2016 Global Review of Constitutional Law

Following a similar logic, the BCC invalidated
a question on whether the regional
directors of police should be directly elected.
The judges held that the appointment of
directors is a prerogative of the Executive,
insofar as direct election has the capacity to
affect the balance of powers and therefore
requires a GNA.
The third invalidated question related to the
possibility of electronic voting. A referendum
on this question had already been carried
out and although its turnout failed to pass
the legal threshold for binding referendums,
the Parliament deliberated to introduce electronic
voting once the technical possibilities
had been explored. Mainly because of that,
the BCC held that another referendum on the
same issue would undermine the principle of
legal certainty and thus the rule of law. Also,
it would force the Parliament to disrespect
its own lawful decisions, which would constitute
a violation of the constitutional status
of the legislature.
The referendum was ultimately carried out
on the three other questions which were upheld
by the BCC. These dealt with the character
of the electoral system and mandatory
voting. The organisers of the referendum bitterly
attacked the BCC and the President for
trying to “obstruct the will of the people”.
Decision 6/2016 from 14 June 2016, case
number 1/2016
This case stemmed from the biggest banking
crisis in the country since 1997—the 2014
bankruptcy of the Corporate Commercial
Bank, the fourth biggest bank in the country.
The closure of the bank ultimately led to the
resignation of the government and pre-term
elections. In this case, the BCC was asked
to assess the constitutionality of the law on
bankruptcy, according to which only the
Prosecutors and the bank syndics (officials
appointed by public bodies to be in charge of
the insolvent bank) are entitled to judicially
challenge the decision to declare the bank
insolvent. Shareholders and the owners of
the bank were not entitled to appeal this decision,
which—as argued by the challengers
from the Supreme Court of Cassation—violated
their rights and the principle of the rule
of law.
The BCC rejected these claims by stating
that the declaration of a bank in insolvency
is a very specialised procedure in which the
interests of depositors are paramount. The
Court held that its power to review decisions
of specialised bodies is limited in such cases,
and although the judges saw flaws in the
law, they deferred to the judgment of the legislature.
The challengers’ claims of lack of
legal protection and violation of the equality
of arms principle were also rejected on these
grounds. All in all, the BCC declined to protect
the rights of the owners and shareholders
in this controversial judgment on the basis of
the extraordinary character of the situation,
which implied greater deference to the discretion
of political and expert bodies.
Decision 3/2016 from 8 March 2016, case
number 6/2015
In the area of healthcare rights, the BCC has
been traditionally deferential to the legislature.
In this case, however, the judges overruled
a relatively central element of a healthcare
reform proposed by the government. The
reform aimed at introducing two distinct tiers
of public medical services. Under the first tier,
supposed to cover the most common and most
serious medical conditions, all citizens would
have instant access to services as guaranteed
by their standard healthcare insurance. For the
second tier, they would either have to enter
a waiting list or pay an additional amount of
money in order to gain immediate access to
healthcare. The judges agreed that the Parliament
had the right to introduce such a reform.
The BCC found, however, that it was for the
Minister of Healthcare to define the services
under the two tiers. The Court argued that
the Constitution required that such decisions
needed to be taken only through the passage
of parliamentary legislation and not by an administrative
normative act because they affect
inalienable rights. As to other aspects of the
healthcare reform, the Court again showed a
considerable deference to the will of the legislator.
8
Rights and Freedoms
Decision 11/2016 from 4 October 2016,
case number 7/2016
In a concrete referral from 28 April 2016, the
SAC challenged the procedural lack of an
appeal mechanism against juvenile detention
orders. This constituted a possible violation
of the Constitution, which requires judicial
control to be exercised over the legality of
any detention. In support of its application,
the SAC invoked the judgment in the A and
others v. Bulgaria case where the ECtHR
held Bulgaria in violation of the ECHR for
not providing a legal remedy for detainees to
judicially appeal juvenile detention orders. 9
The BCC proclaimed that the Prosecutor’s
Office, which authorises juvenile detentions,
belonged to the judiciary so that, strictly
speaking, a judicial body was involved in
the detention process. Notwithstanding this
finding, the Court qualified detention orders
by the Prosecution as individual administrative
acts which are challengeable before
the regular courts. Although the challenged
norm did not explicitly mention an appeal
mechanism, the Court ruled that such remedy
was implied in the constitutional order on
the grounds mentioned above. The contested
norm was thus declared not to be unconstitutional.
The Court explained that ECtHR’s
opposite finding was related to the fact that
the Bulgarian Government, in its role as defendant
in the A. and others v. Bulgaria case,
had argued mistakenly that detentions could
not be judicially appealed, while in fact, the
constitutional order implicitly allowed such
challenges before the ordinary courts.
This decision raises several concerns with
regard to the legal regime of juvenile detention
in Bulgaria. On the one hand, the Prosecutor’s
Office, when exercising its detention
authority, is considered part of the judiciary
and thus exempted from additional judicial
scrutiny under article 30.3 of the Constitution.
At the same time, however, juvenile
detention acts of the Prosecutor are considered
ordinary administrative acts, which are
individually challengeable under Art 120.
8
See decision 8/2016, case 9/2015.
9
ECtHR, A. and Others v. Bulgaria, no. 51776/08, 29 November 2011.
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