Opinion on the draft Act Amending and Supplementing the Constitution of the Republic of Bulgaria

OPINION

on the draft Act Amending and Supplementing the Constitution of the Republic of Bulgaria, incoming No. 49-354-01-83, submitted to the National Assembly on 28 July 2023

DEAR LADIES AND GENTLEMEN MEMBERS OF PARLIAMENT,

We hereby express our final opinion, adopted within the framework of the Scientific and Practical Round Table held from 30 September 2023 to 1 October 2023 by the Institute for the State and the Law at the Bulgarian Academy of Sciences and the Centre for Legal Sciences at Burgas Free University on the topic "Theoretical Possibilities and Practical Dimensions of the Amendments to the Constitution". In addition to the organisers, the forum was attended and addressed by Prosecutor Daniela Angelova, Deputy Chair of the Association of Prosecutors in Bulgaria; Prosecutor Yovita Grigorova, Deputy Appellate Prosecutor in Burgas; Vasil Petkov, President of the Yambol Regional Court; Anatoli Bobokov, Deputy President of the Burgas District Court; Prof. Maria Slavova, PhD; and professors, associate professors and chief assistant professors from the Institute for the State and the Law at the BAS, Burgas Free University, "A. Kanchev" University of Ruse, "P. Hilendarski" University of Plovdiv and others.

Following an in-depth analysis and discussions on various aspects of the topic, the forum reached the following conclusions and recommendations:

1. 1. We welcome the text of the newly proposed sentence supplementing Art. 23 of the Constitution. We appreciate the National Assembly's concern for Bulgarian education, science, culture and cultural and historical heritage. In this regard, we recommend that the necessary legal mechanisms and instruments for guaranteeing them also be provided for.
2. 2. We categorically reject the proposal to amend Art. 65, para. 1 of the Constitution. The amendments have implications for the provision of Art. 93, para. 1 of the supreme law, according to which a Bulgarian citizen by birth who has reached the age of 40, meets the requirements for election as a Member of Parliament and has resided in the country for the last five years may be elected President. If adopted in this form, they would allow the President to be a person with dual or multiple citizenship.
3. 3. With regard to the reform proposals made through the new provision of Art. 91b, we find it inadmissible for this matter to be regulated in the fundamental law, and we recommend that the terminological apparatus be refined with a view to clarifying the concepts of independent regulatory and supervisory bodies. We consider that this regulation, which contains unnecessary casuistry, should be a matter for special legislation. Furthermore, we find that the text restricts the powers of the President and thereby upsets the balance between state bodies. The potential adoption of the text would violate provisions of EU law and international obligations of Bulgaria.
4. 4. We unanimously oppose the amendments to Art. 99, para. 5, concerning the caretaker cabinet. This draft proposal partially borrows the manner of forming a government from the Greek constitutional system. However, that system differs from the one established in the Republic of Bulgaria; accordingly, the legal position laid down in Art. 37 of the Constitution of Greece is inapplicable to the Bulgarian model of government owing to differences in the form of state structure and government. The proposed text leads to inconsistency among the constitutional norms in the Bulgarian Constitution.
5. 5. We consider that the current wording of Art. 126, paras. 1 and 2 of the Constitution is relevant and should be retained. The provision of Art. 127, items 5 and 6 should likewise not be amended.
6. 6. We are categorically opposed to the division of the Supreme Judicial Council into two separate bodies and the abolition of its Plenum. We also oppose the disruption of the balance in forming the membership of the judges' and prosecutors' colleges. The proposed text of Art. 130c, para. 2, which gives the National Assembly the competence to elect six of the ten members, increases political influence over the Prosecutorial Council. We consider it appropriate to increase the professional quota at the expense of the members elected by Parliament. Overall, we note that the proposal for the composition of the personnel body of the judiciary does not correspond to the Council of Europe standard, namely that the persons be nominated by the respective professional bodies. Moreover, this matter should be regulated in the Judicial System Act.
7. 7. Regarding the proposal under Art. 130a, para. 2, we find it democratic for the Supreme Judicial Council to be empowered to elect its own chair according to the principle of primus inter pares.
8. 8. We reject the proposals for expanding the powers of the Minister of Justice as inexpedient. In the text of Art. 131 as thus proposed, they violate the principle of the separation of powers.
9. 9. We draw attention to the fact that the proposed regulation concerning the legal status of the Inspectorate of the Judiciary should be laid down in the Judicial System Act. Its detailed normative elaboration cannot be a matter for the supreme law. We find the rules currently in force under the Constitution on this matter to be good.
10. 10. We draw attention to the proposal made regarding Art. 147, para. 1 of the Constitution, namely the introduction of a qualified majority for the election of constitutional judges. We recall that even under the current procedure there are vacant seats in the composition of the court. The draft norm thus proposed, if adopted, would excessively burden the procedure for electing members of the Constitutional Court.
11. 11. We reject the proposals thus made for amendments to the provisions of Art. 150 of the supreme law, but we welcome in principle the proposals made in paras. 6 and 7. We recommend refining the text of para. 7 so as to establish admissibility filters with regard to the individual constitutional complaint. The legal regime established in Polish legislation could be adopted: the subject of a constitutional complaint would be a law that served as the basis for the issuance of an act which affected the rights and freedoms of the complainant.
12. 12. As regards the proposal made concerning a change in the terms of office of constitutionally established bodies and positions, these must be carefully considered in the context of the reasoning of Decision No. 3 of 2003 in Constitutional Case No. 22/2002 of the Constitutional Court.
13. 13. We find that amendments to the Constitution should not be tied to unfeasible deadlines.

Burgas, 1 October 2023

Respectfully,

Prof. Irena Ilieva, PhD

Director of the Institute for the State and the Law at the Bulgarian Academy of Sciences

Prof. Maria Neykova, DSc

Dean of the Centre for Legal Sciences of Burgas Free University