The legal shapes of war, state of siege and state of emergency in the Bulgarian Constitution and legislation

2.1 War, state of siege and state of emergency in the Bulgarian Constitution

The Bulgarian Constitution provides for special constitutional regimes of emer­gency situations. It outlines three such regimes, namely war, state of siege and state of emergency.

This constitutional framework for emergency policy-making is binding on all state institutions, including the Parliament and the Constitutional Court. In that regard, the Constitutional Court is allowed to explain the concept of war, state of siege or state of emergency, to clarify implied meaning and to control the constitutionality of acts of Parliament or acts of the President which may contravene the constitutional model for mastering of emergency situations in case such proceedings are initiated in front of it by institutions which have the competence to approach the Court. According to the Bulgarian Constitution institutions which may approach the Court with demand for issuing of abstract interpretative decisions or decisions for control of constitutionality of sub-constitutional acts are one-fifth of the MPs, the President of the Republic, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court and the State Prosecutor General. When acts of Parliament are supposed to infringe constitutional rights the procedure for declara­tion of their unconstitutionality may be initiated in front of the Constitutional Court also by the national ombudsman and the Supreme Bar Council.

The open texture of the concepts of war, state of siege and state of emergency, the lack of mature discussion on these issues in the Bulgarian scientific and public discourse, and the already established traditions of judicial activism of the Bulgarian Constitutional Court allow for their rather discretionary and wide interpretation by the Court. In fact, until the outbreak of the Covid-19 pandemic, no discussion on the problems of emergency situations, their constitutional and legislative framework and the constitutional delimitation between extraordinary situations and normalcy took place. The Covid-19 pandemic has triggered such intense public discourse in a rather chaotic way with no sound scientific background. In fact, the expert opinions given to the Constitutional Court’s case No. 10 of 2020 are the exception since they focus on the question of whether a new form of emergency situation - the ‘extraordinary epidemic situation’ - is constitutionally permitted.

The activist practice of the Court must be critically assessed with regard to the overall initial intention of the Bulgarian constitutional legislator for defining the constitutional foundations of the emergency situations. The reconstruction of the constitutional legislator’s standing on the problems of emergency situations can be assessed in a threefold manner. First, the history of emergency constitutional policy and the constitutional foundations of the emergency situations in Bulgarian constitutionalism must be briefly summarised. Second, the philosophy of the scheme of emergency constitutionalism in the contemporary Bulgarian constitu­tional model must be explained. Third, the concrete normative parameters of the three forms of constitutionally provided emergency situations - war, state of siege

Mastering emergency situations 175 and state of emergency - must be outlined. This will be done with regard to the constitutional shapes of war, state of siege and state of emergency and with a view to the provision of their outlook in the acts of Parliament which are supposed to further develop the constitution.

Emergency constitutionalism is deeply discredited in Bulgarian constitutional his­tory. This is due to the misuse of emergency situations during the period of constitu­tional monarchy (1879-1947). In fact, the application of the first Bulgarian constitution - the 1879 Tarnovo Constitution - was deeply marked by emergency situations when the constitutional provisions for emergency were largely misused and misinterpreted in order to promote authoritarianism with a central role of the mon­arch or the Prime Minister in its establishment. This may be one of the reasons why until 2020 there had been no case of emergency situation (shaped as either state of siege or as state of emergency) in the last phase of the development of Bulgarian constitutional history after the fall of the Berlin Wall. In that regard, the declaration of a state of emergency from 13 March 2020 until 13 May 2020 subsequently replaced by ‘extraordinary epidemic situation’ is a great exception. It should be considered a huge deviation from the constitutional normalcy and as an expression of the will of the emerging ‘health leviathan’, imposing non-transparent, inefficient, disproportional and imbalanced human rights restrictions justified in the context of ‘health Ernstfall’.

The first Bulgarian Constitution - the 1879 Tarnovo Constitution - in article 47 gave the regime provision for emergency situations. According to this provi­sion, in case of external or internal threat to the state, if the Parliament cannot be summoned, the monarch on proposal and under the joint responsibility of the Council of Ministers can govern by decrees. These decrees must be approved on the first possible session of the Parliament. The government by decrees cannot concern tax issues since taxes must always be adopted by the Parliament.

