Do we need an evolutionary interpretation of the constitutional concepts relating to Bulgarian citizenship?
(Adopted on the 16th day of April, 1879)
If we apply to Article 54 of the Tarnovo Constitution the reasoning of the Constitutional Court from 1996, according to which the status of “Bulgarian citizenship by birth” is determined solely by the law in force at the time of birth, we would arrive at an absurd result that no one born before April 16, 1879, would have been a Bulgarian citizen. And that includes Ivan Vazov, Slaveykov, Stambolov…
Today, however, we will not go back in time. On the contrary, we will examine the relevance of the Constitutional Court’s 1996 decision in light of the realities of 2026.
The Constitutional Court’s decision of July 23, 1996
Three decades after the decision of the Constitutional Court (CC) of July 23, 1996, the question arises as to whether the interpretation given at the time continues to correspond to today’s legal and social reality. Over the past 30 years, public attitudes in Bulgaria have changed considerably. The legislation has also changed, as have the realities in which constitutional provisions are applied.
Let us also not forget that the CC’s decision was accompanied by a “dissenting opinion” signed by three judges, whose arguments we will analyse below. And, after all, we should also bear in mind that this decision of the CC was considered by many to be “politically motivated.”
All of this raises the question of the need for a new, evolutionary interpretation not only of the concept of “Bulgarian citizen by birth,” but also of the related concepts of “Bulgarian citizen,” “Bulgarian,” and “person of Bulgarian origin.”
Hypotheses not considered by the Constitutional Court in 1996
The 1996 decision of the Constitutional Court also does not analyze certain scenarios that are entirely real today (and were even then). For example, a child of foreign nationals, where one or even both of the parents subsequently acquire Bulgarian citizenship. Or a child born to a surrogate mother abroad. Does the new legal and social reality not therefore call for a new constitutional interpretation of one of the most important legal institutions of every state — citizenship?
Need for an evolutionary interpretation of certain legal provisions according to the ECtHR
European legal practice also recognises the possibility of evolutionary interpretation. The ECtHR considers the European Convention to be a “living instrument” that must be interpreted “in the light of present-day conditions.” This allows established legal norms to be applied to changing social realities.
The 1996 Constitutional Court decision on who is a Bulgarian citizen by birth
What does the expression “Bulgarian citizen by birth” mean? This question was examined by the Constitutional Court in 1996. The reason was the constitutional requirement that a candidate for president must be a Bulgarian citizen by birth. The case was initiated at the request of 54 Members of Parliament from the 37th National Assembly. They sought a binding interpretation of Article 93, paragraph 2 of the Constitution.
The Constitutional Court issued Decision No. 12 of July 23, 1996, in Constitutional Case No. 13/1996.
The decision is also interesting because of the different positions expressed in it. In addition to the majority opinion, there are three dissenting opinions and a separate opinion by Judge Todor Todorov.
What exactly was the question before the Constitutional Court?
The main question is when a person may be considered a “Bulgarian citizen by birth.”
In fact, the real question that the Constitutional Court must answer is whether the constitutional provision of Article 25 applies only prospectively, or whether it “re-regulates” existing cases concerning the acquisition of Bulgarian citizenship by birth.
The problem arises from the differences between the Bulgarian citizenship laws that were in force during different periods. This also raises the question of which law should be applied. Clearly, the moment of birth is of particular importance. It is precisely at that moment, according to the Constitutional Court, that it is determined whether citizenship was acquired by birth.
But today, 30 years later, there are more questions than answers. Because under this decision, a Bulgarian citizen who has never been naturalised may not be considered a Bulgarian citizen by birth.
Georgi Pirinski
The interpretation is also important because of the requirements for presidential candidates. Article 93, paragraph 2 of the Constitution provides that only a Bulgarian citizen by birth who also meets the other constitutional requirements may be elected president. This also raises the question of whether the Constitutional Court was acting under a certain degree of political pressure. It is so as the decision determined whether Mr. Georgi Pirinski would be able to run for president or not.
What did the Members of Parliament who requested the constitutional case think?
The 54 Members of Parliament took the view that citizenship by birth should be determined according to the law that was in force at the time of the person’s birth. In their view, the decisive factor is solely the moment of birth and the law applicable at that time. If the person did not acquire Bulgarian citizenship by birth at that time, a subsequent change in the law should not grant them such status retroactively.
