Bulgarian, Bulgarian citizen or Bulgarian origin. Who is which? How is Bulgarian origin proven?
Who are the persons of Bulgarian origin? Proving of Bulgarian origin; is it possible through the court? We will try to answer these two questions today.
Only a day after the publication of our article Proving Bulgarian origin after emigration and loss of Bulgarian citizenship, Vasil Petrov, a judge in the Sofia District Court, wrote a wonderful article on the topic – Who is Bulgarian and how is Bulgarian origin proven?. We share many of the arguments of the author of the editorial board of “Challenging the Law!”. Still, we have some different views, which we will outline below.
Before continuing further, we recommend that you reading our article Bulgarian, Bulgarian citizen or Bulgarian origin.
Advantages for persons of Bulgarian origin
The Bulgarian legislation provides for a privileged procedure (Art. 15, par. 1, p.1 of the Bulgarian Citizenship Law (BCL), Art. 25, par. 2 of the Constitution) for obtaining Bulgarian citizenship for persons of Bulgarian origin. Generally speaking, persons of Bulgarian origin can acquire citizenship without:
- previous residency in Bulgaria;
- having sufficient income;
- speaking the (Bulgarian) language;
- the need to surrender their existing citizenship(s).
Additionally, persons of Bulgarian origin who have lost their citizenship, can restore it under more favorable conditions (Art. 26, par. 2 of the BCL), than persons who are not of Bulgarian origin.
Persons of Bulgarian origin can also obtain a permanent residence permit without any additional conditions (Article 25, par. 1, p. 1 of the Foreigners Law (FL)).
And finally, foreign students of Bulgarian origin do not need visa D (Art. 24c, par. 3 of the BCL) to study in Bulgaria.
As can be seen from the above, it is clear that the advantages that the Bulgarian origin provides are numerous. But who is considered to be of Bulgarian origin? And how is this proven?
Claim under the Law on Bulgarians living outside of Bulgaria (LBLOB)
Proceedings for the acquisition of Bulgarian citizenship by origin
After the amendment of the BCL of 12.03.2021, the legal basis on which the State Agency for Bulgarians Abroad (SABA) was issuing certificates of Bulgarian origin was canceled. After the changes, the Bulgarian origin of the applicant for privileged naturalization is established within the procedure for obtaining citizenship under chapter five of the BCL. The Advisory Council and the Citizenship Council provide a corresponding assessment regarding the applicant’s Bulgarian origin (Art. 29, par. 6 of the BCL) and opinion (Art. 33, par. 3 of the BCL). The penultimate step of the proceedings is the proposal of the Minister of Justice to the President to issue a decree for acquisition (or not) of Bulgarian citizenship.
Possibilities for judicial-administrative control?
A serious problem in the privileged naturalization proceedings is the (non)possibility of judicial control.
The Presidential Decree
The decree of the President on (non)acquisition of Bulgarian citizenship under Art. 36 of the BCL is the only right-giving act in the proceedings. However, this act is not subject to judicial review (except for unconstitutionality), according to the practice of the Constitutional Court (decision No. 2 of 28.03.2002 under constitutional proceeding No. 2/2002).
The assessment and the opinion
On the other hand, the assessment and the opinion of the Advisory Council and the Citizenship Council do not constitute individual administrative acts and therefore cannot be contested in court. The assessment and the opinion really do not in any way oblige the President to comply with them and he has complete freedom to issue or not issue a decree for the acquisition of citizenship.
The Bulgarian Constitution
The principle of the rule of law is enshrined in Art. 4, par. 1 of the Constitution. In addition, the basic law guarantees the rights of citizens and in the provisions on the judiciary:
The judiciary protects the rights and legitimate interests of citizens, legal entities and the state.Art. 117 of the Constitution of Republic of Bulgaria
An eventual refusal to issue a decree for the acquisition of Bulgarian citizenship could violate the applicant’s legitimate interest in acquiring one. This right of his would exist only if he meets the legal conditions, which circumstance should be subject to judicial control.
