rather it would be adjusted to its objective constitutional beginning, which guarantees the continuity of the exercising of powers – i.e., the day following the expiration of the term of mandate of the judge whose mandate was terminated as per Art. 148, para. 2, item 1 of the Constitution."
With a Ruling of 7 November 2023, the Constitutional Court admitted for consideration on the merits the request of the President of the Republic of Bulgaria to give a binding interpretation of Article 147, paragraph 2, Article 148, paragraph 1, item 1 and Article 148, paragraph 3 of the Constitution of the Republic of Bulgaria.
In accordance with the opportunity presented them, written legal opinions were submitted by: the Minister of Justice, the Supreme Bar Council, the Union of Lawyers in Bulgaria, Prof Emilia Drumeva, PhD, and Blagoy Deliev, PhD.
They all agree that when a Constitutional Court judge is elected/appointed and assumes office after the periodical renewal of the Court as provided for in Article 147, para. 2 of the Constitution, he or she shall hold office for the unexpired part of the 9-year term from the time of the due periodical renewal of the Court every three years. These opinions and legal opinions argue in favour of the basic constitutional provisions in the constitution of the Constitutional Court - the "quota principle" and the requirement of periodic renewal of the Court's composition – and for prioritising these fundamental provisions over the 9-year term rule for a Constitutional Court judge.
According to the Minister of Justice, the fundamental principle to which the interpretation of all other rules relating to the constitution of the Constitutional Court must be subject is the quota principle, and that its observance is correlated with the principle of the periodic renewal of the Court's composition. The Minister referred to the consistent practice of the Constitutional Court in the Interpretative Judgement No. 8 of 2000 in Case No. 9/2000, Judgement No. 10 of 2000 (on the premature termination of the mandate of a Constitutional Court judge due to resignation), Interpretative Judgement No. 13 of 2010 in Case No. 12/2010, Judgement No. 1 of 2004 in Case No. 1/2004 and Judgement No. 1 of 2006 in Case No. 8/2005. The Minister of Justice argues that violation of the prescribed "rotation system" would affect the proper construction of the Court and result in an arbitrary ratio of representatives from the three quotas in violation of the constitutional mandate. On the length of the term of office of a Constitutional Court judge, the Minister of Justice argued that it was not linked to personality, as "the 9-year term can have one or more holders". It is contended that "irrespective of the reasons for the delay in the election/appointment of a judge by any of the authorities under Article 147, para. 1 of the Constitution, the objective delay in assuming office should have the natural consequence of reducing the time during which the elected/appointed judge holds office".
The Supreme Bar Council, the Union of Lawyers in Bulgaria and Prof. Emilia Drumeva, PhD share the petitioner's view that the guiding constitutional principle in giving a binding interpretation on the question posed by the President should be that of the mandatory renewal of the Court's composition every three years, and all three opinions develop two main arguments in this direction. Firstly, it is pointed out that the scheme for the first renewal of the Court after its establishment, stipulated in § 2 of the Transitional and Final Provisions of the Constitutional Court Act (CCA), provides that two-thirds of the judges of the first composition of the Court shall have a term of office of less than nine years, emphasizing the fact that this provision was adopted by the Seventh Grand National Assembly, albeit now functioning as an ordinary National Assembly, i.e. they all allow for the possibility of a shorter term of office for a judge of the Court in order to comply with the imperative requirement of periodic and rhythmic renewal. Further, all three legal opinions contain arguments based on the jurisprudence of the Constitutional Court in its Judgment No. 8/2000 in Case No. 9/2000, wherein it was held that in the event of premature termination of the term of office of a judge of the Constitutional Court in the hypothesis of Art. 148, para. 1, item 6 of the Constitution, the judge elected/appointed in the deceased judge’s place completes the term of office of the latter rather than commence a new 9-year term.
The Supreme Bar Council, in their legal opinion, have paid particular attention to the "blatant disregard for the principle of rule of law", stipulated in Art. 4, para. 1 of the Constitution, by the nominating authority who, through inaction renders impossible the fulfilment of the required simultaneous renewal of the composition of the Court every three years from the respective quotas.
