BULGARIAN CONSTITUTIONAL COURT

DECISION №13

Sofia, July 27, 2018

Constitutional Court: Boris Velchev - Chairman, members: Tsanka Tsankova, Stefka Stoeva, Rumen Nenkov, Kety Markova, Georgi Angelov, Anastas Anastasov, Grozdan Iliev, Mariana Karagyozova-Finkova, Konstantin Penchev, Philip Dimitrov, Tanya Raikovska -protocolist Gergana Ivanova examined in a closed session on 27 July 2018 Constitutional Case No 3/2018, reported by Judge Anastas Anastasov.

The production is by the order of Article 149, §1, item 4, proposal first of the Constitution of the Republic of Bulgaria (the Constitution).

The case was initiated on 08.02.2018 by an initiative of 75 MPs from the 44th National Assembly. The Constitutional Court has been asked to rule on the compatibility of the international treaty concluded by the Republic of Bulgaria on 21 April 2016 - the Council of Europe Convention on the Prevention and Combating of Violence against Women and Domestic Violence (the Convention), dated 11.05.2011 in the city of Istanbul, with the Constitution before its ratification.

MPs highlight the "social and social significance of the Convention, the great public interest and the high degree of political commitment of society", motivating them to appeal to the Constitutional Court. The petitioners state that both the positive and the negative opinions on the Convention have been received and continue to be submitted to the National Assembly. According to the MPs, in the negative opinions it is argued that this international treaty introduces concepts incompatible with the Bulgarian public order and strangers in our national legal system, the content contained in the provisions of the Convention is different from the conventional and the traditional. According to the petitioners, in most of the negative opinions expressed, the main arguments for non-compliance with the Constitution are related to the provisions of Article 3, b. "C", Article 12, §1 and Article 14, §1 of the Convention and the terms used in them: "..." socially roles "," stereotypical roles "and the term" gender "as objective elements of the content of the concept of" gender "... in the sense of being compatible with The Constitution, including the provision of Article 46, §1 of the Basic Law in the context of defining the "third sex" and creating the possibility of concluding same-sex marriages.

The petitioners further state that the comparison of the terms and expressions used in the Convention with the content of constitutional provisions and the substantive assessment of the conformity of the objectives, content and nature of the Convention with the Constitution falls within the competence of the Constitutional Court in the context of whether and to what extent of the Convention obligations for the Republic of Bulgaria is compatible with the Constitution of the country.

By order of March 20, 2018, the court allowed the petition for substantive inquiries and constituted interested parties in the case, invited non-governmental organizations and prominent scientists and practitioners to whom they had the opportunity to submit written submissions and legal opinions.

From the constituted institutions the opinions were presented by 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.

In the opinion of the President of the Republic of Bulgaria it is assumed that the Convention contains concepts and expressions with a vague meaning which justifies different and contradictory interpretations, creates prerequisites for the loading of these concepts and expressions with "additional" meanings beyond their known and validated content, but above all - beyond the core of values ​​of the Bulgarian Constitution. According to the president, the burden of the concept of gender with the social characteristics used in the Convention is not in line with the clear understanding contained in the Constitution on Equality between Mеn and Womеn to identify the person as a man or a woman (Article 6 §2 of the Constitution), the voluntary union (marriage or not) between husband and wife, the family entrusted with raising and educating children, the special protection of the mother's state (Articles 46 and 47 (2) of the Constitution ).. у

The Minister of Foreign Affairs considers that "the concepts, norms and regime of the Convention are in full conformity with constitutional principles, norms and traditions". It gives an overview of the existing Bulgarian legislation and of the existing international legal commitments and concludes that the notions of "gender", "social roles" and "stereotypical roles" borrowed from sociology are neither new to the international legal doctrine nor to domestic law of the Republic of Bulgaria. The Minister points out that, in the context of the Convention, the term "gender", based on both sexes, male and female, takes into account the existence of socially constructed roles, behaviors, activities and characteristics that a particular society considers to be appropriate for women and men. It also states that there is also a presumption of additional rights and of additional protection for persons who are determined not by objective criteria but by their claims concerning their own internal experiences. In vieнw of its view that Article 1, Article 2 and Article 3 of the Convention do not comply with the principle of equality proclaimed in Article 6 of the Constitution. Prof. Dr. Valchev also argues for non-compliance with the provisions of Article 12, §1 and Article 14, §1 of the Convention with the provision of Article 47, §2 of the Constitution.