European Convention on Citizenship
The applicant’s right to acquire Bulgarian citizenship is objectified in the European Convention on Citizenship. It was ratified by Bulgaria with a Law (SG, No. 102 of 20.12.2005, promulgated, SG No. 34 of 25.04.2006).
Each state party to the convention must provide conditions under which decisions to acquire, retain, lose and restore citizenship or issue certificates of citizenship are subject to administrative or judicial appeal in accordance with its domestic legislation.Art. 12 of the European Convention on Citizenship
The claim under LBLOB for proof of Bulgarian origin
According to Art. 3, par. 1 of the LBLOB, the Bulgarian origin is proved by a document issued by a Bulgarian or foreign state authority or the Bulgarian Orthodox Church. According to the relevant Ordinance to the BCL:
The persons under Art. 15 of the BCL present official documents issued by Bulgarian or foreign authorities, with which the applicant certifies that he is related to at least one person – his ascendant up to the third degree inclusive, who is of Bulgarian origin…art. 6, par. 1, p. 1 (shortened) of Ordinance № 1 of 19.02.1999 for applying of Chapter 5 of BCL
In other words, the applicant for Bulgarian citizenship should prove with documents that his ascendant up to the third degree is a person of Bulgarian origin. In the event that the document(s) of Bulgarian origin are disputed in the privileged naturalization proceedings, this will mean that there is an admissible legal dispute. This is so, since facts or documents from which the claimant derives rights will be contested (definition No. 95 of 22.2.2018 under civil case No. 510/2018, Supreme Court).
Vasil Petrov came to the same conclusion in his material on the website “Challenging the Law!”:
Pursuant to Resolution by the Supreme Court No. 95 of 22.2.2018 under civil case No. 510/2018, “The new Code of Civil Procedure protects to a greater extent the interest of each of the disputants to request the establishment of the actual legal position by virtue of a res judicata. The debtor has an interest in a claim for non-existence of the claim and when he is not directly threatened by coercion (procedural or extra-procedural), as he can request a decision upon recognition of the claim. Under the operation of the old CPC, it was not necessary to require ex officio evidence of the existence of an interest in the asserted declaratory claim (when it was not obvious), since the claim became admissible if the defendant disputed it or had disputed the plaintiff’s claims with his extra-procedural conduct. Under the new CPC, the defendant in a declaratory action cannot cause the case to be terminated due to the plaintiff’s lack of legal interest, as the plaintiff has an interest in obtaining a decision upon recognition of the claim. However, the defendant may satisfy this legal interest of the plaintiff by making the admission.” From this liberal interpretation of the legal interest in a declaratory action, it follows that the court must serve the statement of claim on the defendant and only after receiving a statement from the latter can make assessment of whether there is an out-of-court challenge and whether there is a legal interest. And when the claim is explicitly contested by the defendant with the response to the claim, the legal interest is created without any other means.source (translated from Bulgarian): www.challengingthelaw.com/konstitucionno-pravo/dokazvane-balgarski-proizhod/
As Vasil Petrov writes, LBLOB and BCL were adopted by the 38th National Assembly. Both laws use an identical term – “person of Bulgarian origin”, which also indicates the same meaning that the legislator has put into both laws. Accordingly, according to Vasil Petrov, with whom we fully agree:
A claim is admissible under Art. 3, par. 2 of LBLOB for establishing the Bulgarian origin of a person, who is motivated by the desire to apply for Bulgarian citizenship by privileged naturalization.
Scope of LBLOB
According to Art. 1 of LBLOB, the law “regulates the relations of the Bulgarian state with Bulgarians living outside the Republic of Bulgaria“. In the case of a foreigner applying under a privileged procedure, who is living in Bulgaria, will the claim under Art. 3, par. 2 from LBLOB be admissible?
Lack of specifics in BCL
According to Art. 29, par. 6 of BCL, the Advisory Council issues a motivated positive or negative opinion within two months of the assignment, taking into consideration whether the applicant speaks Bulgarian, whether he identifies himself as a person of Bulgarian origin, as well as whether one of the following applies to the applicant:
- is part of a Bulgarian community or a Bulgarian minority in another country;
- originates from a settlement that was part of the Bulgarian state in the past or the Bulgarian Exarchate;
- there are ascendants who are carriers of the Bulgarian traditional family name system.
