On December 20, 2023, the National Assembly (parliament) of Bulgaria adopted the Law on Amendments and Additions to the Constitution of the Republic of Bulgaria. This law introduces changes to the Constitution of Bulgaria that address the structure of the national judiciary, limit presidential authority in appointing an interim government, and allow citizens with dual citizenship to stand for election as members of the National Assembly and serve as ministers. (Law on Amendments and Additions to the Constitution, arts. 3, 7, 14, 15, 16.)
According to Research Fellow Lukasz Kobeszko of the Centre for Eastern Studies in Warsaw, the new changes to the country’s constitution have “the widest scope of all amendments to the constitution since it was adopted in 1991.”
In 2015, Bulgarian legislators adopted a law that amended a number of provisions of the constitution concerning the organization of the national judiciary and the law enforcement community.
The amendments in the new law cover a wide range of issues, including, among other things, establishing new principles for the composition and authority of the country’s judicial bodies, specifying the powers of the prosecutor general, reducing the term of office of the heads of the two highest courts from seven to five years with a possibility of a single further term, and providing rules for forming an interim government.
Overview of Changes to the Constitution
Under the newly adopted amendments to the constitution, a Bulgarian citizen holding dual citizenship and residing in the country for the past 18 months is eligible to serve as a national representative. (Art. 3.)
The newly adopted constitutional amendments provide for the division of the Supreme Judicial Council, the highest professional body for judges and prosecutors, into two separate organizations: the Supreme Prosecutorial Council and the Supreme Judicial Council. Article 17 of the amending law states that “[t]he Supreme Judicial Council and the Supreme Prosecutorial Council exercise their powers independently and through a general assembly.”
Under the constitutional amendments, the Supreme Prosecutorial Council is to be composed of 10 members: the prosecutor general, two members elected by prosecutors, one member elected by investigators, and six members elected by the National Assembly. (Art. 16.)
The Supreme Judicial Council is to be composed of 15 members, who include the president of the Supreme Court of Cassation, the president of the Supreme Administrative Court, eight members elected directly by the judges of all courts, and five members elected by the National Assembly. (Art. 16.)
The National Assembly is required to elect members of the Supreme Judicial Council and the Supreme Prosecutorial Council by a two-thirds majority of the legislators. The elected members of both councils serve a four-year term. (Art. 16). The powers related to appointments, promotions, transfers, dismissals and discipline of judges and prosecutors are similar for both judicial bodies and concentrated within the respective councils. (Arts. 14 & 15.)
The Supreme Judicial Council is charged with the responsibility of periodically certifying judges, imposing disciplinary penalties, resolving organizational matters relating to court activities, approving the court system’s draft budget, and overseeing the budget’s implementation. (Art. 17.)
The council is also charged with addressing issues concerning “irreplaceable judges.” Judges may attain “irreplaceable” status after five years of judicial experience and certification on the basis of a decision of the Supreme Judicial Council. Such judges can be dismissed only when they reach the age of 65, resign, are sentenced to imprisonment for committing an intentional crime, experience a permanent disability that prevents them from fulfilling their duties for over a year, or seriously violate or systematically fail to fulfill their official duties or engage in actions that damage the prestige of the judiciary. (Art. 14).
The constitutional amendments grant the president of the republic the authority to appoint and dismiss the presidents of the Supreme Court of Cassation and the Supreme Administrative Court on the basis of proposals from the Supreme Judicial Council. The term is seven years without the possibility of reelection, and those appointed as the courts’ presidents cannot decline the appointment. (Art. 14.) Another constitutional amendment grants the president of the republic the authority to appoint the prosecutor general on the basis of a proposal from the Supreme Prosecutorial Council for a nonrenewable term of five years, as well as the authority to dismiss the prosecutor general on the council’s recommendation. (Art. 15.) Candidates for the office of prosecutor general must be nominated by three members of the Supreme Prosecutorial Council or the minister of justice. (Art. 15).
In addition, the new constitutional amendments constrain the head of state’s discretion in appointing an interim government, specifying the individuals who are eligible for the role of “acting prime minister.” This list includes the speaker of the National Assembly, the president or the deputy-president of the Bulgarian National Bank, the head and deputy-head of the Audit Office, and the ombudsman or their deputy. (Art. 7, para. 1.) Under the amendments to article 99 of the constitution, the primary responsibility of the interim government is to facilitate free and fair elections. (Art. 7, para. 2.)
Reactions to the Constitutional Amendments and Recent Developments
The adoption of the Law on Amendments and Additions to the Constitution has been both criticized and praised by government officials.
On December 20, 2023, the president of Bulgaria, Rumen Radev, stated that “Bulgarians will pay a heavy price” for experimenting with the constitution. According to Radev, the changes that were adopted would not solve the major problems of justice and guarantee justice for Bulgarian citizens, which was the supposed purpose of initiating the changes. With regard to the admission of foreign citizens in the management of the country as deputies and ministers, the president claimed that the country’s rulers have demonstrated that the presence of double standards concerning loyalty to Bulgaria was not an issue for them.
A similar position was expressed by National Assembly member Kornelia Ninova, who said, “The dual citizenship for MPs and ministers betrays Bulgarian sovereignty. … [The j]udicial reform does not aim at any justice and independence in the judiciary.”
Reportedly, on January 8, 2024, President Radev referred the newly adopted amendments to the Constitutional Court with a request for a review of their constitutionality.
At the same time, Bulgarian Justice Minister Atanas Slavov, hailed the adoption of the constitutional amendments as being the biggest step Bulgaria has taken in the last 30 years toward being a European and democratic country with rule of law.
Member of the National Assembly Hristo Ivanov stated that the changes to the constitution are “the real beginning of judicial reform.” According to Ivanov, the changes in conjunction with the subsequent amendments to the Judiciary Act and the codes of procedure make it possible to achieve “true independence of Bulgarian courts in keeping with European standards, a prosecution service that is accountable to the public and serves the law, and fair justice by European standards.”
Iana Fremer, Law Library of Congress
January 31, 2024