Statistical data : 1 January - 31 August 1996

Number of decisions: 13

Important decisions

Identification: BUL-96-2-001
a) Bulgaria / b) Constitutional Court / с) / d) 09.02.1996 / e) 03/96 / f) / g) Darzhaven Vestnik (State Gazette), no. 14 of 16.02.1996/h).

Keywords of the systematic thesaurus:
General Principles - Legality.
Institutions - Public finances - Taxation - Principles.
Fundamental rights - Civil and political rights - Equality - Scope of application - Public burdens.
Fundamental rights-Civil and political rights-Rights in respect of taxation.

Keywords of the alphabetical index: Taxation, principle of lawfulness.

Headnotes:
Taxation and tax assessment is an exclusive power of Parliament and in no way can it be delegated to the Executive.

Summary:
Fifty-four Members of Parliament challenged the constitutionality of Article 13.2 of the Law on Local Taxes and Fees, claiming that the provision challenged allowed the Government to apply the rate used for buildings in the assessment of the taxes for buildings, yards and sites.
The Constitution of the Republic of Bulgaria provides that taxation and tax assessment is an exclusive power to Parliament and cannot be delegated to the Executive.
The Constitutional Court ruled that the provision in question contravened the Constitution.

Languages: Bulgarian.

Identification: BUL-96-2-002
a) Bulgaria /b) Constitutional Court/c)/d) 27.02.1996 /e) 04/96/f) /g) Darzhaven Vestnik (State Gazette), no. 21 of 12.03.1996/h).

Keywords of the systematic thesaurus:
Fundamental rights - Civil and political rights - Right to property.

Keywords of the alphabetical index:
Inheritance / Ownership transformation / Property seizure under communist regime.

Headnotes: The right to inheritance is a fundamental constitutional right which cannot be limited.

Summary:
The Chief Prosecutor of the Republic of Bulgaria challenged the constitutionality of the provision of Article 90a of the Inheritance Act, specifically the text invalidating a will written after joining a co-operative farm or other related entity pooling the property of members of a co-operative the property of which is liable to restitution under the Law on Agricultural Land Ownership and Use.
Right to inheritance is a fundamental constitutional right. The real content of property as of the day of making a will is irrelevant.
The Constitutional Court ruled that the provision of Article 90a of the Inheritance Act contravened the Constitution.

Languages: Bulgarian.

Identification: BUL-96-2-003
a) Bulgaria / b) Constitutional Court / с) / d) 18.04.1996 / e) 06/96 / f) / g) Darzhaven Vestnik (State Gazette), no. 40 of 10.05.1996/h).

Keywords of the systematic thesaurus:
Fundamental rights - Civil and political rights - Right to property - Other limitations.

Keywords of the alphabetical index: Property, control and use / Property rights, inviolability.

Headnotes:
The right to property is a fundamental constitutional right of Bulgarian citizens regardless of their residence. The Administration cannot intervene in civil proceedings to dictate the terms of a transaction.

Summary:
Fifty-one Members of Parliament challenged the constitutionality of Articles 5 and 23 of the Law on Foreign Exchange Transactions and Foreign Exchange Control. These texts qualify Bulgarian citizens to be foreign nationals depending on their residence, and compel them to approach the Ministry of Finance for a license before they transact.
The right to property is a fundamental constitutional right of Bulgarian citizens regardless of their location. The Administration, in the person of the Ministry of Finance, cannot intervene in civil proceedings and dictate the terms of a transaction. Such a move is tantamount to encroachment on the rights of the citizen and in principle limits their scope.
The Constitutional Court ruled that the above-quoted texts of the Law on Foreign Exchange Transactions and Foreign Exchange Control contravened the Constitution.

Languages: Bulgarian.

Identification: BUL-96-2-004
a) Bulgaria / b) Constitutional Court / c) / d) 04.06.1996 / e) 07/96 / f) / g) Darzhaven Vestnik (State Gazette), no. 55 of 28.06.1996/h).

Keywords of the systematic thesaurus:
Fundamental rights - General questions - Limits and restrictions.
Fundamental rights - Civil and political rights – Freedom of opinion.
Fundamental rights - Civil and political rights – Freedom of expression.
Fundamental rights - Civil and political rights – Rights in respect of the audiovisual media and other means of mass communication.
Fundamental rights - Civil and political rights – Right to information.

