Conclusion
The Constitutional Court must be a key safeguard for the rule of law and democracy, for the supremacy of the Constitution, respect for international treaties and EU law, and the separation of powers between state institutions.
Its activity is crucial for the existence of a feasible system of rule of law, separation of powers and democracy. The Constitutional Court must be a predictable protagonist of human rights. When performing in an activist or counter-majoritarian way, this should be done with due respect for the principles of transparency, proportionality and balancing of human rights.The Bulgarian Constitutional Court has been rather activist in the sphere of emergency situations. It has extensively and further developed the constitutional model for distribution of competences in the sphere of national defence and emergency situations. Thus, the Constitutional Court has largely intervened in and engaged with constitutional emergency politics and has contributed to the shaping of emergency constitutionalism and the ‘military constitution’ in Bulgaria.
The case law of the Bulgarian Constitutional Court has favoured the executive branch of power. It has shifted core competences in the sphere of emergency and military constitution towards the government and to the detriment of the Parliament. In some of the cases this has been justified with pragmatic reasons related to improving the efficiency of policy-making in national defence. In other cases, the case law of the Court has led to paradoxical results which overtly contradict the explicit will of the constitutional legislator.
The recent Decision No. 10 of 2020 of the Constitutional Court is especially problematic. It has legitimised an unconstitutional new form of emergency - the ‘extraordinary epidemic situation’ - introduced by the Parliament in a ‘rush and hush’ manner during the 2020 Covid-19 pandemic. This decision allows for an unconstitutional shift of power from the National Assembly to the executive power institutions and even to unaccountable and non-elected experts, which contravenes the model of separation of powers. Especially problematic is the fact that such a shift concerns the already sensitive sphere of extraordinary situations. Moreover, Decision No. 10 of 2020 of the Constitutional Court justifies the legislative invention of the ‘extraordinary epidemic situation’, which contains no safeguards for proportionality, balancing and predictability in the restriction of constitutionally enshrined rights, thus violating not only the principles of democracy and separation of powers but also the rule of law. In that regard, Decision No. 10 of 2020 of the Constitutional Court is a clear example of the danger of judicial activism.
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