BUL
 
BULGARIA
Constitutional Court
 
I.   Introduction
Prior to the adoption of the new Constitution of the Republic of Bulgaria on 12 July 1991 there was no specialised body in the Bulgarian legal system to monitor the constitutionality of laws. This role was performed by Parliament. The Constitution of 1991 provided for the establishment of a Constitutional Court and envisaged the adoption of a special Constitutional Court Act, which was passed by Parliament on 16 August 1991. The Constitutional Court adopted Rules governing its organisation and activities, which entered into force on the 23 December 1991.
II.   Basic texts
The Constitutional Court Act contains provisions of a material and procedural nature. It enshrines important rules concerning the Court’s organisation, composition and activity, and formulates its principal objective to ensure the supremacy of the Constitution. It stipulates that the Constitutional Court is independent from the legislature, the executive and the judiciary and in its work is guided exclusively by the provisions of the Constitution and of this Act. This implies that the Court is not an integral part of the judiciary and enjoys an autonomous status among the state’s higher institutions. In case of discrepancy between the Constitutional Court Act and other laws, the former prevails.
The Rules on the Organisation and Activities of the Constitutional Court contain provisions of two categories: organisational, technical and procedural. The provisions of the second category are of major importance for the constitutional process. It is also important that as a normative act and as a legal source for the Constitutional Court, the Rules are adopted by the Court itself, which is a further proof of its autonomy with respect to the other higher state bodies.
III.   Composition, procedure and organisation
1. Composition
The Constitutional Court is composed of twelve judges. One third of them are elected by Parliament, another third are appointed by the President of the Republic and the remaining third are elected at a general meeting of the judges of the Supreme Court of Cassation and the Supreme Administrative Court. Those eligible for appointment as judges of the Constitutional Court are lawyers of high professional and moral standing and with at least fifteen years of experience as lawyers. They are elected or appointed for a period of nine years and are not eligible for re-election or re-appointment. One-third of the Court’s members are renewed every three years from each quota in a rotation order established by the Constitutional Court Act. The Act stipulates the procedure for terminating the term of office of a Constitutional Court judge following a decision of the Court. The judges enjoy the same immunity as Members of Parliament.
According to the Constitution, being a Constitutional Court judge is incompatible with being a Member of Parliament, holding a government or public office, being a member of a political party or a trade union and with practising commercial or any other paid professional activity.
After the judges were sworn in on 3 October 1991, the Court held its first session and elected by secret ballot the Chairman of the Court for a term of three years.
2. Procedure and organisation
The Constitutional Court does not have the right to initiate proceedings Article 150.1 of the Constitution sets out those bodies and persons who have the right to approach the Court. One-fifth of all Members of Parliament, the President of the Republic, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court and the Chief Prosecutor.
The municipal councils can address the Court only in case of competence disputes with the central executive authorities.
The proceedings may be initiated by the Supreme Courts in two cases:
   a. by the plenary of the Supreme Court of Cassation or the Supreme Administrative Court, and
   b. by a panel of judges during the course of concrete court proceedings, when they find that the applicable law is inconsistent with the           Constitution.
In the first case the Supreme Courts may turn to the Constitutional Court and request a binding interpretation of the Constitution or consistency with the Constitution of acts of Parliament, acts of the President and international treaties with the Constitution. When initiating proceedings in the second case, only he review of the constitutionality of the law may be required, applicable to the concrete case.
The Ombudsman and the Supreme Bar Council may approach the Constitutional Court only with a petition to establish the unconstitutionality of a law which violates the citizens' rights and freedoms.
Motions should be written in Bulgarian, meet all the requirements set out in the Constitutional Court Act and in the Rules on the Organisation and Activities of the Constitutional Court and should be accompanied by reasons. In the case of a dispute on the distribution of powers between bodies of local government and the central executive bodies, motions should be accompanied by evidence in writing to the effect that the subject of the dispute has been discussed by the concerned parties.
After reviewing the accuracy of the submitted documents, the Chairman of the Court initiates proceedings, designates one or more judges as rapporteurs and sets a date for the hearings. The rapporteur prepares the case for trial and writes the respective reasons. The Court determines the interested institutions and persons, notifies them and gives them the opportunity to present their considerations and evidence in writing.
A constitutional case takes place in two stages. During the first stage issues pertaining to the admissibility of the motion are resolved. The second stage focuses on the hearing and the adjudication of the case on its merits. However, this does not rule out a review of admissibility. Only documentary evidence is admissible, except in impeachment cases against the President and the Vice-President of the Republic, when any evidence is permitted.
The Constitutional Court sessions are held without the participation of the interested parties, with the exception of cases on impeachment brought by Parliament against the President or the Vice-President of the Republic, or on the establishing of the incompatibility of a Member of Parliament. The Constitutional Court may decide at its own discretion to hold an open session, in which case it has to inform the interested parties whose representatives have to present written authorisation.
Should the Constitutional Court establish that a motion originates from bodies or persons other than those who have the right to do so, or that the motion goes beyond the Court’s sphere of competence, or that other procedural impediments exist, the proceedings are not initiated or are terminated and notification to that effect is sent to the interested parties. The Court rules on the admissibility of a motion by issuing a resolution and on the merits of a dispute by passing a decision.
