Bulgaria is one of the European countries that have included the right to social security in its constitution in the middle of the 20th century. In the period 1945-2014 three constitutions have been adopted- in 1947; in 1971 and in 19991.
Art 75 of the 1947 Constitution provided the right to pensions, allowances and benefits in case of sickness, injury, disability, unemployment and old age. This right was implemented by general insurance and affordable medical care. The National Assembly was assigned the function of monitoring and solving issues related to the constitutionality of the laws and other legislative acts, i.e. the role of a constitutional court, which did not exist under its provisions.
The 1971 Constitution proclaimed an extensive catalogue of the social and political rights and freedoms of citizens. What is more, this catalogue did not differ considerably from that of the democratic constitutions of old democracies. Fundamental social rights played an important role in the socialist theory of constitutional law and were regarded as the main element of individual rights and freedoms. 1
Article 43 envisaged the same risks as in art. 75 of the 1947 Constitution and had added pregnancy, maternity, raising a small child and death. Art 44 of the 1971 Constitution guaranteed special protection to some vulnerable groups as minors and adolescents, disabled and elderly people without immediate family who are unable to support themselves on the property thereof. Art 47 dealt with medical care.
No doubt this influence goes back not only to the Constitution of the Soviet Union, but to the relevant international instruments at the time – the ILO social security conventions, 2 the Universal Declaration of Human Rights of 1948 and the International Covenant on Economic, Social and Cultural Rights of 1966.
The Bulgarian Constitution, effective as from July 12, 1991 was the first democratic Constitution passed in Eastern Europe following the radical political and economic changes in the socialist system of
1 Drzewicki, K., Krause, K., and Rosas, A., Social Rights as Human Rights, A European Challenge (Institute for Human Rights, Abo Akademi University), Abo, 1994 pp.203 f.
2 Bulgaria is a member state since 1920 and has ratified C024 – Sickness Insurance (Industry) Convention, 1927 (No. 24); C025 – Sickness Insurance (Agriculture) Convention, 1927 (No. 25); C035 – Old-Age Insurance (Industry, etc.) Convention, 1933 (No. 35); C036 – Old-Age Insurance (Agriculture) Convention, 1933 (No. 36); C037 – Invalidity Insurance (Industry, etc.) Convention, 1933 (No. 37); C038 – Invalidity Insurance (Agriculture) Convention, 1933 (No. 38);
C039 – Survivors' Insurance (Industry, etc.) Convention, 1933 (No. 39); C042 – Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42). Bulgaria has ratified C102 – Social Security (Minimum Standards) Convention, 1952 (No. 102) in 2008.
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1989. It provides a detailed catalogue of fundamental rights and obligations of citizens. Thus it affiliates Bulgaria to international law requirements on human rights. The present Constitution in Article 51 provides that citizens shall have the right to social security and social assistance and in Article 52 provides the right to health through health insurance. 3
The constitutional right to social security is rich in content. It includes many different and specific social security rights-compensations, benefits, and pensions for temporary incapacity to work; maternity;
temporary reduced ability to work (reassignment); unemployment; invalidity; old age; death. Actually, it includes the right to social insurance and social assistance although in Bulgarian legal theory these are two separate rights. 4 The social assistance, as defined in the national legislation, covers benefits in cash or in kind, which supplement or replaces income up to the basic living needs or satisfies an incidental need of the supported persons and families. The scope of social protection in Bulgaria includes both the classic contribution based social insurance, non-contributory social security schemes and social assistance, including the system of social services. It contains targeted programmes for social assistance and care, creating employment for disadvantaged groups, family allowances for children, etc. (The non-contributory social security schemes and the social assistance scheme are financed by the state budget. A set of criteria, including means tests, is applied to these schemes in order to assess entitlement. The social insurance schemes are financed through special budgets of the social insurance funds.)
The unemployment insurance in para 2 of art. 51 is part of the general right to social security. The special attention given to it is due to its relevance for the period when the 1991 Constitution was adopted.