Blagoy Deliev, PhD, makes a comparative analysis of several European legislations, comparing two alternative models relevant to the constitution of the Constitutional Court/Constitutional Council in the mentioned countries – the presence of an explicit rule for the periodic renewal of the composition, in which case it should be implemented even at the cost of reducing the individual mandate in case of premature termination or delayed election/appointment, on the one hand, and on the other – the absence of a rule for renewal during a certain time interval, in which case the prescribed duration of the individual mandate should be respected in all cases. An overview of the debates during the voting of the interpreted constitutional provisions by the Grand National Assembly is also provided. The author of the legal opinion argues that the interpreted provisions, in their interrelationship, stipulate both the term of mandate of the judges and the continuity of the Court's operations as mutually guaranteeing principles that together ensure the independence of the Constitutional Court. The possibility of the nominating authorities' "postponing the moment of subsequent rotation through their own inaction" is rejected. It is reasoned that the commencement of the 9-year term of office when a constitutional judge is elected/appointed and takes office after a renewal of the composition of the Court should be fixed at the time when the appointment or election was "constitutionally due", i.e. the renewal that was omitted. According to Deliev, PhD, this "determines its logical legal end in the hypothesis of Art. 148, para. 1, item 1 – the periodic renewal after 9 years, formally the oath of the judge stepping in (Art. 11, para. 3 of the CCA). Technically, the time of delay will always reduce the term of office of the appointed judges."
The Constitutional Court, having considered the arguments in the petition and the submitted written legal opinions, in order to deliver a ruling, took the following into account:
Art. 147, para. 1 of the Constitution stipulates that the Constitutional Court shall consist of twelve judges, one-third of whom shall be elected by the National Assembly, on-third shall be appointed by the President of the Republic, and on-third shall be elected by the joint assembly of the judges of the Supreme Court of Cassation and the Supreme Administrative Court.
As per Art. 147, para. 2, first clause and 2 of the Constitution, the term of mandate of the Constitutional Court judges is 9 years, without the right of re-election or re-appointment. A separate ground for the termination of the mandate, the Constitution explicitly states in Art. 148, para. 1, item 1, "expiration of the prescribed term", which is the general case. Under Art. 148, para. 3 of the Constitution, upon termination of the mandate of a Constitutional judge, a new judge from the same quota shall be appointed or elected in the place of the former within one month.
Art. 147, para. 2, third clause of the Constitution stipulates the rule, according to which the composition of the Court shall be renewed every three years from each quota in the order provided for by the law. This order is specified in §2 of the Transitional and Final Provisions of the Constitutional Court Act. After 3 years of the first term have passed, the composition of the Court shall be renewed by lot with two representatives from the quota of the National Assembly and one each from the quota of the President and the judiciary (i.e. four judges shall only have a 3-year term), and after 6 years have passed since the initial constitution of the Court, the renewal shall be with two judges from the quota of the President and one each from the quota of the National Assembly and the judiciary (i.e. for four of the judges the term shall be 6 years). This rule is clear and is expressly stated in §2 of the Transitional and Final Provision of the CCA in order to set in motion the renewal scheme established in Article 147, paragraph 2, third clause of the Constitution. The fact that the transitional provision was adopted in 1991, the year of the adoption of the CCA, and has not been altered in subsequent amendments to the Act, should not be overlooked. The Constitutional Court Act was drafted and adopted by the Seventh Grand National Assembly, albeit functioning as an ordinary National Assembly after the Constitution had entered into force. It should also be noted that the same Grand National Assembly that debated and adopted the Constitution also debated and adopted the CCA within only a few weeks. The concepts and fundamental provisions embodied in the Constitution (which for the first time introduced and regulated the functioning of the system of constitutional justice through a Constitutional Court) were manifested in the laws that the same Grand National Assembly adopted immediately after the Constitution, including the Constitutional Court Act.