What did the President think?
The President supports the request of the Members of Parliament and, in almost identical terms, shares their view. According to the President, the definition of “Bulgarian citizen by birth” – within the meaning of Article 93, paragraph 2 of the Constitution – should be determined in accordance with the Bulgarian legislation in force at the time of the person’s birth.
What did the Council of Ministers think?
The Council of Ministers takes a fundamentally different position.
In its opinion, the Council of Ministers maintains the position that “the provision of Article 25, paragraph 1, re-regulated all existing cases concerning the acquisition of Bulgarian citizenship by birth.” The second conclusion is that “every person who, at the time the Constitution entered into force, has at least one Bulgarian citizen parent is already (ex lege) a Bulgarian citizen by birth, regardless of where and when they were born.” It is argued that “failure to recognise the re-regulating effect of Article 25, paragraph 1 of the Constitution of the Republic of Bulgaria would mean substantially restricting the rights of a significant number of Bulgarian citizens.”
In conclusion, the Council of Ministers argues that whether a person is a Bulgarian citizen by birth should be determined according to the law in force at the time of the presidential election, rather than the law in force at the time of the person’s birth.
What did the Minister of Justice think?
The Minister of Justice proposes that Article 93, paragraph 2 be considered together with Article 25 of the Constitution. According to him, it is precisely Article 25 that governs the issue of Bulgarian citizenship.
The opinion maintains that, according to the interpretation of Article 25, paragraph 1 of the Constitution, “all laws in force prior to the adoption of the 1991 Constitution are no longer applicable.”
What does the Constitutional Court decide?
The Constitutional Court holds that Bulgarian citizenship by birth is acquired at the time of a person’s birth, under the legislation in force at that time:
The provision of Article 93, paragraph 2 of the Constitution of the Republic of Bulgaria requires the President of the Republic to be a Bulgarian citizen and to have acquired that citizenship by birth.
Bulgarian citizenship by birth (by descent or by place of birth) is acquired by operation of law at the moment of birth and is not preceded by any other citizenship.
A Bulgarian citizen by birth within the meaning of Article 93, paragraph 2 of the Constitution can only be a person who, at the time of their birth, acquired Bulgarian citizenship by descent or by place of birth under the Bulgarian legislation in force at that time.
Constitutional Court – Decision No. 12
Sofia, July 23, 1996
(Published in the State Gazette, issue No. 67 of August 6, 1996)
The key to the decision is the moment of birth and the law that was in force at that time. It is precisely at that point that it must be determined whether the person acquired Bulgarian citizenship by birth.
The dissenting opinion of Judge Mladen Danailov
Judge Mladen Danailov does not share the position of the majority. According to him, Article 93, paragraph 2 of the Constitution does not regulate the acquisition of citizenship. This provision sets out the conditions that a candidate for president must meet. According to Danailov, the issue of citizenship should be examined primarily in light of Article 25 of the Constitution. He considers that this provision has direct effect and also applies to existing cases. For this reason, in his view, it cannot automatically be assumed that the law in force at the time of birth is the only possible criterion.
Danailov also questions whether the Constitutional Court has the authority to decide which law should apply to a particular person at all. He considers that this question falls within the jurisdiction of the ordinary courts.
The dissenting opinion of Judge Pencho Penev
Judge Pencho Penev also does not share the majority’s decision. In his dissenting opinion, he emphasizes citizenship as a constitutional right. According to him, Articles 25 and 93, paragraph 2 should be considered as part of a single constitutional framework. Penev does not accept that Article 25, paragraph 1 applies only to persons born after the adoption of the 1991 Constitution. In his view, the provision is also relevant to persons born before that.
He pays particular attention to the principle of equality. According to him, treating citizens differently solely because of the period in which they were born raises a question as to its compatibility with Article 6 of the Constitution.
The dissenting opinion of Judge Alexander Arabadjiev
Judge Alexander Arabadjiev also signed the decision with a dissenting opinion. He raises the question of whether the request for interpretation was properly formulated. According to him, the question of which law should be applied to a particular situation cannot be separated from the interpretation of the Constitution itself. Arabadjiev considers that Article 93, paragraph 2 should be examined in conjunction with Article 25. In his view, the Constitution constitutes a single normative act. Therefore, the same concept should not be given different meanings in separate constitutional provisions.
