The protection of fundamental rights in Bulgaria: revisiting the Kelsenian model for constitutional adjudication

Thesis

This thesis seeks to contribute to the debate about constitutionalism and the rule of law in post-communist Central and Eastern Europe by focusing on one of its core themes – the enforcement of fundamental rights. It does so with reference to a detailed exploration of an understudied jurisdiction in this region, Bulgaria. The thesis develops an analytical framework informed by institutional design, legal culture, and their interplay in the context of Bulgaria’s constitutional experience. It provides an original, in-depth study of the rights-based jurisdiction of the Bulgarian Constitutional Court. A core argument is that this Court has evaded its mandate to adjudicate fundamental rights, standing in contrast to the robust, rights-based activism that has been associated with the constitutional courts created in Central, Southern and Eastern Europe after World War II, and after the end of communism. All these constitutional frameworks adopted the centralised model of judicial review associated with Hans Kelsen. As initially designed by Kelsen, this model focused on the resolution of separation of powers disputes between governmental organs and not on individual rights protection. The latter function, however, has become a distinctive and central feature of the ‘modern Kelsenian courts’ that emerged in the second half of the 20th century. After considering two paradigmatic examples of such courts – the German Federal Constitutional Court and the Hungarian Constitutional Court – the thesis demonstrates that, thus far, the Bulgarian Constitutional Court has fulfilled a function more closely associated with Kelsen’s archetypal design as an umpire of intra-governmental disputes, rather than that of a human rights court. This development is explained with reference to Bulgaria’s constitutional history and legal culture, the post-communist constitution-making process and the adopted constitutional design, as well as the rights-based jurisprudence of the Bulgarian Constitutional Court.

Authors: Gruev, II

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: German constitutional law; Hans Kelsen; Rights-based review; Theory of adjudication; Socio-legal studies; Access to justice; Fundamental rights protections; Constitutional adjudication; Democratic transition; Comparative constitutional studies; Bulgarian constitutional law; Constitutional theory; Hungarian constitutional law; Post-communist constitutionalism; Law in context
• Subjects: Judicial review; Human rights; Constitutional law; context; Constitutional history; Constitutional courts; Jurisprudence; Comparative law