The right to social security is defined as individual, fundamental social right. This characterization means that it is inalienable 5 and may be restricted only in exceptional cases according to art. 57 para 2 and 3 of the Constitution.
The individual right to social security is based on the principle of the social/welfare state (indent 5 of the Preamble of the Constitution embrace the principle of the “social State”) 6 and on the two cited articles – 51 and 52 of the Constitution. Several decisions of the Constitutional court 7 must be considered and added to these articles and they all together form the constitutional block that expresses the trend of the constitutionalization of the right to social security.
The provision of Article 51, para 1 of the Constitution enshrines a fundamental right of citizens the right to social security and social assistance, without having specified the order, the principles and the system for its implementation and practical application. The state shall ensure the realization of this right as this stems from the declared “welfare state.” It must take and perform the necessary actions to
3 Article 52. (1) Citizens shall have the right to health insurance guaranteeing them affordable medical care, and to use at no charge of medical services under terms and according to a procedure established by statute.
(2) The health care of citizens shall be financed from the state budget, by employers, through personal and collective health insurance contributions, and from other sources under terms and according to a procedure established by statute.
(3) The State shall protect the health of citizens and shall promote the development of sports and tourism.
(4) No one may be forcibly subjected to medical treatment or to sanitary measures except in cases provided for by the law.
(5) The State shall exercise control over all health-care facilities, as well as over the manufacture of, and trade in, medicinal products, biologically active preparations, and medical equipment.
4 V. Mrachkov, Social Security Law, Sofia, Sibi 2010, p.43-46.
5 Article 57. (1) Citizens' fundamental rights shall be inalienable.
6 “We, the National Representatives of the Seventh Grand National Assembly, aspiring to express the will of the Bulgarian people, Declaring our loyalty to the universal human values of liberty, peace, humanism, equality, justice and tolerance; Elevating to the rank of paramount principle the rights of the human person and the dignity and security thereof;
Aware of our irrevocable duty to safeguard the national and state unity of Bulgaria, Hereby proclaim our determination to create a democratic, law-governed and social state”,
7 Decision No. 11 dated 24 July1992 under constitutional case No. 18/1992; Decision No. 12 dated 25 September 1997 under constitutional case No. 6/1997; Decision No. 21 dated 15 July 1998 under constitutional case No.18/ 1997;
Decision No. 32 dated 16 November 1998 under constitutional case No. 29/1998; Decision No. 5 dated 29 June 2000 under constitutional case No. 4/2000; Decision No. 2 dated 4 April 2000 under constitutional case No. 9/2005; Decision No. 2 dated 22 February 2007under constitutional case No. 12/2006; Decision No. 3 dated 13 March 2007 under constitutional case No. 2/2007; Decision No.7 dated 31 May 2011 under constitutional case No. 21/2010; Decision No. 2 dated 4 February 2014 under constitutional case No. 3/2013.
create a regulatory system for social security. When comparing para 1 and 2 of art 51 the lack of an express indication that the right to social security is regulated by law cannot be overlooked. The importance of the right to social security, the wealth of specific social security components, through which it is applied, and the traditions of its legal framework require an explicit indication of the relevant legislation. Since the legislative act must address major public relations concerning the application of the enshrined by the Constitution fundamental right of citizens, there can be no doubt that this enactment should be a law.
Therefore, the legislature shall be competent to create the legal framework for social security system in order to provide a real opportunity for citizens to benefit from the right envisaged in art 51. Otherwise, this constitutional provision would remain an unenforceable declaration. The legislature shall consider appropriate, what social security system to accept, based on what principles it should be conducted in accordance with constitutional norms (to that effect Decision of the C Court No. 12 of September 25, 1997 on cc No. 6 / '97 . – SG, No. 89 of 7 October 1997 and Decision No. 21 of 15 July 1998 on cc No. 18/97 – SG, No. 83 of 21 July 1998). Thus the Constitution becomes not only a source, but also a firm foundation of national law on social security, implying a new distribution of responsibilities between the executive, the legislative and the judicial authorities.
