DECISION No. 14
Promulgated State Gazette No 93/17.11.1992
The Constitutional Court, the following being present: Chairman: Assen Manov, and members: Mladen Danailov, Milcho Kostov, Tsanko Hadjistoichev, Stanislav Dimitrov, Neno Nenovski, Nikolai Pavlov, Milena Zhabinska, Lyuben Kornezov, Pencho Penev, Alexander Arabadjiev and in the presence of the secretary record-keeper Tsveta Mineva, reviewed in closed session on November 3, 1992 Constitutional Case No 14 of 1992 reported by Justice Milena Zhabinska.
The proceedings were initiated on a motion of the President of the Republic for interpretation of Article 6 of the Constitution.
With Resolution of
With Resolution of 10 July 1992 the Constitutional Court provided the President of the Republic with the opportunity to submit, within seven days, grounds for the motion to interpret Article 6 of the Constitution in accordance with the specific circumstances giving rise to the vagueness regarding the content of the legal norm in its entirety or of parts thereof and in its application in a given field, aspect, etc.
In a letter dated 20 July 1992 the President submitted grounds for vagueness of the Constitutional norm in that of its parts which refers to the term law, regarding the nature of the social characteristics that may not serve as grounds for restricting rights and privileges, and whether privileges constitute a violation to the principle of equality before the law.
With Resolution of 13 October 1992 the Constitutional Court granted review to the motion the President of the Republic for interpretation of Article 6 of the Constitution regarding:
1. Does the equality of all citizens before the law mean equality before all normative acts?
2. Are the social characteristics that may not serve as grounds for restricting rights and privileges listed exhaustively or merely as examples?
3. Do privileges constitute a violation of the principle of equality before the law?
After receiving invitation to express opinion on the request, such opinions were forwarded by: the Chairman of the National Assembly, the Chief Prosecutor, the Ministry of Justice, the Ministry of Foreign Affairs, the Podkrepa Confederation of Labor and the Human Rights Committee.
In order to render its judgement on the case, the
Regarding the Equality of All Citizens before the Law
The equality of all citizens before the law is a fundamental principle of all democratic societies.
In the Preamble of the Constitution equality is proclaimed as a universal human value together with liberty, peace, humanism, justice and tolerance.
In Article 6, para 2 the equality of all citizens before the law is
formulated as a Constitutional principle underlying the civil society and the
state. This is a universal principle of the entire legal system of the
In Article 6, para 2 equality before the law is also formulated as a basic human right. It is specified in a number of Constitutional provisions with respect to certain rights and freedoms (Article 19, para 2, Article 46, para 3, Article 47, para 3, Article 119, para 3, Article 121, para 1, etc.).
Equality before the law means the equal standing of all citizens before the law and an obligation to be treated equally by the state authorities.
According to Article 4, para 1 the
The Constitution is the supreme law. It is the foundation of the existing legal system and state order. It proclaims in a normative manner the basic principles and values of the state. In certain cases Constitutional norms do not contain provisions that may be implemented directly but ones which need to be made more specific through laws in order to become applicable law (Article 122, para 2, Article 123, Article 134, para 2, Article 138, 144, etc.).
Fundamental social relations are regulated by laws (Article 11, para 3, Article 16, Article 17, para 1, 4, 5, Article 18, para 1, 4, 5, etc.). Regulations further develop and concretize the provisions of laws. They are issued to implement laws in their entirety or of certain of their provisions (Article 114 and 115) and may not contravene them.
It is impossible for citizens to be equal before the law and at the same time not to be equal before regulations. The requirement of equality of citizens before the law logically requires equality before all normative acts addressed to them regardless whether those are laws or regulations, and not equality before the law in the latter's narrow sense as an act of the National Assembly. Such an understanding of the Constitutional norm's text corresponds to the spirit and the letter of the Constitution which proclaimed the recognition and observance of equality as a universal human value and elevated human rights to the status of a supreme principle (Preamble, Article 4, para 2, Article 25 - 57).
Regarding the Social Characteristics that May Not Serve as Grounds for Restricting Rights and Privileges
In order to guarantee the proclaimed principle of equality of all citizens before the law, Article 6, para 2 points to certain social characteristics which may not serve as reasons for unequal treatment: race, nationality, ethnic affiliation, sex, origin, religion, education, convictions, political affiliation, personal or social status or property status. In doing so the Constitution has placed explicit bans with respect to these social characteristics. They are legally inadmissible as grounds for reducing rights or for providing privileges.
The social characteristics referred to above can generally be divided into two basic groups. The first five: race, nationality, ethnic affiliation, sex, and origin stem from Article 1 of the Universal Declaration on Human Rights which proclaimed that all people are born free and equal in dignity and rights. This text was reproduced verbatim in Article 6, para 1. The non-admission of restriction of rights or privileges based on these characteristics is a guarantee of universal human rights which are recognized and protected by the Constitution of the Republic of Bulgaria. The other characteristics: religion, education, convictions, political affiliation, personal or social status or property status, are in fact acquired or changed in the social realization of the citizen as a result of his exercising certain rights. Each of these characteristics provides the individual citizen with the equal opportunity envisaged in the Constitution and protected by it, which under Article 6, para 2, may not serve as reason for privileged treatment or for restricting his rights in his capacity of citizen.