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The Constitutional Court finds it appropriate first of all to address some of the key points of the process of establishing the Convention and its essential characteristics as an international legal instrument to combat violence against women and domestic violence that are relevant to further reflection on the matter the substance of the request.

According to the Convention, the authentic text of the contract is in English and French, both texts being equally authentic. The judgment of the Constitutional Court in the proceedings under Article 149, §1, item 4, first sentence of the Constitution, on the conformity of the concluded international treaty with the Constitution before its ratification, should be made on the basis of the translation of the text of the Convention into Bulgarian, which is presented in the case file by the Council of Ministers of the Republic of Bulgaria . On this text in the Bulgarian language the parliamentary debates will be held upon submission of a bill for ratification to the National Assembly, this text will be promulgated in the State Gazette after the eventual ratification of the Convention and on the basis of it, the resulting obligations under the international treaty for the Republic of Bulgaria, will be implemented by the state (order of 23 October 1997 under the number 15/1997).

Countering violence against women is a matter of fundamental importance for Europe and part of the core European values. Since the 1990s, the Council of Europe, and in particular its Steering Committee for Equality between Women and Men (CDEG), has made consistent efforts to support the protection of women against violence. The first comprehensive strategy for the prevention of violence against women was the Rec (2002) 5 Recommendation of the Committee of Ministers to Member States on the protection of women against violence adopted in 2002. The Parliamentary Assembly of the Council of Europe has taken a firm political stance against all forms of violence against women by adopting a number of resolutions and recommendations on the various forms of violence against women. In 2008, the Committee of Ministers of the Council of Europe established the Special Committee on Preventing and Combating Violence Against Women and Domestic Violence (CAHVIO) with a mandate to develop legally binding standards, which cover these two areas - violence against women and domestic violence. In 2011, the efforts of the Council of Europe ended with the drafting of a convention prepared by CAHVIO to ensure protection of women against all forms of violence and to prevent, pursue and eliminate violence against women and domestic violence (Article 1, §1, letter "a" of the Convention).

The Council of Europe Convention on the Prevention of and Fight against Violence against Women and Domestic Violence is the first comprehensive international treaty aimed at creating standards on which States to harmonize their domestic legislation in this area. The Convention explicitly defines violence against women as a violation of human rights and a form of discrimination against women. It includes specific provisions aimed at promoting gender equality and the status of women in society. These legally binding obligations (Article 4, Article 6, Article 12, Article 14) are expected to give a new impetus to achieving a level playing field between women and men at national level and to reinforce a common objective of non-discrimination against women. The Convention extends the scope for non-discrimination and undertakes a gender-sensitive approach to violence against women and domestic violence.

In parallel with the Council of Europe's policy of protecting women against gender-based violence and non-discrimination against women, the Council of Europe, in a number of its acts, calls on the member states of the Council of Europe to explicitly prohibit discrimination based on gender identity Gender identity in their national anti-discrimination legislation and to include the human rights issue of "transgender people" within the scope of action of national human rights institutions, with an explicit reference to the attribute "gender identity" as a form of discrimination against women.

In 2010, the Committee of Ministers of the Member States of the Council of Europe adopted Recommendation CM / Rec (2010) 5 on measures to combat discrimination based on sexual orientation or gender identity. According to the Recommendation, the member states of the Council of Europe should take appropriate measures to ensure full legal recognition of a person's gender change in all areas of life, in particular by enabling the name and gender to be changed in the official documents fast, transparent and accessible way. Member States should take all necessary measures to ensure that, once gender reassignment has been completed and legally recognized, the right of individuals to marry opposite sexes of their sex is effectively guaranteed. The measures address a number of key issues for the rights of lesbian, gay, bisexual and transgender (LGBT) people.

