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Judicial Law-Making in European Constitutional Courts; First Edition

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Judicial Law-Making in European Constitutional Courts; First Edition 5 The Constitutional Court of the Republic of Bulgaria as a law-maker Martin Belov and Aleksandar Tsekov 1 Legal status of the Constitutional Court of the Republic of Bulgaria Both the Constitutional Court (CC) and constitutional control are among the great novelties introduced by the 1991 Constitution. Until 1991, neither cen- tralized control for constitutionality concentrated in the Supreme Court, CC or constitutional council, nor diffuse control for constitutionality accomplished by all courts, existed in the Bulgarian constitutional order. There have been some sug- gestions in legal theory for the establishment of constitutional control during the Tarnovo Constitution (1879–1947), but they remained isolated opinions. Thus, the provision of control for constitutionality became possible only after the fall of the Berlin Wall in 1989. In fact, it became not only possible, but even inevitable, due to several reasons. First, all Central and Eastern European states have adopted a centralized model for constitutional control structured around the CC. The Bulgarian constitutional legislator joined this common trend. Indeed, the 1991 Bulgarian Constitution was the first entirely new post-communist constitu- tion adopted in Central and Eastern Europe. However, the trend in favour of the establishment of centralized control for constitutionality accomplished by a CC was already visible. Second, this type of control for constitutionality was already well established in most of the Western and Southern European countries. This is particularly true for Italy whose model has been chosen as the main prototype for shaping the Bulgarian CC. Third, the founding fathers and mothers of the 1991 Constitution were generally aware of the fact that control for constitutionality is a cornerstone of the principle of rule of law, which they enshrined in the constitu- tional axiology of the current Bulgarian Constitution. The choice of the European model of control for constitutionality has been predetermined by several factors. Bulgaria traditionally belongs to the continental legal system. The intellectual influence of legal realism is nominal to non-existent, in sharp contrast to Kelsenian normativism and legal positivism. The institutional influence of the US constitutional model is meagre. Moreover, the Bulgarian constitutional legislator has deliberately chosen, as models for legal transplantation of constitutional control, the Italian and to a lesser extent the Spanish, German, and Austrian Constitutions. Indeed, there are many differences among these four DOI: 10.4324/9781003022442-6 92 The CC of the Republic of Bulgaria as a law-maker models but also one main common feature. They provide a concentrated model for constitutional control centralized in a CC. The Bulgarian CC has been established by virtue of the 1991 Constitution and the CC Act, which was adopted in the same year. The CC is an independent state institution. It is coequal with the other central state institutions – the Parliament, the Council of Ministers, the President, the Supreme Court of Cassation, the Supreme Administrative Court, the State Prosecutor General, and the Ombudsman. The 1991 Constitution allocates the CC outside of the judicial power. Thus, the Bulgarian CC is institutionally independent from the judicial power institu- tions. Moreover, there is no formal and institutional hierarchy between the CC, the Supreme Court of Cassation, and the Supreme Administrative Court. This is also due to the fact that the decisions of the two Supreme Courts cannot be appealed (e.g. by virtue of a constitutional complaint) in front of the CC. In other words, all Bulgarian courts, including the Supreme Court of Cassation and the Supreme Administrative Court, must obey and follow the decisions of the CC. This is due to the fact that they are not only binding for them but also superior sources of law. The Bulgarian CC is composed of 12 judges. One third are elected by the National Assembly, one third by the general assembly of the Supreme Court of Cassation and the Supreme Administrative Court, and one third are appointed by the President of the Republic. Indeed, the judges of the CC are supposed to be fully neutral and impartial. There is a system of safeguards for their neutrality and impartiality, e.g. the requirement for professional and ethical qualities, indepen- dence from the constituent institutions, high salaries, immunity, irremovability, etc. However, the 1991 Constitution entrenches internal checks and balances in the composition of the CC, which aim at preventing its transformation into a biased institution. The most important of them is the separation of the patronage power1 for appointment or election of CC judges among the President, the Par- liament, and the two supreme courts. Another safeguard is the mismatch between the terms of office of the CC judges. The CC is a permanent institution, whereas the judges possess nine years non-renewable term of