Article 47 of the Tarnovo Constitution has been largely misused by the Bul­garian monarchs for declaring emergency situations to promote the establishment of their authoritarian regimes.

The logic behind the regimes of the emergency situations established by the 1947 and 1971 Constitutions is actually also generally adopted and broadly fol­lowed by the current 1991 Bulgarian Constitution. All three constitutions try to concentrate the ultimate decisions for making recourse to emergency power in the Parliament. They grant the competence to propose the declaration of emergency to the executive power institutions (more precisely to the government) or to institutions performing the function of the head of state (the Presidium (the 1947 Constitution), the State Council (the 1971 Constitution), or the President of the Republic (the 1991 Constitution)). All three constitutions allow just-mentioned institutions performing the function of head of state to intervene with a declara­tion of emergency regimes only in case the Parliament cannot be summoned. They safeguard the right of the National Assembly to subsequently confirm or renounce such declaration. Moreover, while the 1947 Constitution operates with two main concepts - war and ‘other extraordinary situation’ - the 1971 Con­stitution is the forerunner of the three main forms of emergency situations pro­vided by the 1991 Constitution: the war, the state of siege and the state of emergency. All three constitutions also contain provisions related to the military power offering models for constitutional distribution of the competences related to the defence and maintenance of public order and the regimes of mobilisation.

There are several important differences between the three constitutions under consideration with regard to the way they organise the emergency situations. More precisely, one of these differences consists of the fact that the 1991 Con­stitution and the 1947 and 1971 Constitutions ascribe some competences in emergency situations to a single head of state (the President) or to collective institutions (Presidium of the National Assembly or State Council) with compe­tences related to the emergency situations.

Several conclusions can be made on the basis of this short overview of the con­stitutional models of emergency situations in the history of Bulgarian con­stitutionalism. All Bulgarian constitutions provide for regimes of state of exception. These regimes proliferate in number. The emergency situation has been just one type in the 1879 Tarnovo Constitution, two types in the 1947 Constitution and three types in the 1971 and the 1991 Constitutions. The emergency situations also get more concrete in shape in the last two constitutions. Nevertheless, none of the Bul­garian constitutions contain very detailed constitutional provisions of the state of exception systematically united in a single chapter or consequent list of constitutional provisions. The state of exception has a bad history in Bulgarian constitutionalism. Thus, the recourse to a state of exception in one of its constitutionally provided forms - the state of emergency - in 2020 recalls negative memories and is rather exceptional. The introduction of an ‘extraordinary epidemic situation’ as an inter­mediate regime between state of exception (state of emergency) and constitutional normalcy that has been approved as constitutional by the Constitutional Court is a further step in the establishment of misuse with exceptional powers legitimated by the constitutional jurisdiction, as will be shown later in this chapter.

Due to space constraints I will not explore in further detail the history of emergency situations, emergency power and emergency policy-making in Bulgaria. I will focus on the constitutional model for emergency situations in the con­temporary Bulgarian constitutional model in order to specifically outline the role of the Constitutional Court and its impact on constitutional emergency.

There are three possible main conceptual and comparative models for regulating the emergency situations.

The second model for a constitutional attitude towards the emergency situa­tions is the one proposed by Walter Benjamin and Giorgio Agamben.^[552] Briefly summarised, it claims that there is no need for a state of emergency. Moreover, the state of emergency regulated in the constitution is dangerous. The idea is that even in crisis situations the state must safeguard all constitutional rights and the constitutionally enshrined balance of power between the state institutions must be preserved. The fear is that if the constitution allows for emergency situations, this may offer insights and legitimation for the political players to misuse them, thus triggering temptations for the establishment of authoritarian regimes and for pro­moting the emergency as ‘the new normal’.

The third model is a variant of the first one. It rests upon the need for con­stitutional provision of emergency situations. However, it provides only for the main aspects of these situations, allowing the ordinary legislator to further develop and concretise the emergency situations broadly regulated on constitutional level.

