Decision No. 7 of 12 June 2025 on Constitutional Case No. 26/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the Twenty-Third Panel of the Sofia District Court for the establishment of the unconstitutionality of Article 343c, paragraph 3 of the Criminal Code, pursuant to which a person who operates a motor vehicle during the period of serving a coercive administrative measure consisting in the temporary withdrawal of a driving licence shall be punished by imprisonment of up to three years and a fine ranging from 200 to 1,000 leva.
According to the referring court, the contested provision is contrary to Article 4, paragraph 1 (the principle of the rule of law), Article 5, paragraph 3 (no one shall be convicted for an act or omission which was not declared by law to constitute a criminal offence at the time of its commission), and Article 6, paragraph 2 (equality before the law) of the Constitution.
Summary of the Court’s Reasoning
The classification of a given act as a criminal offence and the determination of the punishment for its commission constitute an expression of the State’s criminal policy, the formulation of which falls within the exclusive competence of the National Assembly. In its case-law, the Constitutional Court has emphasized that “[d]ecisions to criminalize or decriminalize certain acts are, by their very nature, political, as they presuppose a choice between competing interests, values and conceptions” (Decision №13/2022 on Constitutional Case №8/2022; Decision №14/2000 on Constitutional Case №12/2000; most recently Decision №4/2025 on Constitutional case №29/2024). At the same time, the Court has found it justified “to assume that, when proceeding to criminalize specific acts, the legislature bases its law-making activity on an analysis and assessment of criminological reality - the state, structure and dynamics of crime […] and the effectiveness of the expected general and special prevention” (Decision №13/2022 on Constitutional Case №8/2022).
That presumption is rebutted in the legislative adoption of Article 343c, paragraph 3 of the Criminal Code. Had the legislature undertaken even a cursory review of the law in force at the time of the provision’s enactment, it would have established that, within the body of positive law since the adoption of the Road Traffic Act, Article 177, paragraph 1, item 2 thereof has classified as an administrative offence the operation of a motor vehicle after the driver’s licence has been temporarily withdrawn pursuant to Article 171, item 4 of the same Act, and, since 2002, also pursuant to Article 171, item 1, for which offence an administrative penalty of a fine ranging from 100 to 300 leva is imposed.
As a result, at the time of the enactment of Article 343c, paragraph 3 of the Criminal Code, the positive law concurrently provided for both an administrative offence and a criminal offence sharing identical constituent elements - namely, the operation of a motor vehicle during the period of enforcement of the coercive administrative measure “temporary withdrawal of a driving licence”.
By enacting Article 343c, paragraph 3 of the Criminal Code, the legislature defined as a criminal offence conduct that had already been established by it as an administrative offence with identical constituent elements, without specifying under which circumstances the conduct is to be treated as a crime and under which as an administrative violation. In its case-law, the Court has held that “the principle of legality requires criminal law provisions to be sufficiently clear, foreseeable and accessible so as to enable legal subjects, if necessary, to ascertain for which acts and omissions criminal liability is prescribed. This requirement will be satisfied whenever citizens can derive from the content of the criminal norm what is prohibited to them, as well as what punishment will be imposed if they breach the law” (Decision №13/2022 on Constitutional Case №8/2022). In the present case, the Constitutional Court cannot consider as fulfilled even the requirement that “[a]t least the fundamental idea of the legislature and the essence of its will must be expressed clearly and definitively, so that the law-applying authorities may, through interpretation and application, ensure the accurate enforcement of the law” (Decision №1/2005 on Constitutional Case №8/2004), because even by way of interpretation the competent authorities are unable to ascertain not only the fundamental legislative idea and intent, but also, in each specific case, which type of liability - criminal or administrative - is to be engaged.
