The problem in short
author: Alexander Dobrinov
Anton’s mother was born in 1946 in Bulgaria as a Bulgarian citizen. At the time of birth, both her parents were Bulgarian citizens with non-Bulgarian nationality. Still a minor, she and her parents immigrated from Bulgaria and all of them have renounced their Bulgarian citizenship. Years later, Anton was born, acquiring only the citizenship of another country. What are the possibilities of Anton and his mother to acquire Bulgarian citizenship now? Are they considered Bulgarians and/or persons of Bulgarian origin? The answers to these questions are more complex than they seem at first glance.
How clear is the Bulgarian legislation on who is a Bulgarian, who is a person of Bulgarian origin and who is a Bulgarian citizen? In this analysis we will consider decision № 238 from 16.06.2020 of the Stara Zagora Administrative Court. We will analyze the extent to which, in our opinion, the court’s decision is in line with the provisions of the Constitution and the Bulgarian Citizenship Law.
We will also analyze the motives of the Constitutional Court in case № 13/1996, as well as in particular the opinion of Judge Todor Todorov in this case. But most of all, we will try to clarify how well the different terms (related to the institute of Bulgarian citizenship) are defined in the Bulgarian legislation as a whole.
The decision of the Stara Zagora court or what is “Bulgarian origin”
The case in question was instituted on the complaint of a Turkish citizen against an Order of the State Agency for Bulgarians Abroad. With the order, he is denied the issuance of a certificate of Bulgarian origin. Although the court rejected the appeal, let us analyze in detail the reasons for this.
Bulgarian citizen or Bulgarian (Bulgarian nationality)
The applicant insists that he is of Bulgarian origin because his father was a Bulgarian citizen. It should be noted that “Bulgarian” within the meaning of Art. 2, item 1 of Citizenship Law is a person of Bulgarian nationality. The difference between the term “Bulgarian citizen” and the term “Bulgarian” is obvious, the latter being used to define a third term “person of Bulgarian origin”.from the Court case
First of all, we should note that Art. 2, item 1 of the Citizenship Law states that “Person of Bulgarian origin” is a person to whom at least one ascendant is a Bulgarian. The court incorrectly cited the legal provisions, equating the terms Bulgarian and a person of Bulgarian nationality. This is not entirely correct. Immediately after that follows the conclusion that a Bulgarian citizen is not equivalent to a Bulgarian. This statement is probably true, but in no way is it determined by the specific conclusion of the court.
conclusion №1: Bulgarian citizen ≠ Bulgarian*
*The above statement should be accepted as conditional. It is in no way determined by the specific conclusions of the court.
Bulgarian citizen or person of Bulgarian origin
The applicant’s assertion that a person of Bulgarian origin is a person who is a Bulgarian citizen leads to a legally unacceptable conclusion that any person who is a Bulgarian citizen is a person of Bulgarian origin. A Bulgarian citizen can be a person of non-Bulgarian origin, and not every person of Bulgarian origin has Bulgarian citizenship.from the Court case
Here we agree with the conclusions of the court. A Bulgarian citizen who is naturalized may not be a person of Bulgarian origin. This follows from the definition of “Bulgarian origin” under Art. 2, item 1. of the Additional Provisions of the Law on Bulgarian Citizens. The definition states that “A person of Bulgarian origin” is a person to whom at least one ascendant is a Bulgarian. Although we have not yet determined what exactly a Bulgarian is, it is likely that none of the parents of the naturalized Bulgarian citizen has anything to do with Bulgaria (generally speaking). Therefore, most likely the parent will not fulfill the definition “Bulgarian”. And accordingly, the descendant cannot be a person of Bulgarian origin.
The opposite is also true. A person of Bulgarian origin who has a Bulgarian parent may not have Bulgarian citizenship. It should be noted that a person who has a parent – Bulgarian citizen, is considered to be Bulgarian citizen under the Constitution:
Bulgarian citizen is anyone whose at least one parent is Bulgarian citizen…Art. 25, para. 1 of the Constitution
conclusion №2: Bulgarian citizen ≠ person of Bulgarian origin
The total confusion about the institute of Bulgarian citizenship and origin
Further, the court draws conclusions that puzzle us:
Persons of Bulgarian origin, or Bulgarians, are persons who have consciousness of being part of historically distinct group in the country with a common language, common history, customs, names and cultural traditions.from the Court case
First of all, it is not clear from the wording whether the court equates the terms Bulgarian and a person of Bulgarian origin. But mostly, the conclusion of the court who are Bulgarians and/or persons of Bulgarian origin contradicts the provision of the Bulgarian Citizenship Law. According to the law, a person of Bulgarian origin is a person to whom at least one ascendant is a Bulgarian. The law says nothing about accessories, language, history, etc. Such definitions are available in the Law for the Bulgarians living outside of Bulgaria. However, these are irrelevant to the acquisition of Bulgarian citizenship. A person of Bulgarian origin must have a parent – Bulgarian. And what is Bulgarian, we still have to try to clarify.