The Court is deemed in session when at least two-thirds of the judges are present and in cases on impeachment of the President and the Vice-President of the Republic, it is deemed in session if at least three-quarters of all members are present. A ruling of the Constitutional Court requires a majority of more than half of the votes of all judges. A decision to revoke the immunity of a Constitutional Court judge or establish the inability of a Constitutional Court judge to perform his or her duties is adopted by a majority of two-thirds of the votes of all judges. Voting is open. No abstentions are allowed. Voting takes place by way of secret ballot only on motions concerning the President and the Vice-President of the Republic and when revoking immunity or establishing the inability of a Constitutional Court judge to discharge his or her duties.
Judges who disagree with an adopted decision or resolution may express a dissenting opinion in writing. This does not apply when voting is by secret ballot.
IV.   Jurisdiction
The powers of the Constitutional Court, as defined by the Constitution, are as follows:
The Constitutional Court provides binding interpretations of the Constitution. This implies that the Court gives official and binding interpretations with a view to establishing unity and stability of understanding of the essence and the content of constitutional norms to the extent to which they underlie the rule of law and are subject to direct execution. More often than not the requests for constitutional review are triggered by practical considerations related to differing interpretations of constitutional norms. The Court requires the applicants to substantiate the need for interpretation and to give relevant reasons. When providing reasons for a certain interpretation, the Court explains in a detailed and well-grounded manner its understanding of the relevant norm, and in its ruling, which normally has a normative form, it provides a concise answer to the question raised.
The Constitutional Court rules on motions for establishing the unconstitutionality of laws and other legislative acts passed by Parliament, as well as Acts of the President. This is an a posteriori control on conformity with the Constitution, for which there is no fixed term. Many questions of this kind have been considered and resolved so far:
-   whether constitutional control should cover laws passed prior to the entry into force of the new Constitution. The Court has ruled that such laws are not within its area of competence (four judges have expressed dissenting opinions);
-   whether all acts with the exception of laws passed by Parliament and the President of the Republic are subject to constitutional control. The Court has concluded that in principle all acts are subject to control, however it is arguable whether that should include wholly discretionary acts deriving from public policy, such as the exceptional allocation of personal pensions, pardoning ordinances, etc.
The Constitutional Court rules on disputes regarding the distribution of powers between Parliament, the President and the Council of Ministers, as well as between organs of local government and central executive bodies. Pursuant to the Constitutional Court Act, such disputes are reviewed by the Court only after the subject of the dispute has been discussed among the concerned parties.
The Constitutional Court rules on the compatibility of the Constitution and international treaties concluded by the Republic of Bulgaria, and on the compatibility of domestic laws with norms of international law and international treaties to which Bulgaria is a party. This subject matter raises many issues: the correlation between the domestic legislation and international law; the powers of the Court vis-à-vis the fundamental constitutional norm, which establishes the primacy of international treaties over the norms of domestic law; how to act in the event of non-conformity between the Constitution and an international treaty (on this matter the Constitutional Court takes the view that supremacy should be accorded to the Constitution); and at what point to judge the constitutionality of an international instrument (prior to or after its ratification).
The Constitutional Court also rules on disputes concerning the constitutionality of political parties and associations. Up until now, the Court has reviewed only one case of this type. Some problems emerged with regard to the correlation of the powers of the Constitutional Court and the Supreme Court and whether Members of Parliament from a party which has been declared unconstitutional, lose their status.
The Constitutional Court rules on disputes concerning the legality of the election of the President and the Vice-President of the Republic.
It establishes the circumstances under which the prerogatives of the President and the Vice-President of the Republic are suspended before the expiry of their term of office.
The Constitutional Court also rules on the legality of the election of Members of Parliament. The Court has had no such case up to now.
The Constitutional Court establishes the ineligibility for election of Members of Parliament or the incompatibility between the functions of an Member of Parliament and the performance of other activities.
The Constitutional Court rules on accusations brought by Parliament against the President and the Vice-President of the Republic. This concerns political responsibility.
The Constitutional Court revokes the immunity and establishes the inability to discharge his or her duties or the incompatibility of a Constitutional Court judge.
According to the Constitution, no ordinary law can vest new powers in the Constitutional Court or suspend or restrict its powers envisaged therein. This is an important constitutional safeguard for the Court’s stability since it rules out any alteration of the latter’s powers through ordinary legislative procedure. Such alterations may be effected only by amending the Constitution under certain conditions.
V.   Nature and effects of decisions
The Constitutional Court’s acts are final and binding upon all government bodies, legal persons and citizens.
It is important to note that all acts which are found to be unconstitutional by the Constitutional Court lose their legal force. Acts issued by an incompetent body become null and void. All legal implications of an act which has been declared unconstitutional are to be remedied by the issuing authority.
If a negative decision is given on a motion, filing a motion with the Court on the same matter for a second time is prohibited.
The decisions adopted by the Constitutional Court and the reasons attached to them are published in the Official Gazette within fifteen days of their adoption and enter into force three days after their promulgation. Decisions concerning the election of the President, the Vice-President or a Member of Parliament, as well as those related to the status of a Constitutional Court judge, come into effect as of the day of their adoption.