Or how well should the Minister of Justice understand the particularities of the Bulgarian citizenship?
by Alexander Dobrinov
Prof. Dr Yanaki Stoilov is without a doubt one of the most respected legal experts in Bulgaria. He is currently the caretaker Minister of Justice.
Yanaki Stoilov, in his capacity as Minister of Justice, has expressed an active position on various aspects related to the institute of Bulgarian citizenship. Recently, in connection with the debate over the Canadian citizenship of Kiril Petkov, the Constitutional Court of the Republic of Bulgaria (CC) was requested by 55 deputies from the 46th National Assembly to establish the unconstitutionality of Decree № 129 of 10.05.2021 of the President of the Republic of Bulgaria in the part in which Kiril Petkov has been appointed as Minister of Economy. For this purpose, the Constitutional Court requested additional written evidence from the President, the Minister of Justice, the Minister of Foreign Affairs and Kiril Petkov.
On October 12, 2021, with its Order, the Constitutional Court accepted as evidence in the case a number of documents, including a “letter № 383 / 14.09.2021 from the Minister of Justice“
The letter1 of the Minister of Justice
1 with its ruling of 09.09.2021, the Constitutional Court has requested the Minister of Justice to present a document certifying the presence or absence of Bulgarian citizenship of Kiril Petkov Petkov at the time of issuing the presidential decree for appointing the caretaker government – May 10, 2021 .
We are far from claiming that Minister Yanaki Stoilov’s letter to the Constitutional Court is untrue or totally ungrounded! At the same time, however, we believe that such legal opinion (on the existence of Bulgarian citizenship), issued by the Minister of Justice, addressed to the Constitutional Court, should be perfectly sustained from a legal point of view. At least, because the Ministry of Justice and the Constitutional Court are two bastions of the law.
Unfortunately however, we believe that Prof. Stoilov’s letter could have been drafted in a slightly different way.
Who is Bulgarian citizen?
For the answer to this question, Yanaki Stoilov receives our admiration.
National database of the population
First, the Minister of Justice has conducted an inspection at the national population database. There it is established that in the column “Citizenship”, Bulgarian and Canadian citizenship is entered for Kiril Petkov. Due to the fact that this information is not sufficient to prove whether Kiril Petkov has Bulgarian citizenship, Prof. Stoilov, quite logically, has made additional analysis and verification under the Bulgarian Citizenship Law.
The Law on Bulgarian Citizenship from 1968
Mr. Kiril Petkov is Bulgarian citizen by origin, pursuant to Article 6, letter “a” of the Bulgarian Citizenship Act of 1968 (repealed), in force at the time of his birth, due to the fact that both his parents are Bulgarian citizens.MINISTER OF JUSTICE, Prof. Dr Yanaki Stoilov (letter № 383/14.09.2021)
Indeed, under the law in force at the time, it has been necessary for both parents to be Bulgarian citizens in order for the person to (unconditionally) qualify as a “Bulgarian citizen by origin”. There were other hypotheses, such as the presence of one parent Bulgarian citizen and a second parent – foreigner. In this case, if the child was born in Bulgaria, he would be again a Bulgarian citizen by origin. However, these additional hypotheses are not the subject of this analysis.
The Constitution today
As a curious detail, we should note that according to the current Constitution, a Bulgarian citizen is anyone whose at least one parent is a Bulgarian citizen (Article 25, paragraph 1). As for who is a citizen by origin (under the current legislation), things are far more controversial (interesting analysis). However, this is irrelevant to the this case, so let’s move on to the essential part.
How can one “lose” his Bulgarian citizenship?
Here we already believe that Yanaki Stoilov should have formulated his letter to the Constitutional Court a little differently.
In order for a Bulgarian citizen to cease to be such, he must lose his Bulgarian citizenship, in one of the ways foreseen in the law.
And Bulgarian citizenship can be lost through:
- release from citizenship;
- cancellation of naturalization;
- deprivation of citizenship.