Constitutional guarantees control the generation of new norms or amendments to the existing legislation (to that effect Interpretative Decision No 7 of May 31, 2011 of the Constitutional court on cc No. 21/2010) 8 and influence the organization of public services. An example could be given by Article 84 of the Constitution according to which the National Assembly shall…” 17. (new, SG No. 12/2007) hear and adopt reports on the operation of any bodies which are elected in whole or in part by the National Assembly, where this is provided for by statute.” The Social Security Code provides that the Governor of the National Social Security Institute is elected for four years term of office by the National Assembly.
What is new in the 1991 Constitution is the provided basis for the protection of rights through institutional mechanisms, and primarily through the Constitutional court, the Supreme courts and the Ombudsman, who advocates the rights and freedoms of citizens. The powers and activities of the Ombudsman are regulated by statute. 9
Another characteristic feature of the Constitution is its “direct force” in revoking provisions of existing laws contravening the Constitution. This direct force (Article 5, para 1 and 2) of the constitutional provisions makes possible their direct implementation and supremacy over all other provisions with the respective legal consequences. Proceeding from this, any citizen or juridical person can efficiently defend his rights and interests. Such direct force is characteristic of constitutional provisions regulating the constitutional law status of Bulgarian citizens, their rights and obligations and the provisions regulating the structure, composition, mandate, prerogatives and interrelations of the state bodies. Within the framework of constitutional control the Constitution makes it possible for the Supreme Court of Cassation or the Supreme Administrative Court to stop the trial of cases upon establishing contradictions between the law and the Constitution by officially referring these cases to the Constitutional Court. The direct force of the Constitution also finds expression in explicit texts in the Constitution providing for the passage of new laws.
8 Interpretative Decision No 7 of May 31, 2011 by the Constitutional Court: “The Constitutional Court of the Republic of Bulgaria has adopted an interpretative decision on the following issue: “request for pronouncement of unconstitutionality of § 4а of the Transitional and final provisions (TFP) to the Social Security Code (SSC)”. Section 4a, para. 1 of the TFP to SSC provides that “funds of individual accounts available as to January 1, 2011, of the women born from January 1, 1955 to December 31, 1959 inclusive, and of the men born from January 1, 1952 to December 31, 1959 inclusive, who up to December 31, 2010 were insured in a professional pension fund shall be transferred to fund “Pensions” of the state social insurance”. The initiators point out that this infringes the inviolability of private property of the insured persons.
The Constitutional Court pronounced section 4a of the TFP to SSC unconstitutional, considering the following:
Article 19, para. 2 of the Constitution requires the law to establish and guarantee equal legal conditions for business activity for all citizens and legal entities. In the case of the SSC section 4a funds of a group of individuals are transferred and the pension insurance companies continue to operate with regard to all other insured individuals. In this way the limits of permissible state regulation are exceeded and thus insecurity is created.
9 See Article 91 of the Constitution.
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The constitutional rights to social security and to health are defined as social right on the basis of its objective to protect the existence of the individual when falling into material difficulty and needs the support of the community. As a social right it falls into the category of the so called positive 10 or participation rights-Teilhaberechte or Droits exigencies.
The detailed regulation of the social security right is in the Social Security Code and in the Law on Health Insurance. The compulsory health insurance, as well as the healthcare financed by the budget, provide a basic package of healthcare activities, financed either by the budget of the National Health Insurance Fund or by the state budget depending on the scheme. Compulsory health insurance shall guarantee to the insured persons free access to medical care by means of a package of health-care activities of a specific type, scope and amount, as well as the free choice of a care provider, who or which has concluded a contract with a Regional Health Insurance Fund. The right of choice shall apply to the entire territory of Bulgaria and may not be restricted on geographic and/or administrative grounds.