Decision No. 1 of 24 January 2023 in constitutional case No. 17/2022
Referring entity and subject matter of the case
The case has been initiated upon request of the Prosecutor General of the Republic of Bulgaria seeking to establish anti-constitutionality of the provision of Article 240a, para 7 of the Criminal Code (CC, promulgated SG No. 26 of 2 April 1968; last amended and supplemented SG No. 53 of 8 July 2022) concerning the part ‘also when it is not owned by the perpetrator‘.
The alleged anti-constitutionality is premised on antinomy between the provision in question and Article 4, para 1 (rule of law state); Article 17, paras 1 and 3 (right to property); Article 56; and Article 122, para 1 (right to legal defence) of the Constitution.
Summary of the reasons
The provision of Article 240a, para 7 CC does not take into account cases where the vehicle or means of transport have been deprived against the owner’s will. Hence a possibility is created for the state to forfeit a vehicle or transferring means owned by a person who has no relevance to the offence under Article 240a CC and is even a crime victim. This is in conflict with the rule of law principle enshrined in Article 4, para 1 of the Constitution as it leads to an intrinsic contradiction of the criminal law (damage should be repaired, forfeited objects – returned) and runs contrary to the principle of equity since it envisages liability without fault under the criminal law. The possibility to forfeit property of a third person who is not party to the criminal proceedings has been provided for by a similar phrase to the ‘also when it is not owned by the perpetrator’ in several other provisions of the Criminal Code that have been declared anti-constitutional by judgment No. 12 of 30 September 2021 in constitutional case No. 10/2021.
There are a number of similarities between the provisions declared partially anti-constitutional by judgment No. 12 of 30 September 2021 in constitutional case No. 10/2021 and the provision of Article 240a, para 7 CC. What they have in common is that they envisage compulsory forfeiture of the means of transport which is not owned by the perpetrator. By virtues of the provision at issue in these constitutional proceedings even bona fide third parties shall be deprived of their right to property over a vehicle or means of transportation, including when it has been forfeited against their will if it has served for transportation or transfer of the illegally extracted underground resources.
There appears to be no specific public interest behind the provision of Article 240a, para 7, in particular the part ‘also when it is not owned by the perpetrator’ other than the public interest of countering illegal extraction of underground resources. Furthermore, the provision fails to strike a fair balance between violating the positive obligation of access to court for the protection of the right to property and protection against abuse of the power to forfeit vehicles and means of transportation. The legislative process reveals no reasons why the court has been deprived of the power to assess on a case-by-case basis compliance with the proportionality principle in restricting the right to property.
Limiting the possibility of the court to make an assessment on a case-by-case basis as to the third party’s good faith and the proportionality of the forfeiture of vehicles or means of transportation not only restricts the owner’s constitutional right to defence but further precludes direct application of Article 5, para 4 of the Constitution as regards international human rights treaties that have been ratified, promulgated and entered into force for the Republic of Bulgaria.
In accordance with the case-law of the European Court of Human Rights (ECtHR), providing for a mandatory confiscation of means that served the commission of a criminal offence (instrumentum sceleris) belonging to third parties without any indication of possible guilt of the owner and with no option to challenge the confiscation or pursue a realistic venue for compensation violates Article 1 of Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms (B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia, application o. 42079/12, § 48-52).
In its judgment of 14 January 2021 in С-393/2019 the CJEU holds the when the owner of a property is ‘a third party acting in good faith, who did not know and could not have known that his or her property was used to commit an offence, such confiscation constitutes, in the light of the objective pursued, a disproportionate and intolerable interference impairing the very substance of his or her right to property’ and that legal remedies should be envisaged for the protection of affected third parties.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on constitutionality of laws), the Constitutional Court declares anti-constitutional the provision of Article 240a, para 7 of the Criminal Code (CC, promulgated SG No. 26 of 2 April 1968; last amended and supplemented SG No. 53 of 8 July 2022) concerning the part ‘also when it is not owned by the perpetrator‘.