The scheme for the renewal of the composition of the Court, explicitly and clearly outlined in the CCA, provides for the possibility of a Constitutional Court judge having a term of mandate shorter than 9 years, beyond the hypotheses stipulated in Art. 148, para. 1, item 2 – 6 of the Constitution. That, in and of itself means that such an eventuality has a constitutional support and is permissible according to the very constitutional legislator who created the concept of the composition of the Constitutional Court, its formation and renewal. As stated in Interpretative Judgement No. 8 of 2000 in case No. 9/2000, regarding the legal solution about the renewal of the Court as per §2 of the Transitional and Final Provisions of the CCA, "it should be inferred from the text that this renewal of the composition of the Court should continue in the same manner every three years thereafter, namely: four judges simultaneously from each of the three quotas". In this judgement the Constitutional Court emphasises that, should it be held that the judge, elected/appointed under Art. 148, para. 3 of the Constitution in place of a judge whose term of office has been terminated prematurely (e.g. due to death), has a "full 9-year term", then the envisaged renewal every three years by four judges from each quota could not take place. One of the guiding principles for the constitution of the Constitutional Court as a body, the quota principle stipulated in Article 147, para. 1 of the Constitution, would be violated. It reflects the constitutionally established fundamental principle and the adopted constitutional mechanism for separation of powers. Each of these powers has its own quota upon the constitution of the Constitutional Court, equal to the quotas of the other powers, and this way the said principle ensures the balance of powers in the constitution of a continuously operating and continuously renewing Constitutional Court as the guardian of the supremacy of the Constitution.
Along with the quota principle, the constitution of the Constitutional Court as a body is also based on the fundamental constitutional principle of the periodic renewal of its composition – Art. 147, para. 2, third clause of the Constitution. Should the disregarding of this principle be allowed, that would entail one of the three powers prevailing in the constitution of the Court at a certain point, which in turn would "thwart" the constitutionality control (Interpretative Judgement No. 8 of 2000 in case No. 9/2000).
The Constitutional Court, in Judgement No. 13 of 2010 in case No. 12/2020, has espoused the following interpretation of the legal term "mandate" according to the Constitution: "…in constitutional law, the mandate is the exercise of authoritative powers (delegated powers, if the emphasis is on the grant of power by the person conferring or establishing that power) in an area of the three branches of government - legislative, executive and judicial - for a specified period of time (term). Both elements – delegated powers, and a term – characterise the mandate. The former is substantial, the latter – temporal". A mandate in a democratic state governed by the rule of law optimises state governance, making it predictable while guaranteeing the stability and independence of the body for a certain period of time. The Constitutional Court has noted that the legal framework of mandates of the various authorities is different, and has outlined the differences between an individual mandate and the mandate of a collective body.
Under the Constitution, the mandate of the Constitutional Court judges is 9 years, and it is the longest among the constitutionally established mandates of the state bodies. This justifies the rhythmic and periodic (every three years) renewal of the composition, so that there is no "fossilization" of legal understandings, as well as to ensure continuity.
The implementation of these constitutional prescriptions in their entirety is only possible if the election/appointment of constitutional judges from the respective quotas is done in concert with the periodic renewal every three years. This was understood by the members of the Grand National Assembly, who also adopted the Constitutional Court Act, and in §2 of its Transitional and Final Provisions, giving preference to periodic renewal at the expense of the established length of the judge's term of office.
The reading of the above-mentioned basic constitutional provisions concerning the constitution of the Constitutional Court as a whole reveals that they have the potential to determine the guidelines for the answer to the interpretative question posed in the present proceedings – concerning the duration of the term of empowerment (its beginning and end) of a constitutional judge elected after the time provided for under Article 147, para. 2 of the Constitution, consistent with the periodic renewal of the composition of the Constitutional Court.
The doctrine has clarified that the fundamental, leading constitutional principle is the periodic and rhythmic renewal of the composition of the Constitutional Court – Article 147, para. 2, third clause of the Constitution. This renewal of the composition of the Court (together with the supplementary provisions of the CCA) concerns the rules of procedural equity and its goal is to avoid abrupt changes in the composition of the Court and ensure continuity, on the one hand, and to provide opportunity for the new parliamentary majorities to be reflected in the profile of the Constitutional Court, on the other. The renewal of the composition of the Court is a constitutional imperative. None of the bodies participating in the constitution of the Court could be deprived of the right or liberated from the duty of participating in the renewal of the Court every three years. This is clearly deductible from the imperative and unconditional phrasing of the provision of Art. 147, para. 2, third clause of the Constitution. This provision establishes a constitutional order demanding a periodical renewal of the Court, which the electing/appointing bodies are obliged to implement - they are bound comprehensively and directly by this order of values.
