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President Rumen Radev referred the provisions of the Health Law to the Constitutional Court, related to the declaration of an emergency epidemic situation, the press service of the head of state announced.
Radev questions his announcement by the Council of Ministers, the lack of a deadline in the law for its duration, the formal criteria to assess the danger to life and human health and the disproportionate restriction of their rights.
The full text of the President’s request to establish the unconstitutionality of the provisions of the Health Law follows:
Dear constitutional judges,
In accordance with art. 150, para. 1 and art. 149, para. 1, point 2 of the Constitution of the Republic of Bulgaria, I am writing to you with a request to declare the unconstitutionality of art. 63, para. 2-7 of the Health Law.
With the last amendments to art. 63 of the Health Law (SG promulgated, number 44 of 05.13.2020) developed the regulation of the emergency epidemic situation. According to the definition in § 1, point 45 of the additional provisions “extraordinary epidemic situation under art. 63, para. 1” is present in a disaster caused by a contagious disease, leading to an epidemic with immediate danger to the life and health of citizens, whose prevention and improvement requires more than the usual activities to protect and preserve the life and health of citizens.In art.63, paragraph 2 of the Health Law establishes the procedure to declare an emergency epidemic situation under paragraph 1, which includes an existing epidemic risk assessment carried out by the Chief Inspector of State Health, a proposal by the Minister of Health and a decision of the Council of Ministers. epidemic emergency, according to article 63, paragraph 3 during the evaluation of the state chief health inspector an immediate danger to life and health lud of citizens of a contagious disease under art. 61, para. 1. In art. 63, para. 3 of the Health Law, the immediate danger is presumed by the verification of any of the alternatively specified in the disposition criteria. Furthermore, art. 63, para. 2 provides that the emergency epidemic situation will be declared for a certain period of time, but does not establish a defined or definable term for its time limits. The declared emergency epidemic situation is reason for the introduction of temporary anti-epidemic measures by order of the Minister of Health or the director of the relevant regional health inspection according to their territorial scope, which may limit the constitutional rights of citizens.
I believe that these changes in the Health Law take it away from the constitutional standards that allow the restriction of fundamental rights, and do not take into account the role that the legislature has in this process. My specific considerations to challenge compliance with the Constitution of art. 63, para. 2-7 of the Health Law are as follows:
- Under art. 63, para. 2 of the Health Law
The use of the generic concept of disaster in the definition of an epidemic emergency is indicative of the legislator’s attempt to distinguish the state of emergency from the epidemic emergency. In view of this, the declaration of the emergency epidemic situation is assigned to the competence of the Council of Ministers in a similar way to the regulation in art. 50a of the Disaster Protection Law. Unlike the last law, which sets the term of the disaster (no more than 7 days, with the possibility of being extended to 30 days – Article 51, paragraph 1, point 6 and paragraph 2 of the Law on Protection under disasters), such approach does not apply in the Health Law. Only a declaration of an emergency epidemic situation is required for a certain period of time, but the law does not determine or provide the criteria to determine the term for which such situation can be declared. Since during the period of validity of your fundamental rights, such as the right of movement, the right to work may be restricted, the constitutional requirement of art. 57, para. 3 legal restrictions are temporary. With the provisions of art. 63, para. 2 of the Health Law, the legislator allows restrictions on fundamental rights, without giving the time limits of the restrictions. The evaluation is transferred to the Council of Ministers – on the declaration of the epidemic emergency and the time of the restrictions, and to the Minister of Health – on the fundamental rights that can be restricted. Thus, the legislator abdicated his constitutional responsibility under art. 57, para. 3 in case of restriction of the fundamental rights of citizens, inadmissibly delegating to the executive power the powers delegated to it by the Basic Law. The provision of art. 61 of the Constitution of the Republic of Bulgaria, which in the event of disasters requires the assistance of citizens of the State and society, and does not establish reasons for the restriction of fundamental rights.
For the reasons stated, I consider that art. 63, para. 2 of the Health Law is in contradiction with art. 57, para. 3 and art. 61 of the Constitution.
