Bulgaria’s Constitutional Court rules Istanbul Convention is unconstitutional

Written by on July 27, 2018 in Bulgaria - Comments Off on Bulgaria’s Constitutional Court rules Istanbul Convention is unconstitutional

Bulgaria’s Constitutional Court ruled on July 27 that the Council of Europe’s Istanbul Convention on domestic violence blurred the definition of gender and thus breached the provisions of the country’s constitution.

The court’s decision came as no surprise, with several media reports in recent days predicting such an outcome. The court agreed to take on the case in March, after 75 MPs lodged a formal request asking it to review the constitutionality of the Convention on preventing and combating violence against women and domestic violence, to give its full official name.

Submitted by the cabinet to Parliament for ratification at the start of the year, the convention quickly became the subject of public controversy, with the junior partner in the ruling coalition, the United Patriots group of far-right nationalist parties, and the main opposition party, the socialists, both coming out strongly against the document, as did the Bulgarian Orthodox Church.

Their main fear was that ratification of the convention would open the door for same-sex marriage and recognition of a “third gender”, prompting Prime Minister Boiko Borissov’s GERB, the senior partner in government, to withdraw the document and refer it to the constitutional court.

In its ruling, the court largely agreed with the opponents of ratification, saying that the convention’s definition of gender as a social construct ran counter to the constitution and Bulgaria’s entire legislation, which defined gender in biological terms, with the social roles determined by biology.

The Istanbul convention defines gender as “socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.”

Accepting that definition would require Bulgaria to ensure the legal acceptance of a gender different than the biological one, which contravened the constitution, the court said.

Furthermore, by using the definition of gender as a social construct, the convention “blurs the lines between the two genders – male and female, as biologically determined.” That undermined, in the court’s opinion, the goal of the convention because should a society “lose its ability to discern the difference between a man and a woman, combatting violence against women becomes a formal, but unnatainable goal.”

The court’s ruling was backed by eight judges, with the other four offering three separate dissenting opinions.

Judges Roumen Nenkov, Georgi Angelov, Konstantin Penchev and Filip Dimitrov all questioned large sections of the majority’s legal reasoning and noted that the social backlash against the convention should not have an impact on the court’s ruling on the convention’s compatibility with the Bulgarian constitution.

Nenkov and Angelov described the ruling as a “favour” to politicians as it would “prevent a possible conflict in the governing coalition and coincides with the position of the larger part of the parliamentary and out-of-parliament opposition.” Penchev wrote that negative social attitude should be taken into account in the political process of ratification, but had no place in a legal assessment.

(Photo: Clive Leviev-Sawyer)

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