The Sixth Amendment of Bulgaria's Constitution: the small print

The bill to amend and supplement Bulgaria's Constitution was moved by GERB-UDF, Continue the Change - Democratic Bulgaria and the Movement for Rights and Freedoms on July 28. On October 6, the draft legislation fell short by a single vote from the required three-quarters majority of 180 votes to be passed in the so-called "fast-track procedure". Next, the bill was resubmitted and revised at the committee stage and cleared the "slow-track" procedure, which requires to be voted on three readings. It was approved on first reading on December 8 and on second reading on December 19.

Legislature and Executive

The version that was conclusively adopted relaxed the requirement limiting eligibility for member of Parliament and, respectively, for prime minister and cabinet member, to persons holding Bulgarian citizenship only. Dual nationals will now qualify for such office provided that have resided in Bulgaria during the last 18 months. Dual nationality, however, is off limits to candidates for President and Vice President of the Republic. 

Under the amendments, if early elections need to be held, the National Assembly will not be dissolved by the President of the Republic and will retain its credentials until the MPs of the next legislature are sworn in. New parliamentary elections must be held not later than one month after the expiry of the credentials of a sitting National Assembly. The president must schedule parliamentary elections within two months after the appointment of a caretaker cabinet.

The President will no longer have full discretion in appointing a caretaker prime minister. His or her choice will be limited to the chair of the National Assembly, the president of the Supreme Court of Cassation, the governor or a deputy governor of the Bulgarian National Bank, the president or a vice president of the Bulgarian National Audit Office, and the National Ombudsman or a deputy ombudsman. The President must consult the parliamentary groups before appointing a caretaker cabinet on a proposal by the caretaker prime minister.

A caretaker cabinet will have to focus on organizing free and fair elections, and its powers may be limited by law.

A new provision requires from Parliament to respect the principles of openness, transparency, publicity and justification when electing the regulatory authorities in its ambit so as to ensure their independence. A law may provide for election by a two-thirds majority.

Judiciary

The amendments restructured the Supreme Judicial Council (SJC), which is kept as an administrative and personnel-management authority for judges only. Eight of the SJC 15 members would be elected directly by judges in the regional, district, appellate and supreme courts, five members would be elected by the National Assembly, and the presidents of the two supreme courts would be members by right. The SJC would be chaired by the president of the Supreme Court of Cassation and, in his or her absence, by the president of the Supreme Administrative Court.

The term of office of the presidents of the two supreme courts is unchanged at seven years and, just as before, they may not be re-elected. The President must decree their appointment within seven days. If he or she fails to do so within this time limit, the nominee will be presumed appointed and the SJC decision will be promulgated.

The revisions provide for the establishment of a separate Supreme Prosecutorial Council (SPC) of ten members: two elected directly by prosecutors, one elected directly by investigating magistrates, six elected by Parliament from among representatives of various legal professions and organizations, and the prosecutor general, who would be an ex officio member.

Eligibility of the elective SJC and SPC members is limited to jurists of high professional and moral standing who are independent and neutral in party terms. They may not be sitting prosecutors or investigating magistrates. They are elected for a four-year term and may not be re-elected immediately after the lapse of this period. A two-thirds majority of all MPs is required for the election of the members of the two councils from the parliamentary quota.

The two councils exercise their powers either independently or through their general meetings.

The minister of justice and the inspector general of the judiciary may attend the general meetings of the two councils in a non-voting capacity.

The prosecutor general will be appointed and released by the President of the Republic on a nomination by three SPC members or the minister of justice. The term of office of the prosecutor general was reduced to five years from seven years now. The President must decree the appointment of a prosecutor general within seven days. If he or she fails to do so within this time limit, the nominee will be presumed appointed and the SJC decision will be promulgated.

The prosecutor general represents the prosecution service and heads the Supreme Prosecution Office. Acting on a proposal by the Supreme Prosecution Office, the prosecutor general endorses general methodological rules for the pretrial proceedings activities of prosecutors, investigating magistrates and the other investigating authorities. These rules are appealable before the Supreme Administrative Court according to a procedure established by a law. 

This provision curtails dramatically the powers of the prosecutor general, who was so far competent to exercise supervision as to the legality of acts and steps of state bodies and to provide methodological guidance regarding the work of all prosecutors.

The amendments set up a special mechanism for the investigation of the prosecutor general. If suspected of committing a publicly prosecutable offence, he or she would be investigated by an ad hoc prosecutor who has served as a criminal judge at a supreme, appellate or district court until appointed. The appointment procedure will be established by law.

Under the Constitution as amended, any court, acting on a motion by a party to a case or on its own motion, may approach the Constitutional Court regarding the constitutionality of a law applicable to the case concerned. The referring court will render its decision, which will be final, after the proceedings before the Constitutional Court have been completed.

Under the Transitional and Final Provisions to the amending law, the National Assembly has six months from its entry into force to adopt the laws applying the constitutional revisions.

The elective members of the SJC and SPC must be elected within three months after the entry into force of the applying laws. Until this election, the the Judges Chamber and the Prosecutors Chamber of the pre-existing SJC will function as a SJC and SPC but may not propose the appointment and release of the presidents of the two supreme courts and the prosecutor general.