In 2014, the Council of Europe established a structure dedicated to issues of sexual orientation and gender identity. In addition, the Council of Europe Secretariat also created a Working Group on Sexual Orientation and Gender Identity, also set up in 2014. The structure assists Member States in implementing LGBT recommendations of the Committee of Ministers.

In April 2015, the Parliamentary Assembly of the Council of Europe adopted a resolution against discrimination against transgender people in Europe (Resolution 2048 (2015), Discrimination against transgender people in Europe). The resolution and the related report address the various forms of discrimination, including difficulties in access to employment, housing and health services. The resolution also stresses that the Assembly is concerned about violations of fundamental rights, in particular the right to privacy and the physical integrity of transsexuals in bringing legal recognition of their sexes, and the inadmissibility of imposed requirements such as sterility, divorce, diagnosis of mental illness, surgical interventions and other medical treatments. Council of Europe member states are explicitly called upon to prohibit gender-based discrimination in their national anti-discrimination legislation and to address the human rights issue of transgender persons within the scope of national human rights institutions, with explicit reference to gender identity, as well as to develop swift, transparent and accessible procedures based on self-determination, change of name and gender in transgender people's papers, to make this procedures accessible to all people who need it, regardless of age, medical condition, financial status or criminal record, to consider the inclusion of a third opportunity to document gender for those who need it.

In 2015, the Council of Europe published a manual on the legal aspects of gender change and human rights protection for transgender persons, under which gender identity is understood to mean "each person's deeply felt internal and individual experience of gender and includes the personal sense of body and other expressions, such as dress, speech and mannerisms".

The above outlined clearly shows the link between the Council of Europe policy on the prevention and combating of violence against women, as a form of discrimination against women based on gender and the protection of certain transgender persons' rights.

The Constitutional Court of the Republic of Bulgaria assessed the arguments in the MP's request, in the statements of the institutions and non-governmental organizations, in the submitted written legal opinions and the written evidence accepted in the case. In order to rule on the compliance of the Convention with the Constitution, the Court, by discussing the objectives of the Convention, the general and special principles, definitions and policies adopted therein, and the provisions of the Convention relating to their relationship and correlation, established the following:

The Council of Europe Convention on the Prevention of and Fight against Violence against Women and Domestic Violence is the first comprehensive international treaty aimed at creating standards on which States to harmonize their domestic legislation in this area. The Convention explicitly defines violence against women as a violation of human rights and a form of discrimination against women. It includes specific provisions aimed at promoting gender equality and the status of women in society. These legally binding obligations (Article 4, Article 6, Article 12, Article 14) are expected to give a new impetus to achieving a level playing field between women and men at national level and to reinforce a common objective of non-discrimination against women. The Convention extends the scope for non-discrimination and undertakes a gender-sensitive approach to violence against women and domestic violence.

In parallel with the Council of Europe's policy of protecting women against gender-based violence and non-discrimination against women, the Council of Europe, in a number of its acts, calls on the member states of the Council of Europe to explicitly prohibit discrimination based on gender (Gender identity) in their national anti-discrimination legislation and to include the human rights issue of "transgender people" within the scope of action of national human rights institutions, with an explicit reference to the attribute "gender" as a form of discrimination against women.

In 2010, the Committee of Ministers of the Member States of the Council of Europe adopted Recommendation CM / Rec (2010) 5 on measures to combat discrimination based on sexual orientation or gender identity. According to the Recommendation, the member states of the Council of Europe should take appropriate measures to ensure full legal recognition of a person's gender change in all areas of life, in particular by enabling the name and gender to be changed in the official documents fast, transparent and accessible way. Member States should take all necessary measures to ensure that, once gender reassignment has been completed and legally recognized, the right of individuals to marry opposite sexes of their sex is effectively guaranteed. The measures address a number of key issues for the rights of lesbian, gay, bisexual and transgender (LGBT) people.

In 2014, the Council of Europe established a structure dedicated to issues of sexual orientation and gender identity. In addition, the Council of Europe Secretariat also created a Working Group on Sexual Orientation and Gender Identity, also set up in 2014. The structure assists Member States in implementing LGBT recommendations of the Committee of Ministers.

