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Bulgaria Court says ‘Istanbul Convention’ Violates Constitution

July 27, 2018
Country's top court rules that convention against violence against women would be anti-constitutional, making its adoption by parliament almost impossible.
Bulgarians protesting against the Constitutional Court’s decision. Photo: Martin Dimitrov/BIRN

The Bulgarian Constitutional Court on Friday ruled that the Council of Europe’s convention on preventing and combating violence against women and domestic violence, known as the Istanbul Convention, does not conform to the Bulgarian constitution.

The 12-member court ruled by eight to four that the convention’s definition of “gender” as a social construct “relativizes the borderline between the two sexes – male and female as biologically determined”.

It added that if society loses its capacity to distinguish between a man and a woman, the fight against violence against women would become a formal and unfeasible commitment.

The ruling stipulates that “the lack of a common understanding of the concept of gender is illustrated by the active social and political discussion ‘for’ and ‘against’ the gender ideology that has been ongoing in dozens of countries around the world for two decades”.

Four magistrates, including Rumen Nenkov, Filip Dimitrov, Konstantin Penchev and Georgi Angelov gave dissenting opinions. Dimitrov criticised the court for using the controversial term “gender ideology”. Nenkov and Angelov called the decision “a gift to politicians of all colours”.

The ruling comes after 75 members of parliament, mostly from the ruling GERB party, asked the court for an opinion about the constitutionality of the convention, after MPs refrained from ratifying it in the beginning of this year.

The Istanbul Convention was approved by the Bulgarian government in January 2018, but the plan to pass it for ratification in parliament stumbled following criticism, especially from one of the parties of the United Patriots Coalition, VMRO.

On December 28, the party, led by the Minister of Defence, Krasimir Karakachanov, claimed that, through the convention, “international lobbies are pushing Bulgaria to legalize a ‘third gender’ and introduce school programs for studying homosexuality and transvestism and creating opportunities for enforcing same-sex marriages”.

The Bulgarian Socialist Party, BSP and the Orthodox Church, which had previously backed the convention, then changed tune and turned against it.

VMRO and the BSP welcomed the decision of the court as a victory against the “gender ideology”.

Human rights advocates, however, are dissatisfied. The Bulgarian Helsinki Committee, BHC, a prominent rights watchdog, called it “the worst human rights decision in the court’s history, and by a large measure”.

Krassimir Kanev, the chairman of BHC, told BIRN that the ruling was a mixture of rephrased texts from the convention and of other Council of Europe documents, speculation as to the meaning of some of the convention terms and “nonsensical and ideologically biased assumptions, such as the one that the convention incorporates aspects of the “gender ideology”.

Kanev pointed out that at no point in the ratification of the Istanbul Convention at the national level, and when discussed by the EU, did its contradiction with the basic rule of law principle ever became an issue.

“It is only the Bulgarian Constitutional Court, the highest court in a country marred by corruption and the lack of rule of law, that found such a contradiction,” he concluded

He said Bulgaria would probably remain the only Balkan country that would never accede to the treaty. The decision of the Constitutional Court, which calls the use of the gender definition an ‘internal contradiction’ within the Convention, practically makes its adoption in Bulgaria impossible,” Kanev said.

“This decision of the Constitutional Court is disturbing in its reading of the basic rights of women. It practically submits the social role of a woman to one of a mother when it comes to anti-discrimination prevention,” cultural anthropologist Valentina Georgieva, from Sofia University, told BIRN.
“Women have become victims of the prevailing homophobic and trans-phobic tendencies,” she added. 

Bulgaria signed the convention in 2016, but it attracted little popular attention until the end of 2017.

The convention has attracted criticism in some other Eastern European and Balkan states, but was ultimately ratified by all Balkan parliaments, apart from in Sofia.

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