The identity between the constituent elements of the criminal offence under Article 343c, paragraph 3 of the Criminal Code and those of the administrative offence under Article 177, paragraph 1, item 2 in conjunction with Article 171, items 1 and 4 of the Road Traffic Act does not allow for a differentiation between the two by reference to the principle of the priority of criminal over administrative-penal liability, as established in Article 33, paragraph 2 of the Administrative Offences and Penalties Act (AOPA). The concurrence of the elements of the criminal and administrative offences, taken together with Article 33, paragraph 2 of AOPA, would imply that, by enacting Article 343c, paragraph 3 of the Criminal Code, the legislature tacitly repealed the administrative offence under Article 177, paragraph 1, item 2 in conjunction with Article 171, items 1 and 4 of the Road Traffic Act. In the present case, having regard to the conduct of the legislature at and subsequent to the adoption of Article 343c, paragraph 3 of the Criminal Code - specifically, the amendments and supplements introduced into Articles 171 and 177 of the Road Traffic Act - there are no grounds to presume a tacit repeal of the existing administrative offence and of the administrative penalty prescribed for it.
The identity between the constituent elements of the criminal offence and those of the administrative offence likewise precludes their differentiation on the basis of the degree of social danger, since that degree is also identical. The conduct at issue is a formally constituted offence - namely, the operation of a motor vehicle during the period of enforcement of the coercive administrative measure “temporary withdrawal of a driving licence” - and thus no specific harmful result or other socially dangerous consequence is required that might serve to distinguish the degree of social danger of the two acts. The only differences between the two offences lie in the type and severity of the sanction and in the procedural framework for the imposition of the respective penalties; however, these do not constitute objective criteria capable of distinguishing a criminal offence from an administrative violation.
The absence of a statutorily established objective criterion enabling not only citizens but also law-enforcement authorities to determine unequivocally when the conduct fulfils the elements of the criminal offence under Article 343c, paragraph 3 of the Criminal Code and when it constitutes an administrative offence under Article 177, paragraph 1, item 2 in conjunction with Article 171, items 1 and 4 of the Road Traffic Act renders the contested provision unclear to such an extent that even through interpretation by the competent authorities it is impossible to ascertain with certainty when the conduct will entail the imposition of an administrative fine ranging from 100 to 300 leva and when it will give rise to criminal liability punishable by imprisonment of up to three years and a fine ranging from 200 to 1,000 leva under Article 343c, paragraph 3 of the Criminal Code.
Apart from the absence of an objective criterion on the basis of which to distinguish the elements of the criminal offence from those of the administrative violation, the legislature also failed to take into account the fact that, pursuant to Article 172, paragraph 6 of the Road Traffic Act, coercive administrative measures are subject to preliminary enforcement. Defining the constituent elements of the offence in this manner - on the basis of a temporary and, above all, legally unstable withdrawal of a driving licence (in view of the preliminary enforcement and the appealability of the coercive administrative measure), without any further specification as to the type of violation for which the measure was imposed or as to its duration - does not comply with the requirement of stability and legal certainty of the legal relationships forming the subject matter of the criminal provision introducing the respective offence. This renders the provision incompatible with the principle of legality (Decision №5/2014 on Constitutional Case №2/2014).
The absence of a statutorily established objective criterion places the State’s punitive power in dependence on the discretion of the authority that has established the violation and on its subjective assessment thereof. The determination of the type of liability cannot be the result of the subjective appraisal of a law-enforcement authority, as this creates a precondition for arbitrariness. As consistently held in the Court’s case-law, arbitrariness “constitutes a breach of an objective criterion serving as a measure of justice. The prohibition of arbitrariness is an essential substantive component of the concept of the rule of law and is applicable to every statute” (Decision №1/2005 on Constitutional Case №8/2004).
The substantial disparity in the type and severity of the sanctions prescribed for the criminal offence under Article 343c, paragraph 1 of the Criminal Code - imprisonment of up to three years and a fine ranging from 200 to 1,000 leva - and for the administrative offence under Article 177, paragraph 1, item 2 in conjunction with Article 171, items 1 and 4 of the Road Traffic Act - a fine ranging from 100 to 300 leva - given the identity of the constituent elements of the two acts and the absence of an objective criterion delineating their respective scope of application, results in unequal treatment of citizens by the legislature in situations that are identical. The legislature’s failure to comply with the constitutional requirement of equality of citizens before the law, enshrined in Article 6, paragraph 2 of the Constitution, is likewise contrary to the substantive element of the rule of law - namely, justice.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (empowering the Constitutional Court to rule on requests for the establishment of the unconstitutionality of laws), the Constitutional Court declares the provision of Article 343c, paragraph 3 of the Criminal Code unconstitutional.
Председател: Павлина Панова