In April 2015, the Parliamentary Assembly of the Council of Europe adopted a resolution against discrimination against transgender people in Europe (Resolution 2048 (2015), Discrimination against transgender people in Europe). The resolution and the related report address the various forms of discrimination, including difficulties in access to employment, housing and health services. The resolution also stresses that the Assembly is concerned about violations of fundamental rights, in particular the right to privacy and the physical integrity of transsexuals in bringing legal recognition of their sexes, and the inadmissibility of imposed requirements such as sterility, divorce, diagnosis of mental illness, surgical interventions and other medical treatments. Council of Europe member states are explicitly called upon to prohibit gender-based discrimination in their national anti-discrimination legislation and to address the human rights issue of transgender persons within the scope of national human rights institutions, with explicit reference to gender identity, as well as to develop swift, transparent and accessible procedures based on self-determination, change of name and gender in transgender people's papers, to make this procedures accessible to all people who need it, regardless of age, medical condition, financial status or criminal record, to consider the inclusion of a third opportunity to document gender for those who need it.

In 2015, the Council of Europe publishes a manual on the legal aspects of gender change and human rights protection for transgender persons, under which gender identity is understood to mean "a deeply felt inner and individual sensation to any person of gender, which may or may not correspond to the gender defined at birth, including the personal sense of the body, as well as other forms of expression of sex, including clothing, speech and manners. "

The above outlined clearly shows the link between the Council of Europe policy on the prevention and combating of violence against women, as a form of discrimination against women based on gender and the protection of certain transgender persons' rights.

The Constitutional Court of the Republic of Bulgaria assessed the arguments in the MP's request, in the statements of the institutions and non-governmental organizations, in the submitted written legal opinions and the written evidence accepted in the case. In order to rule on the compliance of the Convention with the Constitution, the Court, by discussing the objectives of the Convention, the general and special principles, definitions and policies adopted therein, and the provisions of the Convention relating to their relationship and correlation, established the following:

The Council of Europe Convention on the Prevention of and Fight against Violence against Women and Domestic Violence is the first treaty in Europe to create a comprehensive legal framework to protect women and girls from all forms of violence and to prevent, including domestic violence. The Convention calls for the abolition of violence against women within the wider context of achieving real equality between women and men, thus recognizing violence against women as a form of discrimination. It expresses the will of the Contracting States to apply the general principles for the protection of human rights and to women and girls who are victims of violence, as well as to the victims of domestic violence. The basis of this will is the shared understanding of the Member States about the Council of Europe's aspirations to preserve and implement Europe-wide principles and ideals.

The preamble to the Convention declares the will of the member states of the Council of Europe and the other signatories to create a "Europe free of violence against women and domestic violence". To this end, the Convention reaffirms the link between achieving gender equality and eliminating violence against women. On the basis of this premise, it recognizes the "structural nature" of violence against women, and that it is a manifestation of the historically disparate inequality in the relationship between men and women. The Convention consistently asserts that violence against women can not be abolished without investing in gender equality, and only actual (factual and legal) gender equality and change in attitudes can really prevent such violence.

In Article 1 of the Convention declares its objectives. Paragraph 1 lays down as a specific objective of the Convention the protection of women against all forms of violence and the prevention, prosecution and abolition of violence against women and domestic violence. In line with the recognition in the preamble that there is a link between eradicating violence against women and achieving gender equality in fact and law, it is stated that the Convention will help to eliminate all forms of discrimination against women and promote genuine equality between women and men. This provision reflects the need for a holistic approach to the protection and cooperation of all victims of violence against women and domestic violence.

