Decision No. 13
Sofia, July 26, 2024
(Promulgated SG No. 66 of 6 August 2024)
The Constitutional Court, sitting in the formation of:
Chairperson:
Pavlina Panova
and Members:
Mariana Karagyozova-Finkova
Krasimir Vlahov
Konstantin Penchev
Yanaki Stoilov
Filip Dimitrov
Sonya Yankulova
Tanya Raykovska
Borislav Belazelkov
Nadezhda Dzhelepova
Desislava Atanasova
Atanas Semov,
and
Recording Secretary Desislava Penkova reviewed on 26 July 2024 in closed session Constitutional Case No. 1/2024 reported by judges Pavlina Panova, Mariana Karagyozova-Finkova, and Sonya Yankulova.
The proceedings are under Article 149, para 1, item 2, in conjunction with Article 153 of the Constitution of the Republic of Bulgaria.
Constitutional Case No. 1/2024 was initiated on 8 January 2024 upon a request of the President of the Republic of Bulgaria seeking to establish the unconstitutionality of the amendments made to Article 64, paras 2, 3 and 4; Article 65, para 1; Article 91b, para 2; Article 99, paras 5 and 7; Article 102, para 3 item 3; Article 11o; Article 129, para 3; and Article 130, para 3 of the Constitution, by way of §§ 3, 5, 7, 8, 9, 14, and 15 of the Law Amending and Supplementing the Constitution. Constitutional Case No. 1/2024 further reviewed the request made by 48 MPs of the 49th National Assembly seeking to establish the unconstitutionality of the amendments made to Article 23; Article 64, paras 2, 3, and 4; Article 65, para1; Article 84, item 16; Article 91b; Article 93,para 2; Article 99, paras 5 and 7; Article 102, para 3, item 3; Article 110; Article 117, para 2; Article 126, paras1, 2, and 3; Article 127, items 5 and 6; Article 128; Article 129; Article 130; Article 130a; Article 130b; Article 130c, items 1 and 4; Article 132a, Article 4; Article 133; Article 150, paras 2 and 3 of the Constitution as amended by §§ 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 of the Law Amending and Supplementing the Constitution and by §§ 22 and 23 of the Transitional and Final Provisions of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023; hereinafter LAS Constitution).
The President and Members of Parliament put forward detailed arguments about the unconstitutionality of the amendments made to the constitutional provisions referred to above.
By way of a ruling dated 8 March 2024 the Constitutional Court admitted the requests made by the President and the MPs seeking to establish the unconstitutionality of the amendments made to the said provisions of LAS Constitution and joined the two cases for a single review on the merits.
Acting upon an invitation to do so, the following presented written opinions and legal advice: the Minister of Justice, Supreme Court of Cassation, Supreme Administrative Court, Prosecutor General, Supreme Judicial Council, Supreme Prosecutorial Council, Supreme Bar Council, Union of Bulgarian Jurists, Bulgarian Judges’ Association (Съюз на съдиите в България), the Bulgarian Association of Judges (Българската съдийска асоциация), Association of the Prosecutors in Bulgaria, Chamber of Investigators in Bulgaria, Institute for Market Economics, Foundation ‘Institute for Law and Justice’, Prof. Vasil Mrachkov, PhD in law, Prof. Rayna Nikolova, PhD in law, Prod. Dr. Daniel Valchev, Prof. Dr. Pencho Penev, Prof. Dr. Snezhana Nacheva, Dr. Borislav Tsekov, Ass. Prof., Dr. Blagoy Deliev, Dr. Dilyan Nachev, Dr. Simona Veleva, Dr. Hristo Ormandzhiev, Dr. Hristo Paunov, Ass. Prof. Blagovest Punev and Rumen Nenkov.
Unlike its traditional approach, the Court finds it appropriate not to reproduce this time the conclusions made in the presented written opinions and legal advice, in view of the volume of this decision and as these are accessible on the Court website. The Court thus resorts to a general conclusion that the prevailing opinions are of unconstitutionality of the challenged amendments and supplements to the Constitution.
Having deliberated over the arguments presented in the requests, the submitted written opinions and legal advice, and having considered the relevant legal regulation, to adjudicate, the Constitutional Court has established the following.
Amendments have been made to the Constitution of the Republic of Bulgaria by way of the Law Amending and Supplementing the Bulgarian Constitution. As the Court pointed out in its ruling of 8 March 2024 on Constitutional Case No. 1/2024, the amendments to the Constitution adopted by the National Assembly are subject to constitutional review even though this is not expressly provided for in the Constitution. Review by the Constitutional Court of the adopted by the National Assembly amendments and supplements stems from the established constitutional principles, the constitutional justice as enshrined in modern constitutionalism, the basic powers granted by the Constitution to every constitutional jurisdiction and the express regulation in the Fundamental Law of the terms and procedure as regards such amendments (individual chapter in the Constitution that deals specifically with these issues, namely Chapter Nine).
The Constitutional Court finds it pertinent to specify the following as regards the points of reference for adjudicating in this case.
А. In the opinion of judges Pavlina Panova, Mariana Karagyozova-Finkova, Tanya Raykovska, Atanas Semov, Yanaki Stoilov and Sonya Yankulova
Before stating their position on the challenged constitutional provisions as effected by way of the Law Amending and Supplementing the Constitution, this group of judges deems it necessary to make the following clarifications regarding the terms and procedure for the National Assembly amending and supplementing the Fundamental Law as envisaged when it was endorsed back in 1991.
These judges reiterate, while supporting in whole what has been stated in the ruling of 8 March 2024 on admissibility, that the Law Amending and Supplementing (LAS) the Constitution is a special law adopted through a procedure that is different from the regular legislative procedure. They further maintain that this and other particularities of the legislative act under discussion adopted by the representative body stem from the special nature and power of the Constitution whose validity as Fundamental Law is legitimized by a consensus of values among a specific sovereign political community. Identifying the Constitution as a legal act with the will of the sovereign is relevant to the approach in these proceedings to selecting arguments for the validity of the constitutional amendments made by a transitional political majority what every National Assembly is, attaching the required added value to the democratic arguments alongside the legal reasoning. Being both a legal and political document, Constitutions stand at the crossroad of the legal and political systems and society – they are a legal act, yet they belong to the field of politics as well.
The reference constitutional framework when exercising constitutional review of constitutional amendments made by the National Assembly covers both requirements as regards following a procedure formally set forth in the Constitution (which renders the review one pertaining to formal amendments), and substantive limitations relating to the key questions, namely what the National Assembly cannot constitutionally do by way of a law amending and supplementing the Constitution? Together, these requirements constitute the terms and procedure for a National Assembly adopting amendments and supplements to the Constitution.
Assessing the constitutional amendments effected by the LAS Constitution that have been challenged with the two requests should take into account first and foremost the characteristics of the constitution of a democratic constitutional state, namely that such a constitution is in line with the democratic credentials; that it is premised on equality in the dignity and rights of every individual, i.e. mutual recognition and equal treatment of every individual’s interest and the interests of the rest of the members of the political community, something which is at the heart of the consensus of values (agreement for justice); that the constitution is a Fundamental Law establishing a constitutional order; that it is not merely a catalogue of legal norms but represents instead a normative unity where all its elements interact and changes to some of its elements affect other elements as well, and this interaction may be both positive (when the functionality of the constitution is enhanced) and negative (when its functionality is obstructed); and last but not least, that what is expressly stated and what legitimately follows from it are elements of the constitutional text of identical value.
Further on, it is essential to consider whether the constitutional amendments take into account the reference constitutional views that have governed the initial constitutional text, including the dominating constitutional views and understanding of the constitution (there are no universal constitutions, and every constitution refers to a particular moment in history, to a particular political community and territory). For the Bulgarian Constitution of 1991 this means an understanding of the constitution as a legal constitution, without neglecting its nature of a political document, something which the deliberations in the Grand National Assembly confirm; the affirmed for the established constitutional order basic values and principles as a projection of the social agreement that legitimizes every democratic constitution and justifies its validity as a Fundamental Law, and hence the parameters of validity of every constitutional amendment carried out by a power established by the Constitution. Attention should also be paid to the way the constitutional provisions, including changes to the original text, are framed. A well-designed constitution, respectively well-designed changes to it, do not guarantee success, yet an ill-framed constitution or amendment to it will most likely be destined to a failure. Further on, it is necessary to consider the initially adopted constitutional paradigms which may appear to have been deformed in the practice of politics. Finally, the specific context in which the constitutional amendments are done must be considered since it is always different.
As regards the procedure followed by the National Assembly for adopting a law amending and supplementing the Constitution under Article 155 of the Fundamental Law
Every constitution is created to be in force for generations ahead, to establish a solid political order and guarantee sustainable and effective governance. To justify their authority before the generations following their adoption, the constitutions of the modern democratic states comprise mechanisms for change and adaptation to the growing dynamics of social, political and economic changes that mark complex societies like the ones in the end of 20th century and the beginning of 21st century. To be a sustainable Fundamental Law, a constitution should not be easy to change. At the same time its sustainability supposes a certain degree of adaptability of the constitution. A constitution that does not comprise mechanisms allowing for changes to be made by the next generations to reflect to some degree the demands of their time, is premised on an erosion of its legitimacy and hence loss of validity as a Fundamental Law. To preserve the supremacy of the basic norm, namely the constitution, while at the same time ensure its flexibility, the creators of constitutions, in particular during the second half of the last century and in the context of the introduced distinction between original and derivative constituent power, have established a special procedure for exercising the derivative constituent power of making constitutional amendments as well as clauses to protect substantial parts of the constitution. The complexity of this procedure for making changes as translated in special constitutional rules varies according to the participants in the procedure, the required majorities, and the time limits for adopting constitutional amendments. Regardless of the differences however, establishing such a special procedure aims always at guaranteeing that often-changing transitionary parliamentary majorities may not change the very essence of the democratic constitution by merely abiding formally by the requirements of the regular legislative procedure.
In line with this established status quo in modern constitutionalism, the Bulgarian constitutional legislature has dedicated an individual chapter in the 1991 Constitution, namely Chapter Nine which regulates how constitutional amendments are made and a new constitution is adopted. Changes follow either of two tracks. Constitutional judges comment that these two tracks are premised on the understanding of demarcating between the constituent power in which the sovereignty is construed through a Grand National Assembly, and the derivative constituent power which is delegated to a National Assembly under Article 153 of the Constitution, i.e. a representative establishment (transitional, temporary political majority) formed following general elections.
A National Assembly amending and supplementing the Constitution is a formal change (follows formal terms and procedure) in the text of the constitution, whereby even whole provisions in the text may be deleted. Constitutional changes are demarcated by their nature and scope in the constitutional doctrine and case-law of the constitutional jurisdictions. Thus, different notions are used such as partial ‘revision’, constitutional ‘corrections’, amendments, supplements, or full ‘revision’, adoption of another (new) constitution etc. Some of the constitutions of the modern democratic states provide for a relatively complex procedure for amendments, which often involves various participants and requires direct intervention by the titulary of the state authority by means of elections or a referendum. The terms and procedure for constitutional changes by a Grand National Assembly stipulate that the draft of a new Constitution or of amendments of the Constitution in force should be reviewed by the incumbent National Assembly which based on this draft must take a decision to hold elections for a Grand National Assembly (Article 159, para 2 of the Fundamental Law). This, in addition to the complex terms and procedure for amending and supplementing the Constitution by the National Assembly (Articles 154 and 155 of the Fundamental Law), renders the Bulgarian Constitution of 1991 a ‘hard’ one. The idea of a constitution being a ‘hard’ law is the idea of a reliable law, and it is such partly because it is hard to change, with all consequences of this.
The Constitution of 1991 uses different language to regulate the different tracks for making changes to the Constitution, by a National Assembly and by a Grand National Assembly respectively, which highlights the fact that the rules governing those changes are not simply a procedure but rather a projection of the due democratic process based on substantial characteristics of the constitution of a democratic constitutional state governed by the rule of law.
The constitutional changes effected by the National Assembly are expressly referred to as ‘amendments and supplements to provisions of the Constitution’ (Article 153). A different phrasing is used in relation to a Grand National Assembly in Article 158. Thus, pursuant to item 1, ‘A Grand National Assembly shall adopt a new Constitution’, while pursuant to items 2 to 5, a Grand National Assembly shall resolve the issues referred to therein.
On constitutional level the initiative for launching the procedure under Articles 154-155 of the Constitution, which is different from the regular legislative procedure, is referred to as an initiative to ‘amend and supplement’ and it is an element of the terms and procedure for adopting constitutional changes by the National Assembly. The name of the act whereby the national Assembly carries out constitutional changes is referred to as a ‘constitutional amendment bill’ (Article 155 of the Constitution).
When regulating the terms and procedure for constitutional changes by a Grand National Assembly, the constitutional legislature uses different wording: ‘draft of a new constitution’ or a ‘proposed amendment to the existing Constitution’ according to Article 159, para 2 of the Constitution. Regarding the acts adopted by a Grand National Assembly, a generic term is used: ‘acts of the Grand National Assembly’, respectively ‘new constitution’ or ‘act whereby the existing Constitution is amended’ or a ‘bill to introduce a change in the territory of the country’ (Article 158, item 2; Article 159, para 2 of the Constitution).
This manner of regulating constitutional amendments by a National Assembly is premised on the understanding adopted by the modern constitutionalism that certain flexibility of the constitution should be guaranteed as a prerequisite for its sustainability. The reference point of the constitutional legislature is to ensure the space required for forming consensus so as to introduce up-to-date dimensions of the social agreement, which is at the heart of the original wording of the basic norm, built in line with the standards of democracy, equality, justice, and human dignity. The focus of the constitutional legislature is clearly discernible – the authorized may not enjoy greater powers than the authorizers who have consented to be governed but only as long as they obey their own common will, defined through a consensus of values, and recorded in the positive legal order through the basic norm developed throughout its existence.
A careful reading of the provisions of Article 152, para 2 and Article 155 of the Constitution reveals the endeavours of the constitutional legislature to grant a well-measured discretion to the people’s representation as such both as regards the scope of issues to be resolved, excluding those within the competence of a Grand National Assembly, and the fixing of time limits within certain periods of time. As regards the required voting majorities for adopting a constitutional amendment bill, the possibility for applying a declining majority following an express chronology is introduced. The rules set forth in Article 154, para 2 and Article 155 of the Fundamental Law in relation to time limits and majorities are a projection of the democratic beginning of the legislative procedure for adopting a Law Amending and Supplementing the Constitution by the National Assembly.
The rule of Article 155, para 1 that a constitutional amendment requires a majority of three quarters of the votes of all Members of the National Assembly in three ballots on three different days is further developed in the provisions of Article 154, para 2 and Article 155, para 2 of the Fundamental Law, in order to ensure the due democratic procedure in the parliamentary republic. The National Assembly, standing closest to the titulary of state authority in the chain of democratic legitimacy, is granted with the discretion to fix the time limits of its actions within a certain period of time – from one to three months for review of a constitutional amendment bill introduced by the subjects referred to in Article 154, para 1 of the Constitution (Article 154, para 2), and from two to five months in case the required majority of three quarters of all Members of Parliament to pass the bill at first reading has not been achieved. Furthermore, the constitutional legislature has envisaged that should a bill receives a smaller majority, but not smaller than two-thirds of all Members of Parliament, the bill may be reintroduced (the so-called ‘second’ first reading from the required three according to Article 155, para 1 of the Constitution). In fact, a declining majority is envisaged, which when achieved at the ‘second’ first reading of the bill, is established as the applicable required majority for the next two readings. However, the possibility envisaged for the regular legislative procedure in the provision of Article 88, para 1, second sentence of the Constitution, namely that the National Assembly may resolve by way of exception to hold more than one ballot during a single session, is firmly excluded. The provision of Article 155, para 1 is clear and unambiguous – the National Assembly shall adopt a constitutional amendment bill at three readings on three different days.
The National Assembly enjoys discretion as regards certain parameters of its actions but within frameworks set forth by the constitutional legislature. This discretion is in line with its character and responsibilities and takes into account the fixed time limits of its term of office and the limited substantive jurisdiction so as to support the reforms undertaken by a transitional representation established through general elections that may appear to be an effective forum for constructive political interaction in support of the sustainability of the Fundamental Law.
As regards the fact that the changes proposed during the review of the constitutional amendment bill introduced by the National Assembly (during a committee or a plenary session) go beyond its scope, it should be pointed out that in the regular legislative procedure this assessment of conformity is made by an internal body of the National Assembly, namely a committee. The parliamentary practice shows that this assessment may be subject to speculations, and the risk exists of replacing public interests with closely group or private ones and achieving this shortly by way of a single legislative act. At first glance this appears highly improbable with a constitutional amendment bill as the effect of such a legislative act of the National Assembly is produced only in the long term, yet such a risk exists in fact as the possibility of arrangements for mutual services to achieve the required majority cannot be ruled out.
Hence, formal adherence alone to the established constitutional requirements as regards the procedure for adopting a constitutional amendment bill cannot secure its validity as a legal norm. Failure to abide by these requirements in the course of reviewing and voting on any law is deeply reprovable, but especially so when this is established in case of adopting a constitutional amendment bill. It is further important to point out that strict compliance with the constitutional rules by the National Assembly in the process of adopting constitutional amendments does not render the latter valid solely on this ground. Along the argument which is often brought up that the assessment of the ‘legislative’ facts falls within the sphere of work of the political representation, it is worth reminding the role of the method under discussion here for amending and supplementing the Constitution in a democratic constitutional state. Establishing a procedure for constitutional amendments by the National Assembly is aimed at reconciling possible contraposition by the governed (in a particular historic moment) to the actions of the governing and demonstrates a striving for stable governance. Changes effected by the National Assembly are admissible but only following terms and procedure sanctioned by the titular of the state authority, and where the procedure is not additionally complicated in a way that makes these changes impossible. Thus, the constitutional judges do not share the view of the applicants that the provision of Article 155, para 1 of the Fundamental Law has the authority of an ordinance as regards compliance with the established requirements for majorities and the National Assembly voting on the constitutional amendment bill at every stage of the specific legislative procedure.
To summarize, the judges reiterate that the provisions of Article 154, para 2 and Article 155 of the Constitution do not require an excessively long period for the National Assembly to act but rather the opposite: first, submitting a proposal and voting on it are related acts, subsequent steps in a single procedure, and they should not stand too much afar in time. The maximum as laid down by the constitutional legislature is three months as of the date the proposal has been submitted for first reading and voting, and five months for a fresh review and voting (‘second’ first vote) if the bill put to a first vote fails to garnish the support of three-quarters of all MPs. Furthermore, the maximum time limits referred to in Article 155, para 2 of the Constitution serve as a condition to apply the so-called declining majority. It is but the discretion of the National Assembly to establish the time limits for the second and third reading.
In addition, the judges point out that procedure-wise constitutional amendments by the National Assembly may be carried out by a majority of three-quarters or two-thirds of all MPs and each of the prescribed majorities may be applied by the National Assembly to the second and third reading depending on how feasible it is to ensure the required majority. In this way the titulary of state authority, the people that creates the Constitution, has conditioned changes to the Constitution on support by a sufficiently large majority of the MPs – three-quarters of all MPs, failing that at least two-thirds of all MPs. The meaning of this constitutional provision is clear – all constitutional amendments made by the National Assembly must garnish the support of a majority of two-thirds of all MPs, and this is considered decisive for the purpose of the type of constitutional amendments adopted by [a regular] National Assembly. These changes to the Fundamental Law are binding on all if they have complied with the substantive constitutional limitations and do not trespass on the field of competence of a Grand National Assembly.
As regards the substantive limitations applicable to constitutional amendments adopted by the National Assembly
The constitutional judges pay special attention to what has been mentioned in the beginning, namely that in addition to the view that the constitution is both a legal and a political document, the interrelatedness of the elements of the substantive context of the constitutional order (the substantive constitution) and the formal constitution is essential to understanding the constitutional genesis, including this of constitutional amendments. This is the logic followed by the legislature of the Bulgarian Constitution of 1991, as confirmed by the shorthand minutes of the debates in the Grand National Assembly. Actual conflict situations were discussed that affected the society at large at the time of establishing the constitutional order and risks of eroding the democratic mechanisms when that order was put to work. This is why the substantive constitution is also an important element of the context in which the assessment as to the constitutionality of changes made to the Constitution should be made. This means basically to take into account the political unity epitomized in the modern nation state, the set of (mostly but not solely) basic institutions, a system of social relationships and the fundamental political objectives as the substance of the constitutional order.
Against the emerging global trend where constitutional jurisdictions are called more and more often to assess and not infrequently declare constitutional ‘changes’ made by parliamentary majorities invalid, the legal constitutionalism may not ignore the substantive changes that in practice limit the effect of the constitutional norms. Even more so since around the globe a striving is observed of transitional political majorities to overcome on national level the effect of judgments of the constitutional jurisdictions by resorting to the toolbox of the constitutionalism itself, including constitutional changes.
The judges point to the all this to underscore that, especially in proceedings as the ones at hand where not a conventional law but a law amending and supplementing the Fundamental Law of the country within the meaning of Article 153 in conjunction with Article 158 of the Fundamental Law must be assessed as to its constitutionality, the question is not simply to complete the formal legal analysis with a political one, but to provide a reasoning that deals with the deeper social context of the normative constitutional development and constitutional changes. The highest constituting right of the citizenry is the right to adopt the constitution of its political unity or change it. Resolving issues arising in relation to such a complex and multilayered phenomenon may hardly be limited within the space of formal legal arguments and further presupposes democratic arguments. Such a reasoning remains within the legal framework but is not limited to analytical reference to legal norms, thus remaining intrinsically connected to the formal constitution (a similar approach has been applied in the Constitutional Court case-law, cf. Decision No. 9/2016 on Constitutional Case No. 8/2016). In fact, it is not a question of choice since both the legal and the democratic perspectives are equally required. The judges underscore that understanding the genesis of a constitutional order (i.e., understanding its substance) allows to distinguish between elements of the constitutional order whose change aims at improvement and reforms, and elements whose change has the effect of transforming basic values of a constitution and the identity of the constitutional order.
The Constitution, through the values enshrined in it and the in-built dispute resolution mechanisms, makes a social impact, and performs its integrational and constituent function. What the substantive constitution tells us is that conflicts do occur that test the boundaries of perseverance of the institutions and political subjects and their ability to adapt to new demands. However, these conflicts could under certain conditions consolidate the constitutional order. Amending and supplementing the constitutional text is connected to such an improvement of the constitutional order’s potential to manage such conflicts in the community when neither the purpose of the established constitutional subjects or the political goals are being challenged but rather the intrinsic constitutional dynamics are redirected towards a more efficient realization. However, when a conflict threatens the very substance of the constitution, even if it is not always discernible, i.e. the essence of the agreement in the political community, then the part of the constitution which translates that agreement is also threatened, and hence its value ‘hard’ core. In such cases constitutional amendments are transformative in nature and seek to make a wholesome revision and not just to reform the constitutional order.
Thus, the question of the substantive limitations in carrying out constitutional reforms by a National Assembly (or what the National Assembly cannot constitutionally do with such changes) should be reviewed in the context of what has been said above.
The constitution is intended to implement the idea of constitutionalism that the social contract may ensure governance of the people solely under the dominance of their common will and deter the public authority (the state) to which they delegate (yet remain its only titulary) its implementation so that the core of the social contract, namely freedom and equality in dignity and the rights of every individual (justice) and all basic values arising from it, be preserved and established as a supreme for both the state and the citizenry rights of political unity. The constitution may be viewed as an epitome of these values that are shared by society at large and with which the society, due to their nature of a common good, identifies, and thus they are established as a value benchmark for the state. These values further start shaping the fundamental constitutional principles – the most general guidelines for conduct, which convey in the highest degree the common goals of the constitution and together form the value foundation of the constitutional order of the state.
The debate regarding exercising original and derivative constituent authority is related to the different views on constitutionalism and democracy, and to the notion of flexibility of the constitutional text. Since changes to the constitutional regulation made without recourse to the original constituent authority bear risks of different political majorities interpreting the constitution contrary to its genuine essence, the creators of constitutions declare the spirit of the constitution, its ‘core of values’, or ‘constitutional identity’ unchangeable, thus protecting its supremacy against the derivative constituent authority. Express provisions as to the inalterability of the constitutional text are adopted in some democratic states, while in other the constitutional jurisdictions lay down implicit limitations as regards constitutional changes made by the derivative constituent authority. In short, there is a core value on which the constitution is premised and which defines its essence and identity, hence the principles that translate this value are in general stable – should they be eliminated, a qualitative change will occur, which is not simply a change of the constitution but in fact substituting it with another constitution. The substantive limitations are the criteria for establishing unconstitutionality of constitutional amendments. The scope of ‘matters’ immune to changes by the derivative constituent authority is intended to protect the constitutional continuity and constitutional identity. This deserves special attention since declaring a constitutional amendment law adopted by the national representative body for invalid is not tantamount to a constitutional jurisdiction imposing a ban on changes to the constitution; rather, it means that changes have been made in violation of what is provided for in the constitution and what is admissible for an established and hence intrinsically limited authority.
Due to historical, cultural, political and social differences across societies and states, different values and principle are established as fundamental. Although there is no universal constitutional core as regards content and scope, there are generally accepted values on which the constitutions of modern democratic states are premised. These values are translated in the Fundamental Laws through constitutional principles (the very heart of the constitution). Without claiming to present an exhaustive overview, the following are considered such fundamental principles: national sovereignty, separation of powers, rule of law of which the constitution is the ultimate manifestation, political pluralism, protection of human rights and fundamental freedoms, independence of the judiciary. Together these form the basis of the constitutional order in the democratic constitutional state governed by the rule of law, and this is the basic constitutional characteristic of the Republic of Bulgaria.
The significance of these principles require that they enjoy the highest constitutional protection, thus the constitutional justice is intended to defend them against every attempt by a temporary, transitional political majority at violating them as this would be in essence an alteration of the value consensus in society, a new social contract premised on different set of values. The substantive content of a democratic constitution is not carved in stone but is subject to development. However, changes are feasible only if made by the sovereign citizenry through a constituent (original) authority following constitutionally established terms and procedure. This is why when a constitutional jurisdiction declares invalid constitutional changes made by an intrinsically limited authority such as the National Assembly, it does not put on hold the natural development of the value consensus in the political community but on the contrary – it protects the democratic nature of the national sovereignty and the rule of law, guarding the exceptional constituent right of the citizenry to adopt and amend its constitution.
Different terms are used in the constitutional doctrine and case-law of the constitutional jurisdictions to denote the relatively untouchable (preserved for changes as an exclusive right of the sovereign) core content of the Fundamental Law in the country: substantive core, hard core, constitutional identity, fundamental/basic constitutional structure, basis of the state etc. In its case-law the Bulgarian Constitutional Court has not only justified its competence to assess the constitutionality of laws amending and supplementing the Constitution adopted by the National Assembly but it keeps consolidating the constitutional reference framework thus performing its role as prescribed by the constitution to protect the supremacy of the Constitution as a manifestation of the value consensus of the sovereign being its creator. In this way the constitutional jurisdiction strengthens the practice of democracy where the people are the genuine sovereign and ultimate bearer of the authority that has created the Constitution.
The Constitutional Court has clarified in its case-law the constitutional matters reserved for changes by a Grand National Assembly alone and has outlined the boundaries which is constitutionally inadmissible for a (regular) National Assembly being an intrinsically limited authority within the meaning of Article 153 of the Fundamental Law to cross when amending and supplementing the Constitution. The Court thus reiterates that alongside the requirements of the special procedure under Article 155 of the Constitution which the National Assembly must abide by, it may not adopt a valid constitutional amendment law if it trespasses the substantive limitations laid down by the constitutional legislature. The Court has been clear as to the standard when assessing the constitutionality of amendments to the Constitution made by the National Assembly – the procedure is important, yet touching upon ‘relatively untouchable’ matters is decisive.
Without resorting to a detailed analysis of the case-law, it should be noted that the Court has consistently interpreted the constitutional limitations, the backbone of which are the provisions of Article 158 of the Constitution. Interpretative decision No. 3/2003 on Constitutional Case No. 22/2002 outlines the dimensions of the ‘form of government’ (Article 158, item 3 of the Constitution) applicable as substantive criteria to any constitutional amendments made by the National Assembly. The Court, formulating in different terms its reasoning, has stated that the Grand National Assembly is the only body authorized to amend the fundamental principles, the basic constitutional institutions, their place in the state hierarchy, the terms and procedures for their establishment and their terms of offices, their specific activities and powers as well as the balance between each. The Court has further on maintained that ‘It is inadmissible for a regular National Assembly to make changes in the organization, functions and status of the basic constitutional bodies laid down in the Constitution that perform the general government, or in the balance between these’. More importantly, these ‘matters’ established in the Fundamental Law, are referred to in that decision as ‘what the State is built on’, i.e. the fundament of the state.
In addition, as stated in decision No. 7/2006 on Constitutional Case No. 6/2006, the provisions of Articles 1 and 2 of Chapter One ‘Fundamental Principles’ concern ‘directly the State structure and government’. Yet, as underscored, ‘other principles and goals are formulated in this chapter as well such as national sovereignty, rule of law, supremacy of the Constitution, separation of powers, political pluralism; this section of ‘The Principles’ is a prerequisite for applying the provisions of Chapter Two, ‘Fundamental Rights and Duties of Citizens’. The Court summarizes that ‘these are fundamental for every modern state. This is why it cannot be accepted that a regular National Assembly may amend this part of Chapter One’. In decision No. 9/2016 on Constitutional Case No. 8/2016 the sovereignty of the people is defined as a ‘fundamental principle’ and an ‘element of the core of the Fundamental Law’, the Constitution, which reflects the value consensus about the organization and functioning of the state and society’. The Court underlines that the sovereignty of the people does not function independently from the other fundamental principles but together they form a single complex. The Court refers to the separation of powers and rule of law as elements of the ‘heart’ of the Fundamental Law, specifying further that they are the ‘fundament of every democratic government’.
Furthermore, the Court consistently maintains the position expressed in its established case-law that the legislature being a ‘delegated power’ must be able to respond adequately to changes in the public relations, however ‘without affecting the fundament of the political decision’. In its case-law the Constitutional Court makes recourse to such collocations as ‘fundamental principles of the constitutionally established state order’ and ‘normative core’ in relation to the principles of national sovereignty, separation of powers, and rule of law, or point to the democratic order under the rule of law as a ‘constitutionally established under the sovereign’s will element of the fundamental structure of the Fundamental Law’ (decision No. 12/2012 on Constitutional Case No. 4/2012; decision No. 9/2016 on Constitutional Case No. 8/2016). The Court considers the rule of law principle as another element of the fundament of the constitutionally established system’ (decision no. 15/20222 on Constitutional Case No. 10/2022).
The Court has consistently held that when the National Assembly acts as a constituent authority under the terms and procedure set forth in Chapter Nine of the Constitution, it must follow the established mechanism ‘whereby the balance required by every democracy is maintained between the fundament on which it is based and a fresh perspective to the constitutionally established values so as to guarantee sustainability of the democratic legal order’ (ruling No. 10/2023 on Constitutional Case No. 20/2023).
This welcomes a conclusion that the Bulgarian Constitutional Court, even where it does not use phrases such as ‘hard core’ or ‘constitutional identity’, perceives the laid down substantive limitations to constitutional amendments by a regular National Assembly as the genuine content of the Constitution, a ‘value basis/fundament’, which is beyond the remit of changes by transitional and frequently changing political majorities. This value basis is not absolutely unchangeable, yet the National Assembly being a constituted and hence intrinsically limited authority may not change it – this would be incompatible with the rule of law in a democratic constitutional state such as the Republic of Bulgaria and the democratic considerations (and the hierarchy of the constituent original authority and the constituted derivative authority) that the sovereign’s will is identical to the value fundament of the Constitution which legitimizes its supremacy.
The National Assembly acts on behalf of the people, yet it is not identical to the sovereign. The Grand National Assembly is the only forum through which the sovereign is constituted as original constitutive authority. The National Assembly within the meaning of Article 1, para 2 of the Constitution is a public body established by the Constitution through which the people exercises representative state authority. It is the people who is the creator of the Constitution on which the National Assembly is premised and from which it derives its powers to exercise the authority granted to it in compliance with and implementing the principles on which the democratic rule of law state is built.
The powers of the National Assembly being a constituted authority are intrinsically limited. The right granted to it to change the Constitution rules out that it exercises these powers in a way that transform them into unlimited powers. As stated above, through the democratic argument the Constitution is identified to the people’s will – the common will to serve the common good – and with justice, i.e. mutual recognition of the identical weight/value of every individual’s interest in the political community. This justifies the peculiar character and special power of the Constitution as a legal act – the social power of the value consensus of the political community to legitimize the validity of the Constitution as a Fundamental Law (in legal terms). The Constitution is a Fundamental Law precisely because it is the legal act of such a status required in a political community to protect the common good – the equal rights and dignity of every individual. The strength of the Constitution as a legal act stems from the fact that it is vox pópuli; through it the sovereign determines the fundamental values that form a spirit of community and guarantee its political unity.
No National Assembly being a derivative constituted authority may avail of the social power capable of replacing the sovereign’s will as regards the fundamentals of the value consensus that determines on constitutional level what is inviolable and hence untouchable by a temporary, transitional political majority.
According to the constitutional judges, the assessment as to the validity of every law amending and supplementing the Constitution and the effect of declaring it invalid, including in these proceedings, should be made on the same premises on which the validity of the Constitution itself as a Fundamental Law is justified. For the purposes of this assessment, the reference constitutional framework is the constitutional decree that imposes, in addition to the requirements laid down in Articles 154 and 155 of the Constitution, substantive limitations on the National Assembly for amending and supplementing the Constitution, as commented above. Thus, delegating to the National Assembly the amendment and supplement of the Constitution, the constitutional legislature has opted to share the sovereignty but only to a certain degree and upon certain conditions, never surrendering it entirely. Until non-compliance is established with what the constitutional legislature has decreed, the rebuttable presumption is operational that the National Assembly implements the decree of the sovereign as laid down in the Constitution in the form of substantive limitations to the derivative constituent authority. This explains the terminology used by the constitutional legislature in the provision of Article 155, para 1 of the Fundamental Law – the act amending and supplementing the Constitution that is adopted by the National Assembly is referred to as a ‘law’ and treated likewise as a valid act.
Thus, it follows that when non-compliance with what has been decreed by the sovereign in the Constitution is established, then declaring invalid the will of the National Assembly as laid down in the constitutional amendment law is premised on non-compliance with the will of the sovereign and is invalid forsake of democracy and the value consensus that made the Constitution the Fundamental Law, i.e. the two mutually reinforcing values that constitute the basis of constitutional democracy – the democratic beginning and rule of law (the Constitution lays down the democratic values and protects the democratic beginning by its power of Fundamental Law). As long as the presumption operates, the constitutional amendments as effected by a constitutional amendment law that reflects the will of a National Assembly which derives its powers to make constitutional amendments from the Constitution itself, have legal effect. Pursuant to the will of the constitutional legislature, the legal effect of these amendments is the one of binding norms of the highest ranking. The presumption should have a meaning, and it is that as long as a ‘law’ is in force, it is considered to be a valid law. It cannot be required from the legal entities or institutions, those occupying high state positions or those exercising governmental authority to be themselves the assessor of the validity of constitutional amendments adopted by the National Assembly. Establishing the unconstitutionality/invalidity of the constitutional amendments prevents the full realization of their regulating potential.
