site.btaConstitutional Court Declines First Motion from Regional Judge

Bulgaria's Constitutional Court on Tuesday issued a ruling declining a petition from a regional court judge to declare unconstitutional a Family Code provision concerning the possibility of persons aged 16 to enter into civil marriage, it transpired from a press release on the Court's website.

The ruling, which has yet to be published, has been signed with a dissenting opinion by judges Yanaki Stoilov, Sonya Yankulova and Borislav Belazelkov.

The case was instituted by the Constitutional Court on February 1, 2024 on a petition from Judge Elena Dineva-Ilieva of the Sofia Regional Court - the first regional judge to approach the Court after constitutional amendments, adopted in late December 2023, made it possible for each court, acting on a motion from a party to a case or on its own initiative, to petition the Constitutional Court to establish an inconsistency of a law applicable to the case at issue with the Constitution.

The relevant case was instituted on November 17, 2023, before the Constitution was revised at the request of a 16-year-old woman who sought permission to marry a 20-year-old man. More than a month later, the Family Code provisions whose unconstitutionality was claimed were repealed by the latest amendments to the Code, effective December 22, 2023. These three paragraphs of Article 6 of the Code provided for an exception from the standard minimum marriage age of 18, enabling persons aged 16 to marry for a compelling reason if permitted to do so by a regional judge. The notarized consent of the marrying adult and of their parents or guardian was required for obtaining such permission.

The Sofia Regional Court was scheduled to hold its first hearing in the case on January 30, 2024, i.e. after it was no longer possible to legally apply the exception. 

The Constitutional Court argued that even if it had found the repeal unconstitutional, its ruling could not possibly reinstate the provision repealed by Parliament. Contrary to the regional court's expectations, the constitutional jurisdiction may not address directly an issue which, under the Constitution, falls within the exclusive competence of the legislature: a particular choice of marriage and family policy.

Earlier, the Constitutional Court declined a petition from Judge Vladislava Tsarigradska of the Pleven District Court, in mid-March 2024. In its ruling, the Constitutional Court found that the petition was inadmissible because the issue raised by it can only be addressed by the legislature. "The Constitutional Court is not competent to supplant the will of the legislator by a decision of its own, nor to instruct the National Assembly about the legal framework it should create," the reasons read.

The ruling made it clear that the Constitutional Court will apply the same four requirements for admissibility of petitions from lower-court judges as those applied earlier to petitions from Supreme Court judges. 

At this point, just one petition from a first-instance court judge, Kozloduy Regional Judge Adriana Dobreva, is pending before the constitutional judges, but it has not yet been admitted for consideration.