DEVELOPMENT OF STATE LAW IN BULGARIA
Author: Yaroslav Radev
Editor's Note: We are going to concentrate this report on personalities rather than events. The history of the bulgarian law — mainly, treating some customary habits and proverbs — during the feudal state and partly in the ottoman domination, has been written in some early monographs by N. Blagoev, S. S. Bobchev and in most recent times by M. Andreev. These books have been using predominantly russian sources and will be object of discussion to some other presentation. The bulgarian law in the modern bourgeois state was predominantly developed in two directions. Firstly, there come the works of the ruling conservative, nationalist professors tightly pegged to the monarchic institution — i.e., L. Vladikin, P. Genov, L. Dikov, V. Ganev, etc; they persisted until the socialist revolution and then fled abroad or perished from the People's Court. Secondly, there come the group of liberal, democratic authors with republican perceptions — i.e., S. Demostenov, P. Venedikov, P. Stoyanov, etc.; those have been collaborating for some time with the apparatus of the new socialist state but were ultimately relinquished from university positions and ended their careers in neglect. Thirdly, here is the most numerous group which fully collaborated with the Communist Constitution (1947) and were totally integrated within the work of the Bulgarian Communist Party; author and editor Y. Radev has compiled the following work with a collegiums of some twenty people. There is a wide gap between the compilation work of bulgarian jurists before 1989 and the "acquis communautaire" with the EU later on, ditto.
The process of formation of the contemporary legal system of Bulgaria starts with the liberation of the country from Ottoman political domination in 1878. It is marked by the adoption of the first Bulgarian constitution — the Tarnovo Constitution signed on 16 April 1879, a founding document upholding the most progressive and democratic principles dominating in Europe in the nineteenth century.
The modern Bulgarian legal system is influenced by two very important factors: the democratization and liberalization of the country's economy, which started after the fall of the Communist regime in 1989, on the one hand, and the integration of Bulgaria into the EU, on the other. In recent years Bulgarian legal system evolved through a profound and strictly-monitored alteration in order to achieve coherence with the "acquis communautaire". The country is a member state of the EU as from January 1, 2007. After the accession of the country, the common EU legislation became an integral part of Bulgaria's legal system.
2. Sources of Law
A typical representative of the Romano - Germanic legal family, the Bulgarian legal system recognizes the Acts of Parliament as a main source of law. The Bulgarian jurisprudence does not regard the judicial precedent as a source of law. Nevertheless, apart from the direct sources, the legal doctrine also refers to the so called indirect sources (or "subsidiary" sources) of law such as: — case law (the practice of the courts), the legal doctrine, the legal customs, moral rules, and equity ("justice"). In addition, two types of decisions of the Constitutional Court are clearly a source of law (but they cannot be regarded as case law). In terms of direct sources of law, which include also "acquis communautaire", Bulgarian legal system is based on a strictly defined hierarchy of the sources of law as follows below:
2.1. EU Law
EU Law is a separate and independent legal order which constantly interacts with the national legislations of the member states. Some authors even consider it as unique system of legal norms, since it possesses some specific features which characterize EU Law as supranational legal order. The main characteristics of EU Law are the following: a) its supremacy over the internal legal provisions of the legislation of the member states (including their Constitutional provisions) which contradict it; b) its direct effect, e. g. EU Law directly embeds legal rights and liabilities for its addressees and therefore the national parliaments of the EU countries do not have to go through legal procedure for ratification of EU laws. In view of the above, it should be stated herein that EU Law has paramount importance in terms of depicting the hierarchy of the sources of Bulgarian law.
2.2. The Constitution
The Bulgarian Constitution, effective as from July 12, 1991, is supreme internal legislative act. The Constitution provides for the basic rights of the citizens as well as it stipulates the form of the state government and structure, functions and collaboration between the branches of government, etc. The Constitution was built on the basis of the principles of contemporary constitutionalism such as: national sovereignty; representative democracy, separation of powers; political pluralism; supremacy of the law; free economy; equality among the people, priority of the individual, non-discrimination etc.
Amendments to the Constitution may be adopted through a majority of three quarters of the National Assembly (the single-chamber Parliament); some of the major constitutional provisions may only be amended by a Grand National Assembly. The Constitution has been amended four times so far, never by a Grand National Assembly.
2.3. Decisions of the Constitutional Court
According to art. 149, para. 1, p. 1 of the Constitution: "The Constitutional Court gives compulsory interpretations of the Constitution". Among other powers, the Constitutional Court is also entitled to declare provisions contained in an Act of Parliament anti-constitutional. Those two types of decisions of the Constitutional Court are a very important source of law in Bulgarian legal system.