The declared objectives of the Convention fully correspond to the basic constitutional principles of the Republic of Bulgaria. The Preamble of the Constitution highlights the Bulgarian people's loyalty to universal values, including humanism, equality, justice and tolerance. The rights of the person, its dignity and security are enshrined in a supreme constitutional principle. Equality is among the basic principles of the current Bulgarian Constitution. An explicit constitutional ban on any discrimination based on "sex" (Article 6 (2) of the Constitution) has been introduced. Except as a principle, equality in dignity and rights is also proclaimed as a basic human right in the basic law. In a number of constitutional provisions it is concretized and embodied in the content of individual fundamental rights and freedoms. A testimony to the aspirations of the Republic of Bulgaria to protect fundamental human rights and in particular to protect all victims of violence, including women and children, as well as the elimination of all forms of discrimination and the achievement of equality, is also the current legislative framework: Criminal Code (promulgated in the State Gazette №26 of 02.04.1968, amended SG 55 from 03.07.2018), Law on Protection from Domestic Violence (promulgated in the State Gazette, issue 27 of 29.03.2005, last supplemented, SG 50 from 03.07.2015), Child Protection Act (promulgated in the State Gazette, issue 48 of 13.06.2000, last amended - State Gazette, issue 17 of 23.02.2018), Law on Equality between Women and Men (promulgated in the State Gazette, issue 33 of 26.04.2016), Protection from Discrimination Act (promulgated in State Gazette №86 of 30.09.2003 (Amended, SG №7 / 19.01.2018).

The Constitutional Court finds that, despite its undisputed positive aspects, the Convention is internally contradictory, and this contradiction creates a twofold effect. Thus, the content of some of its provisions goes beyond the declared objectives of the Convention and its title.

In Article 1 (1) (a) and (b) of the Convention to define the subject of protection against all forms of violence and discrimination is the term "women" which is undoubtedly based on the biological understanding of the sexes. At the same time, Article 3 of the legal definitions of the Convention the term "gender" is translated into Bulgarian as "социален пол" with the following meaning: “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men. Only in the provision of Article 4, §3 of the Convention, the term "gender" is translated into Bulgarian as "social sex (социален пол)". In the Convention, the terms sex and gender are present together and gender is among the signs of non-discrimination under Article . 4, §3 along with the biologically determined sex - "sex, gender ..." / "sexe, genre ...". In this way, the biologically defined sex and gender, determined by the subjective perceptions of the individual and society about the role of men and women, are raised in autonomous and equivalent categories of the Convention with its own legal existence. The term "gender" is present in the Convention as a separate category other than sex as a biological entity. The Convention separates the biological and social dimension of sex/gender and goes beyond the view of the gender binarity of the human species. As stated in Article 3, letter "c" "gender" becomes a basic concept that defines the meaning of the other terms used in the Convention. The many provisions of the Convention that contain expressions based on this concept - Article 2, §2, Article 4, §3, Article 6, Article 14, Article 18, Article 49, §2, Article 60, §2 and §3 of the Convention. "Gender" is used in the expressions "gender equality", "gender-based violence" (Article 2, 3, 4, 14), "Gender identity" (Article 4, §3), "gender-sensitive policies" (Article 6), "non-stereotyped gender roles" (Article 14), "gendered understanding of violence", “gender-based asylum claims" (Article 60), Gender-sensitive interpretation (Article 60, §2), "gender-sensitive reception procedures" (Article 60, §3). These statements, depending on the interpretation, may lead to different and contradictory understandings of the philosophy of the Convention. It is the first international treaty signed by the Republic of Bulgaria which gives such a definition of the concept of "gender" (Article 3 (c) of the Convention).

The provision of Article 4, §3 of the Convention requires its Parties to apply the provisions of the Convention, in particular measures to protect the rights of victims "...without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status. According to §53 of the Explanatory Report to the Convention and in the light of the broad case law of the European Court of Human Rights under Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the list under Article 4, §3 has been significantly expanded, as it should provide protection against multiple criteria across a number of vulnerable groups. In this category are also people who do not correspond to what the public has identified as belonging to the category of men and women.

Although it does not specifically address the rights of the transgender people themselves, the Convention is also the first international treaty signed by the Republic of Bulgaria which explicitly includes the "gender identity" attribute in Article 4, §3 as grounds for non-discrimination. It should be stressed that the term "gender identity" refers not to gender as a biological category, but to gender, in the sense embodied in the so-called definition of the term in Article 3, letter "c" of the Convention. The Convention does not define gender identity. The Explanatory Report to the Convention (§53) defines "gender identity" as follows: "Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as transgender or transsexual persons, crossdressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to “male” or “female” categories".