A constitutional jurisdiction may not repeal the legal effect of the constitutional amendments declared invalid since it is called to protect the supremacy of the Constitution. The stability of the constitutional order is a value of a highest ranking for the general public and the state, hence only formal legal considerations other than the democratic reasoning are inapplicable in the present case.
What follows further is that the will of a transitional political majority, when it is established that it no longer follows the decree of the sovereign since it touches upon fundamental constitutional values and principles, may not have a suspensive effect against the will of the constitutional legislature. In fact, such a will of a temporary political majority only serves to postpone the manifestation of the sovereign’s will, with the sovereign’s consent, for the time the presumption as regards compliance of the wills operates. However, once non-compliance is established, the will of the National Assembly translated in amendments and supplements to the Constitution loses its significance.
This is why when non-compliance with the value fundament of the Constitution such as the fundamental constitutional principles and matters reserved for Grand National Assembly is established of the constitutional amendments adopted by a National Assembly, there are serious social and normative grounds for invalidity. A National Assembly that violates the substantive constitutional limitations acts without delegation within the meaning of Article 153 of the Fundamental Law. The right that belongs solely to the sovereign, namely, to alter the substance of the value consensus reflected in the Constitution and thus the Constitution itself, is the most constituent right. This will of the sovereign is permanent. This is why a suspensive effect due to declaring a law amending and supplementing the Constitution invalid is out of the question, in the present case, too. Thus, the constitutional text preceding the changes continues to operate when constitutional changes as effected by a law amending and supplementing the Constitution are declared invalid.
To summarize, the Constitution is clear as to the imposed substantive boundaries to authorizing people’s political representatives to change the Fundamental Law when they act on behalf of the people but are not identical to the people since they are but just a temporary, transitional political majority such as a National Assembly. Thus, the constitutional jurisdiction gives the last word to the constitutional legislature, namely, the sovereign people, to which it belongs. It is the society that imposes rules to those governing (the constituent authority) under a democratic constitutional order. Those rules restrict the exercise of power that belongs to the society in the state. This is why the most important thing to protect a democratic rule-of-law state such as the Republic of Bulgaria is to respect the people and the value consensus among them that legitimizes the validity of the constitutional order and the authority of those governing.
B. In the opinion of judges Konstantin Penchev, Filip Dimitrov, Nadezhda Dzhelepova, Krasimir Vlahov, Borislav Belazelkov, and Desislava Atanasova
The judges are of the opinion that as a starting position, when called to rule on the constitutionality of the amendments and supplements made to the Fundamental Law by a regular National Assembly, the Constitutional Court should consider first most the requisiteness to preserve the sustainability and stability of the constitutional regulation, together with its fundamental principles and objectives, without however closing completely the door to possible changes required by the dynamics of social development. It is precisely this balanced approach that was taken in Decision No. 7/2006 on Constitutional Case No. 6/2006 (held upon a request to declare the unconstitutionality of a Law Amending and Supplementing the Constitution). It reads that ‘the Constitution of 1991 is an expression of the will of the prevailing part of society that the country gets in line with the progressive European countries in terms of spirits and economics. This is why the matters dealt with in Article 158 are relatively untouchable and changes thereto are admissible only if made by a Grand National Assembly. This is in line with the trend to leave certain matters that are essential by their nature outside the ambit of changes by every current qualified majority. It is this self-restriction in the Constitution itself that serves as a guarantee for its stability and the stability of the established constitutional order. Indeed, if a regular National Assembly could amend or supplement the Constitution, it would not enjoy a special status in the legal system of the state. Changing parts of the Constitution without complying with the special procedure under Article 158 could make it fall a victim to hasty changes or transitory interests. Thus, it would difficult to legitimize a political system if the changes it has made to the Constitution, is the result of improvisations, compact or misjudged external pressure’. However, the Court has held in the above-cited decision the following as regards the scope of Article 158, item 3 of the Constitution (namely, the requirement that changes to the form of State structure or form of government shall be made by a Grand National Assembly): ‘The provisions concerning directly the state structure and government are laid down in Articles 1 and 2 of Chapter One, ‘Fundamental Principles’. Yet, other principles and objectives are laid down in this chapter as well such as national sovereignty; rule of law; supremacy of the Constitution; separation of powers; political pluralism. This section of the ‘Fundamental Principles’ is a prerequisite for implementing the provisions of Chapter Two, ‘Fundamental Rights and Duties of Citizens’ (just by way of an example, rights could not be exercised without separation of powers or making legal acts public). They are fundamental for every modern state. Hence, it is unacceptable for a regular National Assembly to change this section of Chapter One’. Likewise, interpretative ruling No. 3/2003 on Constitutional Case No. 22/2002 reads that the notion of ‘form of state government’ comprises not only a system of ‘state institutions’ but further on ‘the powers delegated by the Constitution to these institutions as long as an amendment upsets the balance between them in respecting the fundamental principles on which the state is based, namely national sovereignty, rule of law, political pluralism, separation of powers, and independence of the judiciary’.
In view of the above, the judges are of the opinion that the legal possibility enshrined in the Constitution for a regular National Assembly to amend and supplement the Fundamental Law (Article 153 of the Constitution) is limited by the necessity to preserve the fundamental principles that are at the heart of the constitutional state and legal order. Conversely, it cannot be denied to a regular National Assembly, when following the express procedure laid down in Chapter Nine of the Constitution, to make changes to the Fundamental Law which do not touch upon the substantial core of the constitutional regulation as outlined by its principles. To generalize an understanding to the contrary would entirely devoid of purpose the possibility provided for in the Constitution itself for a regular National Assembly to amend the Constitution. As the Court has held, ‘[P]ursuant to Article 153 of the Constitution, the National Assembly as a power delegated by the sovereign is also capable of amending and supplementing certain provisions of the Constitution different from the ones reserved for a Grand National Assembly as provided for in Article 158 of the Constitution. This is the same representative body to which the sovereign has delegated legislative powers’ (Decision No. 9/2016 on Constitutional Case No. 8/2016).
І. Concerning the changes to Article 23 as effected by § 1 of the Law Amending and Supplementing the Constitution
The challenged constitutional amendment made in Article 23 is introduced by § 1 of the Law Amending and Supplementing the Constitution (LAS Constitution). This constitutional provision falls in Chapter One of the Constitution entitled ‘Fundamental Principles’. It establishes constitutionally significant values alongside the fundamental principles laid down in the same section of the Fundamental Law. A new first sentence is added, whereby ‘[S]cience, education and culture shall be national values’. It is in line with the second sentence which formerly read that ‘[T]he State shall establish conditions conducive to the free development of science, education and the arts, and shall assist that development’. The third sentence remains unchanged, ‘[I]t shall organize the conservation of all national monuments of history and culture’.
The promoters of the LAS Constitution argue that the proposed amendment of Article 23 of the Constitution is geared towards ‘promoting and strengthening the Bulgarian statehood’ (incoming registration No. 49-354-01-83 of 28 July 2023; proposal made between the ‘second’ first and second reading, incoming registration No. 49-354-04-316 of 14 December 2023 for revision of the initially submitted text of Article 23). The new text in the amended provision of Article 23 is declaring science, education, and culture ‘national values’, something that the former version of the challenged provision fails to do. Viewed in its entirety, the provision of Article 23 sets objectives and commits the state to formulating and implementing public policies in relation to the science, education, and culture, and imposes a duty on the state to support these and ensure their free development.
The end of the 20th and beginning of 21st century are marked by a growing globalization which brings alongside cultural harmonization and a certain degree of disintegration of nations. The Court takes stock of the fact that in general the migration modalities have significantly changed due to the technical and technological progress, and state populations are less homogenous but more inclusive of groups of different races or ethnicities, each with its own traditions and language, a transformation which is all the more obvious in the framework of the European Union where the free movement practically allows unlimited travel and migration. Yet, the Court reiterates that nation states continue to be the decisive factor in international relations and modern political practice is based on the concept of national sovereignty and nations’ right to self-determination.
National identity is the fundament and basic characteristics of the nation state. It is a synthesis of history and spirituality, and an aspect of the political culture of society. It comprises both political and cultural dimensions. Establishing the nation state as a basic political entity in modern times, cultural identity is now most often expressed by what is perceived as ‘national culture’. People are not only citizens in legal terms, but they are also part of the idea of a nation represented by its national culture. National cultures build identities, they give meaning to the ‘nation’ with which we can identify. Essentially, national cultures are built upon, exist and develop on the basis of and in close relation to the individual identity of every individual and all people in the framework of a single nation/nation state.
The creators of the Constitution of 1991 were led by a clear idea of these processes and their perspective, as well as by the understanding of the multilayered and dynamic character of national identity, of the interrelatedness of nation and cultural identity and its complex multifaceted nature. The debates in the Grand National Assembly during the deliberation and voting of Articles 23 and 54 confirm that. The records of the meetings of the Committee tasked with elaborating a draft Constitution (of 17 June 1991) and the Verbatim Report s of the plenary sessions of the Grand National Assembly (137th, 150th and 151st plenary session of respectively 22 May 1991, 12 June 1991, and 18 June 1991) are indicative of the approach taken by the constitutional legislature. The initial wording of the provision of Article 23 was as follows, ‘[T]he State shall establish conditions conducive to the free development of science, education and the arts, and shall assist that development’. The content of this provision, and of the one of Article 54 were the subject of in-depth discussions. Thus, in the final version of Article 23 a duty is imposed on the state to establish conditions conducive to the free development of science, education, and the arts, while in Chapter Two ‘Fundamental Rights’ the right of everyone to avail himself of the national and universal human cultural values and to develop his own culture is envisaged.
The Court reiterates that this helps reach a balance in the constitutional regulation between on the one hand promoting cultural diversity by providing for the right (both active and passive) of every individual to avail himself of the national and universal human cultural values and to develop his own culture in accordance with his ethnic self-identification, which shall be recognized and guaranteed by the law (Article 54, para 1 of the constitution), and on the other hand establishing the cultural elements of national identity as laid down in Article 23 which brings community spirit and unity.
Bulgaria has established and historically revived itself precisely through its cultural and educational strivings and this self-determines the nation, forms and characterizes the national identity. This is what justifies enshrining science, education, and the arts as values of constitutional ranking when adopting the Fundamental Law in 1991. Imposing on the state a duty to establish conditions conducive to the free development of science, education, and the arts, to assist their development, and to organize the conservation of the national historical and cultural heritage in fact describes the national culture as related to the history of the country, to a shared identity and a set of values.
The notion of national culture (as is the notion of culture in general) is discussed and theorized at large in scientific surveys and analyses. The Constitutional Court may not take part in this debate but will restrain to note down that national culture is premised on common identities, fundamental values and institutions, and history, and is continually developed jointly. In short, the creators of the Constitution have established the basis for development of national cultural identity led by an understanding of national culture as a collective phenomenon – it is being created by us and it determines us, it is firmly based but at the same time it is dynamic, developing in response to the changing world and increasing diversity. Recognition of and respect for the diversity of cultural identities through the right of every individual to develop his own culture, be him a citizen of the state or a foreigner (Article 54, para 1 in conjunction with Article 26, para 2 of the Constitution) brings a balance to the spirit of the Bulgarian community.
The Constitutional Court points out in its case-law that the Constitution of the Republic of Bulgaria is ‘premised on the idea of the unity of the Bulgarian nation (paragraph 4 of the Preamble; Article 1, para 3; Article 2, para 1; Article 44, para 2)’. Yet it reiterates that ‘at the same time [the Constitution] recognizes the existence of religious, linguistic, and ethnic differences, respectively the carriers of these differences’. Examples in this regard may be found in a series of constitutional provisions (Article 37, para 1 which refers to ‘tolerance and respect among the believers from different denominations’; Article 36, para 2, which refers to ‘citizens whose mother tongue is not Bulgarian’; Article 29, para 1 which protects against forcible assimilation; Article 44, para 2, which prohibits organizations whose activity is geared towards ‘inciting racial, national, ethnic or religious enmity’; Article 54, para 1 which establishes the individual’s right to ‘develop his own culture in accordance with his ethnic self-identification’; Decision No. 4/1992 on Constitutional Case No. 1/1991).
The Constitutional Court finds no reasons to depart from this case-law in the present proceedings and maintains in the context of the above that by failing to link the duty of the state within the meaning of the challenged amendment to Article 23 with the ‘national’ culture, this amendment not only alters the model established in the Fundamental Law of building national cultural identity – a basis of the national identity, but by failing to determine culture as ‘national’, the challenged amendment to Article 23 shifts the focus from a community spirit, i.e. the distinctive way of existence with which we identify ourselves as a nation and which the others recognize, to communities that embody other distinctive values, traditions and beliefs, with which the nation does not identify, and this upsets the basic constitutional value, the nation’s unity, which in turn is an element of the state fundament, the way its is built by the Constitution of 1991.
In view of the above, the Constitutional Court finds the challenged amendment to Article 23 as effected by § 1 LAS Constitution to be unconstitutional.
ІІ. As regards the amendments to Article 64, paras 2, 3, and 4 (new) as effected with § 2 LAS Constitution
The voting held as regards the reasonableness of the requests to establish the unconstitutionality of the amendments made to Article 64 as effected by way of § 2 LAS Constitution could not reach the required majority of more than half of the judges in the composition of the Court (Article 151, para 1 of the Constitution), hence these requests should be diverted.
А. In the opinion of judges Pavlina Panova, Mariana Karagyozova-Finkova, Tanya Raykovska, Atanas Semov, Yanaki Stoilov and Sonya Yankulova the requests are well-founded.
Strengthening parliamentarism has been declared as a conceptual fundament of some of the constitutional amendments made. The reasons to the LAS Constitution state that in addition to substantially narrowing the discretion extended by the 1991 Constitution to the President to appoint caretaker governments, including by being denied the power to dissolve parliament during parliamentary crises, a constitutional ground has been created to limit the competence of caretaker governments by law, thus amendments and supplements to Article 64 are envisaged to constitutionally ensure continuity of the work of the National Assembly in a parliamentary system. The promoters expressly point out that ‘the subsequent parliamentary crises from 2021-2023 that led to the appointment of several successive caretaker governments beg the question of more guarantees for the continuous work of Parliament’ (reasons to the constitutional amendment bill, incoming registration No. 49-354-01-83 of 28 July 2023). Thus, § 2 LAS Constitution amends and supplements Article 64 of the Constitution, and the changes are declared to follow some of the reasons to the amendments made to Article 99, para 5 by way of § 7 LAS Constitution.
The following amendments are made to Article 64 by way of § 2 LAS Constitution: the words ‘or after the expiry’ in paragraph 2 are deleted; paragraph 3, which reads, ‘Elections for a new National Assembly shall be held not later than one month prior to the expiry of the term of office of the incumbent one’ is amended; a new paragraph 4 is added which reads, ‘taking oath by the newly elect members of Parliament shall end the credentials of the former National Assembly’.
The newly introduced paragraph 4 sets the beginning and end of the National Assembly’s credentials by reference to the taking of oath by the MPs elected at the last general elections. The constitutional amendments to Article 64 of the Fundamental Law are premised precisely on the provision of paragraph 4, and the amendments to paragraphs 2 and 3 made with the same § 2 LAS Constitution in fact further specify and develop the promoters’ idea of continuity of the work of the National Assembly.
The Constitutional Court has held when seized with a request to give binding interpretation of the Constitution with the question ‘[W]hen does the four-year period under Article 64, para 1 of the Constitution start running?’, that ‘[T]he four-year period under Article 64, para 1 of the Constitution starts running as of the date of elections held for National Assembly’ (Decision No. 5/2001 on Constitutional Case No. 5/2001). The Court argues by reference to the origin of empowerment of the political representatives in a parliamentary government, its arguments being premised on the national sovereignty as the basis of the modern nation state and a fundamental principle of the state and legal order as established by the Bulgarian Constitution of 1991 (Article 1, para 2 of the Fundamental Law). Pursuant to the provision of Article 1, para 2, the entire state power shall derive from the people. The people shall exercise this power directly and through the bodies established by this Constitution. The principle of national sovereignty is an element of the normative core of the Constitution which translates the value consensus as to the organization and functioning of the society and the state (Decision No. 9/2016 on Constitutional Case No. 8/2016).
It is from the people as a sovereign that the entire state power derives. It is the people who through its choice empowers and legitimizes the specific legislature of the National Assembly, and this is done by means of elections. The Constitutional Court held in Decision No. 5/2001 on Constitutional Case No. 5/2001 that ‘[A] direct link of authorization is created between the people, that is the constituents, and the National Assembly as a body established by the Constitution. The constituents’ political will expressed through the exercise of direct universal suffrage (Article 10, and Article 42, para 1 of the Constitution) constitutes the National Assembly […] There is no other act but the elections that delegates power to Parliament.’ The operative event for acquiring the status of an MP are precisely the elections, while taking the oath is a prerequisite of a moral, political, and legal nature for entry into office and exercising the powers of MP. It is not by chance that the constitutional legislature has envisaged in Article 75 of the Fundamental Law that a newly elected National Assembly shall be convened for a first session by the President of the Republic, and should the President fail to do so within a month following elections, it shall be convened by the Members of the National Assembly upon their own initiative.
Therefore, it is the event of elections and not the oath taken by the MPs that is the direct act of power authorization by the titulary of state power, hence the amendments made to the part of Article 64 under discussion, namely paragraph 4 of the Fundamental Law, are not in compliance with the basis of the modern nation state and the fundamental principle of democratic government under the rule of law, this of national sovereignty. Since the starting point of the term of office is determined by the election of MPs, the constitutional amendment to Article 62, para 2 introduced by § 2 LAS Constitution allows for the parallel existence of two representative establishments – the incumbent acting Parliament and the newly elected one. This follows from the provision of Article 64, para 2, which requires that elections for a new National Assembly be held not later than one month from the expiry of the term of office of the acting one, which is incompatible with the democratic representative government as established by Article 1, para 2 of the Constitution and based on elections and set term of office. The MPs elected following the parliamentary elections held on 9 June 2024 took the oath on 19 June 2024, under the operation of the challenged amendment to Article 64 and with an acting 49th National Assembly still in place.
At the same time the changes to Article 64, paras 3 and 4 of the Constitution create prerequisites for unacceptable constitutional reduction of the term of office of the National Assembly as set forth by the original constitutive authority. Pursuant to Article 64, para 1 of the Constitution, the term of office shall be four years. The constitutional amendments under discussion provide for that elections for a new National Assembly shall be held not later than one month prior to the expiry of the term of office of the acting National Assembly, which runs contrary to the provision of Article 75 of the Fundamental Law. As pointed out above, Article 75 requires the President of the Republic to convene the first session of the newly elected Parliament one month after the elections at the latest, something which is not feasible given the new version of Article 64, para 3, which requires that elections be held not later than one month prior to the expiry of the term of office of the acting Parliament. The only way round is to reduce the constitutionally established term of office of Parliament, something which runs contrary to the democratic beginning intrinsic in the national sovereignty, namely that the term of office is the basis of the democratic process and serves as a mechanism to protect democracy.
The constitutional amendments discussed in this part of the reasons aim at ensuring continuity in the work of the National Assembly. Yet, they give rise to questions related among others to the requirement set forth in Article 68 of the Constitution that those registered as candidate MPs in the elections for a new Parliament shall cease to serve in a state position; about the legitimacy of the decisions which a National Assembly that continues to act during a time when elections have been scheduled may take, given the impossibility for registered candidates to take part in parliamentary sessions; and about the more favourable legal situation of the MPs running as candidates for a fresh term of office.
Repealing the words ‘or after the expiry’ in Article 64, para 1, also by § 2 LAS Constitution, is premised on the logic applicable to the amendments discussed above, which renders their legal destiny alike.
In the context of the above the judges underscore that setting the starting point of the term of office of the National Assembly later than the time of holding the elections, which is the result of introducing the new paragraph 4 of Article 64 in the Fundamental Law by § 2 LAS Constitution, is in fact a grave deviation from the principle of national sovereignty and destroys the basis of the established constitutional order in the state. The national sovereignty does not act in isolation from the other fundaments laid down in Chapter One of the Constitution. Together they form a single complex. In their singularity and interaction, the national sovereignty, separation of powers, rule of law, political pluralism, and the other fundamental values and principles are the constituent elements and epitome of the constitutional identity. Proclaimed by the creators of the 1991 Constitution as fundaments for building and developing the Republic of Bulgaria as a democratic state based on the rule of law (they are systemically laid down in Chapter One of the Fundamental Law entitled ‘Fundamental Principles’), these principles enjoy a higher constitutional protection, hence changes to them may only be made by a Grand National Assembly (interpretative ruling No. 3/2003 on Constitutional Case No. 22/2002). Besides, the creators of the Constitution have endorsed the rationalized parliamentary form of government, whereby there is a link of conditionality between the people’s representation by the National Assembly and the executive exemplified by the Council of Ministers. Thus, touching upon the term of office of every newly elected national representative body, and ignoring the principle of national sovereignty serving as substantive limitation to the powers of the National Assembly when acting under Article 153 of the Constitution, the amendments to Article 64 of the Fundamental Law are in fact amendments to the organization and status of a major constitutional body as established by the constitutive authority. Such amendments touch directly on the state government, and it is inadmissible for a regular National Assembly to make them as they fall within the scope of Article 158, para 3 of the Constitution.
In view of the above considerations, the judges are of the opinion that the constitutional amendments to Article 64, paras 2, 3 and the newly introduced paragraph 4 as adopted by way of § 2 LAS Constitution go beyond the scope of competence of the National Assembly to amend and supplement the Constitution.
Therefore, the judges are of the opinion that the amendments to Article 64, paras 2, 3, and 4 introduced by § 2 LAS Constitution should be declared unconstitutional being invalid.
B. In the opinion of judges Konstantin Penchev, Filip Dimitrov, Nadezhda Dzhelepova, Krasimir Vlahov, Borislav Belazelkov, and Desislava Atanasova the requests are ill-founded.
These amendments ensure the continuity of the work of Parliament. They provide for that the former Parliament ceases its course of life only once the newly elect MPs take their oath. In the opinion of the judges, this solution is in perfect compliance with the principle enshrined in Article 1, para 1 of the Constitution that Bulgaria is a republic with a parliamentary form of government. Furthermore, this idea is elaborated in Article 99, para 7 of the Constitution prior to its amendment regarding cases when the President appoints a caretaker government during the last three months of his term of office, hence it fits the overall spirit of the initial constitutional regulation. In this way the constitutional legislature has taken precautions against potential violations of the constitutional design whereby the President should not avail of the possibility to expand the scope and duration of the powers delegated to him, with the clear objective to enhance the parliamentary government within a relatively short period of time. In this case the delegated carrier of constituent authority has found that these amendments would guarantee better implementation of the constitutional design, which should be the primary consideration of every constitutional amendment. The legislature could not be deprived of this right to discretion with the argument of the latter’s (hypothetical) inappropriateness, which further on bears none on the assessment of its constitutionality. The amendment under discussion does not run contrary to the logic of the Fundamental Law as to how the representative establishment should function. It is untenable to maintain that in this way two parallel legislatures are created since the act of taking the oath by the newly elect terminates the powers of the former national Assembly. Yet by the moment the new MPs take their oath, they do not form a legislature, they are simply equipped with some additional protections, the same they enjoy in fact as candidate MPs. As pointed out in interpretative ruling No. 1/1992 on Constitutional Case No. 18/1991, by taking the oath a person enters the realm of his powers as an MP. However, it is further clarified in interpretative ruling No. 8/1993 on Constitutional Case No. 5/1993 that ‘in principle the duration of the term of office of an MP coincides with the that of the legislature as set forth in Article 64, para 1 of the Constitution. When the term of office of a National Assembly expires and its powers are terminated (Article 64, para 3 of the Constitution), the powers of each MP are terminated as well’.
The judges further on feel compelled to point out that the constitutional legislature has aimed at a constitutionally compliant objective when it undertook this amendment, namely to achieve a ‘balance between the principles of continuity of the work of the constitutionally established state bodies, and mandate’, thus ensuring that the Parliament as a superior state body ‘shall not stop functioning’ (interpretative ruling No. 12/2022 on Constitutional Case No. 7/2022).
To summarise, the design of the constitutional regulation set forth by the Grand National Assembly is clear, and it has not been replaced by the amendments made to Article 64 – the former National Assembly is replaced by the new one as of the time the newly elect MPs take their oath. The amendment concerns the continuity of functioning of the Parliament, and this is in line with the principles and spirit of the Fundamental Law. As stated in interpretative ruling No. 12/2022 on Constitutional Case No. 7/2022, the idea of continuity of the functioning of the constitutionally established bodies permeates the Constitution. ‘The continuity concerns the very existence and functioning of the state body’. What’s more, the principle of continuity is not expressly stated in the Constitution and hence may be subject to legislative discretion (Decision No. 4/2005 on Constitutional Case No. 11/2004). It does not fall within the competence of the Constitutional Court to assess the capability of these amendments to achieve the set connotationally compliant objective. There are no considerations stemming from the Fundamental Law that this discretion should be reserved solely to a Grand national Assembly.
In view of the above, the judges find the amendments made to Article 64, paras 2, 3, and 4 as effected by § 2 LAS Constitution to be compatible with the Constitution.
ІІІ. Regarding amendments made to Article 65, para 1, second sentence; Article 93, para 2; and Article 110 by way of §§ 3, 6, and 9 LAS Constitution
The voting held as regards the reasonableness of the requests to establish the unconstitutionality of the amendments made to Article 65, para 1, second sentence and Article 110 as effected by way of §§ 3 and 9 LAS Constitution could not reach the required majority of more than half of the judges in the composition of the Court (Article 151, para 1 of the Constitution), hence these requests should be diverted.
The voting held as regards the reasonableness of the requests to establish the unconstitutionality of the amendment to Article 110 as effected by way of § 9 LAS Constitution did reach the required majority of more than half of the judges in the composition of the Court (Article 151, para 1 of the Constitution), however for different reasons, hence these will be presented separately.
А. In the opinion of judges Pavlina Panova, Mariana Karagyozova-Finkova, Tanya Raykovska, Atanas Semov, Yanaki Stoilov and Sonya Yankulova the requests are well-founded.
The regulation of the institute of the Bulgarian citizenship and its significance for the national and state unity in the 1991 Constitution is in line with the modern understanding and trends in the political and legal doctrine and case-law in terms of interrelatedness of nation, sovereignty and state, and the national identity as a live, dynamic reality in a fast-changing context of internationalization of all spheres of public life.
Building a nation and a state are interrelated processes. Legitimizing the state requires identification of the sovereign, which is based on identification with a collective entity such as the nation. Separating the nation from the state significantly weakens the link between the state and the citizen, rendering it to a purely legal fact or to a link in terms of economics or finance that rules out loyalty based on membership in a political unity.
The modern nation state is inseparable from the transformation of the sovereign in the 18th century and the establishment of the principle of popular sovereignty – the nation has no existential legitimacy without such a sovereignty. The philosophical principle of popular sovereignty translates into a fundamental change – the people is established as both the object and subject of governance. The principle puts the focus on the individual, the people in a politically organized community, and proclaims that no state sovereignty is legitimate in itself – state sovereignty is based on the consent of the people. To serve as a common will, the will of the political community presupposes a link between the individual and the collective lot, which in turn makes civil identity a key element of national identity and the institute of citizenship. Citizens establish themselves as the sovereign who legitimizes the state to which they mutually belong. Citizenship, a republican institute by its character, deepens the link between the state and the individual and turns it reciprocal: the nation state must discharge its duties towards the individual and vice versa. Thus, national identity, popular sovereignty, state sovereignty, and citizenship are mutually linked and affect each other.
A series of provisions of the Fundamental Law reaffirm the approach of the Bulgarian constitutional legislature in establishing the institute of Bulgarian citizenship in the context of the modern understanding that nation, popular sovereignty, and state are interrelated. The Constitution uses notions such as ‘nation’ and ‘national’, but also constructs that implicitly incorporate the link between national identity, sovereignty, and security and independence of the state. A number of provisions such as Article 92, para 1 of the Fundamental Law refer to the functional characteristic of the head of State – the President – by constructs such as ‘unity of the nation’, while ‘national security and public order’ are comprised in the constitutionally determined scope of competence of the government (Article 105, para 2). The creators of the 1991 Constitution link the legal institute of the ‘Bulgarian citizenship’ with eligibility criteria for the persons who occupy senior positions in the state and exercise governmental authority – MPs, President, members of the government. These eligibility criteria are expressly provided for in Articles 65, 93, and 110 of the Fundamental Law.
The constitutional judges take account of the fact that large-scale migration and the revolution in communications have made individual autonomy and issues of culture and identity more and more individual and less collective in nature. At the same time, they underscore that migration and diversity do not make national identity extinct; yet they render membership and belonging more complicated and challenging. Without investment in civil identification, societies are at risk of ruptures of the national collectivity to an extent where the legitimacy of the state is significantly weakened.
It is important to state all this since it gives an idea of the context in which we should consider the purpose which the constitutional limitations in exercising the right to be nominated for parliamentary elections serve. These limitations are introduced with the provision of Article 65, para 1 in the 1991 Constitution and include a prohibition for candidate MPs to hold other citizenship but Bulgarian one. The amendments that were adopted repeal this prohibition.
Deliberating on the eligibility criteria for MPs, the Grand National Assembly vividly discussed the issue of dual citizenship, both in relation to MPs and to members of the government. Different wordings are proposed with alternatives to the prohibition of dual citizenship. They were reasoned with the need to include in the political life those who have emigrated before the political changes of 1989. Finally, the understanding of the supremacy of the public interest to protect the unity of the nation and state sovereignty prevails (records of the meeting of the Committee tasked with elaborating a draft Constitution of 5 July 1991).
The promoters of the constitutional amendment bill (incoming registration No. 49-354-01-83 of 28 July 2023) state in the reasons that ‘limiting the right to stand for elections violates this principle [of equal rights of all Bulgarian citizens, regardless of whether they hold or not another citizenship] and is discriminatory to those who do hold another citizenship’.
Repealing the prohibition of dual citizenship as an eligibility criterion for MPs and members of the government is the subject of heated discussions both in the Committee on Constitutional Affairs and the plenary sessions of the 49th National Assembly during the first and ‘second’ first reading of the constitutional amendment bill (transcript No. 5 of the meeting of the Committee on Constitutional Affairs of 3 October 2023; Verbatim Report of the 56th meeting of the 49th National Assembly, first vote, 6 October 2023; Verbatim Report of the 16th meeting of the 40th National Assembly, ‘second’ first reading, 19 December 2023). The proposal to insert the second sentence (in the challenged version) in Article 65, para 1 has been submitted together with a report of the Committee on Constitutional Affairs and reviewed at a meeting of the National Assembly at second reading of the constitutional amendment bill. It is this version that was adopted and introduced by way of § 3 LAS Constitution (transcript of the meeting of the Committee on Constitutional Affairs, 16 December 2023; Verbatim Report of the 16th meeting of the 49th National Assembly, second reading, 19 December 2023).
The amendments made to Article 65, para 1 and Article 110 of the Constitution by way of §§ 3 and 9 LAS Constitution make it possible for Bulgarian citizens holding another citizenship to be elected for MPs and members of the government.
For a Bulgarian citizen to be elected for an MP or member of the government, he must meet the eligibility criteria laid down respectively in Article 65, para 1 and Article 110 of the Constitution. These eligibility criteria are absolute and failing to meet any of them renders any person unelectable.
The Constitution of the Republic of Bulgaria, prior to the amendments effected by way of §§ 3 and 9 LAS Constitution, lays down higher eligibility criteria in terms of citizenship of the persons to whom certain constitutionally established powers are delegated. The Constitutional Court has held that ‘the common constitutional restrictive criterion as regards Bulgarian citizenship is premised on the nature of the relationship between the respective bodies, i.e. the exercise of public authority’ (Decision No. 15/1995 on Constitutional Case No. 21/1995). The higher eligibility criteria are explained by the very nature of citizenship as a multifaceted concept in the context of what has been said above, and the Constitutional Court has reviewed its different manifestations. These eligibility criteria reflect the aspirations of the creators of the 1991 Bulgarian Constitution to ensure high-level protection of the interests of the sovereign nation state.
Citizenship determines the individual’s legal status and serves as a lasting political and legal nexus between the individual and the state from which rights and duties occur for both sides. In addition to its political and legal dimension, citizenship comprises moral imperatives. Furthermore, the individual’s loyalty to the state is a value that if absent deprives of purpose the institute of citizenship as the nexus between a state and the individual (Decision No. 16/2021 on Constitutional Case No. 18/2021).
The prohibition for Bulgarian citizens holding dual citizenship to be elected for MPs and members of the government serves to protect a higher public interest related to the protection of the sovereign nation state. The Constitutional Court has consistently held that ‘in every state exercising authority is an element of the state sovereignty’ and that it is ‘doubtful how exercising authority by individuals holding foreign citizenship will guarantee the state independence’ (Decision No. 15/1995 on Constitutional Case No. 21/1995; Decision No. 16/2021 on Constitutional Case No. 18/2021). Besides the public-law nexus to the Bulgarian state, a dual citizenship means that there is a similar public-law nexus between the individual and another state, and this nexus determines the respective rights and duties. Acquiring the citizenship of another state is a question of personal choice. The Bulgarian legislation on citizenship is tolerant of the foreign legislation on the same matter and allows for dual citizenship, including acquisition by birth of foreign citizenship parallel to the Bulgarian one (e.g. in cases of mixed marriages).
This choice doubtlessly makes the individual not only holder of certain rights but of certain limitations as well that result from the public interests of every state since the nation states sovereignly determine how citizenship shall be acquired and revoked. By establishing a legal and political nexus to another state, in addition to the Bulgarian state, every individual becomes a holder of rights and duties regulated by the legal order of the foreign state and declares his loyalty to that state. For every person holding dual citizenship such a legal and political nexus could appear to be in conflict with the commitments to the Bulgarian State, yet the choice of conduct is a personal issue with its respective consequences for the individual. However, providing for a possibility in the Constitution that individuals holding dual citizenship occupy the highest public positions in the state is an entirely different matter. Occupying such positions means serving the state, the public interest, the sovereign’s interest, the sovereign being the direct or indirect source of empowerment. Such persons’ dual citizenship calls into question their loyalty to the Bulgarian State and institutions as long as serving the common good of the nation is an aspect of citizenship and they belong to another national collective lot and another sovereign political unity.
The constitutional judges draw attention to the term ‘security’ in the Constitution which refers to the security of the Republic of Bulgaria as a state: it is related to the unity of the nation and should be interpreted in line with such fundamental values of the democratic rule-of-law state as sovereignty and territorial integrity, unity of the nation, democratic order, and fundamental rights and freedoms. Security has different dimensions. Safety of life, health and property, and protection of the population usually occupy the first place. Yet security may come under disguise and manifest itself in forms that are invisible at first sight but not less significant, and security in exercising loyally the functions and powers of public positions is one such manifestation.