In view of the specific hypothesis referred to in the petition for interpretation (non-election by the National Assembly for two years of judges to the Constitutional Court) and in the context of the basic position adopted in Article 147, paragraph 2, third clause of the Basic Law - clarified above, it is constitutionally permissible for the political independence of the National Assembly to decide upon the election of a constitutional judge (in place of a judge whose term of mandate was terminated on the basis of Article 148, paragraph 2 of the Basic Law) to be limited so as to prevent the violation of the constitutionally established principle of the scheme of renewal of the Court's composition every three years. In order to ensure the realisation of this established scheme, the constitutional legislator has limited the discretion of the elective/appointing bodies, including the National Assembly, by fixing the periodicity of renewal to which the exercise of the constitutive authority of these bodies regarding the renewal of the Constitutional Court is linked - always every three years.
The basic provision in the Constitution for periodic and rhythmic renewal of the composition of the Constitutional Court delineates the constitutional limit of the National Assembly's discretion to decide on the election of new Constitutional Court judges in place of those whose term of mandate has expired. The discretion of the nominating authorities cannot be exercised in a manner that would place it beyond the constitutional time limits imposed by the fundamental constitutional solution in favour of the periodic renewal of the Court's composition.
The Constitutional Court has emphasised that "in a constitutional democratic state, the overcoming by the constitutional courts of the traditional tolerance of representative bodies going too far, is a trend and the national Constitutional Court does not deviate from it. The concept of a limited discretion of anyone to whom the sovereign has entrusted the exercise of state power, including Parliament, is not contrary to democracy and the rule of law in a democratic state" (Interpretative Judgement No. 12 of 2022 in Case No. 7/2022).
The requirement of periodic renewal and the quota principle are among the basic provisions governing the constitution of the Constitutional Court. The interpretation of all other provisions relating to this constitution must be subject to it. This also applies to the provision of Article 147, para. 2, first clause of the Constitution (Interpretative Judgment No 8 of 2000 in Case No 9/2000), the interpretation of which is sought in the present proceedings. The duration of the term of office (its beginning and end) of a constitutional judge elected after the renewal of the Constitutional Court provided for in Article 147, para. 2 of the Constitution is also related to this rule. The matter of the time limits of the term of mandate of the newly appointed judge and the reduction of the term by the time of delay of the election/appointment authority after the renewal of the Court, is not expressly settled.
If the electing/appointing authority is committed to the constitutionally established order, to the authority of its appointees and to its own authority, it would act with due regard to the statutory timing and deadlines for renewal of the Court.
According to Art. 147, para. 2, first clause of the Constitution, "the term of office of judges of the Constitutional Court shall be 9 years". This provision was conceived (and edited) in the context of strict adherence to the periodicity to which the exercise of constitutive powers is linked in terms of the renewal of the Constitutional Court by each empowering institution - always every three years. The Constitutional Court has also given categorical priority to periodic renewal over tenure of office in its Interpretative Judgment No 8 of 2000 in Case No 9/2000, whereby it was held that, where the term of office of a judge of the Constitutional Court is terminated before the expiry of the term of office on account of death, another judge shall be elected or appointed from the relevant quota in place of the deceased judge for the remainder of the term of office of the latter. This has also been the approach of the Court in the case of premature termination of the term of office of a constitutional judge in the hypothesis of Article 148, para. 1, item 5 (incompatibility, judge of the Court elected as President of the Supreme Court of Cassation) and Art. 148 para. 1, item 2 (resignation) of the Constitution, the newly elected judge having a term of office until the end of the term of the dismissed judge from the same quota.
The basic provisions embodied in the first and third sentences of the provision of Article 147, para. 2 of the Constitution meet and reconcile when, upon the expiry of the 9-year term of office of a constitutional judge, the person duly elected/appointed from the relevant quota takes the oath of office in his or her place. Thus, the timely fulfilment of the constitutional obligation of the constitutive body to elect or appoint Constitutional Court judges (in place of judges whose term of mandate expires) contributes to the simultaneous respect of the values protected by the provisions of the first and third sentences of Article 147, para. 2 of the Constitution.