The 1991 Constitution belongs to the third model. It enumerates all possible forms of constitutional emergency (war, state of siege and state of emergency) and broadly outlines their main aspects. However, this constitution allows for the fur­ther development of these forms of constitutional emergency by the Parliament. Implicitly, it also makes possible their further development via constitutional interpretation delivered by the Constitutional Court. It will be demonstrated, however, that the Constitutional Court interprets rather broadly the constitutional provisions related not only to these three constitutional regimes of emergency, but also the provisions of the constitutional framework of the military defence of the public order. Moreover, the Constitutional Court justifies the introduction of new forms of emergency via ordinary legislation (acts of Parliament) which is unconstitutional. These forms of judicial activism of the Court will be discussed in detail after the presentation of the constitutional foundations of the war, state of siege and state of emergency and their implementation on legislative level in the acts of Parliament.

The 1991 Constitution contains three groups of provisions that aim at master­ing emergency situations. Altogether they form the constitutional policy towards emergency situations, shape the constitutional framework of emergency con­stitutionalism and serve as a constitutional basis for their further development by virtue of acts of Parliament. The first group includes the regimes of constitutional emergency defining the overall parameters of emergency constitutionalism. The second group comprises the human rights safeguards in times of war, state of siege or state of emergency. The third group encompasses the institutional design for crisis management and for protection of national security and public order.

It has been mentioned that war, state of siege and state of emergency are the three regimes provided by the 1991 Constitution for mastering of emergency situations. War, state of siege and state of emergency can be declared by the National Assembly. If the Parliament is not in session and cannot be summoned immediately, then war, state of siege and state of emergency can also be declared by the President of the Republic in case of immediate attack against the state or a need for immediate fulfil­ment of duties for collective defence stemming from an international treaty. In such case the National Assembly must be immediately summoned.

War, state of siege and state of emergency can be declared by the Parliament on proposal of the President of the Republic or the Council of Ministers. The state of siege and state of emergency can be national (covering the whole territory of the state) or local (focused on a specific part of it). Last but not least, in the event of war, state of siege or state of emergency which has occurred during the term of the National Assembly or after the expiry thereof, the period of the credentials thereof shall be extended until the lapse of these circumstances.^[553]

The second group of constitutional provisions concerns the safeguards of human rights in case of war, state of siege or state of emergency. Article 57, paragraph 1 of the Constitution declares the fundamental rights to be irrevocable. However, most of them can be limited during war, state of siege or state of emergency. Here it should be stressed that the human rights can be limited only during these three permissible forms of emergency, but not in the context of other emergency regimes invented by the ordinary legislator and provided by (in fact) unconstitutional acts of Parliament.

According to Article 57, paragraph 3 of the Constitution, upon declaration of war, state of siege or state of emergency, the exercise of particular citizens’ rights may be temporarily restricted by statute, with the exception of the rights provided for in Article 28, Article 29, paragraphs 1, 2 and 3, Article 32, paragraph 1, and Article 37 of the Constitution. This means that the following constitutional rights cannot be restricted during these emergency regimes: the right to life, the prohi­bition of torture, cruel, inhuman and degrading treatment, or forcible assimilation, the prohibition of compulsory medical, scientific or other experimentation without their voluntary written consent, the right to privacy and the freedom of con­science, thought and religion.

The third group of constitutional provisions includes the institutional design for distribution of competences in the military, defence and maintenance of national security. It has been mentioned that the National Assembly is the key factor for declaring of war, state of siege or state of emergency, while the President of the Republic acts as a reserve when the Parliament is not in session. Furthermore, the Council of Ministers and the President of the Republic are key proactive veto play­ers^[554] that can propose declaration of one of the three constitutionally provided regimes of state of exception.