Keywords of the alphabetical index: Media law, formal constitutionality.

Headnotes:
Freedom of opinion, freedom of expression and dissemination and the right to seek, obtain and disseminate information are fundamental human rights. Restrictions on these rights fall within the powers of the judiciary and have to comply with the Constitution.

Summary:
The President of the Republic of Bulgaria asked for a binding interpretation of the provisions of Articles 39, 40 and 41 of the Constitution of the Republic of Bulgaria. The three provisions of the Constitution cover one and the same range: freedom to express and publicise opinions; the right to seek, obtain and disseminate information; and the definition of the restrictions on these rights as laid down in the Constitution.
   1. The provisions of Articles 39, 40 and 41 of the Constitution of the Republic of Bulgaria provide that the freedom to express and publicise opinions and the right to seek, obtain and disseminate information shall be fundamental human rights.
These provisions defend the right to free expression and the dignity of the individual as an equal participant in the social community. In addition, they guarantee that everyone be informed about reality and that the public be informed about the conditions of life and development in conformity with public opinion formed as a result of the free exchange of views.
These functions of the rights define them as essential for individual and public development. They underpin the democratic process, and more particularly the democratic manner of institutionalisation of the bodies that the Constitution provides for and the control on their functions.
The proclamation of these rights in the Constitution and their full exercise is related to a number of other fundamental human rights like the dignity of the individual, freedom of thought and freedom of conscience and political pluralism.
   2. Together the three provisions defend various aspects of the right to freely express and publicise opinions and to seek, obtain and disseminate information. The three provisions are systematically and functionally related/
In addition to the fundamental right of every individual to freely express and publicise opinions, the Constitution lays down the principle that the press and other mass media shall be free. Censorship is explicitly prohibited.
The right of any physical person or legal entity to seek, obtain and disseminate information defends both the interest of the individual and the interest of the public to be informed. It covers the press and any other media. On the other hand, the Constitution guarantees that citizens should have access to information from State bodies or agencies on any matter of legitimate interest to them.
   3. The rights spelled out in Articles 39, 40 and 41 of the Constitution oblige the Government to refrain from interference when these rights are exercised.
Restrictions on these rights are permissible only if other rights and interests laid down in the Constitution are to be defended constitutionally. These shall not be restricted by a law on grounds other than those described in the Constitution.
When such restrictions are imposed, the legislature, the executive and the judiciary shall take into account the high public importance of the right to express opinions, the freedom of the media and the right to information, which require that any restrictions (exceptions) to which these rights are subjected be applied restrictively and only to defend competing interests.
Among these grounds, the possibility of protecting the rights and reputation of another person is the greatest, as in this way the honour, dignity and reputation of the individual are defended. This constitutional restriction is not to be interpreted to the effect that public criticism, particularly of politicians, civil servants and government institutions, is not allowed.
The restriction of statements instigating hostility is based on the values laid down in the Constitution:
tolerance, mutual respect, and the prohibition of incitement to hatred on racial, national, ethnic or religious basis. That restriction does not deny a defence to the diversity of opposite opinions. The very nature of the right to freely express and publicise opinions is based on the value attached to the competition of ideas and the opposition of differing viewpoints.
   4. Along with the right to freely express and disseminate opinions in various ways, the Constitution proclaims freedom of the press and other media and prohibits censorship.
The categorical prohibition of censorship expresses the principle which rejects any interference in the activities of media by government institutions, whether by resorting to official institutionalisation of the instrument of interference or in informal ways.
For legal and technical reasons it is admissible to regulate by law organisational, structural and financial aspects of the activities of electronic media. The Transitional and Concluding Provisions of the Constitution expressly provide for the passage of such legislation in respect of National Radio and Television. Such legislation should guarantee the independence of these media in terms of organisation, structure, staff, programming and finance. The maintenance of the national electronic media as independent institutions requires the institution of corresponding governing and/or supervising bodies in a way which will frustrate attempts at undue interference by government institutions, political factors or other stakeholders in a private capacity. Such interference by government institutions would constitute censorship. The guarantee of the right of the public to obtain full, pluralist, balanced and precise information is found in the independence of operational management, editorial independence and responsibility vis-a-vis programme schemes and programme content, the free selection of staff and the mechanisms of funding. The right of the individual and the public to obtain full, pluralist, balanced and precise information determines the limits of legislative competence which Parliament possesses and must exercise within the limits of the Constitution in order to enable the media to perform their functions.
The legislative competence of Parliament includes also the passing of laws to establish the procedure of licensing non-governmental electronic media in compliance with the principle in Article 40.1 of the Constitution, as well as the application of constitutional restrictions while at the same time ensuring transparency and fairness of procedures.
Measures falling within the scope of competence of the judiciary and in the conditions spelled out in the Constitution are the only permissible instruments of direct interference in the activities of the media. In the first place these are motives associated with safeguarding decorum, which is understood as a criterion of public decency established to shield the public. The interest of maintaining the moral integrity of society is a guiding principle.
The right to seek and obtain information covers the obligation of government institutions to ensure access to information of public significance. The content of this obligation is subject to definition by the legislature. It includes the obligation of government institutions to release official information and to ensure access to sources of information. The legislature is called upon to name the government institutions that can have free air time in the National Television and Radio, and to say when and how much time is allocated, while taking account of their prerogatives and the principle of the separation of powers, of the freedom of the media and of the right to obtain and disseminate information.
That right is granted to all, the media included. Its restriction requires that the legislature defines the relevant circumstances of national security or of public order.
This holds true of the grounds on which citizens may be refused information by government institutions or offices. The right established by these regulations is personal, being connected to a citizen's legitimate interests, and it may be restricted on the grounds that such information constitutes a State secret or other secret for which the law provides non-disclosure.