2.4. International treaties
According to art. 5, para. 4 of the Constitution: "International treaties, ratified in compliance with the constitutional procedure, published and entered into force for the Republic of Bulgaria are part of the domestic law of the country and have supremacy over those provisions of the domestic law which contradict them". This rule has been applied consistently by Bulgarian courts. With respect to the above, it should be noted, however, that EU has the legal capacity to be a party to international treaties with third countries and international organizations. These international treaties are an important part of the EU legal order and therefore their provisions are binding for the member states as well as for the private persons therein.
2.5. Acts of Parliament and codifications
The main sources of law, apart from the EU laws are the Acts of Parliament. The Statutes and Statutory Instruments Act (SIA) and Decree #883 on its implementation, a somewhat unique Bulgarian laws, regulate the structure, preparation, promulgation and implementation of Acts of Parliament and of statutory instruments, as well as the interpretation, abrogation, correction of factual mistakes, and the application of legal provisions by way of "analogia legis" and "analogia juris". Legislative initiative is vested in any Member of Parliament, as well as in the Council of Ministers. Annual budgets bills can be drafted only by the Council of Ministers.
Some major branches of the legal system are codified, even though codes (enacted by the Parliament) have no higher standing than but are equal with the Acts of Parliament. The codes having the ranking of an Act of Parliament currently in force in Bulgaria are:
— the new Administrative Procedure Code 2006 (dealing with the procedures for the issuance and appeal of administrative acts and, among others, for the procedures for indemnification of private parties who have suffered damages from administrative instruments, acts or omission to act);
— the brand new Civil Procedure Code (hereinafter referred to as CPC), effective as from March 1, 2008 (dealing with all civil proceedings in court, with enforcement of judgments, with injunctions, among others; it also contains the law on evidence in civil matters). The main advantages and purposes of the new procedural statute are to improve, facilitate and speed up the work of the judges, bailiffs and other public officers and bodies involved in civil proceedings. Another major objective of the legislator is the adoption of new specific procedures for resolution of commercial and class actions, as well as improvement of the rules on summoning and notifying of the parties by means of electronic addresses and electronic documents;
— the Tax and Social Insurance Procedure Code 2005 (dealing with procedures for the issue of tax assessments and social security levies assessments, their appeal and enforcement, among others);
— the Insurance Code 2005 (codifying all matters relevant to the taking up and pursuit of the business of insurance and reinsurance, including in the EU context);
— the Social Insurance Code 1999 as amended many times (regulating the so called three tiers of social insurance: obligatory state-run; obligatory private-run; and optional private-run; also regulating the matters relevant to the taking up and pursuit of the business of a pension insurance fund and a fund manager);
— the International Private Law Code 2005 (a codification of most of the conflicts of law rules in Bulgarian civil and business law);
— the Labor Code 1986 as amended many times (the paramount piece of legislation concerning employment law);
— the Maritime Code 1970 as amended many times (dealing with the bulk of matters in maritime law, including contracts, vessel registrations, flags);
— the Criminal Code 1968 as amended many times (dealing exclusively with all matters falling within substantive criminal law);
— the new Criminal Procedure Code 2006 (dealing exclusively with all mattes falling within criminal procedure law, including the law of evidence);
— the Family Code 1985 as amended several times (dealing exclusively with all legal aspects of civil marriage, divorce, origin, lineage, among others, but not inheritance).
2.6. Delegated legislation
The Constitution provides for and a number of Acts of Parliament delegate to the Council of Ministers, the Ministers separately, to other public bodies and/or officers the issuance of decrees, regulations, ordinances and instructions and thus the detailed regulation of specific areas of economic or social activity.
If such subordinate statutory instruments contravene an Act of Parliament or the Constitution they can be appealed before (and possibly revoked by) the Supreme Administrative Court (refer below).
2.7. The Practice of the Courts
The judgments issued by Bulgarian courts in individual proceedings have no universal applicability, i.e. they are binding on the parties involved. Thus court judgments are not case law. Needless to say, even individual court judgments may have very significant practical value and are thus often of interest to practitioners and are cited in other legal proceedings. They remain, however, even in identical factual settings only arguments in another, independent trial and hence they are at most a secondary source of law.