The legal provision does not provide for the Advisory Council to issue a specific opinion on whether the candidate is of Bulgarian origin or not. The required specificity is only that the opinion is either positive or negative. In the case of a negative opinion without specifically asserting that the candidate is not of Bulgarian origin, will the claim under Art. 1 from LBLOB be sustainable? In our opinion – no. And is a negative opinion possible if the Advisory Council has come to the conclusion that the candidate is of Bulgarian origin? But above all, should the Advisory Council draw a conclusion at all about the Bulgarian origin of the candidate or should it only take into account the relevant facts and circumstances, according to Art. 29, par. 6 from BCL?
Lack of imperative duties in the BCL for the Minister of Justice
According to Art. 29, par. 4 of the BCL, when it is necessary to clarify facts and circumstances regarding the documents submitted with the application, the Minister of Justice may assign the Advisory Council at the State Agency for Bulgarians Abroad to establish whether the applicant has Bulgarian origin. What happens however if the Minister of Justice does not assign the establishment of Bulgarian origin (the provision is not mandatory)?
And perhaps the most controversial question: even if a positively privileged naturalization is completed and a Presidential Decree is issued for the acquisition of citizenship by origin, is the “new” Bulgarian citizen (certainly) a person of Bulgarian origin? And here is perhaps the moment to return to the main question:
Who actually is of Bulgarian origin?
We have written many times about the dualistic nature of the concepts “Bulgarian” and “person of Bulgarian origin” (see also Bulgarian citizen vs citizenship by origin), therefore we will not present legal arguments in this direction again. According to the BCL, “Person of Bulgarian origin” is a person whose at least one ascendant is Bulgarian. In other words, if we know who is Bulgarian, we will also know who is of Bulgarian origin.
Who is Bulgarian?
There is no definition of the term “Bulgarian” in the Bulgarian legislation. In practice, there are two approaches to the interpretation of this concept. Some believe that “Bulgarian” should be interpreted in its legal sense, i.e. Bulgarian citizen. Others are of the opinion that a Bulgarian is a person of Bulgarian ethnicity with Bulgarian self-awareness (generally speaking). However, both approaches suffer from serious flaws.
Judge Vasil Petrov believes that “the concept of Bulgarian has no legal meaning and is not associated with the possession of Bulgarian citizenship by the ascending relative or adoptive parent“. At the same time, he believes that “it cannot be unreservedly accepted that the concept of Bulgarian according to § 2 AP BCL has a strictly ethnic meaning“. Then where is the truth? We partially agree with both statements, but with some remarks.
Why “Bulgarian” should not be equated with “Bulgarian citizen”
Can a Bulgarian not be a Bulgarian citizen?
Vasil Levski definitely is Bulgarian, but at the same time not a Bulgarian citizen1.
1 From the moment of the Apostle’s birth until his death, the Bulgarian state did not exist as an independent legal entity. Because of this, he could not have Bulgarian citizenship.
By itself, this fact defines that Bulgarian citizenship cannot be equated with the concept of Bulgarian.
A Bulgarian may not have Bulgarian citizenship, i.e. not to be a Bulgarian citizen.
With a narrower interpretation, it could be assumed that only the Bulgarian citizen by origin under Art. 8 from BCL is always Bulgarian. But that will be a topic for a future article.
Can a Bulgarian citizen not be Bulgarian?
The answer to this question is difficult. On one hand, a naturalized foreigner does not necessarily have Bulgarian self-awareness. Naturalization can be on a variety of grounds – after a long-term residence in Bulgaria, for special merits, etc. That is, the acquisition of Bulgarian citizenship may in no way be related to the nationality of the foreigner. However, since the “foreigner” has already acquired Bulgarian citizenship, is he still a “foreigner”. And if he is not a “foreigner”, is he not a “Bulgarian”?