Languages: Bulgarian.

Identification: BUL-96-2-005
a) Bulgaria / b) Constitutional Court / с) / d) 23.07.1996 / e) 12/96 / f) / g) Darzhaven Vestnik (State Gazette), no. 67 of 06.08.1996/h).

Keywords of the systematic thesaurus:
Institutions - Head of State - Status.
Institutions - Head of State - Appointment.

Keywords of the alphabetical index: Elections/Presidential candidates, citizenship, require-ments.

Headnotes:
A natural-born Bulgarian citizen who is running for President of the Republic of Bulgaria in the sense of the Constitution can only be a person who acquired Bulgarian citizenship by origin or place of birth as of the date of birth under the Bulgarian law then in force.

Summary:
Fifty-four Members of Parliament asked for a binding interpretation of the provision of Article 93.2 of the Constitution of the Republic of Bulgaria as it bore upon the question "when is a person a natural-born Bulgarian citizen and on the basis of which law shall it be judged". The request emphasised the fact that, in view of the forthcoming presidential elections, there had to be complete clarity regarding the requirements that the Constitution poses to presidential candidates.
The Constitutional Court discussed the arguments and views of the parties concerned that had approached it, and ruled as follows:
Article 93.2 of the Constitution defines the circumstances under which a person shall be eligible to be the President of the Republic. The requirements are that he or she shall be a natural-born Bulgarian citizen over 40 years of age and qualified to be elected in the National Assembly, who has resided in the country for five years preceding the election.
Bulgarian citizenship by birth in the sense of the Constitution shall be acquired on the basis of birth and ex lege and not by virtue of a legal act. Acquisition of citizenship by birth is primary and is not preceded by any other citizenship.
Citizenship by birth is acquired once in a person's life, and that moment is clearly defined: the date of birth. A statutory act following a person's birth cannot deprive the person of a citizenship that has already been acquired on birth. It may happen after birth, and after the acquisition of citizenship on birth, that a person acquires new citizenship. However, this cannot be citizenship by birth. Citizenship by birth is determined by the fact of birth and by the law in force as of that date, which is what the Bulgarian legislation has always been.
The Constitutional Court did not share the concept expressed in some of the views, viz. that the discussion of the applicable law in the definition of the notion "natural-born Bulgarian citizen" is outside the prerogatives of the Court. The Court rulings concerning the applicable law are indissolubly related to the judgment as to who is a natural-born Bulgarian citizen in the sense of the Constitution.
The Constitutional Court presumed that a person acquires Bulgarian citizenship on birth if and when the provisions of the national law in force then defined him as a natural-born Bulgarian citizen.

Languages: Bulgarian.