At the same time, three types of court decisions have a meaning, legal strength, and practical value very similar to that of a law. Firstly, those judgments of the Supreme Administrative Court (SAC) by which it abrogates statutory instruments which contradict an Act of Parliament or the Constitution. Secondly, each of the Civil, Commercial or Criminal Colleges (each consisting of the justices belonging to the respective College) of the Supreme Court of Cassation (SCC) can issue Interpretative Decision, which are binding on other courts and on the executive branch of the government. Such are issued where the respective college finds that an interpretation of an Act of Parliament or of a statutory instrument is needed (because of the lower courts issuing flawed judgments by misinterpreting such Acts or instruments, or because of dissenting judgments of different courts on similar cases). Thirdly and similarly, the justices in the Supreme Administrative Court can issue Interpretative Decrees, which are binding on the Judiciary and the Executive Branch of the Government (including the local authorities) as well as on all public bodies which are entrusted with the right to make delegated legislation (e.g. the Central Bank). The latter two classes of decrees are dealt with in the Judicature Act 2007 and the Administrative Procedure Code (APC) and are traditional for the Bulgarian legal system.
2.8. The legal custom
This is a subsidiary source of law the main characteristics of which are: a continuous implementation by many persons and its "opinion necessitatis" i.e. the common understanding of its binding force. It is not uncommon in business relations.
2.9. Moral principles and equity
The legal doctrine regards morality and equity as subsidiary sources of law, which are applicable in case of normative gaps.
3.1. The legislative branch
According to art. 1, para. 1 of the Constitution, Bulgaria is a parliamentary republic, with the legislative branch taking supremacy. The National Assembly exercises the legislative power as well as the right to parliamentary control. A very important prerogative of the Parliament is to elect the Prime-Minister and its cabinet. The mandate of the National Assembly is four years and it consists of 240 directly elected members.
A Grand National Assembly consists of 400 directly elected members. The Grand National Assembly is exclusively entitled to exercise the following powers: to adopt a new Constitution; to resolve on the matter concerning a change of the territory of the Republic of Bulgaria, and to ratify any international treaties providing for any such changes; to resolve on the matters concerning changes in the form of state governance (parliamentary republic) the structure of State (unitary state and not a federal state); and to amend and supplement certain other major constitutional provisions.
3.2. The executive branch
3.2.1. The Council of Ministers
The Council of Ministers or the Government, is the main body of the executive power, headed by the Prime-Minister. The Government conducts the internal and foreign policy of the State, secures public order and cares for the national security, exercises control over the public administration and the military forces and has legislative initiative.
The Prime-Mister is typically nominated by the largest parliamentary group, after which the President hands him a mandate for formation of cabinet.
The Government consists of Ministers who would normally be in charge of a Ministry. The number and names of Ministries change over time, sometimes even within the mandate of a single National Assembly. Ministries take charge of the respective sectors of economic or social life.
3.2.2. The President
The president is the Head of the State and is directly elected by popular vote for a term of five years. He can hold no more than two consecutive terms of office. The President is entrusted primarily with representative functions, but also with some important executive prerogatives such as: to veto Acts of Parliament, to conclude some of the international treaties specified by law; to afford asylum; to exercise the right of pardon etc. (see also art. 98 of the Constitution). A Vice-President, elected with the President normally assist with specific matters, e.g. the granting of Bulgarian citizenship.
3.3. The judicial branch
The Bulgarian Judiciary is independent of the other branches of government (art. 117, para. 2 of the Constitution).
The Judiciary is composed of three separate systems of law-enforcing or law-protecting authorities: the system of the courts; the system of the public prosecution and the system of the investigation offices (preliminary investigation).
The Supreme Judicial Council is the administrative body running the Judiciary. It is composed of 25 members, lawyers of high repute, of whom 11 are elected within the Judiciary, 11 by the National Assembly, and three are members by law: these are the presidents of SCC, of SAC and the Chief Prosecutor. According to art. 129, para. 1 of the Constitution: "Judges, public prosecutors and investigating magistrates are appointed, promoted, reduced in rank, moved and discharged from office by the Supreme Judicial Council."
3.3.1. The courts
As a matter of principle the legal procedure in Bulgaria is a three-instance one, although there are many exceptions to this rule. The system of the courts is decentralized, i.e. courts of various ranks are distributed throughout the country. Only SCC and SAC are based in the capital city, Sofia.
3.3.2. The public prosecution
The structure of the Public Prosecution follows that of the courts. Public prosecutors act for the State in criminal cases and defend the public interest in many administrative and civil cases.
3.3.3. The investigation offices
Preliminary investigation magistrates carry out preliminary investigation proceedings in the criminal cases. In that they cooperate with the Police (which are organized under the Ministry of the Interior) and other specialized agencies.