In view of the above, the judges are of the opinion that the amendments made to Article 65, para 1 and Article 110 (by means of the reference made in Article 110 to Article 65, para 1 and the possibility for MPs to be elected ministers – Article 68, para 2 of the Constitution) disregard the meaning and objectives of and are inadmissibly incompatible with the provision of Article 67 of the Fundamental Law. The latter expressly stipulates that MPs shall represent the entire nation and shall act on the basis of the Constitution and the laws of the country, i.e the Republic of Bulgaria. Thus, in the opinion of the judges, exercising constitutionally established powers by individuals occupying high public positions and holding dual citizenship poses a risk to the protection of national unity and security and the interests of the sovereign Bulgarian nation state. All this justifies a conclusion of incompatibility of the amendments to Article 65, para 1 with the constitutional logic of the political and social order established by the creators of the 1991 Constitution and based on the functioning of the national representative body (the National Assembly) and the government as the highest constitutional bodies of the Republic of Bulgaria.
The judges find it necessary to point out that Bulgaria is a State party to the European Convention on Nationality of 6 November 1997 (ratified, promulgated SG No. 102 of 20 December 2005; promulgated SG No. 34 of 25 April 2006; in force for the Republic of Bulgaria as of 1 June 2006) and made a reservation in the instrument of ratification in relation to Article 17, paragraph 1. Under the terms of this reservation, the ‘Republic of Bulgaria shall not apply in respect of the nationals of the Republic of Bulgaria in possession of another nationality and residing on its territory the rights and duties for which the Constitution and laws require only Bulgarian nationality’.
The constitutional judges reiterate that the prohibition to hold another citizenship in addition to the Bulgarian one as an eligibility criterion to be elected MP as provided for in the 1991 Constitution prior to the amendments under discussion is a manifestation of the concern to preserve the parliamentary integrity and national sovereignty. Many aspects of the constitutional provision of Article 65, para 1, second sentence remain unstable, potentially too inclusive and to some extent discriminatory in their effect. Compare, for example, the amendments effected by § 9 LAS Constitution to Article 110 of the Constitution. According to its current wording, members of the government may be individuals who meet the eligibility criteria for election of MPs, i.e. they may have another citizenship in addition to their Bulgarian one. Thus, Article 110 does not provide for the identical domicile requirement for members of the government as it is applicable in relation to MPs (pursuant to Article 110, ‘[E]ligible for election to the Council of Ministers shall be any Bulgarian citizen qualified to be elected to the National Assembly. The condition laid down in Article 65, para 1, second sentence shall not apply.’).
Amendments to Article 65, para 1 and Article 110 of the Constitution as effected by way of §§ 3 and 9 LAS Constitution, whereby eligible for election to the National Assembly and the Council of Ministers shall be any Bulgarian national holding another citizenship, are not in line with what is established by the modern Bulgarian constitutionalism in relation to the sovereign nation state by the creators of the 1991 Bulgarian Constitution as the fundament of the constitutional order and context for building the institute of Bulgarian citizenship. The Constitutional Court maintains in Decision No. 15/1995 on Constitutional Case No. 25/1995 that ‘[S]overeignty is the fundament of the constitutional structure. It is manifested by supremacy and independence in the exercise of authority. It is doubtful how exercising authority by individuals holding foreign nationality will guarantee the state independence’. The constitutional judges are not of the opinion that there are grounds to divert from this position in the present proceedings (as regards members of the government, cf. Decision No. 16/2021 on Constitutional Case No. 18/2021). The judges reiterate that the national interest is the one that calls for protection of the state sovereignty, national security, territorial integrity and unity of the Bulgarian nation by the highest constitutional bodies and public positions when exercising public authority, and this justifies the requirement of holding solely Bulgarian citizenship.
In view of the above, the constitutional judges are of the opinion that the constitutional amendments in Article 65, para 1, second sentence and Article 110 as effected by §§ 3 and 9 LAS Constitution touch upon national sovereignty as the fundament of the Bulgarian nation state and fundamental constitutional principle as laid down in Article 1, para 2 of the Constitution; they run contrary to the consistent constitutional logic on which the coherence of the Fundamental Law is premised, and directly affect the formation of the national representative body and government (as regards eligibility of their individual members). Therefore, in a constitutionally inadmissible manner, these trespass in the ambit of competence of a Grand National Assembly, in violation of Article 153 of the Fundamental Law.
In view of the above, the judges are of the opinion that the amendments to Article 65, para 1, second sentence and Article 110 as effected by way of §§ 3 and 9 LAS Constitution are invalid and thus should be declared unconstitutional.
B. In the opinion of judges Konstantin Penchev, Filip Dimitrov, Nadezhda Dzhelepova, Krasimir Vlahov, Borislav Belazelkov, and Desislava Atanasova the requests are ill-founded.
The judges are of the opinion that the amendments made by LAS Constitution whereby individuals with dual citizenship may stand to be elected MPs is not unconstitutional as it does not touch upon the national sovereignty being the basis of the nation-state and a fundamental constitutional principle.
In the modern globalized and widely open world the issue of dual nationality and the right for Bulgarian citizens holding another nationality as well to take part in the government of the state should be viewed in a supranational modern European context. Even more so in view of the opinion of the Venice Commission of the Council of Europe in support of the constitutional amendments and the warning that the restriction of electoral rights for persons with dual citizenship risks to be found to be in contradiction to Article 3 Protocol 1 to the European Convention on Human Rights (‘Right to Free Elections’; ECHR) which stipulates that ‘[T]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’
Pursuant to Article 5, para 4 of the Constitution, ECHR has become part of the law of the Republic of Bulgaria, and it establishes a mandatory standard as regards the rights of the Bulgarian citizens. This standard translates as a duty for the state to comply with the standards and criteria established by the European Court of Human Rights (ECtHR) for the protection of the right under Article 3 of Protocol No. 1 to the ECHR. The judges underline that the Constitutional Court has consistently endorses in its case-law the understanding that ‘the ECHR norms has pan-European and pan-civilizational significance for the legal order of the States party to the ECHR and serve as norms of the European public order. This is why interpreting the respective provisions of the Constitution in the area of human rights should be in greatest possible conformity with the ECHR norms as interpreted by the ECtHR. This principle of interpreting national law in conformity with ECHR and ECtHR case-law is further on in accordance with internationally recognized by Bulgaria binding jurisdiction of the European Court of Human Rights on the interpretation and application of the ECHR. In view of the above, the judges take the position that the substance of the rights and freedoms stemming from the Convention principles, should be established through interpretation in accordance with the interpretation of the constitutional norms and ECHR provisions’ (Decision No. 2/1998 on Constitutional Case No. 15/1997). This principal position is affirmed in Decision No. 14/2022 on Constitutional Case No. 3/2022 and others.
In view of the above, the ECtHR judgment Tănase v. Moldova (GC) (No. 7/08) should be considered. There the Court held that the prohibition for persons holding dual nationality to stand as candidates in parliamentary elections violates Article 3 of Protocol No. 1 to the ECHR which enshrines the fundamental principle of ‘the free expression of the opinion of the people in the choice of the legislature’. The Court, referring to Aziz v. Cyprus, notes that ‘[A]lthough ... States enjoy considerable latitude to establish rules within their constitutional order governing parliamentary elections and the composition of the parliament, and ... the relevant criteria may vary according to the historical and political factors peculiar to each State, these rules should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature, a right guaranteed by both the Convention and the Constitutions of all Contracting States’. The Court further refers to Ādamsons v. Latvia, emphasizing that ‘with the passage of time, general restrictions on electoral rights become more difficult to justify. Instead, measures had to be “individualised” in order to address a real risk posed by an identified individual’. Finally, the Court concludes that ‘any restriction on electoral rights should not be such as to exclude some persons or groups of persons from participating in the political life of the country’.
The argument pertaining to the protection of national sovereignty as the fundament of the modern nation state is applicable to Bulgaria just as to any other Member State of the Council of Europe which has recognized the jurisdiction of the ECtHR and has the duty to respect the standards for protection of human rights established in its case-law. This case-law denies operating on a blanket assumption that all dual nationals (and in particular members of the legislature) ‘pose a threat to national security and independence’. Sovereignty undoubtedly is an intrinsic characteristic of every state. This universal constitutional principle is not violated by allowing dual nationals to be elected for MPs. Significantly, comparative research cited in Tănase v. Moldova shows that as of 2010 only four member states of the Council of Europe in addition to Moldova (Azerbaijan, Lithuania, Malta, and Bulgaria) ban dual nationals from being elected in Parliament. It can hardly be seriously claimed that the constitutional regulation of the states that allow for such possibility is not premised on the principle of national sovereignty. Thus, the judges are not of the opinion that repealing the prohibition of dual nationality of MPs violates this fundamental constitutional principle and serves as a valid argument justifying the exclusive competence of a Grand National Assembly.
The judges draw attention to the fact that according to Article 17, paragraph 1 of the European Convention on Nationality nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party.
Bulgaria has ratified the European Convention on Nationality by a ratification law (promulgated SG No. 102 of 20 December 2005) and made the following reservation in the instrument of ratification in relation to Article 17, paragraph 1: ‘In accordance with Article 29, paragraph 1, of the Convention, the Republic of Bulgaria reserves the right not to apply the provision of Article 17, paragraph 1, of the Convention. Under the terms of this reservation, the Republic of Bulgaria shall not apply in respect of the nationals of the Republic of Bulgaria in possession of another nationality and residing on its territory the rights and duties for which the Constitution and laws require only Bulgarian nationality’. The fact that Bulgaria has joined the Convention with this reservation is not a valid argument in support of the unconstitutionality of the amendments made to Article 65, para 1, second sentence of the Fundamental Law as regards the possibility for individuals with dual nationality to exercise their passive voting rights as the Bulgarian citizens do. To the contrary, this is an argument in support of the constitutionality of these amendments since the reservation on this provision of the Convention was inevitable at the time of acceding to the Convention given the constitutional framework in place at the time; yet this reservation is not a question of constitutional identity. Changes to the Constitution in relation to the dual nationality are required to withdraw this reservation and provide Bulgarian citizens with equal opportunities for free development of the personality and full participation in the political life.
The judges maintain that this lack of unconstitutionality refers only to the possibility provided for in Article 65, para 1, second sentence of the Constitution for persons holding dual nationality to be elected MPs, in line with the cited case-law of the ECtHR. As far as the amendments made to Article 110 of the Fundamental Law in relation to members of the government are concerned, the judges maintain that these are unconstitutional. Unlike MPs who do not perform individual management functions, members of the Council of Ministers, in addition to being members of a college body, serve as individual public bodies (Article 108, para 3 of the Constitution) heading each a ministry where ‘the priorities of the state policy, strategies, programmes, objectives and tasks’ are performed (Decision No. 9/2016 on Constitutional Case No. 8/2016). Thus, having another nationality, namely a political and legal nexus to another state, appears to be in conflict with the principle of sovereignty which requires state policies in the different spheres of public life to be subjected exclusively to the interests of the state and its citizens.
Although the provision of Article 110 of the Constitution as regards eligibility criteria for members of the Council of Ministers makes a reference to Article 65, para 1 concerning eligibility criteria for MPs, a differentiated approach in the assessment of these provisions’ constitutionality is not excluded as long as this assessment is premised on the principles of the Fundamental Law and not on considerations of a technical legal character. Declaring the amended provision of Article 110 invalid and hence unconstitutional restores the former content of the regulation which refers to Article 65, para 1 in the version in which it bans persons with dual nationality from being elected MPs and therefore ministers as well.
In view of the above, the judges are of the opinion that the amendments made to Article 65, para 1, second sentence as effected by way of § 3 LAS Constitution are not unconstitutional while the amendments made to Article 110 as effected by way of § 9 LAS Constitution are invalid and hence unconstitutional.
As regards the amendments made to Article 93, para 2 as effected by way of § 6 LAS Constitution
The Constitutional Court points out that the amendments made to Article 93, para 2 as effected by way of § 6 LAS Constitution provide for eligibility criteria for President without referring to the eligibility criteria for MPs as the former wording of Article 93, para 2 (prior to the entry into force of the LAS Constitution) used to do. The amendments do not add new normative content to Article 93, para 2 of the Fundamental Law but rather align it to the repealed prohibition of dual nationality of MPs and ministers as laid down in Article 64, para 1 and Article 110 of the Constitution effected by §§ 3 and 7 LAS Constitution.
The new wording of Article 93, para 2 of the Constitution does not change the eligibility criteria or the objectives of the constitutional regulation as laid down by the creators of the 1991 Constitution. Thus, the Constitutional Court finds the provision of Article 93, para 2 effected by § 6 LAS Constitution not to be in conflict with fundamental constitutional principles.
In view of the above, the Constitutional Court finds the amendments made to Article 93, para 2 by § 6 LAS Constitution in line with the Constitution.
ІV. As regards Article 91b (new) effected by § 5 LAS Constitution
Article 91b under discussion here has been introduced in the Fundamental Law by way of § 5 LAS Constitution. It reads as follows, ‘(1) The National Assembly, when electing members of bodies that are elected by it in part or in whole, shall observe the principles of openness, transparency, publicity and soundness with a view to ensure their independence’, and ‘(2) Decisions for election of such members shall be taken with a majority of two-thirds of all Members of Parliament when this is laid down in a law’.
This is an entirely new text that falls in Chapter Three of the Fundamental Law, ‘National Assembly’. It establishes ‘principles’ and requirements for exercising the constitutive competence of the National Assembly. The ‘principles’ which the National Assembly must follow when ‘electing members of bodies that are elected by it in part or in whole’ are enumerated in paragraph 1 of Article 91b. These refer to all cases of exercising Parliament’s constitutive competence (for example, there is no reference to Article 84, item 8 of the Constitution) and therefore must be observed in all cases when Parliament elects members of bodies that are ‘elected by it in part or in whole’, regardless of whether these bodies are established by the Constitution or not. Further on, the objective of observing the enumerated ‘principles’ by the National Assembly is stated, namely ‘to ensure their [‘the bodies’] independence’. In fact, this part of the constitutional provision contains requirements (which are not, and could hardly be exhaustively enumerated – issues such as those concerning the term of office, the stability of the occupied position etc. are left outside) stemming from principles that are fundamental to the state order and manifest themselves in the governance of the state: the principles of national sovereignty, rule of law, and separation of powers as laid down in Articles 1, 4, and 8 of the Constitution. The requirements laid down in Article 91b as effected by § 5 LAS Constitution are rather relevant to the mechanics of implementing these fundamental principles, and hence their proper place is the Rules of Organization and Procedure of the National Assembly.
The Constitutional Court draws attention first to the fact that constitutional texts are not coined in such a way as not to have individual effect, each of them. The construct used by the creators of the Constitution in Articles 155 and 156 is ‘a law amending and supplementing the Constitution’, and therefore texts that introduce constitutional amendments referring to the principles and requirements in exercising the powers of permanent state bodies established by the Constitution, especially the National Assembly, should establish a binding rule, i.e. they should rank the same as the Constitution in its entirety. In the present case the intended objective as stated in Article 91b, para 1, namely ‘to ensure their independence’ is present in the binding rules laid down by Articles 1, 4, and 8 of the Constitution as adopted in 1991 – all state bodies, including and first most the National Assembly, are bound by these fundamental constitutional principles.
It is without significance whether the National Assembly, when acting as an intrinsically limited constitutive authority, shall declare on constitutional level its self-restriction in line with the constitutional decrees and requirements stemming from them, or not. It is bound to observe these requirements as they are the basis of the established state order. Laying down the requirements under discussion separately in the beginning of Article 91b does not create any individual effects, which is why this part of the provision of Article 91b does not acquire a constitutional ranking. Yet introducing such texts in the Fundamental Law may significantly weaken the normativity of the provisions that lay down constitutional principles such as national sovereignty, rule of law, supremacy of the Constitution, separation of powers, political pluralism etc. (Decision No. 7/2006 on Constitutional Case No. 6/2006). In the context of the above, the Constitutional Court holds that the part of Article 91b under discussion, the one as regards the introduced ‘principles’ is invalid and hence should be declared unconstitutional.
The remaining part of the text of Article 91b, viewed in its entirety, introduces a general rule, which operates however under an express condition, and this condition raises a number of questions. In particular paragraph 2 of Article 91b, ‘Decisions for election of such members shall be taken with a majority of two-thirds of all Members of Parliament when this is laid down in a law’, read in combination with part of paragraph 1 – ‘The National Assembly, when electing members of bodies that are elected by it in part or in whole’ in fact reads that when the National Assembly takes such decisions, namely elects in part or in whole bodies following the said ‘principles’, it adopts legal acts – decisions – with a majority of two-thirds of all Members of Parliament. Following this wording which could be read as containing a binding rule, a condition is immediately brought in, that the National Assembly shall follow this rule but not always, and only when it is laid down in a law.
Systemically, the constitutional text under discussion falls in Chapter Three of the Fundamental Law, ‘National Assembly’. This, and the generic term ‘bodies’ which is used, gives reasons to maintain that the introduced rule of required majority of two-thirds of all MPs applies to all cases when the National Assembly takes decisions while exercising its constitutive competence, regardless of the type of body being elected, and regardless of whether this body is constituted by Parliament in part or in whole (there is no express condition in paragraph 2 that for example, it refers only to cases when the election is delegated to the National Assembly by law).
Within the meaning of interpretative decision No. 3/2003 on Constitutional Case No. 22/2002, the National Assembly, President, Vice-President, Council of Ministers, Constitutional Court and the bodies of the judiciary are fundamental constitutional institutions occupying a special place in the state hierarchy. It is expressly underscored that the creators of the Constitution establish these ‘lasting democratic constitutional institutions’ with a view to recreate the formed common will as manifested in the Fundamental Law for these institutions ‘to affirm through their actions a new state in nature and organization, to guarantee the irreversibility of the democratic processes and rule out any violations thereof’. At the same time their structure, place in the state hierarchy, manner of being established, basic powers and balance thereof, in the way they are determined by the Grand National Assembly, are defined as ‘a guarantee for the development of the democratic processes in implementing the principles of sovereignty (Article 1, para 2), political pluralism (Article 11, paras 1 and 2), separation of powers (Article 8), rule of law (Article 4), and the independence of judiciary (Article 117, para 2)’. Referring to the character of these constitutional institutions as the fundament of the established state order, the Constitutional Court draws attention to the fact that their legal status, in particular the manner in which they are established, is regulated only on constitutional level and therefore the constitutional ranking and place in the state hierarchy of these institutions rule out that any element of the procedure for their establishment be laid down in a law. This means that the condition introduced by Article 91b, para 2 in fine – ‘when this is laid down in a law’ – does not apply to the rule about the required majority when the National Assembly exercises its constitutive competence in the course of establishing the constitutional institutions referred to above.
The constitutional logic, both prior to and after the entry into force of the Law Amending and Supplementing the Constitution, is that the establishment of these constitutional institutions should be regulated exclusively on constitutional level, and the applicable rule when the National Assembly elects them in part or in whole stipulates that it is done by a simple majority (Article 81, para 2) save for those cases when the creators of the 1991 Constitution have expressly provided for a qualified majority. What is more, when the constitutional legislature refers to a legislative regulation of the constitutionally established institutions, it expressly excludes the way these institutions are established (Article 91, para 2; Article 91a, para 2; and Article 152 of the Constitution). At the same time, as mentioned above, the rule contained in the provision of Article 91b, namely the required two-thirds of all MPs, is applicable to the fundamental public institutions, hence this constitutional decree, as demonstrated by the above, serves to create a parallel regime, which runs contrary to the principle of rule of law and supremacy of the Constitution established by Article 4, para 1 and Article 5, para 1 of the Fundamental Law as the value fundament of the constitutional order.
It is important to note in the present case that the part of Article 91b under discussion here was adopted following substantial changes in its phrasing made during a meeting of the Committee on Constitutional Affairs as proposed in the report of the Committee in plenary session and before second reading of the constitutional amendment bill (compare the Verbatim Report of the 69th plenary session of the 49th National Assembly of 8 December 2023, first reading; transcript from the meeting of the Committee on Constitutional Affairs of 16 December 2023, and the Verbatim Report of the 16th extraordinary session of the 49th National Assembly of 19 December 2023, second reading). Initially the text clearly referred to cases when the National Assembly exercises its constitutive competence to establish independent regulatory and inspection bodies: ‘A new Article 91b shall be inserted reading as follows. ‘Article 91b. (1) The National Assembly shall elect independent regulatory and inspection bodies subject to compliance at least with the following requirements: reasonable time for submitting proposals, for discussion and hearing of the nominees; possibility of representatives of the general public to give opinions and observe the election process; and restricting the number of consecutive terms of office. (2) A law may provide for qualified majority for the decisions for election of these bodies’.
It is noted in relation to the new Article 91b in the reasons of the Law Amending and Supplementing the Constitution (incoming registration No. 49-354-01-83 of 28 July 2023) that a ‘constitutionalization of the basic stages of the procedure for election of members of independent regulatory and inspection bodies is hereby proposed’, together with the ‘requirements’ which should be observed when following this procedure that are meant to ‘limit the politization of the procedure’ and hence ‘enhance the credibility of those bodies’.
Following objections to the text in the Committee on Constitutional Affairs, and suggestions were made that the text be repealed and it would be more appropriate that such matters were regulated by a law, the text was rephrased in the form it was adopted by way of § 5 LAS Constitution, and the words ‘independent regulatory and inspection bodies’ was repealed. The above-mentioned initial text leaves no doubt about the striving of the MPs to lay down a uniform procedure for electing the members of all regulatory and inspection bodies, including nominations, involvement of civil society organisations, and compliance with the requirements for openness, publicity, soundness etc.
As long as the text of Article 91b under discussion here does not contain a standard for the applicability of the requirement it introduces (required majority in exercising the National Assembly’s constitutive powers), the possibility occurs after the changes made to its phrasing as effected by § 5 LAS Constitution for a parallel regime for establishing ‘fundamental democratic constitutional institutions’ in accordance with the will of Parliament being a constituent authority, i.e. a current, transitional political majority. This is a legal possibility that the creators of the 1991 Constitution have not envisaged and which the National Assembly is not competent to afford to itself by amendments to the Fundamental Law under Article 155 in conjunction with Article 153 of the Constitution, namely the establishment of the fundamental constitutional bodies follows a procedure established exclusively on constitutional level. A risk therefore occurs for the legal certainty of these constitutional bodies as a dimension of the rule of law principle since no legislature could bind with its legislative solutions any of the legislatures to follow.
In view of the above, the constitutional amendment under discussion serves to bring an intrinsic inconsistency in the constitutionally established procedure for constituting the fundamental lasting state institutions and thus trespasses on the exclusive competence of Grand National Assembly, contrary to Article 158, item 3 as regards ‘form of government’ as interpreted in interpretative decision No. 3/2003 on Constitutional Case No. 22/2002. This runs contrary to the initial constitutional delineation between the powers of a Grand National Assembly and of a regular National Assembly to adopt constitutional amendments within the meaning of Article 153 of the Constitution.
In view of the above, the Constitutional Court finds the new Article 91b as effected by § 5 LAS Constitution to be invalid, and hence unconstitutional.
V. As regards amendments to Article 99, paras 5 and 7, and Article 102, para 3, item 3 as effected by §§ 7 and 8 LAS Constitution
The voting held as regards the reasonableness of the requests to establish the unconstitutionality of the amendments made to Article 99, para 5 and Article 102, para 3, item 3 as effected by way of §§ 7 and 8 LAS Constitution could not reach the required majority of more than half of the judges in the composition of the Court (Article 151, para 1 of the Constitution), hence these requests should be diverted.
А. In the opinion of judges Pavlina Panova, Mariana Karagyozova-Finkova, Tanya Raykovska, Atanas Semov, Yanaki Stoilov and Sonya Yankulova, the requests are well-founded.
1. The adopted model of caretaker government before the amendment of the Constitution
Given that one of the main motivs behind the constitutional amendments aimed at limiting the president's discretion in forming a caretaker government is rooted in references to and critiques of alleged abuses of power by caretaker governments in Bulgaria in recent years, and with the objective of strengthening parliamentary governance by ensuring the continuity of parliamentary activity, it is necessary, albeit briefly, to outline the most significant characteristics of the caretaker government model adopted by the 1991 Constitution. This includes highlighting the specific dynamics of the power triangle - president, government, and parliament - under the constitutional framework established by the framers of the 1991 Constitution.
A fundamental characteristic of the Bulgarian constitutional model of parliamentary governance, as adopted in the 1991 Constitution, which follows the parliamentary traditions in continental Europe and their evolution, is that state governance is exercised by the parliament through a government formed by it, which operates as long as it enjoys parliamentary support. Furthermore, Bulgaria is a parliamentary republic with a head who differs from the predominantly ceremonial role often attributed to presidents in the past. It is important to emphasize that, according to the framers of the 1991 Constitution, the president in the Bulgarian parliamentary model is directly elected by the sovereign, constituted as an electoral body of politically capable citizens, and although he is not equal to the parliament in terms of representation, he is equal to it in terms of his democratic legitimacy. In essence, the emphasis placed by the framers of the 1991 Constitution on the figure of the Bulgarian president, as head of state, is that he is democratically legitimized and must be vested with the necessary and sufficient discretionary power to fulfill the democratic function of safeguarding the interests of the ultimate holder of state power - the sovereign people.
In the Bulgarian constitutional model, according to legal doctrine, three types of governments can be distinguished: a "regular" government - elected by the National Assembly; a "resigning" government - operating under the conditions of Article 111, paras 1 and 2 of the Constitution; and a "caretaker" government - appointed by the head of state under the hypothesis of Article 99, para 5 of the 1991 Constitution.
The caretaker government is regarded as a special type of government, established solely as a last resort in a situation of parliamentary crisis. The inability to secure parliamentary support (due to a crisis in the relations between political forces within the parliament) for the election of a government is defined in both doctrine and political practice as a parliamentary crisis. In the Grand National Assembly, the existence of a caretaker government as a constitutionally established state body within the parliamentary model of governance - appointed by the president and competent to manage current domestic and foreign policy matters for an indefinite but determinable period of time, until the election of a government by the newly elected National Assembly - is not disputed. Its caretaker nature derives from the source of its empowerment - it is appointed by the president, who legitimizes it, rather than being elected by the National Assembly. It also stems from its purpose - to organize the conduct of elections for a new parliament, which will subsequently form a parliamentary government.
With regard to its formation, and deviating from the norms established in classical parliamentary democracies, the caretaker government has a non-parliamentary origin due to the fact that it is appointed by the president when "the constitutional possibilities for forming a government enjoying the confidence of the National Assembly are exhausted" (Decision No. 20/1992 on Constitutional Case No. 30/1992). In the Grand National Assembly, consensus was reached that, when appointing a caretaker government as a last resort - in cases of parliamentary crisis - the head of state should not be restricted in their discretion regarding the composition of the government. Discussions were held concerning the explicit inclusion in the Constitution of a range of persons eligible to be appointed as caretaker prime minister, but this idea was rejected (Minutes of the 161st session of the Committee for Drafting the Constitution of Bulgaria, dated 21 June 1991).
Without reproducing in detail the reasoning regarding the main characteristics of the caretaker government as outlined in Interpretative decision No. 20/1992 on Constitutional Case No. 30/1992, as well as the views adopted therein regarding its powers, and noting that they find no grounds to deviate in the present proceedings from the positions maintained in the cited decision, the constitutional judges emphasize the following regarding the powers of the caretaker government: with the appointment of a caretaker government, the Council of Ministers in resignation (the terms "government" and "Council of Ministers" are used synonymously in the 1991 Constitution) ceases to function; the term of office of the caretaker government continues until a government is formed under the procedure established by Article 99 of the Constitution; the powers of the Council of Ministers, as prescribed in Chapter Five of the Constitution, are also the powers of the caretaker government. The anticipated restraint in exercising these powers is based on the fact that the caretaker government does not derive its mandate from the parliament, even though no formal limitations are prescribed in the Constitution. This limitation on the caretaker government cannot be defined or regulated by law but stems from the temporary nature of its functioning, its purpose to manage the current affairs of domestic and foreign policy until parliamentary elections are held and a government is formed by the newly elected National Assembly, as well as from the limited parliamentary oversight exercised over it. Since the parliament is not the source of the caretaker government's powers, it cannot fully exercise parliamentary control - namely, to enforce the political accountability of the caretaker government (Interpretative decision No. 20/1992 on Constitutional Case No. 30/1992).
2. The constitutional amendments regarding the caretaker government, introduced by § 7 LAS Constitution
With the proposed and adopted amendment to the constitutional texts under discussion - Article 99, paras 5 and 7 - both the procedure for appointing a caretaker government and the scope of the president's discretion to determine its composition and structure are substantially modified. Additionally, the possibility of limiting the caretaker cabinet's powers is established at the constitutional level. The president's choice for a candidate for caretaker prime minister is restricted exclusively to the individuals exhaustively listed in the text of Article 99, para 5, as effected by §7 LAS Constitution, who hold specifically defined high-ranking positions in the state. However, as the practice of implementing this provision has shown, issues arise from the discussed constitutional amendments due to the failure to foresee the hypothesis of the status quo of those occupying these positions.
Prior to the current amendments to the 1991 Constitution concerning this matter, if no agreement was reached on forming a government, the head of state had full autonomy in deciding whom to appoint to the caretaker government, including the appointment of the caretaker prime minister. Following the constitutional amendments, the president is required to conduct consultations with parliamentary groups before assigning the candidate for prime minister - selected from among the individuals listed in the second sentence of Article 99, para 5 of the Fundamental Law - to propose a composition for the caretaker government for appointment. Formally, there is no constitutional obstacle preventing the president from raising objections to the proposed composition of the government or requesting changes to it. However, in both cases, the proposal must come from the candidate for caretaker prime minister or, respectively, the caretaker prime minister, even though the president issues the act for the appointment or for changes in the composition of the caretaker government. With the president's position of authority thus weakened, the caretaker government does not, in practice, bear political responsibility. To achieve the objective of the amendment - significantly reducing the role of the head of state in relation to the caretaker government - a provision has also been introduced allowing the powers of the caretaker cabinet to be limited by law (Article 99, para 7).
Additionally, the constitutional judges note that with the removal of the phrase "dissolves the National Assembly" from the provision of Article 99, para 5, as introduced by §7 LAS Constitution, a significant limitation has been imposed on the democratic function of the president. This function is integral to the logic of the fundamental constitutional characteristic of the head of state in a parliamentary republic, as defined in Article 92, para 1 of the Fundamental Law. Legitimized by direct election in a system of democratic governance under the rule of law, the Bulgarian president is entrusted with ensuring the stability, continuity, and constitutionality of state governance. This includes acting as a political arbiter between the sovereign - the holder of state power - and the temporary political representation that, having exhausted the democratic procedure outlined in Article 99, paras 1-4 of the Constitution, is unable to form a government. Such political representation loses its legitimacy as it has failed to fulfill one of its essential functions within the parliamentary system of governance - forming a government. Consequently, it is deprived of its raison d’être - the trust and consent of the sovereign to be governed in accordance with its will, as expressed and transformed into a parliamentary mandate through the act of election. It is precisely the president, democratically legitimized through direct elections, who is called upon in times of parliamentary crisis to safeguard the interests of the sovereign.
The constitutional judges, taking into account the parliamentary governance model adopted by the framers of the 1991 Constitution, the institutions involved in the process of forming a caretaker government, and the established mechanism of mutual checks and balances between the president, government, and parliament, as well as the considerations presented by the promoters and the adopted and entered into force amendments to the 1991 Constitution, determine the following in the context of the foregoing:
3. As regards Article 99, para 5 and Article 102, para 3, item 3, effected by §7 and 8 LAS Constitution
Without delving into an analysis of the appropriateness of the exhaustively enumerated potential candidates for the position of prime minister, including the admissibility of certain individuals to hold such a function, the constitutional judges, while emphasizing that abuse of power is always possible by any authority within the state, consider that the constitutional amendments introduced by §§7 and 8 LAS Constitution alter the procedure for forming the caretaker government as one of the key constitutional bodies. This change fundamentally affects the mechanism of mutual checks and balances within the power triangle of the president, government, and parliament, thereby disrupting the constitutional equilibrium within the parliamentary system established with a head of state entrusted with a significant democratic function by the framers of the 1991 Constitution. In its case-law, the Constitutional Court holds that the essence of the president's constitutional function under Article 92, para 1 is "to embody, express, and uphold national identity, values, and aspirations, as well as the continuity of the state" (Interpretative decision No. 25/1995 on Constitutional Case No. 27/1995). The Court further emphasizes that this function "is characterized by its continuity, which is supported by several constitutional provisions - Article 93, para 5, Article 97 paras 3 and 4, and Article 99 of the Constitution - and implies that the constitutionally assigned duties must be carried out consistently and uninterruptedly within the scope of the presidential mandate. Article 92, para 1 defines the institutional profile of the "president" within the Bulgarian constitutional model. It also signifies that the president must always act in accordance with the nation's requirements, and his direct election legitimizes this" (Decision No. 12/2020 on Constitutional Case No. 1/2020).
In addition to the aforementioned, the judges note that the discussed constitutional change affects not only the status of the president and the caretaker government but also the status of the National Assembly, along with the established relationships between them. Ensuring continuity in the operations of the representative body guarantees the exercise of parliamentary control over the caretaker government as one of its key constitutionally assigned functions (Article 62, para 1 of the Constitution), and in this sense, it strengthens the position of Parliament as a power center. However, Parliament would not be able to apply other means of parliamentary control besides questions and inquiries, and since the empowerment comes from the president, it would not be able to hold the caretaker government politically accountable. At the same time, the reduced discretion for the president in making appointments leads to a decrease in his responsibility regarding the caretaker government. All of this alters the relationships established by the framers of the 1991 Constitution between the president, the government, and Parliament, shifting towards a power dominance of Parliament, which violates the core of the foundational principle of the separation of powers in the constitutional order - preventing the subordination of one power to another.
The judges point out that "the fact that the government in a state with a parliamentary form of government is accountable to the parliament does not create a subordinate status for the government - the sphere of making important state decisions is not reserved solely for the National Assembly as the national representative body; in this sphere, the government's powers are of essential importance for the country's leadership" (Decision No. 10/2021 on Constitutional Case No. 8/2020). In its case-law the Constitutional Court notes that "[t]he legal status of the President of the Republic of Bulgaria as the head of state and an organ performing integrative functions in state governance precludes the possibility of him holding any form of power, including executive power" (Decision No. 6/2012 on Constitutional Case No. 3/2012). The Court emphasizes that "the president interacts with the holders of each of the powers, but without placing him above them," and maintains that "in the Bulgarian constitutional model, the president contributes to moderation and continuity in state governance, oriented towards the long-term goals of the state, and acts as a deterrent and corrective to the government's political decisions" (Decision No. 12/2020 on Constitutional Case No. 1/2020).
The constitutional judges state that in a constitutional rule-of-law state with parliamentary governance, the national representative body is the center of authority. However, it is not the parliament's power in general that is broad, but rather the parliament's power within the framework of the Constitution - it is a constituted authority that is inherently limited. It is the Constitution that defines the framework for the operation of political representation - the opposite would render the existence of a written constitution as the Fundamental Law, as well as constitutionalism itself, meaningless.
