Venice Commission adopted its opinion on the draft new Constitution of Bulgaria

The Council of Europe’s body of constitutional legal experts, the Venice Commission, said on November 23 that it adopted on November 20 its urgent interim opinion on the draft new Constitution of Bulgaria prepared upon the request of the President of the National Assembly of Bulgaria.

The opinion focuses on the reform of the judiciary and the prosecution service where the most important amendments were made.

The Venice Commission regrets that the launch of the constitutional reform was not preceded by an appropriate public debate, the Draft has been prepared within the parliamentary majority, seemingly without any external input, and the reasons for certain amendments were not well-explained, the press release says.

However, it is commendable that the Venice Commission has been involved in the constitutional reform process at such an early stage. As the reform continues, the Bulgarian authorities should elaborate on the reasons behind each proposal and ensure meaningful participation of the public, experts and all political forces in this process, the commissions added.

The amendments enhancing the protection of social and economic rights are either welcome or unobjectionable, but some clarifications are needed, in particular on the obligation of the State “to promote the birth rate”: it should not be used to justify discrimination of cultural or ethnic minorities or of women. A blanket restriction on the right to vote for convicts sentenced to imprisonment should be replaced by a more flexible rule, in line with the case law of the European Court, the commissions recommends.

As for the proposal of the Draft to reduce the number of MPs in the National Assembly from 240 to 120, this number seems to be chosen arbitrarily, without a thorough assessment of the impact of such move on the Bulgarian political system.

The Draft makes several steps in the right direction concerning the Bulgarian judiciary and the prosecution service. Most importantly, the plenary Supreme Council of Magistracy is abolished, which helps to implement the previous recommendations of the Venice Commission, and two independent councils are created, one for judges and one for prosecutors and investigators. This is a positive development.

As for the “prosecutorial monopoly” and the possibility of bringing the Prosecutor General to criminal liability, “it would be a missed opportunity if the current constitutional reform did not address this issue”, the Venice Commission says.

Following the 23 July 2020 judgment of the Bulgarian Constitutional Court, which is a welcome development, the Constitution should allow, in cases of potential conflict of interests, for the suspension of a Prosecutor General who is subject to criminal investigation or prosecution and for the creation of a mechanism of independent prosecution, not subordinated in any manner to the Prosecutor General, and for the judicial review of the decisions not to open investigations or not to prosecute.

The introduction of the right of individual complaint before the Constitutional Court and of the referral of the cases by ordinary courts to the Constitutional Court is welcome, as it strengthens individual rights.

Making the Constitution more easily amendable by removing the requirement to convoke the General National Assembly is, as such, not contrary to the European standards. However, such an important change should have a convincing explanation, should be subject to a very thorough public debate, and the existence of different procedures of amendment should be considered thoroughly, the statement reads.

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