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President Rumen Radev
Rumen Georgiev Radev is a Bulgarian military reserve major general. Former commander of He returned for a new discussion on the provisions of the National Assembly of the Law of Amendments to the Code of the Merchant Marine, which complemented the Penal Code and the Law of Road Transport, announced the press office of the Presidency.
The head of state does not discuss the public danger of unregulated transport, which is still declared an administrative offense. However, when the same act is defined as a crime and as an administrative offense, responsibilities of different severity are duplicated, without it being clear which will be the applicable order. The search for the “gray economy” must be carried out through the mechanisms of the rule of law: precise regulations adopted in a predictable and open legislative process.
The full text of the reasons is as follows:
“MOTIVI
for return for further discussion in the National Assembly of provisions of the Law to amend and complement the Code of the Merchant Marine, adopted by the 44th National Assembly on October 28, 2020
Distinguished Members of Parliament,
The creation of a predictable and stable legislation, that regulates in a fair way the public relations regulated legally, is an expectation of all the citizens towards the normative activity. In addition to the precise content of the adopted norms, it is extremely important to observe the procedure established in the Constitution and the laws for their presentation, discussion, and voting. This is especially true of provisions that criminalize certain acts and provide a basis for involving citizens in criminal responsibility. I do not deny the need to use criminal protection against socially dangerous illegal acts, but this must be done in a reasonable, predictable and precise way, respecting all the standards of protection of human rights.
1. In the Law to reform and complement the Merchant Marine Code (AMC CPC), mainly focused on the safety of maritime transport and the supervision of the marine equipment market, modifications have been adopted in the Penal Code and in the Law of Road transport. With § 18 of the Final Provisions of the CPC Law, Art. 234d of the Penal Code, which declares as a crime the carrying out of public transportation of passengers without permission, registration or license, which are required by a normative act or an act of the European Union. There is a prison sentence of two to five years, and the motor vehicle used to commit the act is confiscated in favor of the State, regardless of who owns it. The act committed by two or more conspirators is more severely punishable. in advance for implementation, either through the use of a forged or forged document, or a document with false content. In these cases, the penalty is imprisonment for five to ten years and a fine of five to fifteen thousand levs, the court being able to order the confiscation of up to half of the guilty property.
I do not dispute the public danger of unregulated passenger transport, which could harm not only the safety of people but also the public interest in the provision of transport services. It is no coincidence that the law has so far constituted an administrative offense under the Road Transport Law, but the question now arises with good reason of how the cases in which it is prosecuted administratively or under the Code of Procedure will be evaluated. Penal. The criteria according to which unregulated public passenger transport will be distinguished from the so-called shared ride. The reason for these problems are the broad definitions of the terms “public transport” and “passenger transport” contained in § 1, articles 1 and 2 of the Additional Provisions of the Road Transport Law, respectively. “Public transport” in the sense of this law is a transport carried out for someone else’s account or against payment or economic benefit, which is carried out with a motor vehicle. “Passenger transport” is defined as “the activity of a person who provides services for the transport of passengers in a motor vehicle on behalf of third parties or in exchange for remuneration or economic benefit”. Despite the repetition in this definition, its wide limits are clear. The amendments adopted in the Road Transport Law, which in § 19 of the CPC Law are reduced only to the addition that the administrative sanction is applied if the act committed is not a crime, do not provide the necessary guarantees. They do not establish a precise limit on when a person can share their travel expenses to a certain place, freely exercising their rights over the respective motor vehicle, from cases in which the act constitutes an administrative offense or a crime. If the same actions can be treated as an administrative offense and as a crime, too much latitude is left to the discretion of law enforcement authorities, and citizens are unclear about the qualification of the act committed by them. Both consequences are incompatible with the requirements of the rule of law.