Under art. 63, para. 3 of the Health Law
In art. 63, para. 3 of the Health Law lists alternative criteria according to which the legislator assumes that there is an immediate danger to the life and health of citizens. On the one hand, the legislator requires an evaluation of the existing epidemic risk by the Chief Inspector of State Health under art. 63, para. 2, and on the other hand, it forces us to assume that there is an immediate danger to the life and health of citizens, when any of those indicated alternately in paragraph 1 is determined. 3 hypotheses In this way, the evaluation is formalized and reduces to a preliminary list of results, regardless of how citizens’ lives and health are affected. Rather than seeking proportionality of impact, which will aim to declare the epidemic emergency, the law reduces the immediate danger to a finding, for example, for low immunization coverage of the population (Article 63, paragraph 3, item 4), without taking into account in this situation the spread of the disease. This legislative approach irrefutably presupposes the imminent danger in specific cases. Therefore, the criteria do not serve as a basis for evaluating epidemic risk. They impose conclusions that are not derived from an expert opinion, but from findings previously established by the legislator. This formalization carries a serious risk of accepting that there is an imminent danger to life and health without an assessment of the proportionality of the restrictions on rights that will result from the declaration of an emergency epidemic. As accepted by the Constitutional Court (Decision № 2 of 2006, Decision № 8 of 2019), without regulation, the state could not fulfill its positive obligations to guarantee fundamental rights, but any regulation that goes beyond social need From this, it contradicts the logic of fundamental rights as defense of the autonomous sphere of the individual against the State. In view of this, the formal findings in an evaluation, to be done on the basis of expert conclusions, provide an unreasonably broad scope to restrict fundamental rights. This does not comply with the rule of law enshrined in art. 4 of the Constitution, and does not raise the rights of the individual to the highest principle.
- Under art. 63, para. 4-7 of the Health Law
The provisions of art. 63, para. 4-7 of the Health Law, the anti-epidemic measures, although in each of the mentioned paragraphs their temporary nature is declared, are not subject to deadlines established in the law or at least criteria for their determination. In art. 63, para. 5 and 6 stipulate that the anti-epidemic measures introduced by the Minister of Health may include the restriction of constitutional rights: prohibition of entry to the country of citizens of other countries with certain exceptions, temporary restriction of movement in the territory of the country, temporary restriction of operation or mode of operation of public facilities or other facilities or services provided to citizens. Therefore, fundamental rights, such as the right to move within the country, the right to work may be subject to restrictions without complying with the requirement that “the exercise of certain rights of citizens may be temporarily restricted by law” . The restrictions of such essential rights without a legally determined time limit make them permanent restrictions, imposed at the discretion of the executive branch, which does not comply with art. 57, para. 3, nor of art. 8 of the Constitution. The Constitutional Court emphasizes the need for concrete guarantees that the implementation of the measures will be linked to the achievement of its main objective (Decision № 12 of 2013). The possibility of implementing measures within these limits, together with the wide possibilities of declaring an epidemic emergency, leads to an increase in the asymmetry of power between the executive and the other authorities (in this sense, Decision № 1 of 2005). The principle of proportionality requires that the transfer of powers be subordinated to the idea of maximizing the protection of the public interest and fundamental rights, and not reducing the guarantees for the protection of the public interest and fundamental rights (Decision № 5 of 2005). As requirements for the proportionality of certain restrictions, the Luxembourg court considers that the legal measure introduced should be the only way to achieve the objective pursued or, if there are different ways to achieve the same objective, the chosen medium will be the least aggravating for private entities among all. possible; to be systematic and consistent: the measure must not lead to a result contrary to the objective pursued (Judgment of the Court of Justice of the European Union in Case C-388/07).
Dear constitutional judges,, ,,
For the reasons stated, I request that you declare the unconstitutionality of art. 63, para. 2-7 of the Health Law due to contradiction with art. 57, para. 3, art. 61, art. 4 and 8 of the Constitution of the Republic of Bulgaria.
I propose that the National Assembly, the Council of Ministers, the Minister of Health and the Ombudsman be constituted as interested institutions.