Nevertheless, there are also other important competences related to defence and national security. According to Article 9, paragraph 2 of the Constitution the activity of the armed forces has to be regulated by an act of Parliament. However, this empowerment of the Parliament must not be understood as a blank cheque. It must be in compliance with the constitutional model for distribution of com­petences in the sphere of national defence. More precisely, the acts of Parliament cannot establish emergency situations different from the war, state of siege and state of emergency as provided in the Constitution which have as a consequence the redistribution of the constitutionally enshrined model of separation of powers or allow for the limitation of constitutional rights. Such emergency situations may be established only if they do not produce such results and lead only to a shift of competences provided by the ordinary legislation or to limitation of rights which do not have constitutional standing. Any legislative provisions, establishing regimes that aim at the achievement of the results of one of the three con­stitutionally provided emergency situations without explicitly framing them as war, state of siege or state of emergency, must be deemed unconstitutional. Their potential approval by the Constitutional Court should be considered unconstitu­tional as well while also raising the problem of who should control the uncon­stitutional jurisprudence of this supreme guardian of the constitution.^[555]

Furthermore, there are also constitutional provisions establishing the institu­tional design of the state power in the sphere of war, national security and public defence. They will be discussed later in this chapter in conjunction with their activist interpretation by the Constitutional Court.

2.2 War, state of siege and state of emergency in Bulgarian legislation: Other emergency situations created by an act of Parliament

There are four acts of Parliament which contain detailed legislative provisions for emergency situations. These are the Defence and Military Troops Act, the Counter­Terrorism Act, the Protection against Disasters Act and the Health Act. The Defence and Military Troops Act develops further the first two types of emergency situations provided by the Constitution - war and state of siege. Hence, it does not introduce any new forms of emergency situations differing from the constitutionally provided ones. The Defence and Military Troops Act just sets more concrete parameters of the legal foundations of war and state of siege in the Bulgarian legal order. It only further develops the constitutional model for crisis management related to the gravest emergency situations -war and state of siege. It allows for human rights limitations with due respect to the constitutional provisions related to that issue.

The same is true for the Counter-Terrorism Act. It provides for a specific case of state of emergency. This is the state of emergency in case of terrorist attack. The Counter-Terrorism Act regulates the institutional response to terrorism and the related human rights restrictions in compliance with the Constitution. It operates with one of the three constitutionally permitted forms of emergency situations - the state of emergency - and does not invent new forms of exceptional situations allowing for deviation from the established constitutional order.

The Counter-Terrorism Act and the Defence and Military Troops Act dispose only with the tool-kit provided by the Constitution. They provide only for constitutionally permissible forms for mastering of emergency situations, thus preserving the overall constitutional model for dealing with the state of exception. They are a necessary continuation of this model. They are a logical result of the rather austere provision of states of exception in the Bulgarian Constitution due to which it belongs to the third model for coping with an emergency situation, as has been explained above.

In contrast to the Counter-Terrorism Act and the Defence and Military Troops Act, the Protection against Disasters Act and the Health Act provide for uncon­stitutional regimes of exception. These are the emergency epidemic situations introduced by the Health Act in 2020 following the unconstitutional example of the Protection against Disasters Act that has introduced the unconstitutional ‘state of disaster’ as early as 2006.

The state of disaster is in fact a variant of the state of emergency. It must be regulated as such with the formal, procedural and substantial consequences of this subsuming. However, the state of disaster introduced by the Protection against Disasters Act deviates from the constitutional framework of the state of emergency in many aspects. It infringes the key role of the National Assembly in emergency situations by providing for an alternative - and unconstitutional - procedure for declaration of states of disaster. In contrast to the state of emergency which is declared by the National Assembly on proposal of the President of the Republic or the Council of Ministers, the state of disaster is declared by the Council of Min­isters on proposal of the Minister of Interior. Thus, the Parliament is deprived of its role as ultimate safeguard for democracy, rule of law and human rights.

The Protection against Disasters Act concentrates emergency powers in the executive power institutions - the government and the Minister of Interior - in an unconstitutional way. Nevertheless, the Protection against Disasters Act tries to at least formally comply with the requirements of proportionality in substantial and temporal aspects. It sets maximal terms for the duration of the state of disaster, thus defining loose temporal limits at the discretion of the institutions of executive power. It also explicitly requires the state institutions to perform proportionality checks for the introduced measures.