conclusion №3: person of Bulgarian origin = person, who has Bulgarian parent
And here we come to the essence of the problem, or what is “Bulgarian”, according to Bulgarian law. If we give an answer to this question, it will become very clear who is a person of Bulgarian origin (descended from a Bulgarian).
Opinion of Judge Todor Todorov regarding a person of Bulgarian origin, Bulgarian and Bulgarian citizen
The Stara Zagora court further draws additional conclusions as to who is considered to be “Bulgarian citizen” and a “person of Bulgarian origin”. This conclusion is based on the opinion of Judge Todor Todorov in constitutional case № 13/1996. However, is this opinion still valid, 25 years after it has been drafted?
The Constitution clearly distinguishes between two concepts – “person of Bulgarian origin” (Bulgarian) – Article 25, paragraph 2 and “Bulgarian citizen” – Article 25, paragraph 1.from the opinion of Judge Todor Todorov
Here Judge Todorov equates the terms person of Bulgarian origin and Bulgarian. But is this correct? In the current edition of the Citizenship Law from 1999. (ie later from the opinion of Judge Todorov from 1996) it is written that a person of Bulgarian origin is a person to whom at least one ascendant is a Bulgarian. I.e. the modern norm of the law unequivocally states that a person of Bulgarian origin and a Bulgarian should be two different concepts. If not, by analogy with Article 25, paragraph 1 of the Constitution, the norm of the Citizenship Law should have stated that a person of Bulgarian origin is a person to whom at least one ascendant is of Bulgarian origin. In this case, however, the legislator has introduced a new term – Bulgarian.
Bulgarian – ethnic, not legal concept
Furthermore, in the opinion of Judge Todorov, equality is again established between a Bulgarian and a person of Bulgarian origin, which in our opinion is unfounded, especially in the current reading of the legislation.
The Bulgarian is a person who by his origin (from the mother or the father) is of Bulgarian blood. The Bulgarian is not necessarily a Bulgarian citizen. He can be a Moldovan, Hungarian or German citizen, but this does not make him less Bulgarian than Bulgarian citizens. The term “Bulgarian” is ethnic, not legal. The only privilege that the Constitution creates for Bulgarians is the opportunity to acquire Bulgarian citizenship through an easier procedure, if they no longer have one – Article 25, paragraph 2 of the Constitution.from the opinion of Judge Todor Todorov
Judge Todorov considers that the rights of Bulgarians are regulated in Article 25, paragraph 2 of the Constitution. This norm however, regulates the rights of persons of Bulgarian origin, not Bulgarians. In other words, he reiterates the identity of these two terms. But these have very different meanings in modern current Citizenship Law. The fact that the provisions of the Citizenship Law have not been declared unconstitutional for more than 20 years, suggests that indeed a Bulgarian is not unequivocally a person of Bulgarian origin.
From another point of view, according to Judge Todorov, the Bulgarian should be of “Bulgarian blood”. If we accept the standard wording of the jus sanguinis rule, i.e. that the child acquires the citizenship of the parent whose blood he has, then a Bulgarian should be undoubtfully a Bulgarian citizen. However, as we saw above, this does not correspond to the norms of the Bulgarian legislation. Neither to the opinion of Judge Todorov.
Bulgarian citizen by birth
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 his birth, under the current Bulgarian legislation, acquires Bulgarian citizenship by origin or by place of birth.Decision № 12 of 23 July 1996 on Constitutional case № 13/96 for interpretation of the provision of art. 93, para 2 of the Constitution of the Republic of Bulgaria
According to the decision of the Constitutional Court, Anton’s mother is a Bulgarian citizen by birth. She has later lost her Bulgarian citizenship. Is she a person of Bulgarian origin? Is she Bulgarian? Can a Bulgarian citizen by birth ever, theoretically, cease to be Bulgarian (he can lose his Bulgarian citizenship, of course)? These are all issues on which case law is yet to be established.