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CONSTITUTIONAL COURT

Summary of decision 02/02 of 28 March 2002

a) Bulgaria / b) Constitutional Court / c) / d) 28.03.2002 / e) 02/02 / f) / g) Darzaven vestnik (Official Gazette), 35, 05.04.2002 / h) .

Headnotes:

The proposal made by the Council of Ministers when diplomatic representatives and permanent representatives of the Republic of Bulgaria in international organisations and members of the high command of the armed forces are appointed or dismissed, and the proposal of the Judicial Service Commission in the appointment or dismissal of the president of the Supreme Court of Cassation, the president of the Supreme Administrative Court and the Principal State Prosecutor, is a preparatory act in the complex process of appointing and dismissing officials whose status is defined in the Constitution.

As a preparatory act the proposal cannot be subject to judicial control. The officials concerned are appointed and dismissed by decree of the President of the Republic and these decrees may be challenged only before the Constitutional Court.

Summary:

Proceedings were instituted by the Principal State Prosecutor in order to obtain a binding interpretation of the constitutional provisions concerning the power of the President of the Republic to appoint or dismiss from office:

1.at the proposal of the Council of Ministers, diplomatic representatives and permanent representatives of the Republic of Bulgaria in international organisations and members of the high command of the armed forces,

2.at the proposal of the Judicial Service Commission, the president of the Supreme Court of Cassation, the president of the Supreme Administrative Court and the Principal State Prosecutor.

The Constitutional Court was asked to clarify the legal nature of the proposal of the Council of Ministers or the Judicial Service Commission, in particular whether the proposal was an administrative act proper and whether it was subject to the judicial control of the Supreme Administrative Court once the President of the Republic had issued a decree subsequent to the proposal.

The Constitutional Court ruled that the proposal permitted the various constitutionally defined bodies to co-operate and that it was a preparatory act in the complex process of appointing and dismissing officials whose status is defined in the Constitution. The proposal does not qualify as an administrative act and is therefore not subject to judicial control. The officials concerned are appointed and dismissed by decree of the President of the Republic and these decrees may be challenged only before the Constitutional Court.

The particular importance of the public functions performed by the officials concerned necessitates the stability of the decrees by which they are appointed or dismissed, which must not be subject to the subsequent ruling of a court verifying the legality of the preparatory act (the proposal).