It should be noted that these are the three hypotheses, both under the repealed law on Bulgarian citizenship of 1968 and under the current law. It is extremely important, for the case of Kiril Petkov, to examine all possible options for losing citizenship. This analysis should be made as per the law in force at the time of his birth, all its editions, as well as all editions of the current citizenship Law of 1999.
What did Yanaki Stoilov analyze?
Let’s see what the letter from the Ministry of Justice says:
Additionally, an inspection was performed in the automated information system of the Bulgarian Citizenship Directorate and the registers under Art. 38 of the Law on the Bulgarian Citizenship, in which it was established that there is no information about Mr. Kiril Petkov Petkov, born on …., in the town of ……, the Republic of Bulgaria to have applied for release from Bulgarian citizenship and to have been released from his Bulgarian citizenship.MINISTER OF JUSTICE, Prof. Dr Yanaki Stoilov (letter № 383/14.09.2021)
Sounds convincing, but let’s first see what stipulates Art.38 of the citizenship Law:
The Ministry of Justice keeps records of:
a logbook for the applications and proposals for acquisition of Bulgarian citizenship, for cancellation of naturalization, for restoration, for release and for deprivation of Bulgarian citizenship;
register of the persons, who have acquired Bulgarian citizenship by naturalization;
register of the persons, who have lost Bulgarian citizenship;
register of the persons with restored Bulgarian citizenship.
As can be seen from Yanaki Stoilov’s letter, he has established that there is no evidence that Kiril Petkov has:
- applied to be released from Bulgarian citizenship and:
- to have been released from his Bulgarian citizenship.
This means that the inspection has been made under Article 38, item 1 of the citizenship law, and no data was found that Kiril Petkov had applied to be released from Bulgarian citizenship. In addition, Mr Stoilov has found that Kiril Petkov had not been released from his Bulgarian citizenship. In our opinion, the latter is a partial inspection under Article 38, item 3 of the citizenship law, which covers only the circumstance whether Kiril Petkov has been released from citizenship, and not whether he has lost it.
In other words, it is clear that Kiril Petkov has not applied to be released from his Bulgarian citizenship and he has not been released from it. Nothing more and nothing less. But is that enough?
The problem, or what is not clear whether Prof. Yanaki Stoilov has checked
Let’s repeat. Bulgarian citizenship can be lost through release from citizenship, cancellation of naturalization and deprivation of citizenship. Since Kiril Petkov is Bulgarian by birth, he was never naturalized. Therefore, he cannot lose his citizenship by cancelling his naturalization (unless, hypothetically, he has lost his citizenship, then he has been naturalized, after which his naturalization may be cancelled). Yanaki Stoilov’s investigation also found that Kiril Petkov has not been released from his Bulgarian citizenship. In fact, Yanaki Stoilov checked that there was no evidence that Kiril Petkov had applied for release from citizenship. However, this is irrelevant, as the only thing that matters is the result, ie. whether he has been released from citizenship and not whether he has sought such release.
But is it possible that Mr. Petkov has been deprived of Bulgarian citizenship? Because in his letter to the Constitutional Court, Yanaki Stoilov does not explicitly mention whether he has carried out such an inspection.
Is it possible (albeit theoretically) that Kiril Petkov has been deprived of Bulgarian citizenship?
The provisions of the current Constitution exclude such possibility:
A Bulgarian citizen by birth cannot be deprived of Bulgarian citizenship.Art.25(3) from the Constitution
Therefore, since Kiril Petkov is a Bulgarian citizen by birth, he cannot be deprived of his Bulgarian citizenship. This legal protection of non-naturalized Bulgarian citizens is also provided for in the current citizenship Law. In the current law, the only hypothesis for deprivation of citizenship is for:
A person who has acquired Bulgarian citizenship by naturalization may be deprived of it if he has been convicted of a serious crime against the republic, provided that he is abroad and does not remain stateless.Art 24 from the citizenship Law
In other words, Kiril Petkov, because he was born as Bulgarian, could not have been deprived of Bulgarian citizenship. However, there is one problem. Our current Constitution was adopted in 1991. And until 1991. the old Constitution of 1971 was in force. And there such protective clauses for deprivation of citizenship – did not exist. And if we assume that Kiril Petkov was born before 1991, we will have to continue to analyze the case.
