AuthorGenoveva Tisheva
Judgment No 13 Sofia, 27 July 2018
Dissenting Opinions:
Georgi Angelov, Rumen Nenkov, Konstantin Penchev, Filip Dimitrov (promulgated in State
Gazette No 65/07.08.2018).
In a closed session of 27 July 2018 the Constitutional Court in a panel composed of: Boris
Velchev Chairperson, and Members: Tsanka Tsankova, Stefka Stoeva, Rumen Nenkov,
Keti Markova, Georgi Angelov, Anastas Anastasov, Grozdan Iliev, Mariana Karagyozova -
Finkova, Konstantin Penchev, Filip Dimitrov, and Tanya Raykovska , with the participation
of Clerk Gergana Ivanova, examined Constitutional Case No 3/2018, as reported by Judge
Anastas Anastasov.
The proceedings are under the first alternative of Article 149(1)(4) of the Constitution of
the Republic of Bulgaria (the Constitution).
The case was initiated on 8 February 2018 at the initiative of 75 m embers of the 44th
National Assembly. The Constitutional Court was asked for a ruling on the conformity of
an international treaty signed b y the R epublic of Bulgaria on 21 April 2016 the C ouncil
of Europe Convention on preventing and combating violence against women and domestic
violence (the Convention), done on 11 May 2011 at Istanbul with the Constitution prior
to the ratification of this treaty.
The Members of Parliament point out ‘the social and societal relevance of the Conventionз
the significant public interest and the high degree of political commitment of the society’
which motivated them to refer the matter to the Constitutional Court. The petitioners state
that the National Assembly has received and continues to receive both positive and
negative opinions on the Convention. According to the Members of Parliament, the
negative opinions maintain that this international treaty introduces concepts that are
incompatible with Bulgarian public policy and unknown in our national legal system and
that the meaning conta ined in the provisions of the Convention is different from what is
generally accepted and commonly used. According to the petitioners, the main arguments
for non-conformity with the Constitution in most of the negative opinions expressed relate
to the provisions of Article 3(c), Article 12(1) and Article 14(1) of the Convention and the
terms used therein: ‘… “socially constructed roles”з “stereotyped roles”з as well as the term
“gender” as objective elements of the meaning of the concept of “gender”…’з in the sense
of whether they are in conformity with the Constitution, including the provision of
Article псгмд of th e Basic Law in the context of defining a ‘third gender’ and opening the
possibility for same-sex marriages.
The petitioners also state that comparing the terms and phrases used in the Convention
with the meaning of the constitutional provisions and the substantively assessing the
conformity of the purposes, contents and nature of the Convention with the Constitution
falls within the competence of the Constitutional Court, so it is for the latter to rule whether
and to what extent fulfilling the obligations of the Republic of Bulgaria arising out of the
Convention is compatible with the country’s Constitution.
By its ruling of 20 March 2018, the court allowed the motion for substantive examination
and joined the interested institutions to the case; it invited non-governmental
organisations and prominent scientists and practitioners and gave them the opportunity to
submit written statements and legal opinions.
Of the joined institutions, the President of the Republic of Bulgaria, the Minister of Foreign
Affairs, the Minister of Justice, the Minister of Health and the State Agency for Child
Protection have submitted statements.
The statement of the President of the Republic of Bulgaria expresses the view that the
Convention contains concepts and phrases with ambiguous meaning, thus giving grounds
for different and conflicting interpretationsз allowing for ‘additional’ meanings to be
attributed to these concepts and phrases outside their known and well-established
meaning, but above all outside the core values enshrined in the Bulgarian Constitution.
According to the Presid ent, assigning the socia l attributes used in the Convention to the
term ‘gender’ is not in conformity with the clear u nderstanding (as contained in the
Constitution) of the equality between men and women, of identifying the person as a man
or a woman (Article 6(2) of the Constitution), of the voluntary union (in matrimony or
otherwise) between a man and a woman, of the family entrusted with raising and
upbringing of children, of the special protection provided by th e State to mothers
(Article 46 and Article 47(2) of the Constitution).
The Minister of Foreign Affairs believes that ‘the conceptsз norms and regime of t he
Convention conform fully to the constitutional principlesз n orms and traditions’. She gives
an overview of the current Bulgarian legislation and of the existing international legal
commitments and concludes that the terms ‘gender’з ‘socially constructed roles’ and
‘stereotyped roles’з which have been borrowed from sociologyз are new neither to the
international legal doctrine nor to the domestic law of the Republic of Bulgaria. The Minister
points out thatз in the context of the Conventionз the term ‘gender’з based on the two
sexes, male and female, takes into account the existence of socially constructed roles,
behaviours, activities and attributes that a given society considers appropriate fo r women
and men. She also points out that the Explanatory Report to the Convention explicitly
states that the term ‘gender’ is not intended as replacement fo r the terms ‘women’ and
‘men’з and that th e Convention also uses the term ‘sex’, which shows that the terms
‘gender’ and ‘sex’ have independent meanings. With regard to the obligations that will
arise for the Republic of Bulgaria after the ratification of the Convention following its entry
into force, the statement maintains that they are entirely related to specifying the
measures for preventing and combating violence against women and domestic violence in
the context of implementing gender equality.
In her statement, the Minister of Justice states that the Convention conforms fully to the
Constitution and puts first th e obligation to prevent and combat violence against women
within the wider framework of achieving equality between women and men.
In his statement on the case, the Minister of Health does n ot take a specific position. On
the one hand, he believes that no problems may arise with regard to the understanding of
the term ‘gender’ and with regard to the imp lementation of the provisions of Article 3(c),
Article 12(1) and Article 14(1) of the Convention highlighted by the petitioners, since the
main indicator for defining the protection provided by the Convention is the sex, and none
other than th e only possible female and male sexes corresponding to their biological
definition, as perceived by the Constitution, the Bulgarian legal order and Bulgarian case
law. On the other hand, according to the Minister, there could be an issue with the
implementation of Article 3(b), Article 4(3) and Article 12(3), where there is a deviation
from the principle of two biological sexes male and female. Th e Minister assumes that
because of the meaning thus attributed to those and to other provisions of the Convention,
as well as because of the lack of clarity as to the categories used in these provisions, there
is reason to raise the question of whether and to what extent the fulfilment of the
obligations of the R epublic of Bulgaria arising out of the Convention would be compatible
with certain parts of the Constitution.
In its stat ement, the State Agency for Child Protection states that t he framework nature
of the Convention should be taken into account when assessing its conformity with the
Constitution, and that it would be wrong to use for th e purposes of this assessment only
the Bulgarian translation, which is inaccurate in a number of points, including in the
definitions of basic t erms. The Agency supports the need to ratify the Convention and its
conformity with the Constitution.

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