3.4. The Constitutional Court
Among others, the Constitutional Court determines if laws and international agreements (before their ratification) are in compliance with the Constitution. The Constitutional Court consists of 12 judges. One-third of the constitutional judges are elected by the National Assembly, one-third are appointed by the President, and one-third are elected at a general meeting of the justices of the SCC and of the SAC. The Constitutional Court may be approached at the initiative of at least one-fifth of the members of the National Assembly, of the President, of the Council of Ministers, of the Supreme Court of Cassation, of the Supreme Administrative Court, of the Prosecutor General and of the Ombudsman.
4. Some other institutions
4.1. The Ombudsman
The Ombudsman Act 2003 created the institution of the Ombudsman which is new for the Bulgarian legal system. This Act contains the rules on his powers and duties. Interestingly, the third amendment of the Constitution (promulgated in the State Gazette № 27 / 31.03.2006) introduced this new office in the main law of the land only "after the fact", i.e. in 2006. . The Ombudsman may intervene by the means, envisaged by law, when citizens' rights and freedoms have been violated by actions or omissions of the State and municipal authorities as well as by public officers.
4.2. The State Gazette
The State Gazette is the official publication of The National Assembly of the Republic of Bulgaria. According to the State Gazette Act its content is divided into official section and non-official section. All acts of Parliament, statutory instruments, international treaties, decisions of the Constitutional Court, and those of SAC which proclaim subordinate legislation incompatible with an Act of Parliament, are published in the official section. The non-official section contains some of the individual administrative acts of ministers and heads of central and local government bodies (where publication is required by law); some notifications and announcements of ministries, other departments, academies, higher schools and research institutes, municipalities; court subpoenas (in specific case); some court decisions; invitations to corporate general meeting, among other officially required notifications.
4.3. The Bulgarian National Bank (BNB)
Bulgaria's Central Bank, BNB, is one of the oldest such institutions in Europe, it was established in 1879. BNB has important regulatory, monetary and supervisory powers (above all, over banks as credit institutions). BNB is managed by a Board of Governors, with a Governor ant three Deputy Governors, elected by the National Assembly, and three other Governors, appointed by the President. After election/appointment the governors become independent from the National Assembly/The President and may be released from office only on objective grounds.
4.4. The Financial Supervision Commission
The Commission is a specialized government body for regulation and supervision of the financial services sector other than the banking sector (securities firms, issuers, insurance companies, pensions insurance companies and others). The Commission consists of seven members, all elected by the National Assembly, including a Chairman and three Deputy Chairmen. Similarly to BNB's governors, the members of the Commission become independent from the National Assembly after their election.
4.5. The Commission on Protection of Competition (CPC)
CPC is the specialized State authority overseeing business entities with a view to ensuring fair competition practices and to pursuing anti-competitive practices. It consists of seven members, including a Chairman, two Deputy Chairmen and four other members, all elected by Parliament. Similarly to BNB's governors, the members of the Commission become independent from the National Assembly after their election. CPC authorizes state aid granting. As of 1 July 2006 the commission will hear appeals against decisions, acts and omissions in reference with public procurements and concessions.
4.6. The Bar
The Bulgarian legal system regards the Bar as an important institution which is entitled to protect the rights and the interests of the persons of law. Therefore the Constitution and the Bar Act 2004 proclaim that the Bar is a free, independent and self-regulating body.
4.7. The Bulgarian Notary Chamber
The Notary Chamber in Bulgaria is a non-government organization which aims to organize and to improve the activities of the notaries public in Bulgaria.
4.8. The Court of Arbitration with the Bulgarian Chamber of Commerce and Industry
The Court of Arbitration with the Bulgarian Chamber of Commerce and Industry-BCCI is a 109-year old well-regarded institution for out-of-court dispute resolution providing arbitration and, lately, other alternative dispute resolution services.
5. Bulgarian law schools
There are ten law schools in Bulgaria. The course of studies continues for five years and the successful graduates obtain an L.M. degree.
6. Bulgarian legal publishers and legal magazines
There are several major Bulgarian legal periodicals. Access to information is limited but annotations can be obtained.
7. Legal treatises
The legal treatises of prominent Bulgarian legal theorists and/or practitioners are published in the specialized legal journals, magazines and digests mentioned above. Some major legal researches and works on current issues concerning the Bulgarian jurisprudence are published as legal manuals for students and practicing jurists.
Practicing lawyers also use one out of several specialized legal software programs containing restated laws, regulations, case law, references to legal treatises, etc.
Pictures 1 & 2: Sample illustrations on the text.
(i). This is how the precincts of the old place where the State Courthouse is localized looked at the beginning of the XX century.
(ii). Photograph on the corner of the streets Positano and Lege imaging the new building of the Court taken sometime in 1920s.
Copyright © 2008 by the author.