2. The confiscation in favor of the state of the motor vehicle used to commit the act, regardless of its ownership, provided for in § 18 of the AIS CTC, may constitute an unjustified violation of property rights, also guaranteed by art . 17 of the Constitution of the Republic of Bulgaria, and with art. 1 of Protocol No. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the settled jurisprudence of the European Court of Human Rights, confiscation measures must comply with the requirements of the Convention in the cumulative presence of three conditions: the measure is taken in a procedure established by law, pursues a legitimate purpose and is proportionate to the goal. The adopted § 18 of the CPC Law creates an unclear norm that does not allow evaluation under these conditions.
When the ownership of the motor vehicle belongs to a third party, the mandatory rule of art. 234d of the Penal Code, which provides for confiscation regardless of this circumstance, does not guarantee a “fair balance” between the public interest and the protection of the rights of the owner who did not commit the crime or participate in its commission. According to the European Court of Human Rights, when misused possessions are confiscated, this balance depends on many factors, including the behavior of the owner. In such cases, the national authorities are asked to take into account the degree of guilt or care of the owner or at least the connection between his conduct and the crime (Judgment of October 13, 2015 in Ünsped Paket Servisi San. Ve tic. A.Ş against Bulgaria).
In the reform adopted to the Penal Code, the confiscation of property is established along with imprisonment, and it is explicitly established that this effect occurs independently of the ownership of the motor vehicle. It is noteworthy that in qualified personnel under art. 234, para. 2 of the Criminal Code does not provide for the confiscation of motor vehicle property, confiscation of up to half of the perpetrator’s property is allowed, but this is only a legal possibility imposed at the discretion of the court. There is no explanation for this disproportion, as the reasons for the proposed amendment to the Penal Code do not contain any argument about the amount of the penalties provided.
3. On February 6, 2020, a bill that complements the Penal Code was presented to the National Assembly, in which the criminalization of unregulated passenger transport is proposed. The explanatory memorandum of the bill (№ 054-01-8 / 06.02.2020) establishes that “only through the methods of criminal law can the main desired effect be found, namely, the rapid, permanent and safe cessation of unregulated passenger transport, which is carried out to the detriment of the State itself and, no less, of society ”. The bill has received opinions from the Ministry of Justice, the Supreme Court of Cassation, the Confederation of Bus Carriers, the Supreme Council of Lawyers and the Public Prosecutor’s Office of the Republic of Bulgaria. The opinion of the Prosecutor’s Office indicates that “the principle of protection in criminal law is not fulfilled as the last and most serious form of state response to socially dangerous illegal acts, and the extension of its scope should be justified when other types of responsibility would not objectively do so. It could guarantee the relevant public and private interest.In addition, in this case the proposed regulatory change will strengthen the manifestation of another significant deficiency in our legislation: the duplication of responsibilities with different weight for the same executive act.
According to the aforementioned bill to reform the Penal Code, apart from the opinions received, no other movement has been reported. There is no report from the competent committee, the Committee on Legal Affairs, nor from the responsible committee, the Committee on Transport, Information Technologies and Communications. After months of inaction, the amendments to the Penal Code are approved by another law, which is not related in any way to its issue. It is inadmissible to compensate for this inaction by adopting provisions that leave doubts about their veracity, but introduce criminal liability.
The search for the “gray economy”, which I have repeatedly supported, must be carried out through the rule of law, respecting the principles of necessity, justification, predictability, openness, coherence, proportionality and stability. Therefore, I dispute the amendments made to the Penal Code and the Road Transport Law, which were introduced between the two votes of the Law that modifies the Merchant Marine Code, without being related to its main provisions and scope. In this way, they were adopted without public discussion and without exposing data on the affected public relations, which require criminal protection.
Distinguished Members of Parliament,
In view of the above reasons, I exercise my right under art. 101, para. 1 of the Constitution of the Republic of Bulgaria to return for further discussion § 18 and 19 of the Law amending and supplementing the Code of the Merchant Marine, adopted by the 44th National Assembly on October 28, 2020. “.
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