Ensuring the continuity of parliamentary activity cannot in itself be assessed as strengthening parliamentarism. Parliamentary governance does not mean governance by the parliament; rather, it signifies that the responsibility for establishing and maintaining a unified system of governance in the state lies with a government created by and politically accountable to the parliament. Each of the two branches of power - legislative and executive - has its functional purpose and competence, which they exercise through interaction, mutual control, and checks and balances. This established position in constitutional doctrine and practice is also applicable to the scenario of a caretaker government. In a republic with parliamentary governance and a head of state - a president - such as Bulgaria, in cases of parliamentary crisis, the democratic function of the president, as envisaged by the framers of the Constitution, is to act as a political mediator between the holder of state authority and the national representative body that has proven incapable of fulfilling its democratic function. This function is directed toward overcoming the parliamentary crisis, not ensuring the continuity of power of such a parliament. In parliamentary representative governance, the electorate is the sole legitimizing factor for political representation through the act of elections. The electorate is not merely an object but a subject of governance, and the continuity of the National Assembly’s activity does not take precedence over the legitimizing role of elections. In light of the above, the judges consider that the discussed amendment to Article 99, para 5, as introduced by §7 LAS Constitution, is inconsistent with the fundamental principle of popular sovereignty and the form of parliamentary governance established by the 1991 Constitution. These principles form an integral part of the substantive constitutional limitations on the representative body’s authority to make constitutional amendments under Article 153 in conjunction with Article 158 item 3 of the Fundamental Law.
Furthermore, by limiting the democratic function of the President in a parliamentary republic, given his status as a fundamental constitutional institution, the discussed constitutional amendment affects the foundation of the state (Interpretative decision No. 3/2003 on Constitutional Case No. 22/2002, Interpretative decision No. 2/1991 on Constitutional Case No. 24/1991). The amendment takes away the essential part of the President’s powers - namely, to determine the composition of the caretaker government and to appoint it. In its capacity as a derivative constituent power, the National Assembly may amend the Constitution following the procedure established in Chapter Nine of the Constitution. However, it cannot alter the purpose of the permanent constitutional institutions that exercise state governance - their organization, functions, and status, as well as the balance between them, which is precisely what the discussed constitutional amendments would result in.
The main state bodies established by the Constitution, their role, formation, and structure, as well as the core powers granted to them and the balance established between them, fall within the scope of essential content of the Constitution, which defines its identity. It is impermissible for these to be altered by a transient parliamentary majority. They constitute substantive limitations established by the constitutional legislator on constitutional amendments carried out by the National Assembly, which it is obliged to observe. This is the meaning of Article 158 of the Constitution, which prescribes that the adoption of a new Constitution and amendments to the current fundamental law related to the foundations of the constitutional order are matters within the exclusive competence of the Grand National Assembly.
In summary, the judges conclude that the constitutional amendments introduced by §7 LAS Constitution, specifically the changes to Article 99, para 5, including the repeal of the phrase "dissolves the National Assembly" in Article 102, para 3, item 3, are inconsistent with Article 158, item 3 in conjunction with Article 153 of the Constitution. Therefore, they must be declared invalid and hence unconstitutional.
The repeal of Article 102, para 3, item 3 of the Fundamental Law, introduced by §8 LAS Constitution, regarding the President's decree that is not subject to countersignature, which dissolves the National Assembly (under the previous version - issued when appointing a caretaker government), aligns with the discussed constitutional amendments to Article 99, para 5 of the Constitution. Since Article 102, para 3, item 3 ensures the implementation of Article 99, para 5 in its pre-amendment version and the enacted amendments reflect this alignment, the legal consequences of declaring the constitutional amendment to Article 99, para 5, as introduced by §7 LAS Constitution, unconstitutional and invalid, also extend to the amendment to Article 102, para 3, item 3, introduced by §8 LAS Constitution.
For the reasons outlined above, the judges find that the amendments to Article 99, para 5, and Article 102, para 3, item 3, as introduced by §7 and §8 LAS Constitution are invalid and hence should be declared unconstitutional
Б. According to judges Konstantin Penchev, Filip Dimitrov, Nadezhda Dzhelepova, Krasimir Vlahov, Borislav Belazelkov and Desislava Atanasova, the requests are ill-founded.
The amendment to Article 99, para 5, and Article 102, para 3, item 3 of the Fundamental Law is a consequence of the amendment to Article 64, at least (but not exclusively) because the phrase "dissolves the National Assembly" has been removed. In this sense, the amendment is logically tied to the idea of continuity in the functioning of the parliament.
According to the judges, when assessing the constitutionality of a legal regulation, including one embodied in an Act amending and supplementing the Constitution, it is absolutely essential, first and foremost, to clarify its content and the intended consequences. In this case, at first glance, the amended provision of Article 99, para 5 of the Constitution regulates only the manner in which the President appoints the caretaker cabinet, where his discretion, previously unrestricted under the former framework, is now limited to selecting from among individuals holding several high-ranking state positions designated by the parliament.
The real issue, however (the one that determines how the caretaker government operates in accordance with the principles of the Constitution), is the question of its political accountability – i.e., whether and to whom it is accountable for its actions and inactions. It is completely unacceptable to interpret the constitutional provision in such a way that, even under this version of Article 99, para 5, the caretaker cabinet is not accountable either to the parliament, because it is not elected by it, or to the president, because the president is deprived of the discretion regarding the selection of the caretaker prime minister and ministers. As Professor Emiliya Drumeva aptly points out (Constitutional Law. Sofia: Ciela, 2018, p. 487), the government’s accountability to parliament "represents the core of the parliamentary system of government," where the government depends on the trust of parliament. For this reason, as emphasized in Decision No. 8/2016 in case No. 9/2015, "the accountability of the executive power, and specifically the political responsibility of the Council of Ministers, can be realized at any time through means and mechanisms provided at the constitutional level." Again, in the same context, and in Decision No. 9/2016 in case No. 8/2016, the Court emphasized that "for the fulfillment, or rather the non-fulfillment, of its constitutional duties, including those related to ensuring public order and national security, the Council of Ministers is subject to control by the parliament that appointed it, and bears political responsibility before it."
The caretaker government, which is not elected by the National Assembly but appointed by the head of state, cannot be accountable to anyone other than the president – the contrary would mean legitimizing a complete lack of political accountability of the executive branch, which has not been directly elected by the people, in violation of the principle of popular sovereignty (Article 1, para 2 of the Constitution). For all these reasons, the judges believe that, even under the new version of Article 99, para 5 of the Constitution, the caretaker cabinet is accountable to the president, and he has the authority to dismiss the appointed prime minister (by replacing him with another of the persons specified in the provision), as well as, if not directly dismissing ministers, to request the prime minister to propose such a dismissal. This is the reasonable and constitutionally consistent interpretation of the provision, based on which its constitutionality should be evaluated in light of the need to consider whether the balance of powers between the institutions foreseen in the Constitution has been violated, "while adhering to the fundamental principles on which the state is built – popular sovereignty, the supremacy of the Constitution, political pluralism, separation of powers, the rule of law, and the independence of the judiciary," in which case a change in the form of government within the meaning of Article 158, item 3 of the Constitution (Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002) would occur. From this perspective, the essential question for the judges is: what is the balance that the Court must consider when exercising judicial review of the constitutionality of amendments to the Constitution made by the ordinary National Assembly – the one that follows from the overall spirit, logic, and principles of the constitutional system, or the one based on the regulation of individual governmental powers? According to the judges, the starting point for answering this question is the provision of Article 1, paragraph 1 of the Constitution: " Bulgaria shall be a republic with a parliamentary form of government." In accordance with this principle, state policy is shaped by the parliament and the government, and is implemented and directly executed by the cabinet, which is accountable to parliament (Article 83 of the Constitution). In this sense, as stated in Decision No. 8/2016 on Constitutional Case No. 9/2015, "it is the government that directs and carries out the state administration, based on and in implementation of the general rules established by the legislator, with the choice of approach left to the discretion of the executive branch."
State policy (both foreign and domestic) must be stable, resilient, and consistent - these are the requirements for good governance in the interest of the citizens. For this reason, the balance in the relations between the institutions, derived from the spirit and principles of the Constitution, should not allow a caretaker government with a limited (by default) time horizon to shape long-term state policy, including by altering enduring priorities and policies followed by parliament and the regular governments it elects. In this regard, the amendment to Article 99, para 5 of the Constitution does not, according to the judges, violate the balance in the relations between parliament, the president, and the government established by constitutional principles, since in a republic with a parliamentary system of government, the parliament is at the center of this balance, with a leading role in shaping state policies. As stated in Decision No. 8/2016 on Constitutional case No. 9/2015, "political representation is what determines by law the principles, content, and direction of one or another state policy." Likewise, according to Decision No. 9/2016 on Constitutional Case No. 8/2016, "Article 1, para 1 of the Constitution defines Bulgaria as a republic with a parliamentary form of government, and according to Article 62, the National Assembly exercises legislative power and parliamentary control. This means that the National Assembly is the highest state body, in whose competence the Constitution has vested the execution of the most important state functions." In this sense, the amendment to Article 99, para 5 of the Constitution logically follows from the continuity established in Article 64 regarding the functioning of the National Assembly, as it enables parliamentary control over the activities of the caretaker government, even though the latter remains accountable to the president.
The limitation of the president to choose the caretaker prime minister from a narrow circle of individuals is motivated by the need to avoid the result that the old paragraph 7 of Article 99 of the Constitution sought to prevent - the continuation of the duration, and thus the scope of the president's power, in the case of recurring incapacity of parliamentary groups to elect a government. The legislator has adopted the view that the principle of Article 1, para 1 of the Constitution could be implemented more successfully if the circle of potential caretaker prime ministers is narrowed to individuals already holding significant state functions. Naturally, it could be argued whether this approach provides effective protection for the principle of Article 1, para 1 of the Fundamental Law, which the legislator has found to be endangered. However, the Constitutional Court is not in a position to assess the wisdom of a constitutional amendment, nor to make predictions about its effectiveness.
The thesis is supported that outlining a limited circle of individuals whom the president can invite to be prime minister of a caretaker government leads to a violation of the balance between institutions. It should be noted that, in principle, the prerogatives of the president, as regulated by Articles 98 and 99 of the Constitution, are representative or delegatory by nature, rather than managerial in the strict sense of the word. Specific - and thus expressly listed - are his powers under Articles 100 and 101 of the Constitution. Under normal conditions (i.e., when there is no government crisis), the president's primary right regarding the formation of the government is the assessment of the success of the exploratory mandate under Article 99, para 4 of the Fundamental Law. In all these cases, the constitutional legislator has proceeded from the general idea of the role of the president, which aligns with the principle of Article 1, para 1 of the Constitution.
The judges also note that all individuals listed in Article 99, para 5 of the Constitution, among whom the president appoints the caretaker prime minister, have been elected to their respective positions by the National Assembly, and this election serves as an (indirect) guarantee for the stability and predictability of the caretaker government's policies in accordance with the priorities outlined by the people's representation. At the same time, without exception, these are constitutional bodies, i.e., bodies whose existence and functioning have been deemed significant for state governance by the constitutional legislator (Article 84, item 8, Article 91, and Article 91a of the Constitution), and their constitutional regulation is systematically placed in Chapter Three ("National Assembly"). Including them in the pool of individuals from whom the president selects the caretaker prime minister thus internally harmonizes the constitutional regulation. In this sense, limiting the president's discretion to appoint a caretaker prime minister from among individuals elected by the parliament to positions of state importance and enjoying public trust is also in the spirit of the constitutional principles.
The fact that there is a theoretical possibility that none of the invited individuals might accept the position of caretaker prime minister is irrelevant. This cannot lead to a constitutional crisis because, until a new government is formed, the cabinet in resignation remains in office (Article 111, para 3 of the Constitution). In comparative terms, this is a well-known and widely established solution, ensuring the continuity of state governance.
Considering the above, the judges maintain that the balance derived from the principles of the Constitution in the exercise of the functions of the highest state bodies is not disrupted by the new wording of Article 99, para 5 of the Fundamental Law, given the necessity for the caretaker cabinet to be accountable to the president.
The extent to which the amendment in question affects elements of the institutional balance is more closely linked to addressing unforeseen (and revealed through three decades of practice) possibilities within the previous framework to deviate from fundamental principles, rather than altering the established features belonging to the "form of State structure or form of government." As previously noted, the Constitutional Court is not tasked with assessing the effectiveness of such solutions or the statesmanship wisdom of the legislator.
In view of the above, the judges find that the amendments to Article 99, para 5, and Article 102, para 3, item 3, as introduced by §§7 and 8 LAS Constitution, are not unconstitutional.
The Constitutional Court, with regard to the amendments to Article 99, para 7, as introduced by §7 LAS Constitution, states the following:
Between the first and second readings of the draft Law Amending and Supplementing the Constitution (incoming registration No. 49-353-04-315 of 14 December 2023), it was proposed that the provision of Article 99, para 7, of the Constitution be amended rather than repealed, thereby retaining its systematic place. From the discussions on this proposal during a plenary session (transcript from the session of the Committee on Constitutional Affairs of 16 December 2023), it can be established that the promoters of the proposal between the first and second readings argued for the need to limit the powers of the President. The rationale behind this argument was based on the assumption that a caretaker cabinet appointed by the President is dependent on him - adhering to his vision for state governance and following his directives. According to the statements expressed, this assumption is supported by political practice and the actions of such governments, particularly over the past two years.
Between the "second" first and second readings, a proposal was submitted (incoming registration No. 49-354-04-315 of 14 December 2023) to amend the content of Article 99, para 7. Specifically, it was proposed that the provision be formulated as follows: "The primary task of the caretaker government is to organize free and fair elections. Limitations on the powers of the caretaker government may be established by law." This formulation was adopted as part of the constitutional amendment introduced by §7 LAS Constitution.
Regarding the rationale for the constitutional amendment - to eliminate the dependence of the caretaker government on the President - the Constitutional Court notes that any "regular" government, in its relations with the National Assembly, is dependent on its consent and support, and it may remain in power and function as long as it enjoys the backing of a parliamentary majority. Parliament exercises parliamentary oversight and may enforce the political accountability of the government it has elected. Similarly, the caretaker government, which is appointed by the President and derives its authority from the presidential institution, also has a degree of dependence on the National Assembly, even though it does not bear full political accountability to Parliament. The Constitutional Court reaffirms its established practice and finds no grounds to deviate from its position in this case. It maintains that parliamentary oversight mechanisms over the government "influence the exercise of the government's executive functions without eliminating its autonomy or restricting its powers" (Decision No. 10/2021 on Constitutional Case No. 8/2021). Under the previous version of Article 99, para 7 of the Constitution, the Court held that during the term of office of a caretaker government, "the President may make changes to the structure and composition of the caretaker government" (Interpretative Decision No. 20/1992 on Constitutional Case No. 30/1992). The Court further clarified that this is part of the system of checks and balances between the branches of government in a parliamentary system and does not constitute an impermissible dependence of the caretaker government on the President.
The Constitutional Court finds that the constitutional provision under discussion is entirely constitutionally unacceptable, as it alters the fundamental purpose of the caretaker government as an element of the parliamentary system established by the framers of the 1991 Constitution.
The caretaker government is legally and functionally independent from the Head of State, but the constitutional amendments in question do not allow for its full accountability to Parliament to be realized. In the operative part of Interpretative Decision No. 20/1992 on Constitutional Case No. 30/1992, the Constitutional Court held that: “[t]he caretaker government exercises the powers of the Council of Ministers as set out in Chapter Five of the Constitution. Its functions are somewhat limited because its mandate does not originate from Parliament. This limitation cannot be defined or regulated by law; rather, it arises from the time constraints during which the caretaker government operates, its purpose of managing current domestic and foreign policy issues until legislative elections are held and a government is formed by the newly elected National Assembly, and the limited parliamentary oversight exercised over it.” The limitations on the powers of the caretaker government do not stem from the possibility of intervention by the Head of State in areas of competence assigned by the Constitution to each Council of Ministers, including caretaker government (Article 87, paras 1 and 2, Article 98, para 1, items 5 and 6, Article 100, paras 2 and 4, Article 105, paras 1 and 2, Articles 106, 107 and 114, Article 143, para 2, Article 150, para 1, among others). The executive power, including that exercised by a caretaker government, “is an autonomous sphere of state governance, and in terms of values, its function is as essential as those of the other branches of government. It is independent in making decisions based on the law and its own discretion. [...] The constitutional status of the executive branch precludes its decision-making from being blocked by any other branch of government” (Decision No. 10/2021 on Constitutional Case No. 8/2021).
The constitutional amendment under discussion, specifically the first sentence of Article 99, para 7, as introduced by §7 LAS Constitution, establishes a constitutional basis for limiting the powers of the caretaker government by designating the organization of fair and free elections as its primary task. However, it should be noted that every government - including government resigning upon the expiration of the mandate of the National Assembly - is obligated to organize fair and free elections, not solely the caretaker government. Furthermore, this provision undermines the constitutional imperative outlined in Article 105, para 2 of the Constitution, which mandates that the government ensures public order and national security, as well as exercises overall guidance over the state administration and the Armed Forces.
The provision in the first sentence of Article 99, para 7, as introduced by §7 LAS Constitution, not only lacks independent legal effect but, as a text elevated to constitutional status, risks distorting the meaning of the position established by the framers of the 1991 Constitution, that the caretaker government is an integral element of the established parliamentary system - a constitutionally defined core institution within the state's governance structure, specifically designed to maintain continuity in state administration during periods of parliamentary crisis. For these reasons, the constitutional text under consideration is deemed constitutionally intolerable.
The second sentence of Article 99, para 7, introduced by §7 LAS Constitution, establishes at the constitutional level the possibility for the National Assembly to impose limitations on the powers of the caretaker government through legislation. Such legislative restriction of the caretaker government’s competencies, considered in the context of Interpretative Decision No. 20/1992 on Constitutional Case No. 30/1992 - where the Court sees no reason to deviate in its ruling on the present case - and according to which the caretaker government possesses all the powers of the Council of Ministers as prescribed by the Constitution and may not be restricted by law, effectively constitutes a limitation of the constitutionally prescribed competencies of the Council of Ministers. This limitation is impermissible without a constitutional amendment. The powers of all constitutional bodies, as assigned to them by the Constitution, cannot be revoked by law, as this affects the substantive aspect of their mandates. The guarantee for the constitutionally compliant exercise of state authority lies in the requirement that changes to such powers be made exclusively through constitutional amendment (Interpretative Decision No. 13/2010 on Constitutional Case No. 12/2010).
The Constitutional Court notes that the Constitution establishes a specific balance of powers among state institutions that are fundamental to the organization and functioning of public authority, such as the National Assembly, the Council of Ministers, and the President of the Republic, in a way that ensures mutual checks and balances in the exercise of state authority. The text of Article 99, para 7, second sentence, reflects an understanding by the 49th National Assembly, which adopted the amendments, that significantly expands the constitutional framework established by the framers of the 1991 Constitution. The provision introduced by the entirely new paragraph 7 of Article 99 distorts the adopted model of interrelations among the branches of government, affecting the core of the principle of separation of powers, that no branch can dominate the others (Interpretative Decision No. 6/2012 on Constitutional Case No. 3/2012). Moreover, the rule introduced by the second sentence of paragraph 7 of Article 99 limits constitutional review. Elevated to constitutional rank, it implies that laws imposing restrictions on the caretaker government - without a constitutional standard and at the discretion of each legislature - become binding norms with which the Constitutional Court, as the guarantor of constitutional supremacy, is obligated to comply. In essence, the National Assembly empowers itself with an authority not provided for in the 1991 Constitution. The National Assembly cannot alter the purpose of the fundamental constitutional institutions, nor can it arrogate to itself powers not granted to it by the Constitution at its inception. Through this change, the representative body transforms its inherently limited power into unlimited.
The framers of the Constitution distributed governance among the main constitutional bodies to ensure the most effective exercise of state power. They defined their status along with mechanisms for interaction, cooperation, mutual checks, and balances in accordance with the nature of the powers entrusted to them, while adhering to the fundamental principles of popular sovereignty, separation of powers, the rule of law, political pluralism, and the independence of the judiciary. However, their effective functioning would not be possible if excessively restrictive methods of exercising power were established, depriving each body of the necessary and sufficient discretion to act in the best interest of society and the state as a whole. Introducing such restrictions through constitutional amendments enacted by the National Assembly, in violation of fundamental principles underpinning the constitutional order - such as popular sovereignty, separation of powers, and the rule of law - undermines the core values of the Constitution. It imposes substantive limits on the inherently restricted powers of the National Assembly within the meaning of Article 153 of the Constitution. For these reasons, the Constitutional Court holds that the amendment to paragraph 7 of Article 99 of the Fundamental Law, introduced by §7 LAS Constitution, encroaches upon the exclusive competence of the Grand National Assembly to amend matters concerning the foundations of the constitutional order - the core values of the Constitution.
In view of the above, the Constitutional Court finds that the amendment to Article 99, para 7, as introduced by §7 LAS Constitution, is invalid and hence should be declared unconstitutional.
VІ. As regards constitutional amendments in Chapter Six "The Judiciary", as introduced by §§ 4, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 LAS Constitution
1. Development of the constitutional regulation of the Judiciary
Historically, the structure and functioning of the judiciary in Bulgaria have not been based on centuries-old national traditions or a firmly established constitutional framework. In the Third Bulgarian State, political and organizational considerations allocated a single article to the judiciary in the Tarnovo Constitution - Article 13. According to it, "judicial power belongs to the courts and persons acting in the name of the Prince, and the relationships of these courts and persons are determined by special regulations." Thus, from the outset of the establishment of the Third Bulgarian State, the judiciary was governed by a minimally detailed constitutional regulation, which delegated its development to the majorities formed in the National Assembly.
Between 1880 and 1947, the National Assembly adopted four laws on the organization of the courts, which were amended numerous times. These laws established the system of courts in Bulgaria and introduced the role of the prosecutor. The prosecutor was affiliated with the respective courts, served as a body of the Minister of Justice, and exercised oversight to ensure the proper functioning of the judiciary. Additionally, the position of judicial investigator (investigative judge) was introduced as part of the district court's composition. Through numerous amendments, under slow and continuously changing conditions, the principle of judicial irremovability was gradually established in a hierarchical manner. The application of irremovability to prosecutors began gradually in 1934.
Thus, until 1947, the judiciary in Bulgaria was placed in direct dependence on the desires, goals, and influence of the political parties represented in Parliament. The emerging forms of independent self-governance within the judiciary - such as the Supreme Judicial Council, composed of senior judges with the participation of the Chief Prosecutor, a senior official from the Ministry of Justice, and a lawyer, which council has the authority to make proposals to the Minister of Justice for the promotion of judges and prosecutors - were highly conditional and frequently modified. As a result, there were neither legally established enduring rules nor a tradition of judicial independence, even within the judiciary itself. Additionally, no lasting political culture of mutual balance between the judiciary and the other two branches of government - legislative and executive - was developed.
The Constitutions of 1947 and 1971 for the first time established a regulation of the courts and prosecutorial oversight (1947) and the prosecution service (1971), formalizing their direct dependence on the National Assembly. The introduction of the election of judges - especially supreme judges and the Chief Prosecutor - by the National Assembly, along with their accountability to it, decisively affirmed their dependence on political power. Additionally, both constitutions enshrined at the constitutional level the primary function of the Chief Prosecutor, to whom all prosecutors were subordinated: to exercise supreme oversight for the precise enforcement of laws by all subjects, including the courts. According to the 1947 Constitution, prosecutors were attached to the courts, while the 1971 Constitution, for the first time, defined the prosecution service as an independent institution.
Against this historical backdrop, the 1991 Constitution for the first time defined "the judiciary by establishing its fundamental characteristics" (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005). It specified the legal entities that constitute the judiciary, outlined their primary powers, identified the body responsible for personnel matters within the judiciary (appointing, promoting, demoting, transferring, and dismissing judges, prosecutors, and investigators), and determined the legal status of the individuals who exercise judicial authority.
The constitutional legislator, recognizing the aspiration to change the model of exercising the state’s rights protection function that was in effect until the adoption of the 1991 Constitution, as well as to abolish the function of the prosecution for "general oversight", and taking into account the lack of political clarity and readiness for a detailed new regulation of the judiciary in the Fundamental law, created a model of the judiciary that left broad scope for various legislative solutions on key issues related to its organization and functioning, including the boundaries of its independence.
The starting position of the 7th Grand National Assembly is outlined in the preliminary notes adopted by the Commission for Drafting the Constitution of Bulgaria: "Precise and clear formulation only of the constitutional foundations of the judiciary, which provides merely the starting points for the structural laws. Detailed regulation, as proposed in some drafts, is not appropriate given the dialectics involved. The Constitution is not a normative act only for today, but primarily for the future." (Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria, 20 December 1990).
The decision, which is the result of many discussions and compromises and which is a reaction to the model existing before the adoption of the Constitution, is the inclusion of the court, the prosecution, and the investigation in the judiciary. As evident from the provision of Article 117, para 1, for the framers of the Constitution, the question of what constitutes the judiciary is addressed through a broad understanding of the primary function of the state bodies included in it - "the protection of the rights and lawful interests of citizens, legal entities, and the state", regardless of the fact that the means through which this protection is carried out are different in nature. Discussions during the process of adopting the Constitution reveal that the views of the members of parliament regarding the role and place of the prosecution and the investigation were quite diverse, and not always sufficiently specific, which led to the approach of regulating at the constitutional level only the most important requirements for the proper functioning of a democratic, rule-of-law state concerning the judiciary.
The other relevant issue for Chapter Six "The Judiciary" - the administration of the judiciary - was decided by the constitutional legislator, based on the understanding expressed in the preliminary notes adopted by the Commission for Drafting the Constitution of Bulgaria: the need to create a Supreme Council, in which "all personnel issues should be concentrated for resolution", and regarding the constitution of this body, "we should proceed mainly from two basic requirements: 1) maximum participation of judicial magistrates in solving their own personnel issues, and 2) the connection with other structures of state power. In every society, there is a "spillover" of powers. The issue is that this "spillover" should be dosed." (Minutes of the meeting of the Commission for Drafting the Constitution of Bulgaria, 20 December 1990).
In comparison with the differences in the views of the members of parliament regarding the role and tasks of the prosecution and the investigation, the creation of a special body within the judiciary to address the personnel issues of judges, prosecutors, and investigators was supported by a significant majority of the members of parliament, who saw this as a guarantee for the organizational independence of the judiciary, in addition to the individual independence of judges, prosecutors, and investigators (Article 117, para 2). Starting from the understanding that constitutional regulation of the most important matters for this council is sufficient, the members of parliament defined its main function, the method of its constitution, the requirements for its composition, and its interaction with the executive branch. In this way, they regulated the newly established body and left it to ordinary legislation to address all other matters necessary for the proper functioning of the judiciary (Article 133 of the Fundamental law).
The constitutional model of the judiciary, as adopted, opens the possibility for and justifies the five amendments to the Constitution in Chapter Six "The Judiciary" over a period of thirty-three years. This has made it not only the most frequently and substantially amended constitutional regulation but also the chapter that, disproportionately compared to the regulation of other branches of government, and inappropriately in terms of the level of abstraction, establishes the regulation of the judiciary. The accumulation of amendments in Chapter Six, including the repeal of changes made in previous amendments, reflects the absence of a clear vision, the influence of various factors, and a lack of political and public consensus. While the focus on the administration of the judiciary in itself is a response to a lasting public consensus for the need for effective guarantees of the judiciary's independence and autonomy, as well as its accountability, which should enhance its efficiency and fairness, the multiplicity of amendments does not indicate the achievement of the desired result.
After the four amendments to Chapter Six "The Judiciary" – the first, made by the 39th National Assembly (promulgated SG No. 85 of 26 September2003), related to the individual status of judges, prosecutors, and investigators; the second, made by the 40th National Assembly (promulgated SG No. 27 of 31 March 2006), establishing a form of interaction between the judiciary and the legislature, and the powers of the prosecution; the third, made by the 40th National Assembly (promulgated SG No. 12 of 6 February2007), highlighting the place and role of the Supreme Judicial Council as "the body that makes the main decisions on the administration of the judiciary" (reasons for the draft Law Amending and Supplementing the Constitution of the Republic of Bulgaria, incoming registration No.654-01-129 from 22 September 2006), regulating the status of judges, prosecutors, and investigators, as well as the elected members of the Supreme Judicial Council, and creating a new body within the judiciary - the Inspectorate to the Supreme Judicial Council; and the fourth, made by the 43rd National Assembly (promulgated SG No. 100 of 18 December 2015), aimed at "structural and organizational reform of the judiciary in accordance with international standards, as a prerequisite for overcoming systemic deficiencies in Bulgarian constitutional democracy" (report from 7 September 2015 of the Temporary Committee for discussing the draft Law Amending and Supplementing the Constitution of the Republic of Bulgaria, incoming registration No. 554-01-144 from 24 June 2015) through changes to the structure and organization of the Supreme Judicial Council - the fifth amendment to Chapter Six of the Constitution (promulgated SG No. 106 of 22 December 2023), as indicated in the reasons for the draft Law Amending and Supplementing the Constitution of the Republic of Bulgaria (incoming registration No. 49-354-01-83 from 28 July 2023), aims to "[s]trengthen the independence of the judiciary through a structural reform of the Supreme Judicial Council" and "[r]eform of the prosecution guaranteeing its accountability to society."
2. Composition of the bodies of the judiciary - amendments to Article 117, para 2, and Article 128, as introduced by §§10 and 13 LAS Constitution
The framers of the Constitution, establishing the independence of the judiciary in the first sentence of Article 117, para 2, unequivocally define its composition in the following sentence. According to the provision of Article 117, para 2, before its current amendment, it is undoubtedly clear that the judiciary includes three independent functions – adjudicatory, prosecutorial, and investigative, carried out by judges, prosecutors, and investigators, who, in the execution of their duties, are subject only to the law (for the meaning of the terms "adjudication" and "justice" and their use in the Constitution - Decision No. 22/1998 on Constitutional Case No. 18/1998, Decision No. 7/2020 on Constitutional Case No. 11/2019).
As the Constitutional Court stated in Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, only for Chapter Six "The Judiciary" the constitutional legislator uses one of the three main functions of the state (Article 8 of the Constitution) in its title, rather than the name of a specific body whose organization and activities are regulated. This is because, according to the will of the Great National Assembly, in the "exercise of judicial power, although with varying degrees of legal protection intensity, using different methods, and ultimately achieving different legal effects, three categories of bodies participate" – judges, prosecutors, and investigators (investigative bodies). The starting principle indicated by the Constitutional Court is that these bodies "are not and cannot be equal. The constitutional framework defines a different function for each of them, and each of them, with varying intensity and means, ensures the realization of judicial power," but their involvement in the judiciary is established.
The amendments to Article 117, para 2 and Article 128 of the Constitution, introduced by §10 and 13 LAS Constitution, relate to the composition of the judiciary. The amendments to Article 117, para 2 consist of two changes: in the first sentence, the phrase "The judiciary shall be independent" has been supplemented with "and its main bearer shall be the court." A second sentence has been added: "The prosecutor's office and investigative bodies are part of the judiciary." In Article 128, the first sentence, "The investigative bodies are part of the judiciary," has been repealed, while the second sentence has been revised to read as follows: "The investigative bodies shall conduct investigation of criminal cases where it is prescribed by the law," replacing the pronoun "They" with "The investigative bodies."
The reasons for the proposal to amend and supplement the Draft Law on Amendments and Supplements to the Constitution (incoming registration No. 49-354-04-315 of 14 December 2023), submitted after the "second" first vote on the draft LAS Constitution, and the discussions during the plenary session prior to the second vote (Verbatim Report of the 16th extraordinary session of the 49th National Assembly of 19 December 2023), reveal that the proposal was made to address suggestions raised during the public discussions conducted by the Committee on Constitutional Affairs (Report of the Committee on Constitutional Affairs on the public discussions held, incoming registration No. 49-353-37-4 of 6 December 2023). The aim was to "conclusively resolve the debate of recent years regarding the proper place of the prosecutor's office and investigative bodies," ensuring "no grounds for misinterpretation of the position of the court within the judicial system," and to substantiate the "different approach to structuring the personnel bodies" (Verbatim Report of the 16th extraordinary session of the 49th National Assembly of 19 December 2023).
In its meaning and substance, the amendment aligns with the understanding of "the position of the courts within the judicial system" and "the place of the prosecutor's office and investigative bodies within the judiciary," as established in the text of the Constitution prior to the current amendment. In Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, the Constitutional Court states that "[i]n organizational terms, the courts are the foundation of the judiciary, and in functional terms, their activity represents its most essential and decisive manifestation. Through the judicial act of the courts, legal disputes are resolved, turning the disputed into the indisputable, thereby providing the most intensive and definitive legal protection for citizens, legal entities, and the state. There is no system based on the separation of powers and the rule of law in which the above is not true. In all constitutional models, the courts are the primary (and in some cases the sole) bearer of judicial power. In the current Constitution of the Republic of Bulgaria, this characteristic of the courts, while not explicitly proclaimed, is indisputable [...] this also follows from the existing constitutional regulation of the powers, functions, and tasks of the courts in the Republic of Bulgaria."
This understanding of the Constitutional Court regarding the role and place of the courts within the judiciary has been reaffirmed in a number of decisions: Decision No. 3/2014 on Constitutional Case No. 13/2014 ("By definition, the essential part of the judiciary is the administration of justice by constitutionally established courts"), Interpretative Decision No. 2/2017 on Constitutional Case No. 13/2016 (the court is "the primary bearer of judicial power"), and Decision No. 6/2018 on Constitutional Case No. 10/2017 (courts possess "the characteristic of a central entity in the judiciary"). In other decisions, the Constitutional Court explicitly emphasizes the activity of the courts as decisive for the exercise of judicial power: Decision No. 5/2003 on Constitutional Case No. 5/2003 ("Judicial protection is the highest legal guarantee both for the protection of the rights and legitimate interests of citizens and legal entities and as a guarantee for the legality of administrative acts issued by the executive power"), Decision No. 6/2008 on Constitutional Case No. 5/2008 ("judicial protection is "the final brick" in the edifice of the rule of law"), and Decision No. 9/2011 on Constitutional Case No. 7/2011 ("In the system of legal guarantees for the protection of the rights and legitimate interests of citizens, the judiciary is the highest authority because, in its activity, the court is independent and shall be subservient only to the law").
For the constitutional legislator at the adoption of the 1991 Constitution, the independence of the judiciary was foundational, primarily guaranteed through the functional (individual) independence of the persons who perform the three distinct activities collectively constituting its protective function - judges, prosecutors, and investigators (Article 117, para 2, second sentence). Building upon this principle, the constitutional legislator established the structure of the court system by explicitly specifying the types of courts, allowing for the creation of specialized courts, and prohibiting the establishment of extraordinary courts (Article 119). This constitutionally enshrined framework of the court system ensures institutional independence for the adjudicative activities carried out by judges. The constitutional legislator, however, did not approach the structure of the prosecutor's office and investigative bodies in the same manner. Regarding the prosecution, it is limited to stating that its structure corresponds to that of the courts (Article 126, para 1), while for investigative bodies, it merely notes that they are part of the judiciary (Article 128).