office. However, their terms of office do not expire simultaneously. Each three years, the term of office of one third of the judges expires and they are replaced by new judges. This replacement is done on the basis of a formula according to which if two judges are to be elected by the President, one by the Parliament, and one by the supreme courts, then after three years it is the Parliament which elects two of them, and in six years this number applies to the quota of the supreme courts, while the other two institutions elect one judge each. Hence, there is a rotation of the number of judges, which can be elected or appointed by the three constitutive institutions. The Bulgarian CC possesses numerous important competences. The most important and widely used among them is the posterior control for constitutionality and compliance with the international and EU law of the acts of the Parliament. 1 See Martin Belov, Constitutional Law of the Republic of Bulgaria (Kluwer 2019). The CC of the Republic of Bulgaria as a law-maker 93 The CC can control the compliance also of the parliamentary regulations and the decrees of the President with the Constitution, but this is rarely the case. Moreover, the CC accomplishes preventive control for the compliance of the international treaties with the Bulgarian Constitution. Hence, the institutional centre of the CC’s competences is the control for compliance with the normative hierarchy of the Bulgarian legal order. The control for compliance of the acts of Parliament with the 1991 Constitution is the most frequently used competence of the Court. It should be noted, however, that fre- quently the CC is approached to control simultaneously the compliance of the acts of Parliament with both the Constitution and the international treaties. The Bulgarian CC possesses the relatively rare, in comparative perspective, com- petence for abstract interpretation of the Constitution. This allows the Court to function as de facto constitutional legislator, accomplishing virtual amendment of the 1991 Constitution by virtue of constitutional interpretation. The Court frequently uses teleological (purposive) interpretation and broadens or narrows the scope of constitutional concepts thus implicitly accomplishing constitutional policy-making. Furthermore, the CC possesses competences for defence of the constitutional order. It can pronounce the impeachment of the President or Vice President of the Republic due to high treason or violation of the Constitution. It can also declare political parties as unconstitutional if they aim at violent ascent to power or are based on ethnicity, race or religion. The CC controls also the legality of par- liamentary and presidential elections. The CC is also vested with the power to resolve conflicts for competences regarding the horizontal and vertical separation of powers. It can resolve such competence disputes between the Parliament, the Council of Ministers, and the President of the Republic, as well as between the Council of Ministers and the municipal councils. However, there is a very limited number of cases related to these two competences. Especially, the case law on the resolution of conflicts for competences between the Council of Ministers and the municipal councils is rather scarce. These cases are initiated by the municipal councils and most of them are declared inadmissible by the CC. It is remarkable that the Bulgarian CC is among the rather rare cases of con- stitutional jurisdictions which cannot be approached directly by the citizen. This means that the 1991 Constitution does not provide for a direct constitutional complaint. There are only three indirect ways the citizens may approach the CC. First, they may approach the national Ombudsman, who can then initiate a case for defence of constitutionally proclaimed human rights infringed by an act of Parliament. Second, they can defend the same type of rights against infringement by the act of Parliament via the Supreme Bar Council. These two procedures are in fact indirect constitutional complaints. They are slow and dependent on the discretion of the Ombudsman or the Supreme Bar Council. The third option is to raise claims for unconstitutionality during a pending case in front of a regular or specialized court, which can then approach the Supreme Court of Cassation or the Supreme Administrative Court with the demand that they shall approach the CC. In fact, this is not a constitutional complaint because 94 The CC of the Republic of Bulgaria as a law-maker the initiator (the parties to the pending law suit) does not possess the formalized right to claim unconstitutionality. They are entirely dependent on the decisions of several institutions. Thus, their path to the CC is a very remote one. The CC can be approached by various state institutions. Some of them have the general competence to approach the Court with regard to all of its competences (with a few exceptions, which are expressly limited to concrete institutions). The general competence to approach the CC belongs to one-fifth of the MPs, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, and the State Prosecutor General.
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