The Constitution does not exclude restricting rights and the granting of certain strictly defined privileges on the grounds of other social characteristics, despite the fact that the characteristics listed in Article 6, para 2 are so broad that little else and only in rare cases remains outside their scope.
Thus, according to Article 26, 2, foreigners residing in the Republic of Bulgaria are vested in all rights and obligations proceeding from the Constitution, except those rights and obligations for which Bulgarian citizenship is required by the Constitution or by another law. According to Article 65, para 1, eligible for election to the National Assembly is any Bulgarian citizen who does not hold another citizenship. Under Article 93, para 2 only natural-born Bulgarians may be elected President. Foreigners may not acquire ownership over land except through legal inheritance under Article 22. Therefore the Constitution clearly provides for restricting rights on the grounds of citizenship.
The Restriction of rights under conditions and in a manner set by law is also envisaged for persons sentenced to imprisonment or for persons placed under disability (Article 31 and 42). Restrictions on the right under Article 35 shall be permitted by law in the name of national security, public health and the rights and freedoms of other citizens. Temporary restrictions on certain rights of citizens is envisaged in Article 57, para 3 in a state of emergency, etc.
There are similar considerations for providing certain socially justified privileges to citizens belonging to groups based on other social characteristics. Thus, due to the specifics and importance of the rights and obligations of the members of the National Assembly, these enjoy a privileged social status with respect to penal liability and personal inviolability in comparison to other citizens. Thus, according to Article 69, members of the National Assembly shall not be criminally liable for their convictions and votes in the National Assembly and under Article 70 they are immune to detention and criminal prosecution except for the perpetration of grave crimes when permission by the National Assembly or its Chairman is granted. Under Article 132 judges, prosecutors and investigating magistrates enjoy the same immunity as members of the National Assembly. According to Article 103, para 1 the President and Vice President cannot be held liable for actions committed in the performance of their duties, except for high treason and violation of the Constitution.
Children left without the care of relatives are placed under the special protection of the state and society (Article 47, para 4). The state creates conditions for physically or mentally handicapped people to exercise their right to work, while for other citizens the state takes care to provide conditions for exercising that right (Article 48).
From these and other cases set forth explicitly in the Constitution, it becomes clear that restrictions on rights and the granting of privileges to certain social groups is permissible under the Constitution. It should be pointed out however that in all these cases reference is made to socially necessary restrictions on the rights of or the granting of privileges to certain groups of citizens while maintaining the priority of the principle of equality of all citizens before the law. The exact and exhaustive listing of all social characteristics that may not serve as grounds for restricting rights or for granting privileges is a guarantee against the unmotivated broadening of the grounds for permitting restrictions of rights of citizens or for granting privileges.
Regarding the Principle of Equality Before the Law and the Privileges
Despite the fact that Bulgaria was late in joining European Constitutionalism, as early as in the Turnovo Constitution of 1879 the principle of equality of all citizens before the law was proclaimed. "All Bulgarian citizens are equal before the law. The division of Bulgaria into castes shall not be permitted", reads Article 57. This is a characteristic principle of law in general, which is confirmed in Article 6, para 2.
Privileges in general constitute a violation of the principle of equality. The word privilege etymologically originates from privus legis, i.e. beyond the law. Therefore privileges shall be considered as excluded a priori in a state governed by the rule of law.
In certain cases however, the privileges permitted by the Constitution are socially necessary and socially justified. They are granted to overcome an existing inequality with the aim of achieving the desired equality. Such is the special protection under Article 47, para 4 and Article 51, para 3 provided by the state and society to children left without relatives, to the elderly who cannot support themselves from their own property, as well as to persons with mental or physical handicaps. The privileges granted to such people are compensatory benefits in view of the recipients' unfavorable social status.
In other cases, as a result of the particular character and importance of the rights and obligations of certain citizens (members of the National Assembly, the President, the Vice President, the Prime Minister, ministers, judges, prosecutors and investigating magistrates), these enjoy a privileged legal status as compared to the rest of the citizens with respect to criminal liability and personal inviolability. In order to perform their important duties the Constitution has granted these citizens a combination of rights which ensures them greater freedom, security and independence from the executive and legal authorities in comparison with rest of the citizens.
As pointed out above, Article 6, para 2 of the Constitution lists exhaustively the social characteristics that may not serve as grounds to restrict rights or to grant privileges. The granting of privileges on the grounds of these characteristics constitutes a violation of the principle of equality of all citizens before the law.
Pursuant to the considerations above and on the grounds of Article 149, para 1, item 1 of the Constitution, the Constitutional Court has hereby
1. The equality of all citizens before the law under Article 6, para 2 of the Constitution means equality before all normative acts.
2. The social characteristics for non-admission of restrictions on rights or granting privileges are set forth exhaustively in Article 6, para 2 of the Constitution.
3. Privileges based on the social characteristics set forth in Article 6, para 2 of the Constitution constitute a violation of the principle of equality of all citizens before the law.
Justice Milcho Kostov has signed a dissenting convictions, which is enclosed with the case.
Chairman: Assen Manov