The difference in the regulation of the institutions performing the three activities in the exercise of judicial power reflects the constitutional legislator's understanding of the role and significance of the courts within the judiciary as its fundamental, structure-defining institutions. This understanding is rooted in the decisive role of adjudication, carried out by judges, in fulfilling the judiciary's protective function. It also recognizes the need for a flexible approach to the structure of the prosecutor's office and investigative bodies, allowing for adjustments when necessary, based on the requirement for effective execution of their assigned functions within the judiciary.
For the purposes of constitutional regulation, the constitutional legislator, in line with the societal consensus achieved at the time of the Constitution’s adoption, deemed it sufficient to establish the principle guiding the formation of the prosecutor's office structure, as well as to affirm that investigative bodies belong to the judiciary. Based on this constitutional framework, the Constitutional Court, in Interpretative Decision No. 10/1998 on Constitutional Case No. 8/1998, Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, and Interpretative Decision No. 2/2017 on Constitutional Case No. 13/2016, has ruled on the meaning of the constitutional provisions relevant to the structure of the prosecutor's office (Article 126, para 1, Article 153, and Aticle 158, para 3), as well as on the constitutionality of statutory provisions related to structural changes within the prosecutor's office and the investigative bodies - Decision No. 1/1999 on Constitutional Case No. 34/1998, Decision No. 5/2009 on Constitutional Case No. 6/2009, and Decision No. 7/2022 on Constitutional Case No. 9/2022.
Therefore, from the adoption of the Constitution in 1991 until the present amendment, it has always provided that the judiciary comprises three distinct, independent functions, carried out by three different types of bodies – judges, prosecutors, and investigators. It has also established that the court is the primary bearer of this power and that without the court, there is no judiciary. Furthermore, it has affirmed that the prosecutor's office and the investigative bodies are part of the judiciary, with the structure of these three functions regulated to varying degrees within the Constitution.
The amendments to Article 117, para 2 and Article 128, introduced by §§10 and 13 LAS Constitution do not establish a new composition of the judicial bodies, nor a new role or position for the bodies exercising judicial power, different from those previously outlined in the Constitution. They do not produce any legal effect beyond what arises from the constitutional framework in place prior to the constitutional amendments contested in the present case. The only effect of the amendments is to explicitly confirm what the Constitution has implicitly established up to this point: the position of the court within the judiciary, determined by the essence of the judicial function - to be a decisive factor for the effective functioning of the system of mutually controlling authorities and the main guarantor of the rights and freedoms of citizens. This amendment does not introduce anything new regarding the place of the prosecutor's office within the judiciary as an integral part of it. As for the place of the investigative bodies within the judiciary, there is only a relocation of an existing provision from one article to another, without this leading to a change in the already established position of the investigative bodies within the judiciary.
From the foregoing it follows that the amendments introduced by §§10 and 13 to Article 117, para 2 and Article 128 - considered both on their own and within the context of the regulation of the judiciary under Chapter Six - neither alter nor contradict the composition of the judicial bodies established at the time of the Constitution's creation, nor the role and position of the court within the judiciary, which are determined by the nature of the judicial function it exercises. These amendments align with the value consensus reached at the time of the Constitution's adoption, as reflected in the Constitution, regarding the composition of the judicial bodies and the role and position of the court within the judiciary, and are consistent with the established case-law of the Constitutional Court in the matter under discussion.
In view of the above, the Constitutional Court finds that the amendments to Article 117, para 2, and Article 128, as introduced by §§10 and 13 LAS Constitution, are not unconstitutional.
3. Regulation of the Prosecutor's Office – Amendments to Article 126, paras 1, 2, and 3, Article 127, items 5 and 6, and Article 130, para 4, as introduced by §§11, 12, and 15 LAS Constitution.
а) Structure of the Prosecutor's Office – Amendments to Article 126, para 1, as introduced by §11, item 1 LAS Constitution
The provision of Article 126, para 1 of the Constitution, before its amendment introduced by §11, item 1 LAS Constitution, stated: "The structure of the Prosecutor's Office shall correspond to that of the courts." With item 1 of §11, the words " that handle criminal cases" were added at the end of the sentence. The contested version of the provision was proposed in the draft LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023) with the reasoning "to introduce decentralization of the structure of the Prosecutor's Office through an amendment to Article 126 of the Constitution."
The Constitution does not contain any other regulation on the structure of the Prosecutor's Office beyond the provision of Article 126, para 1. This regulation reflects the view of the constitutional legislator, who, in the process of drafting the Constitution, emphasized issues related to the affiliation of the Prosecutor's Office to the judiciary and the need for its structural connection with the court, rather than focusing on its specific structure.
Building on these fundamental principles laid down in the Constitution, the Constitutional Court, in a series of its rulings (Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002; Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005; Decision No. 3/2015 on Constitutional Case No. 13/2014; Decision No. 2/2017 on Constitutional Case No. 13/2016, and others), has clarified various specific aspects of the structure of the Prosecutor's Office.
The Constitution provides for a pyramidal structure of the courts, to which the structure of the Prosecutor's Office is aligned (Decision No. 3/2015 on Constitutional Case No. 13/2014). At the same time, the constitutional provision linking the structure of the Prosecutor's Office with that of the courts (according to Article 126, para 1 in conjunction with Article 119, para 1 of the Constitution) is not absolute. The Prosecutor's Office is "a relatively independent component" of the judiciary "due to the introduction of specific principles of organization that apply only to it, reflecting the particularities of the exercise of judicial power through the activity of prosecutorial bodies" (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005). Therefore, "the key to clarifying the content of the requirement that the structure of the Prosecutor's Office must correspond to that of the court lies in the understanding of the constitutional legislator regarding the relative autonomy and independence of the Prosecutor's Office and the investigative bodies from the court, which is the primary bearer of judicial power" (Decision No. 2/2017 on Constitutional Case No. 13/2016).
In the reasoning of the Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, the Court holds that the structure of the Prosecutor's Office may be improved by law with the aim of establishing a more rational and effective organization of the prosecutorial bodies for the fulfillment of their specific tasks. It further states that "if restructuring […] refers to the enhancement of this structure in accordance with the main task and the methods exhaustively outlined in the Constitution, by establishing a more rational and effective organization of the prosecutorial bodies […] then such a change, carried out within the framework of the judiciary, could not affect the form of state governance and falls within the competence of the National Assembly." In Decision No. 2/2017 on Constitutional Case No. 13/2016, the Constitutional Court concludes that "interpreting the requirement of Article 126, para 1 of the Constitution in such a way that the structure of the Prosecutor's Office must necessarily comply with the various specialized courts, as well as with the territorial organization of the courts, goes beyond the purpose of this constitutional provision."
The Constitutional Court holds that, considering the framework of the prosecutor’s office at the constitutional level, as well as the abstract nature of constitutional provisions, the Constitution implicitly grants the legislature broad discretionary power to regulate these matters as deemed appropriate. In Decision No. 1/1999 on Constitutional Case No. 34/1998, the Court deemed it constitutionally permissible to abolish the Military Division of the Supreme Court of Cassation, the Military Prosecutor’s Office within the then-General Prosecutor’s Office, as well as the General Prosecutor’s Office itself, and to establish a Supreme Cassation Prosecutor’s Office and a Supreme Administrative Prosecutor’s Office. In Decision No. 5/2009 on Constitutional Case No. 6/2009, the Court held that it is constitutionally permissible to eliminate the organizational independence of investigative bodies and incorporate them into the structure of the prosecutor’s office.
In light of the foregoing, it is evident that the scope of the National Assembly’s discretionary authority to amend the structure of the prosecutor’s office through legislation is broad. Since the Constitution itself does not contain provisions for the establishment of structural units within the prosecutor’s office, the legislature has full discretion to determine such structures at the statutory level, in accordance with the mandate under Article 133. This must be done while observing the general organizational principles of the judiciary set out in Chapter Six of the Constitution, as well as the foundational principles of the established constitutional order.
The Constitutional Court finds no grounds to deviate from the understanding supported in Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, according to which "the structure of the prosecutor's office corresponds to its primary function. This does not mean that it cannot be changed. The constitutional legislator itself has provided that, in certain cases and within certain limits, such changes can even be made through legislation."
In view of this, the Constitutional Court considers that the National Assembly is free to reorganize the structure of the prosecutor’s office, provided that any changes remain within the boundaries set by Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, including when the changes are of constitutional significance. The amendment to Article 126, para 1 does not alter the form of state government (Article 158, item 3 of the Constitution) and falls within the competence of the derivative constituent power of the National Assembly, as it remains within the judiciary and does not result in changes to the organizational and functional characteristics of the prosecutor’s office as a body of the judiciary.
The Constitutional Court takes into account that, pursuant to Article 127 of the Constitution, the primary task of the prosecutor's office is to ensure that legality is observed, with a focus on criminal proceedings (items 1-4), and that, according to Article 127, items 5 and 6, it may participate in cases other than general criminal cases only in instances provided for by law. Therefore, it is logical for its structure to correspond to that of courts handling criminal cases. The amendment to Article 126, para 1 of the Constitution aims to refine the structure of the prosecutor’s office, aligning it not with all types of courts but specifically with those that adjudicate criminal cases. The amendment to Article 126, para 1 of the Constitution does not in any way affect the prosecutor's primary constitutional task to ensure that legality is observed, nor does it eliminate any of the mechanisms established under Article 127, items 1-6, through which this task is carried out.
The reorganization of the structure of the prosecutor's office is a matter of establishing an efficient organization of prosecutorial bodies. “Such a change, carried out within the judiciary, cannot affect the form of state government and falls within the competence of the National Assembly” (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005).
In view of the above, the Constitutional Court finds that the amendment to Article 126, para 1, as introduced by §11, item 1 LAS Constitution, is not unconstitutional.
b) Powers of the Prosecutor General – Amendments to Article 126, paras 2 and 3, as introduced by §11, items 2 and 3 LAS Constitution
Paragraph 2
Before the contested amendment to the Constitution, the provision of Article 126, para 2 read: "The Prosecutor General shall oversee the legality and provide methodological guidance to all other prosecutors." With item 2 of §11 LAS Constitution, the provision was amended to state: "The Prosecutor General represents the Prosecutor's Office and leads the Supreme Prosecutor's Office." In the draft LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023), the provision was initially formulated as: "The Prosecutor General is the administrative head of the Supreme Prosecutor's Office." During the second vote of the draft law, the provision was adopted with the wording: "The Prosecutor General represents the Prosecutor's Office and leads the Supreme Prosecutor's Office," which was retained as the final version upon the third vote.
The framers of the 1991 Constitution aimed to regulate, in Chapter Six "The Judiciary," primarily the activities typical of each judicial authority, i.e. those activities of the courts, the prosecutor’s office and the investigative bodies, which are the basis for their establishment and which exist separately within the framework of the independent judiciary. When discussing specific provisions concerning the prosecutor's office, the deputies of the Grand National Assembly paid particular attention to the real risk of unlawful exercise of prosecutorial powers in the "absence of structural unity and institutional control in the Prosecutor’s Office." For this reason, they concluded that "the principles underlying the organization of the prosecutor's office must be unity, hierarchical dependence, and irremovability of the prosecutor" (transcript of the 140th plenary session of the Grand National Assembly of 29 May 1991). The framers of the Constitution envisioned not only hierarchical control within the prosecutor's system, exercised by higher-level units over lower-level ones, but also hierarchical control by the Prosecutor General over all prosecutors within the system.
To achieve these goals, with the adoption of the Constitution, the Grand National Assembly, through Article 126, para 2, "independently defines the functions of the Prosecutor General, thereby establishing him as a sole authority" (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005). It grants him powers of oversight for legality and methodological guidance over the activities of all prosecutors. According to the Constitutional Court's well-established and consistent practice through these powers, "the constitutional legislator concentrates and personalizes in the person of the Prosecutor General the ultimate responsibility for the lawful exercise by prosecutors of their powers under Article 127, items 1-6 of the Constitution, thereby creating an additional guarantee for the precise and uniform application of laws (both substantive and procedural) within the prosecutor's office" (Decision No. 2/2017 on Constitutional Case No. 13/2016, Interpretative Decision No. 11/2020 on Constitutional Case No. 15/2019, Decision No. 7/2021 on Constitutional Case No. 4/2021). Before the contested constitutional amendment, the Prosecutor General was a sole state authority within the judiciary and the highest-ranking governing body in the unified hierarchical structure of the prosecutor’s office. As a magistrate within the prosecutor's office, he was bound by its constitutional task and the means provided for its fulfillment, just like any other prosecutor. He was an independent state authority - the apex of the administrative hierarchy of the prosecutor's office (Decision No. 12/2022 on Constitutional Case No. 7/2022) - whose leadership inherently involved a set of specific powers related to fulfilling the specific prosecutor's office's task within the judiciary: to ensure that legality is observed. Other judicial or governmental authorities do not possess powers for direct intervention or control over this core prosecutorial function (Decision No. 3/2015 on Constitutional Case No. 13/2014).
In Interpretative Decision No. 11/2020 on Constitutional Case No. 15/2019, the Constitutional Court outlined the characteristics and scope of the Prosecutor General’s powers under Article 126, para 2 of the Constitution prior to the contested amendment. Both the oversight for legality and the methodological guidance of the Prosecutor General over the activities of all prosecutors, as constructed by the framers of the Constitution, "concern the activities of prosecutors, are exercised within the framework of the prosecutor’s office, pertain to the activities of bodies hierarchically subordinate to the Prosecutor General, of whom he is the administrative head," and "relate to the implementation of the main task of the prosecutor’s office through the means under Article 127 of the Constitution, i.e., only to those activities of prosecutors that directly implement the primary function of the prosecutor’s office" as part of the judiciary.
The oversight for legality covers only the correct application of substantive and procedural law when resolving issues in a specific criminal case. The oversight for legality exercised by the Prosecutor General does not affect or intervene in that aspect of the prosecutorial activity under Article 127 of the Constitution, which is based solely on the freely formed internal conviction of the prosecutor, built upon an assessment of the credibility of lawfully admitted, collected, and verified evidence, based on which the prosecutor makes factual findings and conclusions regarding the issues within the scope of proof.
Methodological guidance, on the other hand, includes the establishment of general rules for the conduct of prosecutorial activities, which have a lasting, repetitive effect and provide instructions to prosecutors on the approaches, rules, means, and actions through which they should exercise their powers.
Each of the two powers granted to the Prosecutor General by the Grand National Assembly contributes to the exercise of control in the subordinate structure of the judiciary. However, neither one of these powers, by itself, can serve as a sufficient guarantee for the lawful functioning of the prosecutor’s office without the presence of the other. Therefore, the Constitutional Court holds that any significant change in the nature and scope of these powers of the Prosecutor General inevitably reflects on the constitutionally established parameters for ensuring the lawful exercise of the prosecutor’s office's activities.
The amendment introduced by the LAS Constitution through the adoption of the new provision in Article 126, para 2 - " The Prosecutor General represents the Prosecutor's Office and leads the Supreme Prosecutor's Office" - does not introduce a new power for the Prosecutor General. Before the amendment, the Prosecutor General already had the authority to represent the prosecutor's office, as well as to serve as the administrative head of its highest units - the Supreme Cassation Prosecutor's Office and the Supreme Administrative Prosecutor's Office. In the case of the amendment to Article 126, para 2 of the Constitution, according to which the Prosecutor General "leads the Supreme Prosecutor's Office," the constitutionally established structure of the judiciary - the prosecutor's office - is practically restructured. It ceases to be a unified body led by the Prosecutor General, and the Prosecutor General becomes the head of only one of its structural units (the Supreme Prosecutor's Office), which was introduced at the constitutional level in deviation from the principle originally established by the framers of the Constitution, where the structure of the prosecutor's office was to be subject to legislative regulation. According to Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, "Any restructuring must be preceded and conditioned by a clear definition of the need for change in the main functions of the respective body, its place within the system of other state bodies, and its mode of interaction with them. And this, insofar as it affects the established balance between the three branches of government, implies a serious revision of the Fundamental law, which is within the competence of the Grand National Assembly."
The contested amendment to the Constitution, according to which the Prosecutor General is the administrative head only of the Supreme Prosecutor's Office and does not lead the entire prosecutor's office system in Bulgaria, was not preceded and conditioned by a clear definition of the necessity for it. Instead, it is only justified in the explanatory notes to the LAS Constitution with the phrase "introducing an element of decentralization in the structure of the prosecutor's office through an amendment to Article 126 of the Constitution." Thus, the changes made violate a fundamental principle of the organization of the prosecutor's office as an integral part of the judiciary, which, according to Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002, falls within the competence of the Grand National Assembly.
As a consequence of this change, a fundamental constitutional function of the Prosecutor General - to exercise oversight for legality over the activities of all prosecutors - has been taken away. According to Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, "as it fundamentally alters a significant part of the organizational and functional characteristics of this body, it concerns a change that reflects on the form of government." Essentially, the idea embodied in the Constitution by the Grand National Assembly for a unified prosecutor's office with supreme oversight of legality exercised by the Prosecutor General has been changed, effectively creating a prosecutor's office without unified leadership and oversight for legality. The Constitutional Court stated in Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002 that "inextricably linked to the form of government, which would change, is the modification of the structure, formation, and functions of the units of the judicial system and the status of its bodies, including the constitutionally established highest positions." The removal of a fundamental and essential function of the Prosecutor General - the exercise of oversight for legality over the activities of all prosecutors - constitutes a significant interference with the functional characteristics of this independent constitutional body (according to the design of the Grand National Assembly) and with its status.
Without the oversight for legality exercised by the Prosecutor General, many prosecutorial acts would remain without any form of control, given that the majority of such acts are not subject to judicial review. Certain exclusive powers of the Prosecutor General, inherent solely to him due to his role in exercising oversight for legality, would become impossible to implement - such as assigning investigations in criminal cases to an investigator, resolving jurisdictional disputes between prosecutorial offices, reopening discontinued pre-trial proceedings, submitting requests for the reopening of criminal cases, and others.
The oversight for legality, as a power of the Prosecutor General under the previous version of Article 126, para 2, differs from the control for legality provided within the hierarchical structure of the prosecution in procedural law. Control for legality - such as the appeal of a prosecutor's decree to a higher-ranking prosecutor - is generally single-instance and does not involve the exercise of powers inherent to the oversight for legality carried out by the Prosecutor General. There is no unit within the prosecutor's office that exercises the power of "oversight for legality", after it has been abolished in relation to the Prosecutor General himself as an independent body. Once abolished, this power "disappears" from the prosecution system entirely. What remains is the control for legality within the vertical structure of the prosecution, exercised by prosecutors from higher-ranking offices. However, under this control for legality, they cannot exercise the unique powers of the Prosecutor General associated with the removed oversight for legality.
The Prosecutor General’s authority under Article 126, para 2 of the Constitution (prior to its amendment) - to exercise oversight for legality over the activities of all prosecutors - constitutes authority over all prosecutors in the exercise of the prosecution’s function under Article 127, using the methods provided for in that provision. Through the contested amendment, constitutionally established functions of the Prosecutor General have been removed, which constitutes a change within the meaning of Article 158, item 3 and falls outside the powers of the National Assembly.
Paragraph 3
The provision of Article 126, para 3 of the Constitution is new, introduced through Item 3 of §11 LAS Constitution, and states: " The Prosecutor General, on the proposal of the Supreme Prosecutor's Office, approves general methodological rules for the activity in the pre-trial proceedings of the prosecutors, investigators and other investigative bodies, which are subject to appeal before the Supreme Administrative Court in accordance with the procedure defined by law."
The Constitutional Court notes that the methodological guidance of the Prosecutor General, by its nature, constitutes the issuance of "binding instructions to prosecutors regarding the approaches, rules, methods, and actions that ensure the effective and high-quality performance of the primary task of the prosecutor's office - to oversee compliance with the law by exercising the powers under Article 127, items 1-6 of the Constitution" (Interpretative Decision No. 11/2020 on Constitutional Case No. 15/2019). According to the Court’s interpretation, its inherent characteristic is that it is mandatory for all prosecutors. From the analysis of the provision of Article 126, para 2 of the Constitution, the constitutional jurisdiction finds that this conclusion was valid at the time of the decision in the aforementioned interpretative case, as the binding force of the Prosecutor General’s methodological guidelines was a function of his power to exercise oversight for legality over the activities of all prosecutors (Article 126, para 2, prior to the amendment).
Under the amendment introduced with §11, item 2 LAS Constitution, the revised Article 126, para 2 stipulates that the Prosecutor General is the head of the Supreme Prosecutor’s Office only, and not of "the prosecutor's office" as a whole. This raises a legitimate question: to whom are the methodological guidelines approved by the Prosecutor General binding? Prosecutors who are not part of the Supreme Prosecutor’s Office, as per the amended Article 126, para 2, are neither subordinate to the Prosecutor General nor procedurally dependent on him. Consequently, the methodological guidelines approved by the Prosecutor General are not binding on them and lack mandatory force. These guidelines would apply only to prosecutors within the Supreme Prosecutor’s Office, over whom the Prosecutor General presides. This outcome stems from the elimination of the unity of the prosecutor's office and the removal of the Prosecutor General’s authority to exercise oversight for legality. The absence of a universal obligation for all prosecutors to adhere to the methodological guidelines of the Prosecutor General creates a premise for inconsistent prosecutorial practices, including those concerning all investigative bodies with roles in pre-trial proceedings, even those outside the prosecution system and the judiciary as a whole.
It follows that the methodological guidelines approved by the Prosecutor General lack the capacity to ensure the proper application of the law within pre-trial proceedings. As a result, there is an apparent impression that the Prosecutor General's authority to provide methodological guidance to all prosecutors remains intact, whereas in reality, it has been removed. In doing so, the National Assembly has exercised a power that falls within the exclusive competence of the Grand National Assembly, a jurisdiction it does not possess.
The Constitutional Court concludes that a constitutional body - the Prosecutor General, who previously held two powers under Article 126 of the Constitution, is deprived of both with the entry into force of the LAS Constitution. Given the substantial alteration of the Prosecutor General's powers at the constitutional level, not only the functional characteristics of this body are changed, but also its organizational characteristics. The Prosecutor General is no longer the head of the entire "prosecutorial system," but only of one unit with an unclear constitutional status, which within the judicial system equates the Prosecutor General’s status to that of an administrative head. According to Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, this is a change that is impermissible for the National Assembly to enact, as it encroaches upon the reserved powers of the Grand National Assembly under Article 158, item 3 of the Constitution.
In view of the above, the Constitutional Court finds that the amendments to Article 126, paras 2 and 3, as introduced by §11, items 2 and 3 LAS Constitution, are invalid and hence should be declared unconstitutional.
c) Means for carrying out the the main task of the Prosecutor's Office – amendments to Article 127, items 5 and 6, as introduced by §12 LAS Constitution
Paragraph 12 of LAS Constitution introduces amendments to items 5 and 6 of Article 127 of the Constitution, which regulate the means by which the Prosecutor's Office fulfills its constitutionally assigned task of ensuring compliance with the rule of law.
The contested amendments are justified by the promoter with the need to "focus the Prosecutor's Office solely on its functions in criminal proceedings" and to "eliminate the general oversight for legality regarding acts and actions of state bodies," which "is expected to limit opportunities for arbitrary exercise of power and enhance the effectiveness of the state prosecution" in accordance with the standards and recommendations of the European Commission for Democracy through Law, a body of the Council of Europe, as well as with the case-law of the European Court of Human Rights (Draft LAS Constitution, incoming registration No. 49-354-04-315 of 28 July 2023).
The provision of item 5 prior to the contested amendment stated: "takes actions to revoke unlawful acts." The contested wording of item 5 of Article 127 reads: "5. takes actions to contest unlawful acts before the court in the cases provided for by law."
The provision of item 6 in its wording prior to the contested amendment stated that the Prosecutor's Office monitors compliance with the law by "participating in civil and administrative cases in cases provided by law." The contested wording of item 6 stipulates that the Prosecutor's Office monitors compliance with the law, as "apart from criminal cases of a general nature, in the cases provided for by law, participates in other cases in defense of a significant public interest or in the interest of persons who need special protection."
The provision of Article 127 of the Constitution, together with those of Articles 126 and 133, constitutes the constitutional regulation of the status and main task of the Prosecutor's Office. In the case law of the Court, Article 127 has been given significant importance, as it sets the constitutional framework within which the normative regulation of the powers of the Prosecutor's Office should be limited. The Court holds that "[t]he main task assigned to the Prosecutor's Office by the Constitution is to monitor compliance with the law," but it is carried out "not arbitrarily, but within strict limits defined by the constitutional legislator, delineated through the methods formulated in Articles 127, paras 1-4 of the Constitution," and "[o]ther methods are constitutionally inadmissible" (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005). This position has been reinforced in subsequent decisions of the Court, where it is also emphasized that the methods for carrying out the Prosecutor's Office's task are exhaustively listed in Article 127 of the Constitution (Decision No. 2/2017 on Constitutional Case No. 13/2016), and that the primary task of the Prosecutor's Office - "to monitor compliance with the law - is enshrined in the provision of Article 127 of the Constitution. It is carried out through the methods indicated in the same provision, which outline the constitutional boundaries of the Prosecutor's Office's activities" (Decision No. 11/2020 on Constitutional Case No. 15/2019).
The Constitutional Court has developed extensive case-law regarding the constitutional mandate of the Prosecutor's Office and the means by which it is to be fulfilled. As a specialized body within the judiciary, whose function is to safeguard the law, the Prosecutor's Office also acts as a guarantor of the rule of law. In a modern rule-of-law state, this role manifests in two key dimensions: the protection of fundamental rights and freedoms of citizens and the safeguarding of legality. According to the Constitution, the Prosecutor's Office is entrusted with the responsibility to perform the state's protective function in three domains: criminal, civil, and administrative proceedings (Decision No. 3/2023 on Constitutional Case No. 18/2022). Furthermore, Article 127 exhaustively enumerates the means through which this function is to be carried out. The Fundamental Law places particular emphasis on the powers of prosecutorial bodies within the framework of criminal proceedings. Four out of the six enumerated powers (items 1-4) are exercised in various criminal proceedings depending on the stage of the process. With the exception of the power under item 2, the Prosecutor's Office is the sole authority within the judiciary vested with these powers.
The Constitution explicitly provides that, despite the primary importance of prosecutorial powers in criminal proceedings, the Prosecutor's Office is also entrusted with monitoring compliance with the law beyond the realm of criminal prosecution. To this end, the framers of the Constitution included powers enabling the Prosecutor's Office to oversee the legality of administrative acts (item 5) and to participate, in cases prescribed by law, in civil and administrative proceedings (item 6). These two powers complement the set of tools available to the Prosecutor's Office to ensure adherence to the rule of law. They reflect the constitutional legislature's understanding that in a modern democratic state, power restrains power, and each of the three branches of government must be equipped with mechanisms to interact with and influence the others to achieve cooperation, balance, and mutual control (Decision No. 2/2008 on Constitutional Case No. 1/2008).
The contested amendments to items 5 and 6 of Article 127 pertain precisely to these two specific mechanisms by which the Prosecutor's Office fulfills its mandate to monitor compliance with the law outside the scope of criminal proceedings.
The new wording of item 5 introduces an amendment that specifies the Prosecutor’s Office may take actions for the "contestation" of unlawful acts, rather than their "revocation," as previously stated, and adds the phrase "before the court in cases provided by law." While the first change results in a terminological refinement of the provision’s text, the second has two significant implications, which, in essence, represent a shift in the scope of this mechanism compared to its prior content. Firstly, it eliminates the possibility for a prosecutor to take action to contest unlawful acts through administrative proceedings before a higher administrative authority. Secondly, the possibility for a prosecutor to contest unlawful acts through judicial proceedings must now be explicitly provided for by law in each specific case.
The new wording of item 6 preserves the possibility for a prosecutor, apart from participating in criminal cases of a general nature, to also participate in other cases in the instances provided for by law, but adds the requirement that such participation is permissible only "in defense of a significant public interest or in the interest of persons who need special protection." In substantive terms, what is specific to this amendment is that the Prosecutor’s Office’s power to participate in cases other than criminal cases of a general nature remains contingent on a specific statutory provision allowing for such participation, as was the case under the previous version of the provision. The new wording establishes the possibility for the Prosecutor’s Office to participate "in other cases," in addition to criminal cases of a general nature. Compared to the previous version of item 6, the amendment broadens the scope for prosecutorial participation by no longer limiting it solely to civil and administrative cases. At the same time, it introduces a restriction on any future National Assembly in exercising its legislative powers to authorize prosecutorial participation exclusively in accordance with the constitutionally defined alternative criteria: "in defense of a significant public interest" or "in the interest of persons who need special protection." In effect, the amendment to item 6 constitutes a limitation on the legislative power of the National Assembly, imposed by the National Assembly itself while acting in its capacity as a derivative constituent authority.
Therefore, with the amendment to the Constitution of 2023, the content of the two provisions of items 5 and 6 of Article 127 has been changed in the direction of limiting the ex officio principle of the Prosecutor's Office in the exercise of its powers, not directly related to its primary function, as regulated in these provisions. The essential question in this case is whether, through the amendments thus introduced, the National Assembly, as a derivative constituent authority, has encroached upon the prerogatives of the Grand National Assembly reserved under Article 158, item 3 of the Constitution.
The standard relevant to the assessment of the limits of the National Assembly's ability to amend the Fundamental Law regarding the functions and powers of the bodies of the judiciary, including the Prosecutor's Office, is established in the Court's case-law with Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002 and Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005. According to these decisions, it is impermissible for the National Assembly, as a derivative constituent authority, to introduce amendments that would lead to a change in the specifics of the bodies of the judiciary in a functional aspect or a reduction in the means available to them. At the same time, the Constitutional Court holds that constitutional amendments concentrated within the judiciary "that are aimed at […]optimizing from a substantive point of view and refining individual functions of its bodies, placing emphasis or clarifying their powers […], do not constitute a change in the form of government and can be undertaken by the National Assembly, provided they do not disrupt the balance of powers and adhere to the fundamental principles upon which the current constitutional model of the state is built."
In this context, the Court finds that the amendments to items 5 and 6 of Article 127 of the Constitution under review are not of a nature to affect the foundations of statehood or the principles upon which the organization of state authorities is built.
The contested amendments to the means by which the Prosecutor's Office fulfills its assigned primary task do not result in the elimination of these constitutionally established means, nor do they inherently obstruct their application. They do not alter the functional specifics of the Prosecutor's Office as an independent body within the judiciary. The amended content of these two means preserves the Prosecutor's Office's principal role within the judiciary – to monitor compliance with the law. These changes do not involve the transfer of prosecutorial powers to another judicial body or to an authority outside the judiciary. Although the exercise of the Prosecutor's Office's activities under the amended constitutional powers requires the legislature to adopt the necessary regulatory framework at the statutory level to enable this judicial body to perform its functions, this does not render the contested provisions unconstitutional. It is the primary obligation of the legislature (Article 62, para 1, first sentence) and is explicitly mandated by the Constitution (Article 133). The Constitutional Court, in Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, unequivocally emphasized that there is a clear link between this obligation and the normative provisions of Articles 117, 126, and 127 of the Constitution. "While these provisions establish the fundamental characteristics of the judiciary (Article 117) or the specific foundational principles regarding the structure (Article 126) and functions (Article 127) of the Prosecutor's Office, the Constitution clearly indicates that the practical implementation of the new judicial model it establishes necessarily requires statutory regulation of matters not covered by it but significant for the organization and activities of prosecutorial bodies."
In this regard, the Constitutional Court notes that the constitutional provisions concerning the powers of the Prosecutor's Office under items 5 and 6 of Article 127 are characterized by a high degree of abstraction. The content of these powers is "filled in" by the National Assembly at the statutory level, which exercises discretion in determining how to regulate their implementation. The Grand National Assembly itself explicitly allowed this principle to apply, as the provision of item 6 of Article 127 of the Constitution, prior to the amendments, also envisaged the participation of a prosecutor in civil and administrative cases when provided for by law. Therefore, the constituent authority has permitted the possibility of granting this power to any future National Assembly, enabling it to assess, through current legislation, the necessity of a prosecutor's participation in judicial proceedings other than criminal cases. In this way, as envisioned by the Constitution, the law will fulfill a specific guarantor function: it will serve as the foundation and measure for the Prosecutor's Office's activities in proceedings other than criminal ones, thereby safeguarding fundamental rights and freedoms and ensuring adherence to the rule of law principle.
The Constitutional Court finds that the amendments made to items 5 and 6 of Article 127 of the Constitution do not deprive the Prosecutor's Office of its task to monitor compliance with the law, and the Prosecutor's Office continues to perform this task as a guarantor of the rule of law in the areas specified in the Constitution. The changes to these powers constitute, by their nature, a refinement of the scope of the mechanism established in the Constitution for the Prosecutor's Office to fulfill its primary task. According to Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005, this refinement falls within the authority of the National Assembly and may be carried out by it in its capacity as a derivative constituent authority.
In view of the above, the Constitutional Court finds that the amendments to items 5 and 6 of Article 127, as introduced by §12 LAS Constitution, are not unconstitutional.
d) Mechanism for investigating the Prosecutor General – Amendment to Article 130, para 4, as introduced by §15 LAS Constitution
The provision of Article 130, para 4 is newly adopted with the amendment of the Constitution in 2023, introduced by §15 LAS Constitution. Its adoption was motivated by the need, as stated by the promoters, to establish "effective mechanisms for accountability and responsibility concerning the Prosecutor General" in "compliance with the judgment of the European Court of Human Rights in the case of Kolevi v. Bulgaria."
The provision of Article 130, para 4 states: "For a committed crime of a general nature, the Prosecutor General or his deputy shall be investigated and the indictment shall be upheld before the court by a prosecutor who has previously held the position of judge in the Criminal Collegium of the Supreme Court of Cassation or who holds a rank equivalent to that of a judge of the Supreme Court of Cassation in the criminal divisions of appellate or district courts at the time of their appointment. The procedure for selection and appointment shall be determined by law."
With this provision, the prosecutor tasked with investigating the Prosecutor General or his deputy becomes the third body within the prosecutorial system that the National Assembly establishes at the constitutional level, alongside the Supreme Prosecutor’s Office and the Prosecutor General. In this context, when reviewing its constitutionality, the provision must be viewed not only as an element of the overall constitutional framework of the judiciary but also in light of its dual nature: both as a norm that establishes a constitutional body (Article 130, para 4, first sentence) and as a norm that empowers the ordinary National Assembly (Article 130, para 4, second sentence). As an establishing constitutional norm, it sets the conditions for creating a state body with specific public-law functions - a prosecutor with narrowly defined subject-matter specialization who is granted explicitly enumerated powers to investigate and maintain an indictment before a court in cases of crimes committed by the Prosecutor General or his deputy. As an empowering constitutional norm, it delegates to the legislature the authority, based on an assessment of expediency, to regulate at the statutory level the procedure for the selection and appointment of this body.
In view of the regulated matter’s connection to the sphere of the state’s protective function, carried out by judicial system bodies, the constitutional parameters of the establishment and empowerment must align with the constitutional principles underpinning this branch of power and structuring its bodies and their competencies. Only in this way can the provision in question adequately serve as a legal foundation for legislative activity and set an appropriate constitutional standard, leaving room for normative development that accommodates the legislator's discretionary freedom in establishing statutory regulations (Ruling No. 1/2021 on Constitutional Case No. 2/2021).