However, this fact does not make the provisions of the Protection against Dis­asters Act introducing the state of disaster constitutional. They are unconstitutional not only due to the above-mentioned infringement of the constitutional model of distribution of competences for declaration and mastering of emergency situations. The state of disaster is unconstitutional also because the Protection against Disasters Act allows for limitation of constitutional rights (e.g. the freedom of movement, the freedom of professional activity, personal integrity, etc.) which can be eventually restrained only during war, state of siege or state of emergency, but not in the context of ‘state of disaster’. Thus, the state of disaster remains a legislative inven­tion which is largely unconstitutional.

These dangerous provisions of the Protection against Disasters Act remained lar­gely unknown until the unconstitutional state of disaster was used as a row model for the introduction of the ‘extraordinary epidemic situation’ in 2020 by virtue of an amendment in the Health Act. The analogous creation of an unconstitutional form of state of exception in 2020 is not even the worst problem. What is especially problematic is that the Health Act did not even provide for either concrete time limitations of the ‘extraordinary epidemic situation’ or for more specific safeguards for the proportionality of the introduced emergency measures. On top of this, the constitutionality of the ‘extraordinary epidemic situation’ has been confirmed by the Constitutional Court in its Decision No. 10 of 2020 which grounded its argu­mentation partially in the unconstitutional provisions of the state of disaster in the Protection against Disasters Act. This clear case of judicial activism which is also an instance of overt violation of the Constitution by the Constitutional Court will be a central topic of the subsequent analysis in the remaining part of this chapter.

Let’s briefly summarise the legal framework of the ‘extraordinary epidemic situation’ as it is provided by the recent amendments of the Health Act introduced in 2020 in the course of the adopted governmental anti-pandemic measures. The Health Act introduces an ‘extraordinary epidemic situation’. In contrast to the emergency situations introduced by the Counter-Terrorism Act and the Defence and Military Troops Act, and similarly by the Protection against Disasters Act, it is not legislative further development of the constitutionally provided state of emer­gency but a brand-new form of emergency regime which expands its realm in an unconstitutional manner. This is due to the following reasons.

The ‘extraordinary epidemic situation’ is not provided by the Constitution. It is created by the Parliament with the idea only to allow the government to con­centrate power and to restrict human rights in a rather discretionary manner under the pretext of the fight against the pandemic. The only constitutionally permissible way for the government to combat pandemic situations is by declaring a state of emergency.^[556] The government did so for two months during the period 13 March 2020 to 13 May 2020. However, under the pressure of public opinion it wanted to move to a regime that resembled normality but at the same time still be able to restrict human rights, bypass official democratic channels of government and pro­vide for a mixed semi-authoritarian and semi-technocratic regime masquerading as democracy. That is why the pro-governmental parliamentary majority has adopted the amendments to the Health Act allowing the establishment of an ‘extraordinary epidemic situation’ as a fig leaf for a regime which is a de facto state of emergency but must look like something that is close to normalcy.

The ‘extraordinary epidemic situation’ is provided in a way which contains no sufficient indicators that will allow for its justification on the basis of the principles of proportionality and balancing of constitutional rights. It deviates from the constitutional model for distribution of powers related to emergency situations, bypassing the National Assembly and placing largely uncontrollable power in the hands of the government, the Minister of Health and the Chief Health Inspector. The introduction of an ‘extraordinary epidemic situation’ is dependent on vague and abstract alternatively formulated concepts such as ‘the existence of [a] patho­gen with high epidemic potential’ (this can be even the regular flu), the existence of a pathogen which is ‘unusual for the region, the season or the population’ (this can be a flu during the summer), which causes disease and which has unusual symptoms, or there are ‘registered cases of the disease among the medical per­sonnel’ (meaning that the infection of nurses and doctors may also be a legitimate ground for emergency). To sum up, an ‘extraordinary epidemic situation’ with the above-mentioned detrimental effects on the rule of law, democracy, human rights and separation of powers may be declared by the government on the recommen­dation of the Minister of Health acting on a proposal of the Chief Health Inspector, for example in case there are infected medical specialists or if there is a disease which is unusual for Bulgaria. This obviously contradicts the principle of proportionality and balancing of human rights and is overtly unconstitutional.

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