The balance between two provisions, equally significant to the constitutional order of values, would be disturbed, when one of the constitutive bodies wantonly and without commitment to the order of values, fails to duly (at the constitutionally determined moment) exercise its constitutive competence regarding the composition of the Constitutional Court. In the factual situation thus created ("unconstitutional situation" using the terminology of the Interpretative Judgement No. 12 of 2022 in Case No. 7/2022), as is the present case (neither the 47th, nor the 48th, nor the 49th National Assembly formed the political will to elect Constitutional Court judges in place of the judges whose term of office had expired), the conflict between the aforementioned basic provisions established in the first and third sentences of Article 147, para. 2 of the Constitution is evident. In such cases, there is a legitimate interest in providing a binding interpretation which, by definition, should analyse and weigh what is envisaged in the constitutional provisions being interpreted, especially when they embody a choice between values. Preference should be given to that interpretation which unfolds the legal effect of the relevant constitutional norms to a high degree, closest to the solution adopted therein, in terms of the balance between the principles protected by the provisions of the first and third sentences of Article 147, para. 2 of the Basic Law.
The socially required and justified solution of the problem caused by the failure of the National Assembly to (duly) exercise its constitutive competence with regard to the composition of the Constitutional Court, could be reached through the method of practical reconciliation, which implies that the legal positions on the principles in tension should be subject to a compromise that is as fair as possible in their full realisation. A similar approach of balanced assessment is adopted in the practice of the Bulgarian Constitutional Court (Judgment No. 7 of 2019 in Case No. 7/2019).
Espousing the understanding that a Constitutional Court judge elected after the renewal of the composition of the Court provided for in Art. 147, para. 2 of the Basic Law, should enjoy a "full 9-year term" (as per the terminology of Interpretative Judgement No. 8 of 2000 in case No. 9/2000) would mean disregarding the effect of the constitutional order of values on the exercise of political discretion of the Parliament and thus barring the fulfilment of the constitutionally delegated power (the constitutionally delegated right-duty) of renewal of the composition of the Court in the manner prescribed the Constitution, i.e., barring the renewal of the composition of the Court from each quota every three years. A view according to which a Constitutional Court judge elected after the renewal of the composition of the Constitutional Court provided for in Article 147, para. 2 of the Constitution enjoys a full term of 9 years cannot be supported as an acceptable compromise, as its pursuit would lead to inconsistency with the constitutionally prescribed scheme of periodic renewal of the composition of the Court in the prescribed manner every three years.
As was already pointed out, the scheme of renewal of the composition of the Constitutional Court is a constitutional solution that creates an obligation for the electing/appointing authority to exercise its constitutive competence in a timely manner (at the time specified by the Constitution). This obligation is commensurate with the significance of the constitutional guarantee, as a prevalence of the principle of periodic renewal of the Court's composition over the length of an individual judge's term of office.
Hence, upon invoking the principle of the equitable balance in the contingency of a conflict between legal principles, the principle of periodic renewal takes precedence (in order to ensure that the function of renewing the composition of the Court should be carried out in accordance with the procedure prescribed in the Constitution and the CCA). Such an interpretative approach fits within the protective mechanism of respect for the established democratic constitutional order, applicable in exceptional situations of inaction on the part of any of the constitutive bodies, having the potential to violate the basic requirement of periodic and rhythmic renewal of the composition of the Constitutional Court envisaged in the Constitution. To assume that such a protective mechanism is excluded from the spirit and reason of the Constitution, would mean to ignore the importance of the principle of periodic renewal and to fail to appreciate the impact of the constitutional order of values on the exercise of political discretion, which would be constitutionally impermissible.
The Constitution and the CCA do not allow for the untimely, beyond the limits of a reasonable delay, exercise of the powers of the bodies constituting the personal composition of the Constitutional Court, since to do so would be to tolerate a failure to comply with constitutional imperatives, in a constitutional state governed by the rule of law. Any hypothetical constitutional conflict, as is the present case, requires the protection of the public interest to be brought to the fore.
Adopting such an understanding of the meaning of the constitutional provisions subject to interpretation makes the protection of the principle of periodic renewal possible in a mandate-friendly manner, because it does not abolish the 9-year term of empowerment as provided for in the Basic Law, but links its implementation as a comprehensive process to the periods of renewal of the composition of the Court provided for in the Constitution. The term of mandate under Article 147, para 2, first clause of the Constitution is consistent with the two fundamental characteristics of democratic governance – temporal limit and electability. On the one hand, it reflects the inherent necessity of any democracy for the time-limited functioning of the public authority through a specific personal composition, which is a guarantee against any possible "distortions" – abuse of power – as a result of a temporally unlimited exercise of the functions assigned to it (Judgment No. 12 of 2022 in Case No. 7/2022). On the other hand, the constitutionally established starting point of this term serves as a protection against arbitrary application of the constitutionally envisaged solution of periodic and rhythmic renewal of the composition of the Constitutional Court, by encouraging its timely renewal.