Given the lack of a definition of the concept of gender identity in the Convention, its content should be understood, except in the Explanatory Report and in the light of the Council's policy of Europe to protect certain rights of transgender persons. The above-mentioned Council of Europe acts against discrimination and violence based on sexual orientation and gender identity clearly serve to clarify the meaning of the concepts of gender and gender identity, in the context of the Council of Europe's approach to promoting the understanding that the biological and social dimensions of sex/gender are not inextricably linked and exist independently of each other, the possibility of people to self-identify their gender, as well as with a view of ensuring the overall legal recognition of the change of gender by the state.

The analysis of the terms "gender", translated into Bulgarian once as "пол" and secondly as "социален пол" and "l'identité de genre" translated into Bulgarian as "идентичност основана на пола" indicates that the concepts are related and should be understood in relation to each other. The concept of "gender" with the content of "social roles, behaviors, activities and characteristics that a particular society deems appropriate for women and men" reflects certain social and cultural notions of men and women built up in a society to a particular moment. These concepts are undergoing development to the extent that newer ones can exclude the older, such as that gender is biologically determined. From this point of view, a biological man can have a female gender and vice versa. This leads to the possibility of the individual choosing a "gender-based identity" that may not coincide with its biological sex. Thus, the presented understanding expresses aspects of "gender-ideology" - a sum of ideas and beliefs that the biologically determined sex characteristics are irrelevant, and only gender-based self-identification is relevant.

The lack of a unified understanding of the concept of gender is also illustrated by the active public and political debate on the issue for or against the gender ideology, that has been going on for over two decades in dozens of countries.

As has been pointed out, the Convention uses two concepts of “пол” - "sex" and "gender". When it introduces the expression "gender identity", it stems from the notion that the social dimension of gender is independent of the biological one. Distancing the concept of gender from a biological determinant of femininity/masculinity, that moves away the Convention from the stated objectives of protecting women from all forms of violence. The internal contradiction in the Convention is obvious when comparing the statements in Article 1 of the Convention and the title of the Convention with the definition of "gender" as defined in the Convention. Indeed, the very definition of the term “gender” is unnecessary if the declared purpose of this international treaty is as the title states “'... to prevent and combat violence against women ...”. This duality and the meaning of the concepts used in the Convention do not lead to the achievement of gender equality, but effectively removes the differences between the genders, thus eliminating the need for the principle of equality.

Sex/Gender equality is proclaimed at a constitutional level in Article 6, §2 of the Constitution. It does not mean equal treatment of both sexes, but requires consideration of the biological features and the differences between them. Sex/Gender is among the explicitly established in Article 6, §2 of the Constitution, on the basis of which no privileges or limitations of the rights are allowed (Decision №1 of 27 January 2005, under No 8/2004). The constitutional text addresses biological sex as a concept with clear legal content. This is confirmed both by the discussion of the provision as part of the draft Constitution "... on equality between men and women" (Minutes of the meetings of the Commission for preparing the draft of the Constitution of Bulgaria of 13.02.1991 and 10.06.1991 ) and the practice of the Constitutional Court on the interpretation of Article 6, §2, where the criterion of "sex" is excluded from the group of features that can be acquired or changed in the process of social realization of the citizens in society (Decision №14 of 10.11.1992 on case number 14/92).

The constitution and all Bulgarian legislation is based on the understanding of the binary existence of the human species. In fact, the Constitution unambiguously perceives the social dimension of gender in interaction with the biologically determined - Article 47, §2 of the Basic Law. In this constitutional provision, the biological sex "woman" is associated with the social role - "mother", "giving birth" and "obstetric care". In short, the term "пол" is used by the constitutional legislator as a unity of biologically determined and socially constructed. The social dimension in the Constitution does not create a social gender independent of the biological one, as provided for in the Convention.

