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DECISION № 4

Sofia, 4 May 2011
on Constitutional Case № 4/2011
Rapporteur: Justice Emilia Drumeva
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Paragraph 18 Election Code
The challenged amendments are incorporated into the Election Code Concluding Provisions and affect the Act on the Administrative Territorial Structure of the Republic of Bulgaria (AATSRB). The are spelled out in three items.
Item 1. The constitutionality is challenged of the amendment that concerns a legal requirement for establishing a mayoralty: available population of over 350 people in the settlements forming the mayoralty versus 150 prior to the amendment. The unconstitutionality is proved by the discriminatory nature of the challenged provision which is to the disadvantage of people in small settlements and thus constitutes an infringement on the principle of equality before the law (Art. 6, para 2 of the Constitution) and in fact leads to the appointment of the mayors of such mayoralties by the majority in the municipal council’s political configuration and thus constitutes an infringement on the principle of political pluralism and on the postulation that no political party shall be proclaimed or affirmed as a party of the State (Art. 11, paras 1 and 2 of the Constitution). The challenge is supported by the Supreme Bar Council and by the Union of Bulgarian Jurists. The remaining parties plead it to be unsustainable.
The challenge is unsustainable.
The requirement in item 2 of the AATSRB Art. 16. was subject to several amendments: initially (1995) it was “over 100 people”; in 1999 it was “over 500 people”, in 2007 it became “over 150 people”, in 2011 – „over 350 people”. In its Decision № 12/1999 on Constitutional Case №12/1999 the Constitutional Court ruled on the change of requirements to establish a mayoralty – “over 100 people” became “over 500 people”, divesting in this way the people in such settlements of the right to elect a mayor – and drew the conclusion that the amendment was not unconstitutional or discordant with the European Charter of Local Self-Government. The arguments were: the Constitution does not specifically provide for a mayoralty as a territorial unit of local government whereas it provides explicitly for the municipality (Art. 136, para 1). The requirements to establish a mayoralty are subject to a law and amending laws and this does not infringe on the right to self-government.
 
The Constitutional Court judged that even given the now challenged amendment to the AATSRB made by the Election Code, the consolidation of mayoralties by a law is not in contravention of the Constitution. Alongside, the Court stresses that the challenged paragraph 18, item 1 of the Election Code decreases the opportunity to elect directly local governments by popular vote, i.e. the democratic legitimacy of local government is weakened.
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Item 8. A new Art. 39а, whose paragraph 1, sentence one reads thus was established in the Act on Local Self-Government and Local Administration: „The mayors of the boroughs in the  Municipality of Sofia and in cities divided into boroughs shall be elected by a secret ballot by the municipal council and nominated by the mayor of the municipality with a term expiring when that of the municipal council expires.” Paragraph 1, sentence 2 of Art. 39a subjects the nominated borough mayors to the requirements for eligibility of the nominees for municipal councilors and mayors (Art. 4, para 5 of the Election Code). The challenged paragraphs 2 – 6 of Art. 39а give a description of the procedure. Paragraph 7 contains the rule that the borough mayor shall be sworn in in the presence of the municipal council at the session at which he or she was elected. The amendment was introduced by a mover and the explanatory memorandum red that the borough mayors shall not pursue a policy that diverges from that of the municipal mayor and that the borough mayors are part of the municipal mayor’s team in government.
The removal of direct ballot for borough mayors was challenged as unconstitutional as it divested over 1 million citizens of the right to vote directly.
The challenge was found to be unsustainable.
The Constitutional Court has already ruled on the removal of the direct ballot for borough mayors and on making their election subject to a vote by the municipal council following their nomination by the municipal mayor for a term expiring when that of the municipal council expires (Decision № 12/1999 on Constitutional Case № 12/1999) and did not find it unconstitutional. In this Constitutional Case the challenged Art. 39а, para 1 of the existing Act on Local Self-Government and Local Administration is close to the provision that was challenged in 1999; the difference is the words “by secret ballot”. However, the Court found other differences in addition to the added words: in 1999 an amendment to the ALSGLA coupled the abolition of direct election of borough mayors with the abolition of borough councils of bodies of local self-government in the municipality; since then the legislation has not provided again for borough councils as bodies of such constituent administrative territorial units – the boroughs. Therefore, the amendments in the legislation in 1999 and in 2011 were made in a different legal and political context.
The Constitution does not provide for a borough mayor and a borough as an administrative territorial unit. The borough is a constituent administrative territorial unit within a municipality, i.e. it is a municipal authority. Regarding the municipal mayor, the Constitution reads that alternatively he shall be elected directly by the popular or the municipal council in a manner established by law (Art. 139, para 1). The Constitutional Court did not find this text concerning the election of borough mayor by the municipal council to be unconstitutional; Art. 39a, para 1 of the ALSGLA covers the second hypothesis of Art. 139, para 1 of the Constitution. The Constitutional Court did not find the procedure described in the remaining paragraphes of Art. 39a of the ALSGLA to be unconstitutional either. Alongside, the Court insist that the challenged § 19, item 8 of the Election Code is a retreat from the process of decentralization of local authorities and weakens the democratic legitimacy of the municipal authorities.
The Court did not find the remaining challenged texts of § 19, item 8 of the Election Code to be unconstitutional either.
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DECIDED:
I. The following texts are in contravention of the Constitution and noncompliant with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Charter of Local Self-Government:
1. Art. 1, para 1 in the part “Members of Parliament, the President and the Vice President of the Republic”;
2. Art. 3, paras 4 and 5, Art. 4, paras 5 and 6, and § 1, items 4 and 5 in the part providing for the duration of residence – the figure „12”;
3. Art. 4, paras 3 and 4, and § 1, item 3 in the part providing for the duration of residence “two years”;
4. Paragraph 1, item 3 in the part providing for the duration of residence „one year and four months”;
5. Art.  25, para 1, item 6;
6. Art. 79, para 2, item 1, litteras “ a” and “b” in the part regarding the words „two percent”;
7. Paragraph 11;
8. Paragraph 16;
9. Paragraph 19, item 2, item 4, item 7 of the Election Code (DV, No 9/2011).
ІІ. To dismiss the challenge of the 53 Members of the 41st National Assembly of the compliance with the Constitution and with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Charter of Local Self-Government vis-à-vis:
1. Art. 1 falling outside the part “Members of Parliament, the President and the Vice President of the Republic”;
2. Art. 3, paras 2 and 3;
3. Art. 3, paras 4 and 5 in the part falling outside the figure „12”;
4. Art. 4, paras 3, 4, 5 and 6 in the part falling outside the figure „12”, the phrase “two years” and the phrase “one year and four months”;
5. Art. 23, para 2;
6. Art. 26, para 1, item 3 and item 27, and para 8;
7. Art. 44, para 2;
8. Art. 74, para 4, items 1 and 2;
9. Art. 166, paras 5 and 6;
10. Art. 78;
11. Art. 79, except for the phrase “two percent”;
12. Art. 264, para 1;
13. Paragraph 1, items 1 – 5 in the part falling outside the figure „12”, the phrase “two years” and the phrase “one year and four months”;
14. Paragraph 18;
15. Paragraph 19, item 1, item 3, item 5, item 6, item 8, items 9 – 11 of the Election Code (DV, No 9/2011).
ІІІ. To dismiss the challenge of the 53 Members of the 41st National Assembly regarding § 1, items 6 – 20 of the Election Code (DV, No 9/2011 г.).
Justices Emilia Drumeva, Vladislav Slavov, Blagovest Punev and Tzanka Tzankova made their signature of the decision subject to a dissenting opinion vi-a-vis Art. 1 of the Election Code.