The envisaged periodic renewal of the composition is a function of the objective expiration of the 9-year term of office of the Constitutional Court judges, the mandate of one third of whom will expire at a specific moment, which will trigger the constitutional obligation to elect and appoint new judges.
As per Art. 11, para. 3 of the CCA, in the hypothesis of Art. 148, para. 1, item 1 of the Basic Law, the legislator has indicated that the termination of the term of office of a Constitutional Court judge shall be announced by the President of the Court and shall occur upon the taking of the oath by the newly elected or newly appointed judge. The purpose of this provision of the CCA is, in general, to commit, as far as possible, the beginning of a judge's term of office to the end of the term of another judge of the same quota (Article 148, para 1, item 1). Therefore, it can be concluded that the aforementioned provisions of the Constitution - Art. 147, para. 2 and Art. 148, para. 1, item 1 and para. 3, as well as those provisions from the CCA, which are constitutionally supported, subject to interpretation in their interrelation, envisage both the temporal limit of judges’ term of mandate, and the continuity of the Court's activities as relevant principles, each of which guarantees the other, and, as a whole, the independence of the body.
As is evident from the foregoing, the commitment of a judge's term of office (of 9 years) to the time of renewal every three years was originally intended by the constitutional legislator. There is no way that the bodies charged with the constitution of the Constitutional Court can be granted (de facto) discretionary power to change the time of renewal through their own inaction. Deriving discretionary power to determine the manner of exercising a constitutionally conferred right-duty, from the very failure of its exercise, is constitutionally impermissible.
In the present case, the Constitution defines the beginning of the term of office, and this is the time of any particular renewal to which the relevant empowered public authority is bound. Thus, the Constitutional Court holds that the overall construction of the provisions of Art. 147, para. 2, Art. 148, para. 1, item 1 and para. 3 are based on the constitutional limits of the constitutionally defined term of office, with its beginning and end being set at the relevant moments of the renewal of the Court's composition.
A guiding principle in constitutional interpretation is that the interpretation of specific provisions must necessarily extend to any other constitutional provision relevant to it. A constitutional provision cannot be interpreted in isolation, because the Constitution itself is a unity of legal constructs and principles. It is through the prism of this unity that constitutional interpretation seeks to avoid or resolve ambiguities and inconsistencies that may arise in the application of individual constitutional provisions. Therefore, in answering the interpretative question posed in the present proceedings, the Constitutional Court takes into account also the relationship of the periodic, rhythmic renewal of the composition of the Constitutional Court by the relevant quotas, including the National Assembly.
The constitutional scheme of periodic renewal of the composition of the Constitutional Court aims to overcome to a high degree the possible speculative use of the political conjuncture in order not to undermine the mechanisms of constitutional democracy. This is what the rationale of this scheme consists of.
An interpretation according to which a constitutional judge elected after the renewal of the Court provided for in Article 147, para. 2 of the Constitution enjoys a full 9-year term of office would not be consistent with the democratic principle because it excludes the right (and the obligation) of the relevant National Assembly to participate in the renewal of the composition of the Court with its allocated quota after the expiration of another three years. The importance attached by the constitutional legislator to the rhythmic renewal of the composition of the Constitutional Court is evident from the framework of renewal by lot every three years during the first six years, adopted in the Constitutional Court Act (adopted by the Seventh Grand National Assembly and in unity with its expressed will as a constitutional legislator), where again the principle of rhythmic renewal is prioritised, as a constitutional value competing with another one – that of tenure, in order to ensure the fulfilment of the function of the Constitutional Court as a guarantor of the supremacy of the Constitution.
Guided by the foregoing considerations and pursuant to Article 149, para. 1, item 1 of the Constitution, the Constitutional Court
RULED:
A Constitutional Judge elected or appointed after the renewal of the composition of the Constitutional Court provided for in Article 147, para. 2, third clause of the Constitution shall exercise his or her powers only for the remainder of the term of office from the constitutionally due moment of renewal of the composition of the Court.
Председател: Павлина Панова