Given that the first sentence of paragraph 4 of Article 130 establishes a new body within the prosecutorial system, the Constitutional Court must examine whether the requirements for the content of such a provision have been met. The applicable standard in the constitutional review should assess adherence to the primary constitutional task of the Prosecutor's Office and the means for its implementation (Article 127, items 1-6). The Court’s case-law has recognized that the legislature holds discretionary authority to create specialized structures within the judiciary based on the needs and objectives of state criminal policy, provided this remains within the framework set by the Grand National Assembly in the Fundamental Law as the foundational and organizational principles of the judiciary (Decision No. 6/2018 on Constitutional Case No. 10/2017 and Decision No. 7/2022 on Constitutional Case No. 9/2022). In this sense, the creation of a prosecutor tasked with investigating the Prosecutor General or his deputy, as a specialized prosecutorial body within the Prosecutor’s Office at the constitutional level, is in itself permissible and does not exceed the boundaries of the discretion granted to the National Assembly.
The specific task of the Prosecutor's Office to monitor compliance with the law predetermines its place within the system of balance and interaction with the other branches of power (Decision No. 11/2020 on Constitutional Case No. 15/2019). Article 127 of the Constitution provides an exhaustive enumeration of the permissible methods that define the constitutional boundaries of the Prosecutor’s Office’s activities and through which it performs the relevant part of the state’s protective function (Decision No. 8/2005 on Constitutional Case No. 7/2005). For the activities of the Prosecutor's Office to be constitutionally compliant, they must align with and not contradict to the extent of negating the methods that are limited and precisely formulated in the Constitution. A normative framework is constitutionally impermissible if it restricts the constitutionally established methods granted to the Prosecutor's Office by the Grand National Assembly, insofar as this would limit its ability to monitor compliance with the law (Decision No. 7/2004 on Constitutional Case No. 6/2004).
When the National Assembly exercises its legislative competence, it cannot create methods or powers regarding the Prosecutor's Office that are different from or exceed, in substantive terms, the frameworks established by the Grand National Assembly, as this would contradict the regulation of methods enshrined in Article 127 of the Constitution. The National Assembly also cannot create a body within the Prosecutor's Office and grant it such narrow methods and powers that would limit its ability to perform the primary task of monitoring the compliance with the law. Therefore, when the National Assembly acts as the legislator or as a derivative constituent authority, it cannot exceed the boundaries set in the Fundamental Law regarding the regulation of the task of prosecutorial bodies and the methods for its realization. This also applies to the prosecutor investigating the Prosecutor General, since, like any other prosecutor, he should not only be bound by the constitutional imperative, but also be able to exercise the competence assigned to him.
The analysis of Article 130, para 4, first sentence of the Constitution, which provides that "the Prosecutor General or his deputy [...] shall be investigated and the indictment shall be upheld before the court by a prosecutor," demonstrates that this specialized prosecutorial body is granted two out of the six constitutional means stipulated for the exercise of the prosecutor's powers: conducting investigations (Article 127, item 2) and upholding the indictment before the court (Article 127, item 3, second clause). There is no constitutional provision regarding other competences of this specialized body, which means that it is not endowed with essential and necessary tools for any prosecutor’s work as outlined in Article 127, items 1-3, without which it cannot fulfill its functions in criminal proceedings. The constitutional provision does not grant the specialized prosecutorial body the authority to direct investigation and exercise supervision over its lawful conduct (item 1), nor the authority to bring charges against the Chief Prosecutor or his deputy (item 3, first clause). Given the absence of an explicit constitutional assignment in the first sentence of Article 130, para 4, the Constitutional Court concludes that additional competences of the specialized prosecutor cannot be granted by law. This means that the specialized prosecutor would have to personally conduct the investigations without being able to delegate tasks to investigating authorities and would not be able to bring charges against individuals (i.e., file indictments in court). The analysis of Article 130, para 4, first sentence of the Constitution leads the Court to the conclusion that this provision effectively establishes a constitutional body for investigating crimes of a general nature committed by the Chief Prosecutor or his deputy, while significantly limiting its powers to implement the prosecutorial function of monitoring compliance with the law solely to one of the means under Article 127 - namely, that under item 2. This body also seemingly posses the authority referred to in the second hypothesis of Article 127, item 3 - to uphold indictments before the court. However, this is merely an appearance because, under the current wording, the authority to uphold an indictment is deprived of practical application and cannot be exercised. The reason for this is that in order to exercise this authority, the specialized prosecutorial body must be competent to bring the investigated individual to criminal liability (the first hypothesis under item 3), an action that procedurally precedes the upholding of the indictment and a power that the specialized prosecutorial body, in fact, does not possess.
In addition to the aforementioned, the Constitutional Court also notes the following: the constitutional delegation provided in Article 130, para 4, second sentence - "The procedure for selection and appointment [of the specialized prosecutorial body] shall be determined by law" - is explicit. Beyond the matters stated in the provision, no other issues could be regulated by the National Assembly. It would not be possible, through legislation, to grant additional powers to this specialized body. Furthermore, since the scope of its competence does not include the procedures by which it will exercise its powers, there is a serious risk that it will operate according to its own rules.
In view of the deficiencies in the constitutional status of this newly established body, as identified by the Court - exceptional ambiguity of the powers granted to it in the context of the task assigned to the prosecution by the Fundamental Law and the means for its implementation - the body is created through a provision that is devoid of the characteristics of clarity and consistency, particularly inherent in a provision of constitutional rank.
The Constitutional Court has repeatedly ruled that the rule of law, in its formal sense, represents a state of legal certainty, which in turn presupposes that laws must be clear, precise, and consistent. This is a fundamental component of the multifaceted content of this principle, which requires the legislature to establish a legal order containing specific rules that enable legal subjects to derive from them a prescribed model of behavior. This requirement applies even more strongly to the status of state bodies, especially when they are established at the constitutional level. In this sense, when exercising its authority as a derivative constituent power, the National Assembly is obligated to ensure a stable and conceptually consistent regulation, setting parameters for public relations in the spirit of the key constitutional principles on which the political and legal system of the state is built and upheld (Decision No. 10/2016 on Constitutional Case No. 3/2016 and Decision No. 8/2017 on Constitutional Case No. 1/2017). By regulating the institution of the prosecutor tasked with investigating the Prosecutor General at the constitutional level through the current wording of Article 130, para 4, first sentence of the Constitution, the National Assembly fails to comply with fundamental principles regarding the functioning of the judiciary in Bulgaria. The Constitutional Court takes the position that the contested provision of Article 130, para 4, first sentence is unclear to the point of being inapplicable. It does not meet the constitutional requirement and standard for clarity and consistency, thereby violating a fundamental constitutional principle - the principle of the rule of law enshrined in Article 4, para 1 of the Fundamental Law. It is impermissible for a constitutional provision to create an exception to this principle, especially when it concerns the status of a state body established to oversee compliance with the law by high-ranking bodies within the judicial system. In view of the foregoing, the provision of Article 130, para 4, first sentence violates the principle of the rule of law.
The provision of Article 130, para 4, second sentence of the Constitution is an empowering constitutional norm, which outlines the fundamental principles to be set forth in a law regarding the procedure for the selection and appointment of the prosecutor tasked with investigating the Prosecutor General or his deputy. Its existence is dependent on and subordinated to the existence of the constitutional norm in the first sentence, which establishes this body. Without the first sentence, it holds no independent significance and cannot fulfill its regulatory function, and thus must also be declared unconstitutional. This does not preclude the possibility of addressing the matter related to the investigation of a crime committed by the Prosecutor General or his deputy through statutory legislation.
In view of the above, the Constitutional Court finds that the amendment to Article 130, paras 4, as introduced by §15 LAS Constitution, is invalid and hence should be declared unconstitutional.
4. Bodies of the Judiciary – Amendments to Articles 130a and 130b, as introduced by §16 and 17 LAS Constitution
For the framers of the 1991 Constitution, the establishment of constitutional guarantees for the independence of the judiciary was fundamental to the proper functioning of judiciary. The independence of the judiciary was adopted as an "indisputable principle" in a democratic, rule-of-law state (Minutes of the Meeting of the Commission for the Drafting of the Constitution of Bulgaria, 20 December 1990). During the adoption of the Constitution, various options were discussed, leading to an unified understanding that the effective realization of the principle of independence of the judiciary was achievable through the constitutional guarantee of the independence of judges, prosecutors, and investigators in performing their functions, through the financial independence of the judiciary, and through the right of this authority itself to appoint, demote, transfer, and dismiss judges, prosecutors, and investigators. The functional independence of judges, prosecutors, and investigators is established in Article 117, para 2, second sentence, and guaranteed through the provisions on irremovability and immunity introduced in Article 129, para 3, and Article 132. The financial independence of the judiciary is regulated in Article 117, para 3, while its organizational independence - epitomized by the judiciary's right to independently appoint, demote, transfer, and dismiss judges, prosecutors, and investigators - is enshrined in Articles 129 and 130 of the Fundamental Law (as promulgated in SG No. 56 of 13 July 1991).
During the drafting of the Constitution, the issue of the organizational independence of the judiciary was the subject of contested discussions. While the need for its constitutional enshrinement through the creation of a body responsible for the personnel management of the judiciary was unanimously accepted by all members of Parliament, numerous proposals were debated regarding the manner of constituting and operating this body. According to the provisions of Article 129, para 1, and Article 130 (as promulgated in SG No. 56 of 13 July 1991), the appointment, promotion, demotion, transfer, and dismissal of judges, prosecutors, and investigators is carried out by a special body - the Supreme Judicial Council. This council consists of eleven members elected by the National Assembly, eleven members elected by the bodies of the judiciary, and three ex officio members - the Chairperson of the Supreme Court of Cassation, the Chairperson of the Supreme Administrative Court, and the Prosecutor General. The Council's sessions are chaired by the Minister of Justice, who does not participate in voting.
This concise constitutional regulation regarding the structure, powers, and functioning of the body through which the organizational independence of the judiciary is exercised and guaranteed - the Supreme Judicial Council - combined with the constitutional delegation for the regulation of this body’s organization and activities at the legislative level within broad limits, as established in Article 133, created the possibility for the composition, powers, and activities of the Supreme Judicial Council to be the subject of three consecutive constitutional amendments - in 2007, 2015, and 2023. Tracing the logic of the amendments and additions made to Chapter Six of the Constitution concerning the Supreme Judicial Council reveals a trend toward increasingly detailed regulation of the composition and powers of this body. While the 2007 amendment focused on establishing the powers of the Supreme Judicial Council at the constitutional level, the 2015 amendment reflected a political effort to address the societal consensus on the need for additional guarantees of judges’ independence and greater transparency and accountability for prosecutors through the body responsible for the personnel and administrative support of the judiciary.
The framers of the Constitution did not establish a rule for determining the participation of the various bodies of the judiciary in the Supreme Judicial Council, leaving this to the discretion of the legislature. This has led to an inconsistent legislative framework over the years regarding the allocation of the judiciary's quota in the Supreme Judicial Council between the representatives of the bodies responsible for the three distinct functions related to the realization of the judicial system's human rights protection role. In the Law on the Supreme Judicial Council, adopted by the Grand National Assembly (promulgated SG No.74 of 10 September 1991), the allocation of the eleven members of the Supreme Judicial Council, elected by the bodies of the judiciary, was five members elected by judges, three members elected by prosecutors, and three members elected by investigators (Article 3, para 2). In the Law on the Judiciary, adopted in 1994 (promulgated SG No.59 of 22 July 1994), this ratio remained unchanged (Article 17, para 2). However, with the amendment of the law in 1998 (promulgated SG No.133 of 11 November 1998), the ratio was altered to six members elected by judges, three by prosecutors, and two by investigators. In the new Law on the Judiciary, adopted in 2007 (promulgated SG No.64 of 7 August 2007), the distribution of the eleven members of the Supreme Judicial Council, elected by the bodies of the judiciary, was six elected by judges, four by prosecutors, and one by investigators (Article 17, para 2).
With the 2015 amendment to the Constitution, the constitutional legislator, in order to ensure the independence of the judiciary and to enhance transparency and accountability in the exercise of prosecutorial and investigative functions, provided that the Supreme Judicial Council exercises its powers through a plenum, as well as judicial and prosecutorial collegiums. The regulation divided the personnel and administrative powers of the Supreme Judicial Council between the judicial and prosecutorial collegiums, with respect to judges and courts on the one hand, and prosecutors and investigators, as well as the prosecutor's office, on the other. The plenum of the Supreme Judicial Council was granted general powers for the judiciary, as stipulated in Article 130a, para 2. Additionally, it was established that the eleven members of the Supreme Judicial Council, elected by the National Assembly, would consist of six for the judicial collegium, with six directly elected by judges, and five for the prosecutorial collegium, with four directly elected by prosecutors and one elected directly by investigators. The members ex officio of the judicial collegium would be the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court, while the member ex officio of the prosecutorial collegium would be the Prosecutor General.
The contested constitutional amendment, in light of the goals stated by the promoters - "Strengthening the independence of the judiciary through structural reform of the Supreme Judicial Council" and "Reform of the prosecution, ensuring its accountability to society" (proposal No. 49-354-01-83 of 28 July 2023) - is essentially a continuation of the amendment made in 2015 to Chapter Six regarding the Supreme Judicial Council.
In order to perform a constitutional review of the amendments introduced by §§ 16 and 17 LAS Constitution, the Court should assess whether the structure, powers, and composition of the newly established bodies within the judiciary remain in line with the original constitutional objectives of their existence. It must also determine whether the substantive tasks for which the respective bodies were created are preserved, and whether the balance of the judiciary with the other two branches of government, as well as between the different bodies within the judiciary, is maintained.
а) Structure of the bodies that provide personnel and administrative support to the judiciary
From the review of the provisions introduced by §16 and §17 LAS Constitution to Articles 130a and 130b, the following structure of the bodies authorized to carry out the personnel and administrative support to the judiciary is established: the personnel and administrative support for judges and courts is assigned to the Supreme Judicial Council; the personnel and administrative support for prosecutors, investigators, and the prosecutor’s office ("the prosecution system") is assigned to the Supreme Prosecutorial Council; and matters common to the judiciary are assigned to the General Assembly of the Supreme Judicial Council and the Supreme Prosecutorial Council (the General Assembly).
Conceptually, this resolution regarding the structure of the bodies of the judiciary responsible for its personnel and administrative support is a continuation of what was already established with the 2015 amendment to the Constitution. Whether the bodies are called the General Assembly or the Plenum of the Supreme Judicial Council, the Judicial and Prosecutorial Collegiums, or the Supreme Judicial Council and the Supreme Prosecutorial Council, does not fundamentally alter the structure of these bodies (it is important to note that the name of each body holds significance and should be determined based on a unified approach, taking into account the logic and structure of the judiciary, as well as the historically established names of the bodies within this branch of government, in order to ensure the necessary continuity and further development.)
The comparison between the regulation before and after the contested amendment to the Constitution indicates the existence of three bodies, each of which has established powers differentiated on the basis of the same criterion - the entity subject to those powers: judges and courts, or prosecutors and investigators and the prosecutor’s office ("the prosecution system"), or the judiciary as a whole. This structuring of the bodies of the judiciary responsible for its personnel and administrative support follows the logic adopted by the framers of the Constitution in this matter. While they established a single body to provide personnel and administrative support for the judiciary, the framers of the Constitution explicitly acknowledged that each of the structurally distinct activities through which the judiciary operates is institutionally autonomous and organized on a different principle (Minutes of the Meeting of the Commission for Drafting the Constitution of the Republic of Bulgaria, 30 January 1991).
The discussions during the adoption of the Constitution, as well as the adopted provision of Article 126, para 1, clearly indicate the prevailing understanding of the prosecution as an autonomous and independent system of bodies within the judiciary, organized in a centralized manner (Minutes of the Meeting of the Commission for Drafting the Constitution of the Republic of Bulgaria, 24 June 1991; Verbatim Report of the 163rd plenary session of the Grand National Assembly, 24 June 1991). This means that, institutionally, the judiciary consists of two (initially three) independently functioning systems - the system of courts and the system of the prosecution (later incorporating investigative bodies), organized on different principles. Recognizing the inherent internal tension within the judiciary's structure - one body and two (initially three) independent systems functioning on different principles - the framers of the Constitution granted broad legislative discretion for the organization and functioning of the established body responsible for the judiciary's personnel and administrative support. The existence of two systems, built and operating on different principles, necessitates the autonomy of each body responsible for the personnel support of each system, as this is a means of ensuring the functional independence of judges, prosecutors, and investigators. At the same time, the operation of the two systems within the judiciary requires the existence of a body tasked with addressing issues common to their administrative support.
b) Powers of the bodies that provide personnel and administrative support to the judiciary
The comparison of the powers of the newly established General Assembly, the Supreme Judicial Council, and the Supreme Prosecutorial Council (Article 130b, paras 1, 2, 3, and 4 introduced by §17) with those of the Supreme Judicial Council existing prior to the amendment, which operated as a plenum and two collegiums (Article 130a, paras 1, 2, 3, 4, and 5), reveals differences not only in nomenclature but also in the allocation of certain powers. Specifically, the Supreme Judicial Council and the Supreme Prosecutorial Council are now granted the powers to terminate the mandate of an elected member of the respective council and to propose to the President the appointment and dismissal of the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court, respectively the Prosecutor General. These powers, prior to the amendments, were vested in the Supreme Judicial Council operating in a plenary format.
The nature of these powers defines them as personnel-related, and their allocation to the two distinct personnel bodies - one for judges and one for prosecutors and investigators - aligns with the logic of the 2015 reform, which differentiated the personnel powers of the Supreme Judicial Council through the creation of two collegiums: the Judicial and the Prosecutorial Collegiums. The amendment completes the separation of personnel powers, thereby contributing to the safeguarding of the independence of judges, prosecutors, and investigators. It establishes that the selection of individuals who are institutionally at the apex of the judicial system and the prosecutorial system, as well as those elected to participate in the body responsible for the personnel support of judges, prosecutors, and investigators, is conducted by an institutionally independent body, separate from representatives of the other system within the judiciary. This body independently exercises personnel powers over all other judges, prosecutors, and investigators. In this way, what is established for judges and for prosecutors and investigators applies to each of the judiciary's systems in their entirety - to every single judge, prosecutor, and investigator, regardless of their place within the institutional structure of the court system or the "prosecution system." Assigning these functions to the Supreme Judicial Council and the Supreme Prosecutorial Council aims to achieve the purpose envisioned by the framers of the Constitution when introducing the body responsible for the judiciary's personnel and administrative support - guaranteeing the independence of judges, prosecutors, and investigators.
The remaining powers of the Supreme Judicial Council and the Supreme Prosecutorial Council, as established in the provisions of Article 130b, paras 2 and 3, introduced by §17 LAS Constitution, specifically those in items 1, 3, 4, and 5, which relate to the career development of judges, prosecutors, and investigators, are identical to the powers of the Judicial and Prosecutorial Collegiums under Article 130a, para 5, items 1, 2, 3, and 4 (prior to the amendment). The power in item 6 of paras 2 and 3 - addressing organizational matters concerning the operation of the courts and the prosecution, respectively - is identical to the power of the two collegiums under Article 130a, para 5, item 5 (prior to the amendment). Similarly, the power of the two councils under item 13 corresponds to the powers of the two collegiums under Article 130a, para 5, item 6 (prior to the amendment). The powers under items 7 and 8 of paras 2 and 3 concern the budget of the court system and the prosecution system. These powers, given the General Assembly's authority under Article 130b, para 4, item 1 - to approve the draft budget of the judiciary upon a proposal from the Supreme Judicial Council and the Supreme Prosecutorial Council - are a logical consequence of that authority. The power under Article 130b, para 2, item 10, and para 3, item 10 - “participation in the management of judicial training” - reflects the reforms introduced by the 2007 and 2015 amendments, which established at the constitutional level the power of the Supreme Judicial Council, or its plenum, to "organize the qualification of judges, prosecutors, and investigators." This power of the two councils aligns with the Minister of Justice's power to "participate in the management of judicial training." However, it remains unclear how three bodies "participate in management" without a clear definition of who actually governs “judicial training” and what it specifically encompasses. The powers of the two councils under item 11 of paras 2 and 3 - to hear and approve the annual report under Article 84, item 16 - are consistent with the obligation established in Article 84, item 16 of the Constitution and the division of powers between the two councils in relation to courts and the "prosecution system." These two provisions concerning powers under items 10 and 11 are yet another confirmation of the legislature's well-established practice of exercising its authority under Article 153 of the Constitution to create constitutional-level regulation of legal relationships that arguably do not warrant constitutional status.
The Court finds it necessary to highlight the different identification of the entity that is subject to governance by the Supreme Prosecutorial Council as established in the provisions of Article 130b, para 3, items 3, 4, and 5, on the one hand, and items 6, 7, and 8, on the other. In the first instance, the reference is to the "prosecution system," likely reflecting the intended purpose of the amendment outlined in the proposed draft of the LAS Constitution (incoming registration №49-354-01-083 of 28 July 2023): the "introduction of an element of decentralization within the structure of the prosecution." In the second instance, it appears to be a remnant of the understanding of the prosecution as a financially unified entity.
A comparison of the powers of the two councils before and after the contested amendment with those of the two collegiums reveals that the powers are essentially identical. The two newly added powers - items 2 and 9 of paras 2 and 3 - align with the purpose for which the two bodies were established prior to the contested amendment: to carry out personnel functions supporting, respectively, the courts and the prosecution.
In view of the above, the Constitutional Court finds that the amendments to Article 130b, para 2, items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13 and para 3, items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13, as introduced by §17 LAS Constitution, are not in themselves unconstitutional.
When comparing the powers of the Supreme Judicial Council acting as plenum with the powers of the General Assembly, aside from the two personnel-related powers mentioned above, it is established that, prior to the amendment, the Supreme Judicial Council, acting as plenum, "manages the real estate of the judiciary" and "decides on organizational issues common to the judiciary." With the constitutional amendments introduced by §17 LAS Constitution regarding Article 130b, para 4, second sentence, items 3 and 2, the General Assembly now has the authority to "adopt opinions on matters related to the management of the real estate of the judiciary" and to "adopt opinions on organizational issues common to the judiciary."
Formulated in this way, these powers of the General Assembly define it as an advisory body concerning the management of real estate and the resolution of organizational issues common to the judiciary, without clarifying the method of interaction with the Supreme Judicial Council, which is entrusted with the management of the real estate allocated to the judiciary. Additionally, the legal effect of the General Assembly’s opinion "on matters related to the management of the real estate of the judiciary" and "on organizational issues common to the judiciary" remains unclear. The legal significance of the power to "discuss other common to the judiciary matters related to the independence of the judiciary" is also unclear, as only "the issues" will be "defined by law." These powers, when compared to the power under item 1 of Article 130b, para 4, second sentence - approves the draft budget of the judiciary - deepen the ambiguity regarding the nature of the General Assembly. According to the established regulation, a body that approves the budget of the judiciary adopts opinions on the management of real estate provided to the judiciary, as well as on organizational issues common to the judiciary.
This unclear wording demonstrates that through the introduced amendment, the nature of this body, its place in the hierarchy of the bodies of the judiciary empowered to ensure its personnel and administrative support, remains uncertain. A constitutional norm that establishes a constitutional body and defines its powers must allow for a clear and unambiguous determination of the nature of its powers and its position within the system of bodies to which it belongs. The established powers of the General Assembly through the amendment introduced by §17 - Article 130b, para 4, second sentence, items 2, 3, and 4 - do not allow for the establishment of the constitutional status of the General Assembly as a body of the judiciary. This places an unacceptable strain on the established constitutional consensus regarding the granted power to the derivative constituent authority and to the current legislator, giving them the freedom to refine the regulation of a body within the judiciary that ensures its general functioning while respecting the established guarantees for the independence of judges, prosecutors, and investigators, including those based on the experience gained by generations.
The provision regarding the powers of the General Assembly - Article 130b, para 4 - should be examined in connection with the amendment to Article 130b, para 1, introduced by §17 LAS Constitution. This amendment stipulates that the Supreme Judicial Council and the Supreme Prosecutorial Council exercise their powers independently and through the General Assembly. Articles 130b, paras 2 and 3, whose provisions were introduced by §17, set out the powers of the two councils that they exercise independently. However, neither these provisions nor the provision of Article 130b, para 4, second sentence, clarify which of their powers the two councils exercise through the General Assembly. The second sentence of paragraph 4 assigns powers to the General Assembly, which creates additional ambiguity regarding the functioning of the General Assembly.
In addition to the identified ambiguity regarding the functioning of the General Assembly, a comparison of the powers of the judicial and prosecutorial collegiums of the Supreme Judicial Council prior to the amendment with the powers of the Supreme Judicial Council and the Supreme Prosecutorial Council reveals a discrepancy in the authority granted to the Supreme Judicial Council. Specifically, the Supreme Judicial Council is empowered to "manage the real estate of the judiciary" under Article 130b, para 2, item 12, whereas the Supreme Prosecutorial Council is tasked with "participating in the management of the real estate of the judiciary, in coordination with the Supreme Judicial Council."
The assignment of the management of real estate provided to the judiciary to the Supreme Judicial Council, in its capacity as the body responsible for the administrative support of the courts, falls outside the scope defined by its subject matter (judges and courts) and is inconsistent with the purpose envisioned by the framers of the Constitution - to guarantee the independence of judges, prosecutors, and investigators. The participation of one body in the management of real estate carried out by another body "after coordination" subjects the management of real estate provided to the judiciary to vaguely defined rules and, to some extent, constitutes interference with the institutional autonomy of the Supreme Prosecutorial Council. Additionally, this raises a significant issue regarding the formation of a budget necessary for the management of real estate allocated to the "prosecution system."
The powers assigned to the two councils concerning the management of real estate provided to the judiciary, examined in the context of the aforementioned ambiguity regarding the General Assembly's authority to "adopt opinions on matters related to the management of real estate provided to the judiciary," further deepen the uncertainty surrounding the constitutionally established method for managing the real estate allocated to the judiciary, which creates significant challenges to its effective implementation (for the importance of providing constitutionally established bodies with state property, see mutatis mutandis Decision No. 14/1995 on Constitutional Case No. 23/1995 and Decision No. 4/2004 on Constitutional Case No. 4/2004).
The above-mentioned amendments to Article 130b, para 4, second sentence, items 2, 3, and 4, introduced by §17 LAS Constitution reveal the absence of a clearly defined constitutional legal status for the newly introduced body within the judiciary - the General Assembly of the Supreme Judicial Council and the Supreme Prosecutorial Council. There is no provision regarding the nature of this body or the character of its relationship with the Supreme Judicial Council and the Supreme Prosecutorial Council to fulfill its intended role concerning the "issues common to the judiciary". This issue is further compounded by the fact that the constitutional framework is the sole source defining the legal status and operational regime of this body, given that the referral provision of Article 133 of the Constitution does not prescribe legislative regulation for the organization and functioning of the General Assembly, nor does it provide constitutional standards for the legislature to follow.
The discussed constitutional amendment to Article 130b, para 4, second sentence, items 2, 3, and 4 contradicts the requirement for such an organization of the management of the judiciary that ensures its independence as a constitutionally established value (Article 117, para 2, first sentence). The same applies to the provisions of Article 130b, para 2, item 12, and para 3, item 12, which, due to their lack of clarity, create a risk of tension in the relations between institutional structures regarding the management of real estate assigned to the judiciary. This, in turn, establishes conditions that may hinder the effective functioning of the judiciary.
In conclusion, it should be emphasized that the unclear legal regulation of certain aspects of the judiciary at the constitutional level - intended to establish the foundations of the legal framework for one of the three branches of government - constitutes a significant violation of the principle of the rule of law in its formal sense. The aforementioned provisions also infringe upon the principle of the separation of powers, leaving the determination of the status of a constitutionally established state body and the legal effect of its adopted acts entirely to the discretion of its specific composition at any given time - representatives of the judiciary and the legislative branch. This creates a risk of arbitrariness in the exercise of state authority.
In view of the above, the Constitutional Court finds that the amendments to Article 130b, para 1, para 2, item 12, para 3, item 12 and para 4, second sentence, as introduced by §17 LAS Constitution, are invalid and hence should be declared unconstitutional.
c) Composition of the bodies that provide personnel and administrative support to the judiciary
Section 16 introduces an amendment to Article 130a, paras 1 and 2, which defines the composition of the Supreme Judicial Council and the Supreme Prosecutorial Council. Compared to the composition of the judicial and prosecutorial collegiums established prior to the amendment - under Article 130a, paras 3 and 4 - a difference is observed in the allocation of members of the two councils elected by the National Assembly and by judges, prosecutors, and investigators.
Composition of the Supreme Judicial Council
According to the introduced amendment, the Supreme Judicial Council consists of 15 members, two of whom serve ex officio - the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court - and 13 elected members, eight of whom are "directly elected by judges from all courts," and five are elected by the National Assembly. A comparison with the composition of the judicial collegium of the Supreme Judicial Council reveals an increase of two members elected by judges and a decrease of one member elected by the National Assembly. In the explanatory notes to the draft LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023), the proposed change is justified as aimed at "strengthening the independence of judges, who are given the opportunity for genuine self-governance within a restructured Supreme Judicial Council while respecting the public interest." It is also noted that "in this way, the standards for the independent administration of the judiciary are fulfilled."
A historical review of the development of the regulatory framework governing the body responsible for the personnel and administrative support of judges, prosecutors, and investigators demonstrates a consistent trend toward increasing the number of elected members chosen by judges. In this regard, the Constitutional Court has previously ruled (in relation to statutory regulation) that "there is no constitutional impediment" to increasing the number of representatives of judges within this body (Decision No. 1/1999 on Constitutional Case No. 34/1998).
The Constitutional Court acknowledges that, since the adoption of the Constitution, there has been a steadily developing societal understanding - resulting from national experience and the recognition of good practices - regarding the need for additional guarantees for the institutional independence of the body responsible for providing personnel and administrative support to judges and courts. This is essential for ensuring the administration of justice by a neutral and impartial judiciary. Based on this societal understanding, the amendment to the composition of the body responsible for providing personnel and administrative support to judges and courts further develops and aligns with previously made amendments to the Constitution. The change, in itself, does not violate the established balance within the judiciary, nor does it disrupt the balance between the judicial and legislative branches. On the contrary, it contributes to reinforcing the institutional independence of the judiciary, and thereby strengthens the functional independence of judges.
The explanatory notes of the draft LAS Constitution (incoming registration №49-354-01-83 of 28 July 2023) indicate the ratio of the "parliamentary quota" to the quota of elected members chosen by judges - specifically as "up to one third," while introducing a prohibition on the election of sitting judges, prosecutors, and investigators as members of the respective councils from the parliamentary quota. This restriction on the election of sitting judges to the Supreme Judicial Council from the parliamentary quota is a means to keep the courts open and transparent to society. However, with the adoption of the LAS Constitution, the prohibition for judges is lifted (Article 130a, para 5, second sentence, introduced by §16) without providing any reasoning (there is also no rationale in the proposal for introducing the restriction in the draft law). The restriction remains only for sitting prosecutors and investigators. The Court notes that the application of this newly established rule has the potential to reduce the openness and accountability of the courts to society, while simultaneously pointing out that the potential consequences of how a constitutional provision is applied do not serve as grounds for declaring it unconstitutional.
With the provision of Article 130a, para 1, introduced by §16, the manner in which judges will elect their representatives to the Supreme Judicial Council is explicitly regulated - "elected directly by the judges from all courts." The manner in which the elected members of the Supreme Judicial Council will be chosen by the judges is a matter for legislative discretion. As seen from the Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria on 24 June 1991 and from the Verbatim Report of the 175th plenary session of the Great National Assembly on 5 July 1991, the understanding of the framers of the Constitution regarding the election of members of the Supreme Judicial Council by the judiciary is that it is a matter for legislative decision. This was also established by the Constitutional Court in its Decision №8/1994 on Constitutional Case №9/1994 (“The election and dismissal of members of the Supreme Judicial Council is an element of its organization, and their specific regulation is entrusted to be carried out by the respective law”). In the Constitution, direct election by judges (and by prosecutors and investigators) was introduced with the amendment of 2015. The addition in the constitutional provision regarding direct election by judges - "from all courts" - does not carry constitutional significance, especially considering the legally established practice of direct election by all judges (and all prosecutors and investigators) of the elected members of the body responsible for the personnel and administrative support of the judiciary (Article 20, para 2 of the Judiciary Act, amended SG No. 28 of 8 April 2016, introduced in implementation of the constitutional amendment of 2015). The only effect of this addition is to contribute to the deepening change in the nature of the regulation in Chapter Six "The Judiciary," which increasingly loses its generality and abstraction. It should once again be reminded of the original position of the framers of the Constitution regarding the regulation in Chapter Six "The Judiciary": “A precise and clear formulation only of the constitutional foundations of the judiciary, which provides only the starting points for the structural laws. […] The Constitution is not a normative act only for today, but, above all, for the future” (Minutes of the Meeting of the Commission for Drafting the Constitution of the Republic of Bulgaria on 20.12.1990).
In view of the above, the Constitutional Court finds that the amendment to Article 130a, para 1, as introduced by §16 LAS Constitution, is not in itself unconstitutional.
Composition of the Supreme Prosecutorial Council
The amendment to Article 130a, para 2, introduced by §16, stipulates that the Supreme Prosecutorial Council consists of one ex officio member - the Prosecutor General - and nine elected members, of which "two members are directly elected by prosecutors, one member is directly elected by investigators, and six members are elected by the National Assembly." A comparison with the composition of the prosecutorial collegium of the Supreme Judicial Council reveals an increase by one in the members elected by the National Assembly, the retention of the member elected by investigators, and a decrease by two in the members elected by prosecutors.
In assessing the constitutionality of this provision, the Court must state the following:
The body established by the framers of the Constitution for the personnel and administrative support of the judiciary serves as a guarantee for its autonomy and independence, as well as for the independence of its constituent bodies tasked with performing the function of protecting rights. At the same time, it is also a means for the effective realization of the principle of the separation of powers (as interpreted by the Constitutional Court in Decision No. 6/1993 on Constitutional Case No. 4/1993, and Decision No. 1/1999 on Constitutional Case No. 34/1998), acting as a mechanism for interaction between the judiciary and the legislative branch to prevent the judiciary from becoming closed off and isolated from the other branches of government. As previously noted, one of the two fundamental principles adopted by the framers of the Constitution regarding the judiciary is the understanding that through the Supreme Judicial Council, "a connection with the other structures of state power" will be established, i.e., the principle of the separation of powers will be implemented (Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria, 20 December 1990).
The framers of the Constitution deemed the interaction between the judiciary and the legislature feasible, given the difficultly achieved level of political consensus, through granting the legislative branch the authority to elect half of the elected members of the Supreme Judicial Council. The power of one branch of government to participate in the constitution of a body belonging to another branch, which alone holds decisive powers for its personnel and administrative support, is in principle both a prerequisite for transparency in the work of this body and a potential source of significant influence. Considering that in this case the authority lies with the legislative branch, i.e., an institution that exercises this power as a temporary parliamentary (political) majority, and in the absence of an established and lasting parliamentary practice for involving the public in this selection process - even taking into account the general provision in Article 130a, para 3, which allows for "representatives of the public and professional organizations" to provide "opinions on the candidates and monitor the process" - this participation objectively carries considerable potential for political influence on the work of this body.
