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Bulgaria / Constitutional Court / 6/2016

Motioner: plenary of the Supreme Cassation Court

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
31/01/2017

Key facts of the case:

Supreme Court justices claim the unconstitutionality of a provision in the Judiciary Act (Закон за съдебната власт) which prohibits discharging a judge or prosecutor from their duties due to resignation, if there is a pending disciplinary procedure against them, until the closing of the procedure.

The impugned provision is Art. 166, para. 3 of the Judiciary Act (Закон за съдебната власт), while the resignation of magistrates is regulated on constitutional level, in Art. 129, para. 3, item 2 of the Constitution of the Republic of Bulgaria (Конституция на Република България). 

Outcome of the case: 

The Court finds the provision unconstitutional, as it violates the principle of freedom of work, proclaimed in the national Constitution and a number of supranational standards, including the Charter. The principle of freedom of work is guaranteed by the freedom of constituting and terminating work relations – everyone should be able to start the job he/she wishes and terminate employment with due notification. That right also covers judges and prosecutors and cannot be limited due to illegitimate purposes, but only for purposes of constitutional order. Moreover, magistrates under disciplinary proceedings are demotivated to continue performing their functions so they should be removed from the judiciary as soon as possible, including by their own resignation.