He also does not share the view that Article 25, paragraph 1 cannot be relevant to persons born before the adoption of the Constitution.
The opinion of Judge Todor Todorov
Judge Todor Todorov signed the operative part of the decision but presented a separate opinion. He considers “Bulgarian citizen by birth” to be a legal concept. It should be distinguished from concepts related to Bulgarian descent or nationality. According to Todorov, Article 93, paragraph 2 limits the group of Bulgarian citizens who may be elected president. He also considers that the moment of birth is decisive for the acquisition of citizenship.
In his opinion, Todorov relies on the principle that facts are governed by the law in force at the time they occur.
Are there also political motives apparent in Judge Todorov’s opinion?
In his opinion, Todor Todorov writes:
The idea of retroactively declaring as Bulgarian citizens by birth the hundreds of thousands of people who have emigrated since the turn of the century to neighbouring countries and across the world is, in my humble opinion, the result of legal and political oversight.
We would not like to comment on the above, but is it nevertheless within the Constitutional Court’s competence to reflect on “political oversights”?
What are the main differences between the Constitutional Court judges in 1996 regarding the decision?
The main difference between the majority and the dissenting opinions concerns the effect of Article 25 of the Constitution and the significance of the law in force at the time of birth. The majority places emphasis on the moment of birth. According to it, it is at that point that it must be established whether the person acquired Bulgarian citizenship by birth.
The dissenting opinions place greater emphasis on Article 25 of the Constitution and on the question of whether this provision re-regulates the status of persons who had already been born.
There are also differences regarding the role of the Constitutional Court. Some of the judges consider that the question of which law applies is not a matter of constitutional interpretation, but rather of applying the law to a specific case.
Can citizenship precede birth?
Today, we will look more specifically at just one scenario which, 30 years after the Constitutional Court’s decision was adopted, could completely change the legal reasoning applied. Namely, the act of birth itself.
Interestingly, as early as 1996, Judge Alexander Arabadjiev questioned precisely this understanding. In his dissenting opinion, he warned that reducing citizenship “by birth” literally to the biological act of birth could turn the acquisition of citizenship into a kind of “birthmark.” According to him, what is decisive is the person’s legal and political connection with the state, rather than the biological moment of birth itself.
In 1996, the Constitutional Court held that Bulgarian citizenship by birth is acquired “at the moment of birth” and “is not preceded by any other citizenship.” However, this formulation appears too categorical if it is understood as a universal legal principle.
A specific case from India is illustrative. In 2022, the Madras High Court considered the case of a child who was a 7½-month-old fetus when its parents changed their citizenship. The court held that the unborn child already had the status of a “child” and had acquired the Indian citizenship of its parents before birth.
This raises an interesting question. If one parent is Bulgarian and the other is an Indian citizen, and a similar legal construction were applied to the unborn child, the child could have Indian citizenship before being born. After birth, it would also have a Bulgarian parent. If we apply the logic of the Constitutional Court’s 1996 decision literally, the Bulgarian citizenship could not be “by birth”. This is so, because it would already have been preceded by Indian citizenship. This scenario shows precisely that the Constitutional Court’s statement cannot, without further argument, be accepted as a universal characteristic of citizenship by birth.
Do we need a new Constitutional Court decision or even a constitutional amendment?
Thirty years later, the question is no longer simply what the Constitutional Court decided in 1996. The question is whether the interpretation given at that time can remain unchanged. Whether it can remain unchanged in the face of the new legal and factual realities. Judge Alexander Arabadjiev himself warned that reducing “citizenship by birth” to the biological act of birth turns citizenship into a kind of “birthmark.” And today’s world presents scenarios that were, in practical terms, not considered in 1996. Therefore, the real question for 2026 is not whether we should mechanically reject Decision No. 12/1996. It is whether the Constitution requires a more contemporary and systematic understanding of the concept of “Bulgarian citizen by birth”. An understanding that places at the centre not merely the moment of birth, but the enduring legal and political connection between the individual and the Bulgarian state.