2016 Global Review of Constitutional Law

Bulgaria
DEVELOPMENTS IN BULGARIAN CONSTITUTIONAL LAW
Ivo Gruev, DPhil Candidate in Socio-Legal Studies at the Law Faculty of the University
of Oxford; Dr. Daniel Smilov, Associate Professor at the Political Science Department of
the University of Sofia, and Programme Director at the Centre for Liberal Strategies in
Sofia
BULGARIA
INTRODUCTION
Background and Creation of the Court
The Bulgarian Constitutional Court (BCC)
was established under the Constitution of
13 July 1991, which was adopted after the
fall of the communist regime.1 The previous
three fundamental laws of the country—i.e.
the 1879 Constitution adopted after the liberation
from the Ottoman Empire and the
two communist constitutions from 1947 and
1971, respectively—did not include a constitutional
tribunal or any form of extra-parliamentary
constitutional control. The drafters
of the 1991 constitution almost unanimously
decided to introduce a Kelsenian model of
centralised judicial review, exercised exclusively
by a specialised tribunal. The new institution
was modeled after its German, Austrian,
Italian and Spanish counterparts.
Characteristics of the Court
The Court consists of 12 judges who are
appointed, for a non-renewable period of
nine years, in equal parts by the National
Assembly, the President, and at a meeting
of the judges of the Supreme Court of Cassation
(SCC) and the Supreme Administrative
Court (SAC). All types of rulings of the
Court require a majority of more than half,
i.e. seven or more, of the votes of all judges.2
The Court has the competence to provide
binding interpretations of the Constitution to
adjudicate upon disputes between the main
state institutions; to rule on the congruence
between domestic law (including the Constitution)
and international law and treaties,
to which Bulgaria is party; and to exercise
constitutional control (judicial review) of
legislation and acts of the President. The latter
function encompasses the protection of
the constitutional rights and liberties of citizens
against encroachments on the part of the
Legislator and the President.3
The Court exercises a posteriori concentrated
review, which is abstract in nature since it
concerns the constitutionality of the legislative
or presidential act in general and not its
concrete application.4 Unconstitutionality
decisions of the Court invalidate such acts
with ex nunc binding force. All decisions of
the Court are final and binding on all public
bodies and persons. The Court does not
have the competence to review acts by the
other branches of the executive apart from
the President, such as, for example, ministerial
orders and regulations, and administrative
acts. The constitutional review of such
non-legislative normative acts is entrusted
upon the SAC.
Seizing Subjects
The abstract referral procedure can be triggered
by one-fifth of all deputies of the National
Assembly, the President, the Council
1
A Constitutional Court Act was passed on 16 August 1991 and the Court was constituted on 3 October
1991.
2
This provision has stirred controversies in cases where judges were split in 6:6 or even in 6:5 votes
in favour of a constitutionality challenge. In such cases, the challenge would fail due to the lack of a
seventh vote, despite the fact that a simple majority of the judges supported the challenge.
3
Most of the fundamental rights of citizens are listed in Chapter 2 of the Constitution.
4
The only instance where the Court exercises a priori judicial review is when ruling on the constitutionality
of international treaties concluded by the executive prior to their ratification, Art 149.1.4.
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