At international level, the understanding of gender as a unity of biological and social dimension is enshrined in the Rome Statute of the International Criminal Court (promulgated in State Gazette №68 of 16.07.2002). According to the provision of Article 7, §3 of the Rome Statute: "For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above."

Traditionally, human society builds on gender binaries, that is, the existence of two opposite sexes, each of which is charged with specific biological and social functions and responsibilities. Biological sex is determined by birth and is the basis of civilian sex. The importance of civic sex in the legal regulation of social relations (cohabitation, parenthood) requires clarity, indisputability, stability and security.

The constitutional definition of marriage, as it has always been present in the Bulgarian legal tradition, is contained in the provision of Article 46, §1, is defined as "... a voluntary union between a man and a woman." The constitutional arrangements for marriage are based on the understanding of the existence of two biologically defined sexes - males and females. Defining marriage as a voluntary alliance between a man and a woman, the Constitution raises the different biological sex in the imperative to be able to get married. The understanding of marriage as a relationship between a man and woman is deeply rooted in Bulgarian legal consciousness, and in this sense is the basis of constitutional regulation.

Contrary to this constitutional understanding of sex as a biological category, the concept of gender as a social construct is present in the Convention separately and along with the term sex. As has been pointed out, this situation removes the scope of the Convention from the stated objectives of protecting women and opens a room for its contradictory application, which is contrary to the rule of law in a formal sense (Article 4 §1 of the Constitution ).

The Convention paves the way for the introduction of the concepts of "gender" and "gender identity", with the definition given in Article 3, letter "c", in the Bulgarian legal system. The requirements of Article 4, §3 of the Convention would impose in the Republic of Bulgaria procedures to provide legal recognition of a gender other than biological, contrary to the Constitution.

The rule of law is present in the practice of the Constitutional Court with familiar and well-established content, combining a formal and material aspect. Today, the European legal area is widely shared with the understanding of the rule of law, which includes both the principle of legal certainty - the formal element and the principle of material justice - the material element (decision No 1 of 27 January 2005 under №8 / 2004).

The rule of law in the formal sense (the state of legal certainty) requires the content of legal concepts to be clear and unambiguous. The requirement of legal certainty and predictability precludes the existence of two parallel and mutually exclusive concepts of "пол" (gender/sex). The ratification of the Convention would lead to the introduction of a concept contrary to constitutional law in the national legal order.

The rule of law is the foundation of the established constitutional order. The production under Article 149, §1, item 4, the first proposal of the Basic Law guarantees the introduction in the national legal system of the values ​​of the international community in preserving the core of values ​​established by the Constitution.

In the Convention, by defining "gender" as a social construct, the limitation to two sexes - male and female as biologically determined - is lifted. However, if society loses the capacity to make a difference between woman and man, the fight against violence against women remains only a formal, but incomplete commitment.

The Constitutional Court considers that the Convention, due to the provisions of Article 3, letter "c" and of Article 4, §3, which bear the meaning of the international treaty in its entirety, is not in conformity with the Constitution. With respect to these provisions, the Convention does not allow reservations. According to Article 78, §1 of the International Treaty: "No reservation shall be made in respect of any of the provisions of this Convention except for the reservations referred to in paragraphs 2 and 3."; The Constitutional Court stresses that once this International Treaty has been ratified, promulgated and entered into force for this Republic, in accordance with Article 5, §(4) of the Basic Law shall be incorporated into domestic law and shall be applied with priority over the national legislation which contradicts it (Decision No 7 dated July 2, 1992 under №6/1992).

On the basis of Article 149, §1, item 4, proposal first of the Constitution, the court

DECISION:

The Council of Europe Convention on the Prevention of and Fight against Violence against Women and Domestic Violence, drawn up on 11.05.2011 in Istanbul, signed by the Republic of Bulgaria on 21.04.2016, does not comply with the Constitution of the Republic of Bulgaria.

The decision was adopted with eight votes.

The judges Rumen Nenkov, Georgi Angelov, Konstantin Penchev and Philip Dimitrov signed the decision with a disagreement.

Chairman: Boris Velchev