As we are dealing with the linguistics of the norms, then who is a “foreigner” according to Bulgarian law? According to the Foreigners Law, a foreigner means a foreign citizen. In Art. 1, par. 1 of the Foreigners Law is written that “This law determines the conditions and order under which foreigners may enter, reside and leave the Republic of Bulgaria“. It is obvious that the law does not determine the terms and conditions for Bulgarian citizens with a foreign self-awareness. And since they are not foreigners according to the law, what are they if not Bulgarians? In fact, is it possible according to Bulgarian legislation to have persons who are neither foreigners nor Bulgarians (apart from the stateless persons)? If this is not possible, then the linguistic interpretation leads to the conclusion that Bulgarian citizens are always Bulgarians.
Does naturalization lead to Bulgarian self-awareness?
However, another argument is even more important. After a foreigner acquires Bulgarian citizenship, doesn’t he acquire with the act of naturalization a number of other “qualities” that can be assumed to “incorporate” him into the Bulgarian community or nationality. For example, a foreigner who has become a Bulgarian citizen becomes a criminally liable person, regardless of where he is (Art. 4, par. 1 of the Criminal Code). And this means that he must adhere to certain norms of behavior that are inherent to the Bulgarian society. Wouldn’t even this fact alone be enough to accept that the Bulgarian citizen is also Bulgarian? Because he already belongs to “a collection of people with awareness of a common origin, of the same morals…” (definition of nationality), which people observe certain moral and legal norms.
In view of the above, we consider that a Bulgarian citizen is also a Bulgarian in all cases.
Why “Bulgarian” should not be equated with “a person of Bulgarian nationality”
Ethnicity connects people with an awareness of a common origin, related morals, cultural interests and historical memory. Common language and religion are also relevant to the concept of nationality. Evidently from these considerations, an individual’s nationality could change over the individual’s life cycle. However, we believe that this is possible only in exceptional cases.
Nationality can only be changed in exceptional cases
According to Vasil Petrov, “the change of nationality is a common phenomenon all over the world and in all times“. We do not share this view. Although there are many examples from world history of people who changed their nationality, these cases are extremely few if compared to the total number of the population over the centuries. We believe that nationality is mostly related to historical memory and origin. The change of nationality cannot be an arbitrary act, not least because this act cannot be defined in time. Since when exactly, at what point, did Sandor Pettofi began to consider himself a Hungarian?
Ethnicity, as we have already written, is mainly associated with the origin of the individual (place of birth of him and his ancestors). The cases of famous people who (believed to) have changed their nationality are almost always with a change of nationality to neighboring and very close countries (eg Hungary and Serbia). But could a Japanese wake up tomorrow with the self-awareness that he is Bulgarian? What does hw have in common with Bulgaria and should his children be then be eligible to obtain Bulgarian citizenship? All that on the grounds that their father thought at one point that he is feeling Bulgarian. Just a thought, but if we think like that, how many people could get French citizenship by descent due to the fact that their fathers self-identified with Napoleon…
Freedom of thought and expression?
The right to self-determination regarding nationality should not be part of freedom of thought and expression. The fact that such a right was envisaged in the draft Constitution of the Peoples Republic of Bulgaria from 1947 and was dropped only in the third reading, only confirms the inadequacy of such a principle. If such is still accepted, what do we do with the many millions of citizens of Russia, who would certainly identify their ethnic affiliation with the USSR – a non-existent state now. If such a principle is implemented in Bulgarian law now, will we give citizenship to the multi-million army of Bangladeshi citizens. who will line up for Bulgarian passports by origin with the hope to start working in the EU. Will this be in the interest of the Bulgarian society? Wouldn’t that even threaten our national security and even the survival of our people as an ethnic group?
The liberal thesis that nationality can be changed without restrictions is, in our opinion, unfounded. Yes, indeed, in certain life situations and state of mind, each individual should be able to choose or change his attitude of national belonging. However, this should not be his unreserved and unconditional right, but a legally regulated process with clear rules and legal consequences. After all, the law should also be formal, at least to some degree.