Decision No. 8/2025 on Constitutional Case No. 15/2024
Referring Authority and Subject Matter of the Case
The case was instituted upon a request by the General Assembly of the Criminal Chamber of the Supreme Court of Cassation for the establishment of the unconstitutionality of Article 280, paragraph 5 and Article 343, paragraph 5 - in their entirety; of Article 281, paragraph 4 in the part “or a fine in the amount of the market value of the vehicle in leva, if it is not the perpetrator’s property”; and of Article 343b, paragraph 5 in the part “and, when the perpetrator is not the owner - to award its equivalent value” - all from the Criminal Code (CC) of the Republic of Bulgaria. In view of the similarity of the subject matter, the proceedings were joined for joint adjudication with the request submitted by the 2nd Criminal Panel of the Regional Court - Svilengrad for a declaration of unconstitutionality of Article 343b, paragraph 5 of the Criminal Code. Regarding Article 280, paragraph 5 and Article 281, paragraph 4 of the Criminal Code, the petitioner asserts that they violate Article 5, paragraph 3 of the Constitution (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) due to inconsistency with the penalty “fine” under the Criminal Code and the impossibility of its individualization with regard to the public danger of the act and the offender. It points out that the penalty “fine” within the meaning of the Criminal Code and that provided for in the special hypothesis, the subject of the contested provisions, are imposed jointly, which results in the impermissible imposition of the same penalty (fine) twice, but with different content, for the same crime. Concerning Article 343, paragraph 5 of the Criminal Code, it is argued that it contradicts the general part of the Criminal Code. Regarding Article 343b, paragraph 5 of the Criminal Code, arguments for unconstitutionality analogous to those set out with respect to Article 280, paragraph 5 and Article 281, paragraph 4 of the Criminal Code are presented.
Summary of the Court’s Reasoning
Regarding Article 280, paragraph 5 and Article 281, paragraph 4 of the Criminal Code
Article 280, paragraph 5 provides that in the cases under paragraph 2, item 5 (organized by a group or organization, or committed on order and/or in execution of a decision of an organized criminal group, the crossing of the state border by individuals or groups of people without the permission of the competent authorities, or even with permission but not through the designated points), the vehicle shall be confiscated in favor of the state if it is the property of the perpetrator, or a fine equal to the market value of the vehicle in leva shall be imposed if it is not the perpetrator’s property. Article 281, paragraph 4 provides that in the cases under paragraph 2, item 1 (illegal assistance to a foreigner to reside or transit in the country in violation of the law, carried out through the use of a motor vehicle, aircraft, or other means of transport), the vehicle shall be confiscated in favor of the state if it is the property of the perpetrator, or a fine equal to the market value of the vehicle in leva shall be imposed if it is not the perpetrator’s property.
The Constitutional Court finds that the “fines” provided for in Article 280, paragraph 5 and Article 281, paragraph 4 of the Criminal Code do not correspond to the legal nature of the penalty “fine,” because they do not allow for judicial individualization according to the severity of the offense, the personal circumstances, or the financial situation of the perpetrator. Instead, their amount depends solely on the market value of the vehicle, which leads to arbitrary and disproportionate sanctions and violates the principles of fairness and predictability in criminal law. The Court emphasizes that these provisions, in practice, allow the imposition of two penalties of the same type for the same offense, which is incompatible with the fundamental principles of criminal law. Furthermore, it is established that the provisions violate the principle of legality of crimes and penalties under Article 5, paragraph 3 of the Constitution, as well as the principle of the rule of law and legal certainty under Article 4, paragraph 1 of the Constitution, because they introduce an unclear, internally inconsistent, and incoherent legal regulation. Additionally, Article 280, paragraph 5 of the Criminal Code is declared unconstitutional because it refers to a criminal offense that does not involve the use of a vehicle, making the provision inapplicable and in conflict with the principle of legality and the requirement that criminal norms be clear and precise. On these grounds, the Constitutional Court declares Article 280, paragraph 5 of the Criminal Code unconstitutional in its entirety, and Article 281, paragraph 4 of the Criminal Code unconstitutional in the part concerning the imposition of a fine equal to the market value of the vehicle.
Regarding Article 343, paragraph 5 and Article 343b, paragraph 5 of the Criminal Code
Article 343, paragraph 5 of the Criminal Code provides that when the act (under Article 342, a violation of traffic rules while operating a mobile railway unit, aircraft, motor vehicle, vessel, combat or special machine, where the perpetrator causes bodily injury or death to another person) is committed while intoxicated or under the influence of narcotic substances or their analogues, or when the person, without medical justification, refuses to be tested for alcohol and/or narcotic substances or their analogues, or if the act results in bodily injury or death to more than one person, or if the perpetrator flees the scene, or operates the vehicle without the required legal qualification where such is mandated by law, or if the act involves exceeding the permitted speed in a populated area by more than 50 km/h, or if the act is committed by passing a red traffic signal or on a pedestrian crossing (pursuant to Articles 343, paragraphs 3 and 4, to which the contested paragraph 5 refers), the court shall confiscate in favor of the state the aircraft, motor vehicle, vessel, or special machine used to commit the offense if it is the property of the perpetrator, and, if the perpetrator is not the owner, the court shall award its equivalent value.
The Constitutional Court considers that the provisions of Article 343, paragraph 5, and Article 343b, paragraph 5 of the Criminal Code, which provide for the confiscation of the motor vehicle used to commit the offense or, alternatively, the awarding of its equivalent value, pursue a legitimate aim - namely, the protection of life, health, and the safety of citizens in road traffic -and reflect an intensified penal policy against particularly socially dangerous conduct, such as operating a motor vehicle under the influence of alcohol or narcotic substances. The Court emphasizes that the legislator enjoys broad discretion in determining criminal policy, provided that it is exercised within the constitutional principles of the rule of law, legal certainty, and the statutory definition of crimes and penalties. After a detailed analysis of the practice of the Constitutional Court, the European Court of Human Rights, and the Court of Justice of the European Union, it is concluded that the principle of legality is observed, as the norms are sufficiently clear and foreseeable, allowing citizens to understand which conduct is prohibited and the consequences of its violation, while the need for judicial interpretation is not incompatible with the Constitution, provided that such interpretation is reasonably predictable. The Constitutional Court notes that, although Article 343, paragraph 5 of the Criminal Code contains a minor technical imprecision through the use of the term “used to commit the offense” in the context of negligent acts, this shortcoming does not reach the level of unconstitutionality and represents a weakness that can be remedied through judicial interpretation and, if necessary, legislative correction. The Court further observes that even if there are certain inconsistencies with provisions from the general part of the Criminal Code, they are neither of such nature nor magnitude as to affect constitutional values or justify a declaration of unconstitutionality. Additionally, the provision for awarding the monetary equivalent of a motor vehicle when it is not the perpetrator’s property safeguards the principle of equality before the law by preventing differential treatment of individuals who commit the same offense based on ownership of the vehicle. On the basis of these considerations, the Constitutional Court concludes that the provisions of Article 343, paragraph 5, and Article 343b, paragraph 5 of the Criminal Code do not contravene the Constitution and are constitutionally permissible.
Grounds for the Ruling and Disposition
On the basis of Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for the establishment of the unconstitutionality of laws), the Constitutional Court declares unconstitutional the provisions of Article 280, paragraph 5, in their entirety, and of Article 281, paragraph 4, in the part stating “or a fine in the amount of the market value of the vehicle in leva, if it is not the perpetrator’s property,” of the Criminal Code, and rejects the request in its remaining part.
The decision is signed with a dissenting opinion by five judges concerning the part of the request that was rejected.
Председател: Павлина Панова