The assignment of the Council of Ministers to declare an emergency epidemic is unconstitutional and this change in the Health Act must be repealed. This is what two lawyers claim in their opinions before the Constitutional Court: Prof. Vasil Mrachkov and the lawyer in medical law Maria Sharkova. Apart from them, the two opinions on this case have so far been provided by two doctors - Prof. Kamen Plochev and Prof. Todor Kantardzhiev.
The case before the Constitutional Court was filed in mid-May at the request of President Rumen Radev. According to him, the new texts in Art. 63 of the law, do not meet the constitutional standards, according to which fundamental rights can be limited only temporarily and in exceptional cases by law. The President does not accept the replacement of the state of emergency with a new regime of emergency epidemic, which was motivated only by circumventing the constitution and this power of the National Assembly to transfer to the Council of Ministers to decide on its declaration after assessment by the state health inspector of danger to human life and health, which is carried out according to formal criteria. As a result, there is a risk of imposing a disproportionate restriction on citizens' rights, the head of state's request said. In addition, the law does not set a maximum allowable period for the continuation of the emergency situation, but only declares that it is imposed temporarily, leaving the discretion of the Council of Ministers.
and the opinions of lawyers.
These arguments in the President's request are supported in both opinions of Professor Mrachkov and Lawyer Sharkova, both of which indicate additional grounds for unconstitutionality.
"Emergency epidemic situation" is a kind of "state of emergency" and the replacement of "situation" with "situation" with nothing changes the nature of the structure, commented Prof. Mrachkov. The term "emergency" is leading, and both are related to the concept of "disaster", which is derived from the Constitution. The difference between the two is that in an emergency epidemic the disaster has only a medical character, namely an epidemic of a dangerous contagious disease, while the emergency can be caused by an earthquake, flood, fire and others, including an epidemic. According to the Constitution, the state of emergency can be declared only by the National Assembly with a law that restricts the basic rights of citizens. The transfer of this power to the Council of Ministers is unconstitutional. Prof. Mrachkov reminds a basic principle in lawmaking that the same grounds require the same decisions. The Constitution proposes a unified concept of disaster, and regardless of the reasons and the legal regime for counteraction must be the same. The emergency epidemic situation is in fact only a specific manifestation of the state of emergency.
Lawyer Sharkova also believes that the emergency epidemic situation is a type of emergency that can be declared by law for specific diseases: cholera, plague, smallpox, yellow fever, viral hemorrhagic fevers, diphtheria, typhoid fever, polio, brucellosis, anthrax , malaria, severe acute respiratory syndrome, COVID-19 and tuberculosis with bacillus excretion. These are different diseases in which the location of the infection and the mode of transmission are different, therefore the anti-epidemic measures for them must be different, but in the law they are listed only by way of example. He also gives an example - in an epidemic of malaria it is unnecessary to wear protective masks.
Sharkova also believes that the criteria for assessing the immediate danger to human health are unclear: "high epidemic potential", "epidemic spread" and others. Some of these conditions may exist continuously over time, so a risk of an emergency situation can be identified at any time and for an unlimited period. He cites as an example the condition of having sick medical specialists, without specifying their number, which means that it is enough to have two sick doctors from the respective disease. It defines as an unsuccessful legal decision the granting of equal powers to the Minister of Health and to the directors of RHI to declare an emergency situation for a given territory, which may lead to contradictory and mutually exclusive restrictions.
In this regard, expecting the Constitutional Court to rule on the initiated case, citizens have questions about their rights in the current situation. For this you can contact us with the guarantee that our lawyers in the Arabadjiev Office will treat your questions and cases professionally. We will receive you in our offices in Plovdiv, Sofia and Stara Zagora.