The starting position in assessing the constitutionally permissible change to the manner of interaction established by the 1991 Constitution between the judiciary and the legislature -through the constitution of the body that provides personnel and administrative support to the judiciary - is the adherence to two principles: the principle of the rule of law, which is manifested through the independence of the judiciary, and the principle of the separation of powers, which is reflected in the balance of interaction between the judiciary and the legislature, ensuring mutual cooperation, oversight, and checks and balances between them. In making this assessment, it is necessary to take into account the nature of each activity encompassed by the protective function of the judiciary, and the guarantees necessary for the implementation of each activity.
As noted above, the framers of the Constitution assumed that the state’s function of legal protection would be carried out through three independent activities - judicial, prosecutorial, and investigative - conducted by judges, prosecutors, and investigators.
By its very nature, adjudication is the activity through which a legal dispute is conclusively resolved, turning the contested into the uncontested, thereby providing the most intensive and definitive protection of the rights of individuals, legal entities, and the state (Interpretative Decision No. 8/2005 on Constitutional Case No. 7/2005; Decision No. 6/2008 on Constitutional Case No. 5/2008). Among the judiciary’s functions of legal protection, adjudication is the one that transforms constitutionally established values and rights into reliably guaranteed state obligations to protect rights and freedoms. It is precisely the function of legal protection, when carried out by an independent (neutral and impartial) court, that serves as a means for upholding the rule of law and, above all, for safeguarding the rights and freedoms of citizens as a common good, thus contributing to the consolidation of democracy. The legal protection function of the state, performed by an independent court, ensures adherence to the constitutional consensus of values regarding equality in dignity and rights, which underpins equal treatment under the law as a means to achieve justice. However, for adjudication to be perceived as independent, it must interact with the other two branches -legislative and executive - to a degree that prevents political control over it while simultaneously avoiding its isolation. (“In every society, there is a ‘spillover’ among the branches of power. The issue is to ensure that this ‘spillover’ is appropriately measured,” – Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria, 20 December 1990).
The prosecutorial and investigative activities, carried out as part of the state’s function of legal protection, play an important role in safeguarding the rights and freedoms of citizens and, consequently, in upholding the rule of law as a constitutional order of values. However, unlike adjudication, prosecutorial and investigative activities do not have the same intensity of protection of the rights and interests of citizens and the state as adjudication does. This is because the acts through which prosecutorial and investigative activities are conducted are not decisive - they require the sanction of the court to produce the desired legal effect. Furthermore, the prosecutorial and investigative activities carried out by prosecutors and investigators are, to a greater extent than the adjudicative activities conducted by judges, connected to the other two branches of government - the legislative and the executive. This is because prosecutorial and investigative activities implement the state’s criminal policy, and prosecutors oversee and conduct investigations, ensuring their lawful conduct, which in many cases are carried out by officials within the executive branch.
This difference in the nature of adjudicative activities compared to prosecutorial and investigative activities also determines the differing role of the legislative branch in forming the body that provides personnel and administrative support for their implementation. For the body that provides personnel and administrative support for adjudicative activities, it is essential that the legislative branch does not have a dominant role. This ensures that society can be confident that, through legally established mechanisms, no political institution will have supremacy over judges, which is a constitutional guarantee of their independence. In contrast, for the body that provides personnel and administrative support for prosecutorial and investigative activities, a balance must be struck between the need for its independence - as a guarantee of the independence of prosecutors and investigators - and the need for interaction with other branches of government.
The question raised by the current constitutional amendment with respect to the change introduced by §16 to Article 130a, para 3, is whether this balance has been maintained concerning the composition of the Supreme Prosecutorial Council, consisting of ten members: one ex officio member - the Prosecutor General; six members elected by the National Assembly; two elected by prosecutors; and one elected by investigators. Considering the restriction laid out in Article 130a, para 3, which stipulates that members of the two councils cannot be “persons holding the position of prosecutor or investigator at the time of their election,” this objectively creates an imbalance in representation both within the “prosecutorial system” itself and within the judiciary as a whole, given the relative numbers of judges, prosecutors, and investigators within the judicial system.
Given the Constitution's recognition of the equal legal status of judges, prosecutors, and investigators, there is no logical justification for the limited representation of prosecutors on the Supreme Prosecutorial Council. The determination of the numerical composition of legislative participation in the Supreme Prosecutorial Council should function as a balance between the representatives of prosecutors and investigators, on the one hand, and the representatives of the legislature, on the other - not as a matter of arithmetic. The constitutionally justified idea of enhanced participation by the legislature in the Supreme Prosecutorial Council cannot come at the expense of reducing, to the point of eliminating, the possibility for the real participation of prosecutorial representatives in decision-making. In this case, the established representation of the legislature, when combined with the restriction set out in Article 130a, para 3, second sentence, objectively places the management of the “prosecutorial system” under the direct control of a situational political majority that forms the council. Additionally, consideration must be given to both the reduced term of office for the Prosecutor General and the reduced term of office for the elected members of the Supreme Prosecutorial Council, which now may coincide with the term of the National Assembly.
In conclusion, with regard to the change in Article 130a, para 2, the Court considers that the composition of the Supreme Prosecutorial Council as envisaged, by disrupting the balance between the judiciary and the legislative branch, violates the principle of separation of powers. The number of members of the Supreme Prosecutorial Council elected by the National Assembly, taking into account the prohibition on including acting prosecutors and investigators in its composition, leads to the deprivation of prosecutors and investigators of the opportunity to counteract the inadmissible encroachment of the legislative branch in the formation of the body, which is also intended to be a guarantor of the functional independence of prosecutors and investigators. The Court considers that the independence of the judiciary is not absolute, but the crossing of the constitutionally permissible limits of influence by the legislative branch is essentially a violation of the principle of separation of powers.
In view of the above, the Constitutional Court finds that the amendment to Article 130a, para 2, as introduced by §16 LAS Constitution, is invalid and hence should be declared unconstitutional.
Composition of the General Assembly
The provision of the first sentence of paragraph 4 of Article 130b, introduced by §17 defines the composition of the General Assembly - it consists of all members of the Supreme Judicial Council and the Supreme Prosecutorial Council. In this formulation, the composition of the General Assembly is identical to the composition of the Supreme Judicial Council acting in plenum prior to the contested amendment. It follows that the composition of the General Assembly retains the composition of the general body for the judiciary and, considered independently, this provision does not deviate from the meaning and substance of the provision of Article 130a, para 2, first sentence, as it stood prior to the current amendment.
In view of the above, the Constitutional Court finds that the amendment to Article 130b, para 4, first sentence, as introduced by §17 LAS Constitution, is not in itself unconstitutional.
d) Mandate of the elected members of the two councils - Amendment to Article 130a, para 5, first sentence, as introduced by §16 LAS Constitution
With §16 LAS Constitution, a provision was introduced to Article 130a, paragraph 5, first sentence, according to which the mandate of the elected members of the Supreme Judicial Council and the Supreme Prosecutorial Council is four years.
In its practice, the Constitutional Court has clarified the meaning of the term "mandate" for the purposes of interpreting the Constitution - “a mandate to exercise power” - as well as the significance of the mandate for the constitutional structure of state bodies (Interpretative Decision No. 13/2010 on Constitutional Case No. 12/2010). The Court states that the establishment of mandates and the regulation of mandates for the bodies of the legislative, executive, and judicial branches are “in accordance with contemporary democratic principles of forming and exercising state power” and emphasizes that mandates are a "protective mechanism of democracy" and "the foundation of the democratic process, facilitating its realization both through the democratic method of forming the bodies provided for in the Constitution and through oversight of their activities" (ibid.). This is also applicable to the mandate of members of a constitutionally established body that does not have a mandate status itself, as it is a "permanently existing and functioning body," with its members holding the mandate (Decision No. 8/1994 on Constitutional Case No. 8/1994).
From the indicated importance of the mandate for "the formation and exercise of state power," it follows that each mandate of a constitutionally established body, and accordingly the mandate of its constituent members, is an element of the balance embedded in the Constitution for the system of state bodies, through which the principle of the separation of powers is realized. One of the characteristics of each mandate is its duration (the term of empowerment to carry out the assigned state function). Viewed in the context of this objective, the duration of each mandate of a constitutionally established body and/or its members is directly related to the ongoing process of the mutual interconnection of activities in the governance of the state, entrusted to various state bodies.
A review of the minutes from the meetings of the Commission for the Drafting of the Constitution of Bulgaria and the transcripts from the plenary sessions of the Grand National Assembly during the adoption of the Constitution reveals that the issue of the duration of the mandate of the elected members of the Supreme Judicial Council was the subject of serious discussion. In the draft Constitution (at the first vote), the term of office for the elected members of the Supreme Judicial Council was set at seven years. During a plenary session (before the second vote), opinions were expressed that the proposed seven-year term was too long and should be shortened to four years (transcript from the 137th and 140th plenary sessions of the Grand National Assembly, 22 May 1991 and 29 May 1991). Two main reasons were presented: first, the long duration during which the members elected by the judiciary would not be eligible for promotion, and the burden of "administrative duties for such a long period is hardly expedient"; and second, the need to align the term with that of the National Assembly "for the purpose of parliamentary oversight." In the draft Constitution (at the second vote), the term of office for the elected members of the Supreme Judicial Council was set at five years, and this term was ultimately adopted at the third vote.
The duration of the mandate of the elected members of the Supreme Judicial Council and of the National Assembly, which participates in the formation of its composition through the election of 11 of its members - five and four years respectively - established in the Constitution prior to the current amendment, reveals a discrepancy. This discrepancy in the term of office was intentionally adopted by the framers of the Constitution as a means to limit political influence over the body responsible for the personnel and administrative support of the judiciary.
In the draft proposal for the LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023), the term of office for the elected members of the Supreme Judicial Council and the Supreme Prosecutorial Council is set at four years. The same term of office is specified in the proposal submitted between the "second" first and the second readings (incoming registration No. 49-354-04-315 of 14 December 2023), without providing any reasoning for the proposed change to the term duration of the elected members of both bodies. The Verbatim Report of the meeting of the Committee on Constitutional Affairs held on 28 November 2023, during which a public discussion of the draft LAS Constitution took place, documents the statement by the President of the Supreme Court of Cassation, who expressed support for the reduction of the term of office of the elected members. In the report of the Committee on Constitutional Affairs on the conducted public discussions (incoming registration No. 49-353-37-4 of 6 December 2023), it is informatively noted that positions were expressed by the Supreme Court of Cassation, which supported the proposal; the Supreme Bar Council, which expressed reservations about the proposal and advocated for a different approach to the composition of the body; as well as a member of the Supreme Judicial Council. In the transcript of the meeting of the same committee held on 16 December 2023, during the discussions for the second reading of the draft LAS Constitution, the promoter of the amendment noted during the debate that it is "better for the term of office of the members of the SJC and the SPC to coincide with that of the National Assembly" and clarified that reducing the term to three years would create the possibility for "the same National Assembly [...] to fill the composition of the council twice."
It is possible that the constitutionally established duration of the mandate of the elected members of the body responsible for the personnel and administrative support of the judiciary may create certain tensions because five years is a sufficiently long period for a professional - judge, prosecutor, or investigator - to detach from their professional duties. However, this in itself is not an automatic ground for changing the mandate of the elected members of the two councils. Under the duration of mandates established by the current amendment, it turns out that the Chief Inspector, who heads a body under the Supreme Judicial Council, has a mandate of five years, while the members of the Council have a mandate of four years. Similarly, the administrative heads of courts and those in the "prosecution system" have a mandate duration of five years, while the elected members of the two bodies have a mandate duration of four years. There is a lack of alignment in the duration of mandates even within the judiciary itself.
The two councils are judicial bodies through which interaction with the other branches of government, including the legislative branch, is carried out. The mandates of the principal constitutional bodies are elements of the mechanisms of interaction, mutual control, and restraint established by the framers of the Constitution. Along with the procedures for their formation, their functional characteristics and conferred powers are inseparable from the foundation of the state. The constitutionally established mandates of state bodies are designed to the highest degree to ensure the mutual influence and restraint of the branches of government, thereby guaranteeing a functioning democratic order. The Constitutional Court, in its practice, holds that changes to the mandate of principal bodies, including those of the judiciary, constitute an element of the form of government as defined in Article 158, item 3 of the Constitution (Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002). When such a change to the mandate significantly affects the foundational principles of the constitutional order, it is constitutionally impermissible for the National Assembly to enact such a change.
In view of the above, the Constitutional Court finds that the amendment to Article 130a, para 5, first sentence, as introduced by §16 LAS Constitution, is invalid and hence should be declared unconstitutional.
e) Legal status of elected members – Amendments to Article 130a, para 3, first and second sentences, paras 4, 5, third sentence, paras 6 and 7, as introduced by §16 LAS Constitution
The provision introduced with the amendment to Article 130a, para 3, first sentence, largely reproduces the provision of Article 130, para 2, which existed prior to the amendment and establishes the requirements for members of the Supreme Judicial Council elected by the National Assembly. The difference lies in the inclusion of the phrase “and are independent and politically neutral.” The additional requirement established for the elected members of the two councils was introduced between the “second” first and the second reading (incoming registration No. 49-354-04315 of 14 December2023), without any explanatory motives provided. By its nature, this requirement is one for which the National Assembly itself, even before the contested amendment, faced no obstacles in ensuring compliance. While this requirement introduces additional ambiguity regarding the meaning of the terms used (the term “politically neutral” in the Bulgarian historical context carries an undemocratic connotation), the requirement itself does not contradict a fundamental constitutional principle.
With §16, an amendment was introduced to Article 130, para 3, second sentence, whereby the constitutional legislator imposed a restriction on the elected members of the two councils chosen by the National Assembly - namely, that they may not hold the position of prosecutor or investigator at the time of their election. This requirement was part of the proposal for the draft LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023). However, neither the proposal itself nor the subsequent discussions provided any explanatory motives. In the initial proposal, the restriction also included judges, but in the final version of the provision, judges were excluded. The restriction itself is neutral - it could serve as a means of fostering openness and accessibility of the prosecutor's office to society, thereby preventing its insularity and isolation. Conversely, it could also serve as a tool for significant external influence on the personnel body of the prosecutor's office or as a means of preventing prosecutors from participating in the Supreme Judicial Council. Its significance in the first scenario depends on the ratio of elected members within the composition of the Supreme Prosecutorial Council, chosen by the National Assembly versus those elected by prosecutors and investigators. In the second scenario, it is a matter of application. In itself, the requirement does not contradict a fundamental constitutional principle.
The amendment introduced by §16 - Article 130a, para 4 - reproduces the provision of Article 130, para 3, first sentence, as it existed prior to the amendment. This provision was introduced into the Constitution by the 2015 amendment and establishes the majority required for the National Assembly to elect the members of the two councils - a two-thirds majority.
The amendment introduced by §16 - Article 130a, para 5, third sentence - provides that the elected members of the Supreme Judicial Council and the Supreme Prosecutorial Council "retain their status as judges, prosecutors, or investigators."
The proposal to preserve the legal status of judges, prosecutors, and investigators for the elected members of the two councils was introduced between the "second" first and the second reading (incoming registration No. 49-354-04-315 of 14 December 2023), without any accompanying explanatory motives. In the Verbatim Report of the meeting of the Committee on Constitutional Affairs held on 28 November 2023, during which a public discussion of the draft LAS Constitution took place, the following proposal by the President of the Supreme Court of Cassation was documented: "The members of the Supreme Judicial Council elected by judges shall retain their status as magistrates." From the Report of the Committee on Constitutional Affairs on the conducted public discussions (incoming registration No. 49-353-37-4 of 6 December 2023), it is evident that the Supreme Court of Cassation proposed "that the Constitution should regulate that the members of the Supreme Judicial Council elected by judges retain their status as judges."
The absence of motives clarifying the legislature's understanding of this proposal and its purpose raises numerous questions that cannot be answered by the provision itself but are directly related to the legal status of judges, prosecutors, and investigators. For instance: Will judges, prosecutors, and investigators elected as members of the two councils simultaneously perform their duties as judges, prosecutors, or investigators alongside their participation in the councils? For which position will they receive remuneration? Will they be subject to attestation? Will they be eligible for promotion? Does this mean the two councils will function as permanently operating bodies? The ambiguity surrounding these and other questions could potentially be resolved legislatively, pursuant to Article 133 of the Constitution. In light of this, despite the lack of a clearly established concept by the legislature in the motives or proposals regarding the legal status of the elected members of the two councils, the provision itself does not contradict a fundamental constitutional principle and is therefore not unconstitutional.
The provisions introduced by §16 - Article 130a, para 5, second sentence, and paras 6 and 7 - reproduce the rules established in the provisions of Article 130, para 4, second sentence, and paras 8 and 9, which were in effect prior to the amendment. Para 5, second sentence of Article 130a reproduces the pre-existing prohibition on “immediate reelection after the expiration of this term” (the mandate) for the elected members of the body that ensures the personnel and administrative support of the judiciary. This prohibition was established with the adoption of the Constitution and has not been subject to amendment. Para 6 of Article 130a sets out the grounds for the termination of the mandate of an elected member of the body that provides personnel and administrative support to the judiciary. These grounds replicate those introduced into the Constitution with the 2007 amendments. Para 7 of Article 130a reproduces the rule, introduced with the 2007 constitutional amendment, regarding the completion of the term of office of an elected member of the body that provides personnel and administrative support to the judiciary. These provisions do not establish a new or different regulatory framework for the corresponding public relations compared to what existed prior to the amendment. The change serves solely to specify the respective competent body - the Supreme Judicial Council and the Supreme Prosecutorial Council.
In view of the above, the Constitutional Court finds that the amendments to Article 130a, para 3, first and second sentences, and paras 4, 5, third sentence, 6, and 7, as introduced by §16 LAS Constitution, are not in themselves unconstitutional.
f) Role of the Public and Professional Organizations – Amendment to Article 130a, para 3, third sentence, as introduced by §16 LAS Constitution
The provision introduced by §16, Article 130a, para 3, third sentence, states: "Representatives of the public and professional organizations may provide opinions on the candidates and monitor the process." By its nature, this provision constitutes a declaration of a legal possibility, for which there were no prior legal obstacles to its implementation by the body that adopted this very provision - the National Assembly. The provision is also imprecise, as it does not specify the scope or identity of the professional organizations, although its meaning can be inferred. Despite these shortcomings, the content of the provision does not contradict any constitutional principle or provision. Therefore, it is constitutionally compliant. However, this provision exacerbates the ongoing trend of including in Chapter Six "The Judiciary," provisions that do not correspond to the level and degree of abstraction typically expected of constitutional provisions.
In view of the above, the Constitutional Court finds that the amendment to Article 130а, para 3, third sentence, as introduced by §16 LAS Constitution, is not in itself unconstitutional.
g) Organization of the activities of the Supreme Judicial Council, the Supreme Prosecutorial Council, and the General Assembly - Amendments to Article 130b, paras 5 and 6, as introduced by §17 LAS Constitution.
With §17, Article 130b, paras 5 and 6 have been introduced, regulating matters related to the activities of the Supreme Judicial Council, the Supreme Prosecutorial Council, and the General Assembly.
According to Article 130b, para 5, the sessions of the Supreme Judicial Council are chaired by the President of the Supreme Court of Cassation, and in his absence - by the President of the Supreme Administrative Court. A comparison with the regulation of the activities of the judicial collegium of the Supreme Judicial Council shows an identical structure in the first part of both texts. Pursuant to Article 130b, para 2, prior to its amendment, the judicial collegium of the Supreme Judicial Council was chaired by the President of the Supreme Court of Cassation. The addition of the President of the Supreme Administrative Court as an alternative in the absence of the President of the Supreme Court of Cassation is a matter of legislative discretion.
The provision does not specify who chairs the Supreme Prosecutorial Council, which, pursuant to Article 133 of the Constitution, could be determined by law without any obstacles. However, this reflects the differing approaches of the legislature toward the two bodies, which are responsible for the personnel and administrative support of the judiciary.
In this part, the provision does not contradict fundamental constitutional principles.
According to Article 130b, para 5, the sessions of the General Assembly are chaired by the President of the Supreme Court of Cassation, and in his absence - by the President of the Supreme Administrative Court. A comparison with the regulation prior to the current amendment indicates that the sessions of the plenum of the Supreme Judicial Council were chaired by the Minister of Justice. This provision, as it existed before the contested amendment, has been part of the Constitution since its adoption. The records of the meetings of the Commission for Drafting the Constitution of Bulgaria and the transcripts of the plenary sessions of the Grand National Assembly demonstrate the lengthy process undertaken by the framers of the Constitution to find the necessary balance between the judiciary and the executive branch. Analyzing the potential role of the President within the body responsible for the personnel and administrative support of the judiciary, the President’s interaction with the Minister of Justice, and the possibility that proposals by the Supreme Judicial Council to the President for the appointment, promotion, demotion, transfer, and dismissal of judges, prosecutors, and investigators could be made only by the Minister of Justice, going through the chairmanship of the Supreme Judicial Council by the President and only in his absence by the Minister of Justice (Verbatim Report of the 163rd session of the Grand National Assembly of 24 June 1991), the framers of the Constitution came to the decision that the Minister of Justice would chair the body that provides personnel and administrative support to the judiciary, but without the right to vote (Article 130, para 5 of the 1991 Constitution). In this way, the framers ensured interaction between the judiciary and the executive branch, providing a balance that allowed for limited involvement in the judiciary’s activities without compromising its independence. However, with the amendment introduced by §17 to Article 130b, para 5, which designates the President of the Supreme Court of Cassation as the chair of the General Assembly, the legislature has excluded the mechanism for interaction between the judiciary and the executive branch that was established by the framers of the Constitution. This mechanism was an integral element of mutual control and cooperation. By depriving the Minister of Justice of the right to chair the common body of the judiciary, the amendment alters the established balance among the legislative, executive, and judicial branches. This disrupts the principle of separation of powers, as it creates constitutional conditions for the judiciary to become closed off and isolated, thereby enhancing its untouchability - an outcome that was not intended by the Constitution when it proclaimed the principle of judicial independence.
The aforementioned considerations provide grounds for the Court to conclude that the provision of Article 130b, para 5, insofar as it designates the President of the Supreme Court of Cassation as the chairperson of the General Assembly, is unconstitutional.
The provision of para 6 reproduces the pre-existing right of the Minister of Justice and the Chief Inspector to attend the meetings of the judicial and prosecutorial collegiums of the Supreme Judicial Council “without participating in voting.” Taking into account the above analysis of para 5 of Article 130b, which deprives the Minister of Justice of the ability to chair the common body of the judiciary, the Court considers that the provision of para 6, when examined on its own, does not violate any constitutional principle or provision.
In view of the above, the Constitutional Court finds that the amendment to Article 130b, para 5, as introduced by §17 LAS Constitution, is invalid and hence should be declared unconstitutional in the part that revokes the right of the Minister of Justice to chair the General Assembly. Para 5 in its remaining part, as well as para 6, as introduced by §17 LAS Constitution, are not unconstitutional.
5. Legal Status of Judges, Prosecutors, and Investigators - Amendments to Articles 129 and 130 as introduced by §§14 and 15 LAS Constitution
a) Legal Status of Judges, Prosecutors, and Investigators
With §§14 and 15 LAS Constitution, amendments to Articles 129 and 130 were introduced. Prior to the amendment, Article 129 regulated the legal status of judges, prosecutors, and investigators, while Article 130 addressed the composition of the Supreme Judicial Council and the mandate of its members. Through §§14 and 15, the legislature introduced a new logic to the structure of Chapter Six, "The Judiciary," specifically regarding the status of judges, prosecutors, and investigators, by separating the regulation of their status into two distinct and independent constitutional texts: Article 129 for judges and Article 130 for prosecutors and investigators. A comparison of the provisions of Article 129, paras 1, 3, and 5 as they existed before the amendment with the newly introduced provisions of Article 129, paragraphs 1, 5, and 6 and Article 130, paras 1 and 6 reveals an identical conditions under which judges, prosecutors, and investigators attain irremovability, are dismissed from office, and have their acquired irremovability restored. The only difference lies in the authority competent to appoint, promote, demote, transfer, dismiss them, and determine or restore their irremovability. Before the amendment, this authority was the judicial collegium of the Supreme Judicial Council for judges and the prosecutorial collegium of the Supreme Judicial Council for prosecutors and investigators. Under the amendments introduced by §§14 and 15 LAS Constitution to Article 129, para 1, and Article 130, para 1, the authority competent to appoint, promote, demote, transfer, and dismiss judges and to rule on their irremovability is now identified as the "Supreme Judicial Council." The authority exercising the same powers with regard to prosecutors and investigators is identified as the "Supreme Prosecutorial Council."
There is also identity between the content of the provision of Article 129, para 6, as it existed before the amendment, which established the duration of the term of office of administrative heads in the bodies of the judiciary and provided for their right to be reappointed, and the content of the provisions introduced by §§14 and 15 in Article 129, para 4, and Article 130, para 5. These provisions establish the same rules regarding the administrative heads of courts and the administrative heads "within the prosecutorial system," while excluding, in both versions of the provisions, the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General. The only difference from the provision in force prior to the amendment is the addition of the phrase "only for one more term" following the phrase "with the right to reappointment." The provision of Article 129, para 6, as it existed prior to the amendment, regarding the "right to reappointment," has been interpreted by the Constitutional Court (Interpretative Decision No. 3 of 30 January 2018, on Constitutional Case No. 9/2017). The Court clarified that the phrase "with the right to reappointment" in Article 129, para 6 "excludes the possibility of appointing an individual as an administrative head of a court, prosecution office, or investigative body for more than two terms." In light of this, the added phrase "only for one more term" does not, in itself, establish any new normative content. There is also no need for such clarification at the constitutional level, given the binding decision of the Constitutional Court on this matter.
The identity between the constitutional regulation of the legal status of judges, prosecutors, and investigators, as established in Article 129, paras 1, 4, 5, and 6, and in Article 130, paras 1, 5, and 6, introduced by §§14 and 15 LAS Constitution, and the constitutional regulation of their legal status as established in the provisions of Article 129, paras 1, 3, 5, and 6 in force prior to the amendment, does not provide grounds for the newly introduced provisions, by themselves and outside the context of the competent authority, to be declared unconstitutional.
In view of the above, the Constitutional Court finds that the amendments to Article 129, paras 1, 4, 5 and 6, and Article 130, paras 1, 5, and 6, as introduced by §§14 and 15 LAS Constitution, are not in themselves unconstitutional.
b) Legal status of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General - Amendments to Article 129, paras 2 and 3, and Article 130, paras 2 and 3, as introduced by §§14 and 15 LAS Constitution
In addition to the legal status of judges, prosecutors, and investigators, §§14 and 15 introduce new provisions - Article 129, paras 2 and 3, and Article 130, paras 2 and 3 - which regulate the procedure for the appointment and dismissal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General.
Article 129, para 2
A comparison between the content of the provision of Article 129, para 2, as it existed before the amendment (as amended in 2015), and the provision of Article 129, para 2, shows that the new provision of Article 129, para 2, first sentence, which regulates the appointment and dismissal of the President of the Supreme Court of Cassation and the President of the Supreme Administrative Court, does not change the duration of their term of office. The difference lies in the authority that has the power to propose their appointment and dismissal to the President - the new version designates the Supreme Judicial Council instead of the plenum of the Supreme Judicial Council, which aligns with the amendment to Article 130b, para 2, item 2, introduced by §17 LAS Constitution. The provision in sentence 2 reproduces the prohibition on the President to refuse the appointment and dismissal in the case of a re-submitted proposal.
Article 130, para 2
A comparison of the provision of Article 130, para 2, first and second sentences, introduced by §15, with the provision of Article 129, para 2 (as amended in 2015), shows a difference not only in the authority that has the power to propose to the President the appointment and dismissal of the Prosecutor General - the Supreme Prosecutorial Council instead of the plenum of the Supreme Judicial Council - but also in who has the authority to make the proposal for his appointment and dismissal, as well as in the duration of his term, which is reduced from seven to five years. Regarding the third sentence, which concerns the prohibition on the President to refuse appointment and dismissal in the case of a re-submitted proposal, there is identity in the content of the provisions before and after the amendment.
In the proposal of the draft LAS Constitution (incoming registration No.49-354-01-83 of 28 July 2023), the mandate of the Prosecutor General is set at "five years with the right to reappointment for only one more term," and it is stated that by reducing the length of the mandate of the Prosecutor General, "real guarantees for accountability and responsibility regarding the Prosecutor General" are introduced. No reasons are provided for the requirement that proposals for the appointment and dismissal of the Prosecutor General can be made by three members of the Supreme Prosecutorial Council and the Minister of Justice. According to the Verbatim Report No. 6 from 17 November 2023 and Verbatim Report No. 7 from 28 November 2023 of the meeting of the Committee on Constitutional Affairs, where public discussions of the proposals were held, as well as from the minutes of the Committee on Constitutional Affairs regarding the public discussions (incoming registration No.49-353-37-4 of 6 December 2023), it is evident that negative opinions were presented on the proposal to reduce the duration of the Prosecutor General's mandate and the possibility of his reappointment, expressed by representatives from both the court (including professional organizations of judges) and the prosecution, as well as from the Supreme Bar Council. Opinions on the proposal that nominations for Prosecutor General can be made by three members of the Supreme Prosecutorial Council and the Minister of Justice were not presented, as there were no reasons provided by the promoter for the necessity of this change.
In the composition of the Supreme Prosecutorial Council, which includes two representatives from the prosecution and one from the investigative bodies, the representatives of the prosecution and the investigative bodies are not formally deprived of the possibility to propose a candidate for the Prosecutor General. Therefore, this rule by itself does not violate any fundamental constitutional principle.
As for the substantial change made by the contested amendment regarding the duration of the term of office of the Prosecutor General, which is reduced from seven to five years, it should be noted that the Prosecutor General is a constitutionally established body within the judiciary (Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002). Therefore, the arguments raised concerning the unconstitutionality of the changes in Article 130a, para 5, regarding the duration of the term of office of the elected members of the Supreme Judicial Council and the Supreme Prosecutorial Council, are entirely applicable to the change made in the duration of the term of office of the Prosecutor General, with the consequences arising from this.
Article 129, para 3 and Article 130, para 3
The amendments introduced by §14 and §15 LAS Constitution to Article 129, para 3 and Article 130, para 3 provide for a new regulation of the President's power to issue a decree for the appointment and dismissal of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General. According to these provisions, which are identical in content except for the body that submits the proposal to the President, the President's decree - whether upon the initial or repeated proposal - must be issued within seven days. If the decree is not issued within this period, the individual proposed by the Supreme Judicial Council or, respectively, by the Supreme Prosecutorial Council, shall be considered appointed or dismissed, as applicable, with the decision of the respective council being promulgated. This regulation of the President's authority is not included in the draft proposal for the LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023). Instead, the proposal suggests that the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General be appointed and dismissed by the respective Supreme Council. The Report of the Committee on Constitutional Affairs regarding the public discussions on the draft LAS Constitution (incoming registration No. 49-353-37-4 of 6 December 2023) states: “There is a consensus that the powers of the President of the Republic concerning the appointment of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General should not be revised.”
The adopted version of Article 129, para 3 and Article 130, para 3, introduced by §§14 and 15, appear in the proposal submitted between the "second" first and the second reading (incoming registration No. 49-354-04-315 of 14 December 2023). The reasoning accompanying this proposal states: “In order to preserve the constitutional model of balance and interaction, the proposed text of Article 129, para 2 of the Constitution restores the constitutional role of the President of the Republic to appoint and dismiss, by decree, the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court, as well as the Prosecutor General.”
Before ruling on the constitutionality of these amendments, the Court finds it necessary to emphasize the following:
According to the framers of the Constitution, the Bulgarian parliamentary model of republican governance is characterized by the inclusion of a President who, although not equal to Parliament in terms of representation, is equivalent in democratic legitimacy. It is precisely this democratic legitimacy that is the basis for the President to have sufficient discretionary power to carry out the democratic function of defending the interests of the holder of state power - the sovereign (Article 91, para 1). Consequently, the President’s functions as defined in the Constitution serve an integrative and legitimizing purpose.
During the drafting of the Constitution, the question of the President’s functions in the governance of the judiciary was subject to extensive discussion. Initially, the idea was for the President to chair the Supreme Judicial Council (Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria, 20 December 1990) and to appoint judges, prosecutors, and investigators upon the proposal of the Supreme Judicial Council (Minutes of the Meeting of the Commission for Drafting the Constitution of Bulgaria, 8 May 1991, as well as transcripts of the 133rd, 134th, 136th, and 140th plenary sessions of the Grand National Assembly, held on 14 May 1991, 16 May 1991, 21 May 1991, and 29 May 1991, respectively). Ultimately, the framers of the Constitution decided that the President would appoint the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General upon the proposal of the Supreme Judicial Council (transcript of the 170th plenary session of the Grand National Assembly, 28 June 1991). Through this power, which is limited to the ability to return the proposal once (“the President cannot refuse upon a proposal made a second time”), the framers sought to give the presidential decree primarily a prestigious character (Interpretative Decision No. 13/1996 on Constitutional Case No. 11/1996). This was intended to confer additional significance and prestige to the selection process (Interpretative Decision No. 2/2002 on Constitutional Case No. 2/2002), thereby ensuring the democratic legitimacy of the appointment of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General.
The analysis of the provisions introduced by §§14 and 15 of Article 129, para 3, and Article 130, para 3, reveals that the President’s authority to issue a decree upon a proposal by the two councils is subject to a seven-day deadline. The imposition of a deadline for fulfilling the President’s constitutional obligation does not in itself violate any constitutionally established principle. While it does have a certain limiting effect on the exercise of the assigned responsibility, it does not restrict it to an extent that would undermine its intended purpose. Since no reasoning is provided for adopting a deadline for the President’s obligation or for fixing this specific timeframe, the adoption of the contested amendment appears to serve as a precondition for the legal fiction introduced in the second sentence. According to this fiction, if the President does not issue a decree within the set timeframe, the proposed individual is deemed to be appointed or dismissed, with the decision of the respective council being promulgated.
This legal fiction has two distinct consequences.
On the one hand, it deprives the appointment of the President of the Supreme Court of Cassation, the President of the Supreme Administrative Court, and the Prosecutor General of the “prestigious character” attributed to the presidential decree (Interpretative Decision No. 13/1995 on Constitutional Case No. 11/1996). In other words, it strips the appointment process of the democratic legitimacy that the President’s decree - issued by a directly elected head of state - confers upon such appointments.
