Annexes

• Author: Genoveva Tisheva
• Pages: 82-104

82

Annexes

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.

83

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.