Deprivation of citizenship until 1991
As we have already written above, the old Constitution did not provide for the protection of citizens by birth from deprivation of citizenship. According to Article 34 of it, “Bulgarian citizenship is acquired and lost in accordance with the procedure established by the law.”. Let’s see what were the provisions of the old Law on Bulgarian Citizenship of 1968.
The citizenship Law of 1968
The law, as amended in 1989, stipulates that:
A person who has committed a serious crime against the People’s Republic, which has damaged the security or the interests of the country, may be deprived of Bulgarian citizenship. Deprivation of Bulgarian citizenship can be ordered only in respect of a person who is abroad.Art.20 from the citizenship Law (State Gazette, issue 38 of 1989)
As the personal data, including the date of birth of Kiril Petkov, have been deleted in the materials published by the Constitutional Court, we cannot know with sufficient certainty how old he has been when the citizenship Law of 1968 and its 1989 edition have been in force. But even if we assume that Kiril Petkov was a minor at that time, we believe that purely theoretically his citizenship could have been revoked under Article 20 of the 1968 Law.
Crime and punishment (not exactly as by Dostoevsky)
Unlike the norm of the current citizenship Law, the condition for deprivation of Bulgarian citizenship under the old Law was that the person has committed a serious crime. Under the new Law, the condition is that the person has been convicted of a serious crime. A minor is unconditionally criminally NOT-responsible. That means that under the new Law, a minor cannot be convicted of a serious crime and consequently be deprived of citizenship. But according to the old Law, such a hypothesis is possible, ie. it is sufficient for the minor to commit a serious crime and it is not necessary to be convicted for this act.
Of course, the above considerations could be challenged, and they remain purely theoretical. But let us not forget that with the Law on Declaring the Communist Regime in Bulgaria as Criminal, our state has officially declared that:
The indicated circumstances in art. 1 and 2 give grounds to declare the communist regime in Bulgaria from September 9, 1944 to November 10, 1989, as criminal.Art.3(1) from the Law on Declaring the Communist Regime in Bulgaria as Criminal
This gives us some reasoning to believe that at that time, it would have been possible to deprive a minor of his Bulgarian citizenship, in accordance with the citizenship Law, then in force.
Everything in this analysis is extremely formalistic and hypothetical. We have no doubt that Yanaki Stoilov’s conclusion that Kiril Petkov is a Bulgarian citizen is true, almost certainly. But if the Minister of Justice had formulated his letter to the Constitutional Court in a slightly different way, such as (the deleted text is the wording of the ministry, and the red text is our “suggestion”):
Additionally, an inspection was performed in the automated information system of the Bulgarian Citizenship Directorate and the registers under Art. 38 of the Bulgarian Citizenship Act, in which it was established that there is no evidence that Mr. Kiril Petkov Petkov, born in,, in the town of ……, Republic of Bulgaria,
has applied for release from Bulgarian citizenship and has been released fromto have lost his Bulgarian citizenship.
then, all our reasoning above would have been meaningless. Because now, the conclusion of the Minister of Justice that:
In view of the above, Mr. Kiril Petkov Petkov, born on …. in the town of ………. The Republic of Bulgaria is a Bulgarian citizen from the moment of his birth until the present moment.MINISTER OF JUSTICE, Prof. Dr Yanaki Stoilov (letter № 383/14.09.2021)
may be true, but is in our opinion, not fully substantiated.
In addition, the Constitutional Court requested from Yanaki Stoilov a document certifying the presence or absence of Bulgarian citizenship of Kiril Petkov Petkov as of May 10, 2021. It is not clear to us why Yanaki Stoilov did not answer the question clearly and specifically. Instead, he declared that Kiril Petkov has been Bulgarian citizen from his birth to the present. However, what citizenship Kiril Petkov has held at the time of his birth, or even at the present moment, is not of interest to the Constitutional Court.
Despite the “criticism” expressed in this material, we believe that Prof. Dr. Yanaki Stoilov is a true professional. We wish him many more years on the Bulgarian political scene!