THE
DECISION No. 14
of
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
Section I
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).
Section II
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.
Section III
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
DECIDED:
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