On the other hand, the introduced legal fiction results in a different juridical fact that generates the appointment or dismissal of the Presidents of the two Supreme Courts and the Prosecutor General, depending on whether the presidential decree is issued within the prescribed seven-day period or not. In the case where the President issues the decree within the prescribed timeframe, the juridical fact that establishes the legal relationship of the President of the respective Supreme Court or the Prosecutor General is the presidential decree. Pursuant to Article 149, para 1, item 2 of the Constitution, this decree is subject to constitutional review by the Constitutional Court. In contrast, when the President fails to issue the decree within the specified timeframe, the juridical fact that establishes the legal relationship of the President of the respective Supreme Court or the Prosecutor General becomes the “proposal” submitted to the President by the respective Supreme Council. In such a case, the President's failure to act within the prescribed period becomes a juridical fact that automatically transforms the nature of the legal act. What was initially a proposal - an act that does not independently produce legal consequences (Interpretative Decision No. 2/2002 on Constitutional Case No. 2/2002) - is transformed into an act that independently produces legal consequences. Thus, this constitutional amendment introduces a new method for constituting constitutionally established bodies. This method, however, lacks justification in the reasoning for its adoption and has no precedent in the content of the Constitution as it stood prior to the contested amendment. Furthermore, if the proposal of the respective council is accorded the quality of a juridical fact that establishes rights, there would be no legal grounds to exclude the possibility of its challenge before the Supreme Administrative Court, insofar as it is an act of the body responsible for the personnel and administrative support of the judiciary. Moreover, as established in Interpretative Decision No. 3/1994 on Constitutional Case No. 1/1994, the right to defense of every judge, prosecutor, and investigator is guaranteed under Article 56 of the Constitution when their rights and legitimate interests are affected.
The implicit automatic transformation of the legal nature of a state body’s act, as envisaged in Article 129, para 3, and Article 130, para 3 - whereby a proposal becomes an act that produces legal consequences without clear provisions on who and how determines the juridical (negative) fact of the President’s failure to issue a decree within the prescribed timeframe - violates the requirement for legal certainty and predictability within the constitutionally established procedure for the appointment and dismissal of individuals who stand at the top of the structures included in the judicial system, as a manifestation of the principle of the rule of law.
Furthermore, the constitutionally established mechanism of mutual control and deterrence between the main state bodies is undermined in a manner that affects the essence of the principle of separation of powers, which seeks to prevent the dominance of one branch of government over another. The independent judiciary does not exist or operate in a power vacuum. The framers of the Constitution envisioned a clear mechanism for balancing powers with the other branches through the secondary distribution of state authority. The appointment of the Presidents of the Supreme Court of Cassation and the Supreme Administrative Court, as well as the Prosecutor General, by a presidential decree upon the proposal of the Supreme Judicial Council or the Supreme Prosecutorial Council, is one of the manifestations of this balancing mechanism. Noncompliance with this mechanism violates the foundational principles of the constitutional order - the rule of law and the separation of powers - which function in unity.
In view of the above, the Constitutional Court finds that the amendment to Article 129, para 2 and Article 130, para 2, second and third sentence, as introduced by §§14 and 15 LAS Constitution, are not unconstitutional. However, the amendments to Article 129, para 3, and Article 130, para 2, first sentence, and para 3, as introduced by §§14 and 15 LAS Constitution are invalid and hence should be declared unconstitutional.
6. Powers of the Minister of Justice - Amendments to Article 130c, as introduced by §18 LAS Constitution
With §18 LAS Constitution, amendments were introduced to Article 130c, items 1 and 4. The provision of Article 130c was introduced with the 2006 constitutional amendments and establishes the powers of the Minister of Justice within the judiciary.
Item 1 regulates the Minister of Justice's power to propose a draft budget for the judiciary. This provision was amended in 2015. The current amendment to item 1 relates to the change in the body to which the Minister of Justice "submits" the draft budget for review. Instead of "submits it to the Supreme Judicial Council," the amendment states "submits it for review to the Supreme Judicial Council and the Supreme Prosecutorial Council."
This amendment aligns the provision with the amendments to Articles 130a and 130b, introduced by §§16 and 17 LAS Constitution, and therefore it is not in itself inconsistent with the Constitution.
The provision of item 4, before the amendment, established the Minister of Justice's power "to participate in organizing the qualification of judges, prosecutors, and investigators." After the amendment, the provision reads: "participates in the management of judicial training." In the Report of the Committee on Constitutional Affairs regarding the public discussions held (incoming registration No. 49-353-37-4 of 6 December 2023), it is stated: "A consensus has emerged that the powers of the Minister of Justice should not be revised, and the previous versions of the constitutional text should be maintained." In the Report of the Committee on Constitutional Affairs for the second vote (incoming registration No. 49-353-37-6 of 18 December 2023), it is accepted that a proposal made by a member of parliament to revise the powers of the Minister in item 4 was supported by the Committee. No reasons for the amendment have been provided. The provisions introduced with §17 of Articles 130b, para 2, item 10, and para 3, item 10 show the identity of the powers of the Supreme Judicial Council, the Supreme Prosecutorial Council, and the Minister of Justice - all three entities "participate in the management of judicial training," in contrast to the previous versions of these powers, according to which the Supreme Judicial Council, acting through the plenum, "organizes the qualification of judges, prosecutors, and investigators," while the Minister of Justice "participates in organizing the qualification of judges, prosecutors, and investigators."
The amended provisions of Article 130c, items 1 and 4, in themselves, do not contradict fundamental constitutional principles.
In view of the above, the Constitutional Court finds that the amendments to Article 130c, items 1 and 4, as introduced by §18 LAS Constitution, are not unconstitutional in themselves.
7. Inspectorate – Amendments to Article 132а, para 4, as introduced by §19 LAS Constitution
The amendment to Article 132a, para 4, first sentence of the Constitution was introduced by §19 LAS Constitution and stipulates that the Chief Inspector and the inspectors may be re-elected to the same position for one more term only.
The fourth amendment to the Constitution, adopted by the National Assembly (promulgated SG No. 12 of 6 February 2007), provides for the establishment of an Inspectorate to the Supreme Judicial Council, consisting of a Chief Inspector and inspectors (Article 132a, para 1). The creation of such a body is based on the constitutional legislator’s understanding that the independence of the judiciary does not preclude accountability and transparency.
The legal framework governing the organization of the Inspectorate’s work is built upon fundamental principles inherent to public authorities, one of which is the principle of fixed terms of office. In the practice of the Constitutional Court (Interpretative Decision No. 13/2010 on Constitutional Case No. 12/2010), the concept of a mandate has been identified as a fundamental principle for the constitution and functioning of public authorities, aligned with the separation of powers and the rule of law. A mandate is defined as a predetermined period of time during which a public authority exercises powers provided for in the Constitution or by law. Under the conditions of the rule of law, a term of office optimizes state governance, ensures predictability, and simultaneously guarantees the stability and independence of the authority for a defined period.
The Inspectorate is designed at the constitutional level as a permanently functioning body, which is why it does not have its own mandate. However, the Constitution establishes a term of office for its composition (Article 132a, paras 2–3 of the Constitution): the Chief Inspector has a mandate of five years, and the inspectors have a mandate of four years.
Prior to the entry into force of the amendment introduced by §19 LAS Constitution, the number of terms for the members of the Inspectorate was limited to two, with the Constitution explicitly prohibiting re-election for two consecutive terms. Substantively, the contested amendment does not alter the number of terms for the Chief Inspector and the inspectors; it merely provides that it is irrelevant whether the second term immediately follows the first.
The Inspectorate was introduced into the Fundamental Law by an ordinary National Assembly. It was not established by the Grand National Assembly as a fundamental constitutional body; therefore, the requirements of Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002 are inapplicable to it. Amendments to the constitutional status of the Chief Inspector and the inspectors may be introduced by the National Assembly, which acts as a derivative constituent authority and has the competence to change the number and sequence of their terms. The contested amendment does not change the number of terms for the members of the Inspectorate but merely alters the rule regarding their sequence, removing the prohibition on re-election for two consecutive terms.
The provision of Article 132a, para 4, second sentence of the Constitution was introduced by §19 LAS Constitution and establishes a prohibition for the Chief Inspector and the inspectors, after the expiration of their terms, to hold positions as judges, prosecutors, or investigators for a period of two years, while granting them the right to retire under conditions determined by law.
In its practice, the Constitutional Court has held that Article 132a, para 10 of the Constitution grants the legislature the authority to establish the conditions and procedures for the election and dismissal of the Chief Inspector and the inspectors. The public relations related to the legal status of the Chief Inspector and the inspectors whose terms have expired or have been terminated due to resignation are not comprehensively regulated by the Constitution. By virtue of an explicit constitutional delegation, regulating their status falls exclusively within the competence of the ordinary National Assembly (Decision No. 10/2011 on Constitutional Case No. 6/2011 and Decision No. 6/2021 on Constitutional Case No. 15/2020). The constituent power explicitly provided in the Constitution that the conditions and procedures for ensuring the accountability of judges, prosecutors, and investigators are to be established by law (Article 133). Since the Grand National Assembly adopted this framework, there is no doubt that the status of the body responsible for overseeing the activities of the bodies of the judiciary - the Inspectorate, which is constitutionally established - cannot be deemed unconstitutional, nor can it affect the form of government to fall within the exclusive competence of the Grand National Assembly (Decision No. 8/2006 on Constitutional Case No. 7/2006). For these reasons, the Constitutional Court concludes that the amendment to Article 132a, para 4 of the Constitution does not fall within the subject matter of Article 158, item 3 and can therefore be adopted by the National Assembly. In light of these considerations, the constitutionality of this provision should be assessed solely in terms of its compliance with the fundamental principles underlying the current constitutional model of the state, particularly with regard to the observance of individual rights.
The Constitution elevates labor to a fundamental principle, guaranteeing and protecting it by law (Article 16 of the Constitution) due to its significance for both the realization and development of the individual and for society as a whole. The citizens' right to work corresponds to the state's obligation to create conditions for the exercise of this right (Article 48, para 1 of the Constitution). The Constitution expressly recognizes the right of every citizen to freely choose their profession and place of work (Article 48, para 3). It protects the freedom to choose a profession not only as an economic right but also as an essential aspect of personal self-realization. The choice of profession is an act of self-determination and an expression of the individual’s free will. This freedom of choice must be legally recognized, which implies that the state must not hinder it (Decision No. 8 of 2024 on Constitutional Case No. 21/2023).
The prohibition introduced by the contested provision, which bars the Chief Inspector and inspectors from holding positions as judges, prosecutors, or investigators for two years following the expiration of their terms, restricts the freedom to choose a profession and place of work (Article 48, para 3 of the Constitution). This choice is a component of the right to work as a fundamental right but also has an independent role and distinct legal significance. The choice of profession and place of work typically determines the exercise of the right to work, which underscores the close connection between the two. The freedom to choose a profession and place of work, as guaranteed under Article 48, para 3 of the Constitution, is free because it provides individuals with alternatives from which they may choose.
A fundamental position in the practice of the Constitutional Court is that the right to work, along with the associated freedom to choose a profession and place of work, is not absolute and may be subject to restrictions. Given the significant material and moral implications of exercising this constitutional right, not every purpose can serve as a valid ground for its restriction. Only purposes of the same order, as permitted by the Constitution, may justify such limitations (Decision No. 7/2019 on Constitutional Case No. 7/2019).
The initial draft of the LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023) lacks any justification to substantiate the proposed amendment. However, in the explanatory notes accompanying the proposed amendments and supplements to the LAS Constitution (incoming registration No. 49-354-04-315 of 14 December 2023), it is stated: “The provision, as formulated, reflects the constitutional legislator's intention for the inspectors to have the highest degree of independence and freedom from any conflict of interest.”
A key provision ensuring the independent performance of the Inspectorate's functions, conceptually developed and embedded in the Judiciary Act (Article 50), is the right of judges, prosecutors, and investigators elected as members of the Inspectorate to be reinstated to their positions in the judiciary following the termination or expiration of their term. This right stems from the unique constitutional status of the Inspectorate. The view that members of the Inspectorate have permanently severed their legal relationships with the respective bodies of the judiciary they served before their election, and may only return to those positions through external recruitment procedures, would discourage the most esteemed representatives of the judiciary from applying to join this constitutional body (Decision No. 6/2021 on Constitutional Case No. 15/2020). The guaranteed possibility for reinstatement in the judiciary for members of the Inspectorate whose terms have expired, and who were previously magistrates, is thus driven by the aim of attracting motivated and highly qualified legal professionals, particularly judges, prosecutors, and investigators, to the Inspectorate. This ensures that work in this body is not perceived as a limitation on career development opportunities that might otherwise be available outside the Inspectorate. Consequently, the prohibition introduced by the contested provision, which prevents members of the Inspectorate with expired terms from holding magistrate positions for two years, is neither an appropriate measure nor does it contribute to the stated goal. Instead, it risks deterring the most distinguished representatives of the judiciary from seeking membership in the Inspectorate.
The prohibition on holding magistrate positions for a period of two years is vague. It is not specified through what mechanism - automatically or by competition - members of the Inspectorate whose terms have expired and who were previously judges, prosecutors, or investigators, and wish to return to magistrate position, would be able to do so. It is evident that during the two-year prohibition period, they will not hold magistrate status. During this period, other legal professionals who had served as members of the Inspectorate would also not be eligible to participate in competitive procedures for judicial positions. This constitutes a significant restriction on the right to freely choose a profession and place of work. Furthermore, those Inspectors with expired terms who had previously held magistrate positions are entirely deprived of this right, given that, prior to their election as Inspectors, they practiced their profession within the judicial system and had achieved tenure.
Among the statutory requirements for holding the positions of Chief Inspector and Inspector is the standard requirement for possessing high professional and ethical qualities, as well as substantial professional experience. This status of the inspectors presupposes significant expertise in upholding independence in the practice of their profession and a high degree of professional responsibility. The required professional and ethical qualities serve as a benchmark for the personal capacity of the members of the Inspectorate to act in accordance with their conscience and convictions and to independently exercise their powers without succumbing to external influences.
In its practice, the Constitutional Court maintains that the good faith of state authorities, including bodies of the judiciary, must be presumed (Decision No. 5/2003 on Constitutional Case No. 5/2003, Decision No. 1/2005 on Constitutional Case No. 8/2004, Decision No. 10/2011 on Constitutional Case No. 6/2011, Decision No. 6/2018 on Constitutional Case No. 10/2017, Decision No. 17/2018 on Constitutional Case No. 9/2018, Decision No. 15/2020 on Constitutional Case No. 4/2020, and others). In Decision No. 1/2005 on Constitutional Case No. 8/2004, the Court found unacceptable any construct suggesting the hypothetical possibility of bad faith on the part of a body of the judiciary. This standard of good faith applies to the entirety of judicial authority activities, including those of the Inspectorate, and manifests in the exercise of its powers.
The professional good faith of the members of the Inspectorate in independently carrying out their duties is a specific expression of the required ethical qualities, and this understanding should guide the National Assembly when regulating their legal status. Contrary to this principle, the provision adopted in Article 132a, para 4, second sentence of the Constitution is based on the presumption of hypothetical bad faith on the part of the members of the Inspectorate. The Constitution cannot establish such a standard.
The result sought by the amendment under discussion can be achieved through more balanced solutions, which currently exist. In this regard, the Constitutional Court finds that the lawful, competent, and independent exercise of the powers of the members of the Inspectorate primarily depends on their personal integrity - a virtue that, through the requirement to possess high professional and ethical qualities, has been elevated to an independent condition for holding the positions of Chief Inspector and Inspector.
The Constitutional Court takes the position that the possibility of retirement granted by the contested provision to the Chief Inspector and Inspectors as compensation for the restriction on holding a magistrate's position does not correspond to the restriction introduced.
In conclusion, taking into account the fact that the introduced ban may result in leaving the judicial system, which requires serious qualifications for entry, as well as the incompatibility with holding other positions during the term of office, the Constitutional Court finds that the adopted restrictive measure on the right to work with free choice of profession and place of work is not in line with the constitutional mandate to respect and protect the fundamental rights of the individual, and therefore is unconstitutional as invalid.
In view of the above, the Constitutional Court finds that the amendment to Article 132a, para 4, first sentence, as introduced by §19 LAS Constitution, is not unconstitutional. However, the amendment to Article 132a, para 4, second sentence, as introduced by §19 LAS Constitution is invalid and hence should be declared unconstitutional.
8. Other changes relevant to the judiciary - Amendments to Article 84, item 16 and Article 133, as introduced by §§4 and 20 LAS Constitution
With §4 LAS Constitution, a change to Article 84, item 16 was introduced, whereby the phrase "the Supreme Judicial Council" was supplemented with "respectively by the Supreme Prosecutorial Council." Prior to this amendment, the provision of Article 84, item 16 required the Supreme Judicial Council to submit to the National Assembly the annual reports of the Supreme Court of Cassation, the Supreme Administrative Court, and the Prosecutor General. The amendment divided this obligation between the Supreme Judicial Council and the Supreme Prosecutorial Council.
With §20 LAS Constitution, a change to Article 133 was introduced, whereby the phrase "the Supreme Judicial Council" was supplemented with "the Supreme Prosecutorial Council." Before the amendment, the provision of Article 133 constitutionally mandated the regulation by law of the organization and activities of the Supreme Judicial Council. Following the amendment, this constitutional mandate also applies to the organization and activities of the Supreme Prosecutorial Council.
Both amendments were introduced to align the provisions with the amendments to Articles 130a and 130b, enacted through §§16 and 17 LAS Constitution, and do not violate fundamental constitutional principles.
In view of the above, the Constitutional Court finds that the amendments to Article 84, item 16 (regarding "respectively the Supreme Prosecutorial Council") and Article 133 (regarding "the Supreme Prosecutorial Council"), as introduced by §§4 and 20 LAS Constitution, are not unconstitutional in themselves.
9. Conclusion regarding the amendments to provisions in Chapter Six "The Judiciary," as introduced by LAS Constitution
The Constitutional Court has found the amendments introduced by §§14, 15, 16, and 17 LAS Constitution to the following provisions unconstitutional: Article 126, paras 2 and 3; Article 129, para 3; Article 130, para 2, first sentence, paras 3 and 4; Article 130a, para 2, para 5, first and third sentences; Article 130b, para 2, item 12, para 3, item 12, para 4, second sentence, items 2, 3, and 4, para 5 (regarding the Minister of Justice); and Article 132a, para 4. These provisions pertain to various aspects of the organization of the judiciary, as regulated at the constitutional level. The Court emphasizes that, while the amendments to Article 84, item 16; Article 129, paras 1, 2, 4, 5, and 6; Article 130, para 1, para 2, second and third sentences, paras 5 and 6; Article 130a, paras 1, 3, 4, para 5, second sentence, paras 6 and 7; Article 130b, para 1, para 2, items 1-11 and 13, para 3, items 1-11 and 13, para 5 (except for the Minister of Justice), and para 6; Article 130c, items 1 and 4; and Article 133, introduced by §§4, 14, 15, 16, 17, 18, and 20 LAS Constitution, are not unconstitutional in themselves, they are systemically connected to the amendments deemed unconstitutional by the Court. As such, they lack sufficient regulatory potential to achieve the intended effects of the constitutional amendments in this area and must follow the legal fate of the unconstitutional provisions.
If this portion of the constitutional amendments remains in force, the regulation of the judiciary will be unable to fulfill its purpose as the constitutional foundation for the legal status of judges, prosecutors, and investigators, as well as of the body, respectively of the bodies responsible for the personnel and administrative support of the judiciary, which is essential for its proper functioning. This would contravene the requirement stemming from the fundamental principle of the rule of law, established in Article 4, para 1 of the Constitution, that the state, including the judiciary, must be governed in accordance with the Constitution and the laws of the country.
VІІ. Amendments to Article 150, paras 2 and 3, as introduced by §21 LAS Constitution
In the explanatory memorandum to the Draft LAS Constitution (incoming registration No. 49-354-01-83 of 28 July 2023), it is stated that "to ensure the effective protection of the rights and freedoms of citizens, both the individual constitutional complaint and the possibility for lower-instance courts to directly refer cases to the Constitutional Court (amendment to Article 150 of the Constitution) should be established." It is further noted that "appropriate filters should be provided in the law and the Rules of Procedure of the Constitutional Court" to ensure that the Court "will address truly significant issues and will not face unjustified delays due to excessive workload." Regarding the proposed new mechanisms introduced by §14 of the draft law - namely, the individual constitutional complaint and the possibility for all courts to directly refer cases to the Constitutional Court for the constitutionality of a law applicable to a specific case - it is emphasized that the first mechanism serves as a means of citizen oversight over the activities of the Parliament. The second mechanism, as a form of concrete constitutional review, complements the individual constitutional complaint and aims to strengthen the independence of each court.
In the Committee on Constitutional Affairs, during the discussion of the Draft LAS Constitution for the second reading, the proposal to introduce a direct constitutional complaint was withdrawn. Instead, support was given for the version of the text in §14 of the draft law regarding Article 150, para 2 of the Constitution, which provides courts with the right to refer cases to the Constitutional Court. This became the final wording of the text, adopted by the National Assembly at the second reading (as reflected in the transcript from the meeting of the Committee on Constitutional Affairs of 16 December 2023, and the Verbatim Report of the 16th session of the 40th National Assembly of 19 December 2023) and confirmed at the third reading in the National Assembly.
With the adoption of the Constitution in 1991, the constitutional legislator embraced the European model of constitutional justice, which focuses on abstract review of the conformity of laws with the Constitution, at least in its original design, with binding legal effect of the decisions on everyone. This model was incorporated into the Fundamental Law in an evolved form, adapted to the national legal system. During the second half of the 20th century and the beginning of the 21st century, the European model underwent significant development, emphasizing increased attention to the protection of fundamental rights. This trend manifested through the introduction of various mechanisms for both direct and indirect access of citizens to constitutional justice. These mechanisms integrated elements of concrete review into the framework of the abstract constitutional review model. By broadening access to constitutional jurisdiction - granting individuals, legal entities, and any court hearing a specific case the right to refer matters to the constitutional court - the philosophy of the European model of constitutional justice evolved in its conceptual approach. It shifted from abstract constitutional review, which guarantees the supremacy of the Constitution while protecting citizens’ fundamental rights, to a review that, by protecting fundamental rights, ensures the supremacy of the Constitution.
When the 1991 Constitution was adopted, the proposal to introduce a direct constitutional complaint did not gain the support of the majority in the Grand National Assembly (as reflected in the Minutes of the Meeting of the Committee for Drafting the Constitution of Bulgaria of 20 February 1991, and the Verbatim Report of the 165th session of the Grand National Assembly of 25 June 1991). However, the changes in the European model, which increasingly emphasized the protection of rights, were debated, resulting in a constitutional solution provided in Article 150, para 2 of the Constitution. This provision grants the Supreme Court of Cassation and the Supreme Administrative Court the right to refer cases to the Constitutional Court. In its jurisprudence, the Constitutional Court has expanded on the meaning of this constitutional provision, affirming the right of panels of both supreme courts to exercise the authority conferred upon the Supreme Court of Cassation and the Supreme Administrative Court under this article. Courts, in the performance of their constitutionally assigned adjudicative functions, aimed at protecting the rights and legitimate interests of citizens, are the most suitable forum for the protection of fundamental rights. In this sense, they serve as a vital platform for dialogue with the Constitutional Court in the process of constitutional justice.
The evolution of the European model of constitutional justice, characterized by the increasing involvement of constitutional jurisdictions in the protection of fundamental rights, has been reflected in the Bulgarian legal system through subsequent amendments to the Constitution. Gradually, this trend has been implemented, first with the provision of Article 150, para 3 of the Constitution in 2006 (promulgated SG No. 27 of 31 March 2006), explicitly granting the Ombudsman the right to refer cases to the Constitutional Court. Later, with amendments to the Constitution in 2015, the Supreme Bar Council was also granted this right under Article 150, para 4 of the Constitution (promulgated SG No. 100 of 18 December 2015). These bodies authorized to refer cases to the Constitutional Court have limited competence - they can submit requests solely for the establishment of unconstitutionality of laws that violate the rights and freedoms of citizens.
The differentiation in the competence to refer cases to the Constitutional Court, as outlined in Article 150, para 1 - enabling the exercise of the full range of powers under Article 149 of the Constitution (general competence) - and paras 2, 3, and 4 of Article 150 - granting limited competence for reviewing the constitutionality of laws, and more specifically the provision of the possibility for panels of the Supreme Court of Cassation and the Supreme Administrative Court, when they establish inconsistency of the law applicable in the proceedings before them with the Constitution (as per the wording prior to the amendments under discussion), to refer only with a request for the unconstitutionality of this law - highlights the effort to align the Bulgarian system of constitutional justice with the broader trend of constitutional justice development, namely the protection of human rights. Through these provisions, and particularly Article 150, para 2 of the Fundamental Law, a constitutional basis is created for involving the courts - albeit limited to panels of the Supreme Court of Cassation and the Supreme Administrative Court under this provision - in the process of constitutional review. This inclusion serves to break the monopoly of the constitutional jurisdiction in ensuring the supremacy of the Constitution.
This constitutional solution reflects, to a certain extent, the dynamic process of development within the European model of constitutional justice and fully aligns with the constitutional mandate of Article 4, para 1 of the Constitution, which states: "The Republic of Bulgaria shall be a rule of law state. It shall be governed in compliance with the Constitution and the laws of the country," binding on all state authorities. This mandate requires the supremacy of the law to be established as a dimension of everyday governance in the state and presupposes, among other things, enhanced cooperation between the constitutional jurisdiction and the courts within the framework of constitutional justice.
In summary, the Constitutional Court emphasizes that by adopting the European model of abstract constitutional review, the Bulgarian Constitution of 1991 is not detached from the evolution of this model in the era of rights during the second half of the 20th century and incorporates elements of concrete constitutional review. Moreover, the extensive process of increasing protection of fundamental rights both internationally and at the national level in established democracies is reflected in the constitutional amendments of 2006 and 2015, which further developed the national system of constitutional review. The constitutional amendments of 2023 represent a continuation of aligning the Bulgarian model of constitutional justice with the characteristics of the evolving European model - shifting the focus of constitutional review from its initially dominant institutional orientation to a strengthened protection of the supremacy of the Constitution, grounded in fundamental rights as the essence of individual freedom - the raison d’être of constitutionalism itself.
With the constitutional amendment of 2023 and the new version of Article 150, para 2, introduced by §21 LAS Constitution, an opportunity has been provided for any court, regardless of its position in the judicial process, to refer to the Constitutional Court with a request to establish a discrepancy between a law applicable to the specific case and the Constitution. The court can do this either at the request of a party to the case or on its own initiative. The crucial factor for the referral is the court's discretion, thereby introducing a preliminary filter at the constitutional level for the exercise of the power granted by the constitutional legislator under Article 150, para 2. The new version of the discussed provision broadens the circle of referring entities, while maintaining the limited referral competence under Article 150, para 2 of the Constitution, which, until the 2023 amendment, was available only to panels of the Supreme Court of Cassation and the Supreme Administrative Court. The second sentence of the provision reflects the intent to avoid unjustified delays in the judicial process and stipulates that the court can only suspend the proceedings if it is the court whose decision is final - this court issues the judicial act after the completion of the proceedings before the Constitutional Court. Although the provision is not formulated in a way that entirely excludes potential issues in its interpretation and application, this by itself is not grounds for declaring it unconstitutional, and such issues could be addressed through legislative means.
The Constitutional Court notes that, in relation to the application of Article 150, para 2 of the Fundamental Law, the Constitutional Court holds that "when a court exercises this new constitutional power, it must follow the established practice of the Constitutional Court regarding the admissibility of requests submitted by panels of the Supreme Court of Cassation or the Supreme Administrative Court" (Ruling No. 2/2024 on Constitutional Case No. 8/2024). The Court’s case-law prior to the constitutional amendments, which outlines the requirements for the referring court under Article 150, para 2 of the Fundamental Law, is extensive (Ruling No. 1/1997 on Constitutional Case No. 5/1997; Ruling of 25 June 2002 on Constitutional Case No. 12/2002; Ruling of 29 March 2014 on Constitutional Case No. 4/2014; Ruling of 29 April 2015 on Constitutional Case No. 2/2015; Ruling of 28 June 2016 on Constitutional Case No. 7/2016; Ruling of 17 September 2019 on Constitutional Case No. 9/2019; Ruling of 28 May 2020 on Constitutional Case No. 5/2020, and others). Following the entry into force of the amendments, the Court upholds its established position and draws attention to the potential for ensuring the supremacy of the Constitution through cooperation with the courts in constitutional justice. This is achieved by finding the necessary and appropriate balance in realizing the opportunities for referrals under Article 150, paras 1 and 2 of the Constitution (Ruling No. 2/2024 on Constitutional Case No. 8/2024; Ruling No. 5/2024 on Constitutional Case No. 12/2024; Ruling No. 7/2024 on Constitutional Case No. 20/2024).
The aforementioned considerations provide grounds to conclude that the amendment to Article 150, para 2, as introduced in the cited provision by §21 LAS Constitution, fully aligns with the ongoing dynamic and large-scale process of strengthening the mechanisms for guaranteeing fundamental rights, without disturbing the balance between the established powers as envisioned by the framers of the 1991 Constitution. Therefore, the Court finds the claim made in the petition by the Members of Parliament, asserting that the provision of Article 150, para 2, introduced by §21 LAS Constitution, is unconstitutional, to be unfounded.
As regards the entirely new para 3 of Article 150 of the Fundamental Law, introduced by §21 LAS Constitution, the Court finds that it is not harmonized with another provision within the normative framework of Article 150 of the Fundamental Law, which contradicts the fundamental constitutional principle of the rule of law. Specifically, under the discussed constitutional amendment, "The Prosecutor General may refer a request to the Constitutional Court under Article 149, para 1, items 2, 5, 6, and 7." By maintaining the general competence of the Prosecutor General as a key constitutional body to initiate abstract constitutional review under para 1 of the same Article 150, the constitutional text introduced by §21 LAS Constitution is inconsistent with the Fundamental Law's character as a comprehensive and coherent act – supreme law of the country, which, among other things, plays a decisive role in building a unified and consistent national legal system. Based on the foregoing, the Constitutional Court considers that the amendment to Article 150, para 3, as introduced by §21 LAS Constitution, due to its contradiction with the principle of the rule of law, must be declared unconstitutional as invalid.
In view of the above, the Constitutional Court finds that the amendment to Article 150, para 2, as introduced by §21 LAS Constitution, is not unconstitutional. However, the amendment to Article 150, para 3, as introduced by §21 LAS Constitution is invalid and hence should be declared unconstitutional.
VІІІ. §§22 and 23 LAS Constitution
With §§22 and 23, the constitutional legislator establishes transitional and final provisions. These provisions, by their subject matter - to extend the application of rules repealed by the law, to regulate their application to pending legal relationships, as well as to postpone the effect of rules established by the law - do not have legal effect beyond the legal effect of the law itself.
By themselves, these provisions do not violate fundamental legal principles and, therefore, are not unconstitutional.
In view of the above, the Constitutional Court finds that §§22 and 23 LAS Constitution are not unconstitutional.
In view of the above, the Constitutional Court holds that the amendments to Article 23; Article 91b; Article 99, para 7; Article 110; Article 126, paras 2 and 3; Article 129, para 3; Article 130, para 2, first sentence, paras 3 and 4; Article 130a, paras 2 and 5, first and third sentences; Article 130b, para 2, item 12, para 3, item 12, para 4, second sentence, items 2, 3, and 4, and para 5 (with regard to the Minister of Justice); Article 132a, para 4, second sentence; and Article 150, para 3 of the Constitution, as introduced by §§1, 5, 7, 9, 11, 14, 15, 16, 17, 19, and 21 LAS Constitution, are unconstitutional as invalid from the date this LAS Constitution came into force. The constitutional provisions referred to herein retain their wording as it stood prior to the entry into force of the same LAS Constitution.
The legal effects that arose under the unconstitutional amendments to the specified constitutional provisions prior to the entry into force of this decision shall retain their legal effect.
With regard to the amendments to Article 84, item 16 (in the part "respectively from the Supreme Prosecutorial Council"); Article 129, paras 1, 2, 4, 5, and 6; Article 130, paras 1, 2, second and third sentences, paras 5 and 6; Article 130a, paras 1, 3, 4, 5, second sentence, paras 6 and 7; Article 130b, para 1, para 2, items 1-11 and 13, para 3, items 1-11 and 13, para 4, first sentence, paras 5 (except for the Minister of Justice) and 6; Article 130c, item 1; and Article 133 (in the part "Supreme Prosecutorial Council") of the Constitution, as introduced by §§4, 14, 15, 16, 17, 18, and 20 LAS Constitution, due to their systemic connection with the amendments declared unconstitutional, the same legal consequences shall apply.
The Court established that the amendments to Article 93, para 2; Article 117, para 2; Article 126, para 1; Article 127; Article 128; Article 132a, para 4, first sentence; Article 130c, item 4; and Article 150, para 2 of the Constitution, as introduced by §§6, 10, 11, 12, 13, 19, and 21 LAS Constitution, as well as §§22 and 23 (Transitional and Final Provisions) of the same law, are not unconstitutional.
The Court did not reach the required majority under Article 151, para 1 of the Constitution to render a decision on the amendments to Article 64, paras 2, 3, and 4; Article 65; Article 99, para 5; and Article 102, para 3, item 3, as introduced by §§2, 3, 7, and 8 LAS Constitution, hence the requests of the promoters should not be considered.
Guided by the foregoing considerations and pursuant to Article 149, para 1, item 2 in conjunction with Article 153 of the Constitution, the Constitutional Court
RULED:
DECLARES UNCONSTITUTIONAL the amendments to Article 23; Article 84, item 16 (in the part "respectively from the Supreme Prosecutorial Council"); Article 91b; Article 99, para 7; Article 110; Article 126, paras 2 and 3; Article 129; Article 130; Article 130a; 130b; Article 130c, item 1; Article 132a, para 4, second sentence; Article 133 (in the part "Supreme Prosecutorial Council"); and Article 150, para 3 of the Constitution, as introduced by §§1, 4, 5, 7, 9, 11, 14, 15, 16, 17, 18, 19, 20, and 21 of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023), as invalid from the date of entry into force of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023). The specified constitutional provisions shall retain their wording prior to the entry into force of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023).
DISMISSES the requests to establish the unconstitutionality of the amendments to Article 93, para 2; Article 117, para 2; Article 126, para 1; Article 127, items 5 and 6; Article 128; Article 130c, item 4; Article 132a, para 4, first sentence; and Article 150, para 2 of the Constitution, as introduced by §§6, 10, 11, 12, 13, 19, and 21, as well as §§22 and 23 (Transitional and Final Provisions) of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023).
DECLINE TO CONSIDER the requests to establish the unconstitutionality of the amendments to Article 64, paras 2, 3, and 4; Article 65, para 1, second sentence; Article 99, para 5; and Article 102, para 3, item 3, as introduced by §§2, 3, 7, and 8 of the Law Amending and Supplementing the Constitution of the Republic of Bulgaria (promulgated SG No. 106 of 22 December 2023).
The decision is signed with an opinion by Judge Borislav Belazelkov.
The decision is signed with a dissenting opinion by Judges Borislav Belazelkov and Desislava Atanasova regarding Article 23; by Judges Konstantin Penchev, Borislav Belazelkov, and Desislava Atanasova regarding Article 84, item 16; Article 126, paras 2 and 3; Article 129; Article 130 (except para 4 for Judge Konstantin Penchev); Article 130a; Article 130b; Article 130c; and Article 133; and by Judges Borislav Belazelkov and Desislava Atanasova regarding Article 150, para 3 of the Constitution.
Председател: Павлина Панова