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President Rumen Radev vetoed some changes in Commercial shipping code, announced by the administration of the head of state.
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 Criminal Code and the Road Transport Law. Radev does not discuss the public danger of unregulated transport, which is still declared an administrative violation.
His criticism is against the duplication of the same act, which is defined as both a crime and an administrative offense. So is duplicated responsibilities of varying severity, without clarity as to the applicable order. “The pursuit of the ‘gray economy’ must be done with the mechanisms of the rule of law: precise regulations adopted in a predictable and open legislative process,” said Radev.
I do not deny the need to use criminal protection against socially dangerous crimes, but this must be justified., predictable and accurate, observing all standards for the protection of human rights, the president wrote.
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It indicates that the reforms to the Penal Code are enshrined criminalization of unregulated passenger transport, but there is no movement under this law.
The reasons on which the head of state returns for a new discussion in parliament of the provisions of the Law amending and supplementing The Merchant Marine Code, adopted by the 44th National Assembly on October 28, 2020, is:
1 in Law of reform and complementation of the Merchant Marine Code (CPA Law), whose main objective is the safety of maritime transport and the supervision of the marine equipment market, amendments have been adopted to the Criminal Code and the Law on road transport. With § 18 of the Final Provisions of the CPC Law, Art. 234d of the Penal Code, which declares as a crime the performance of public passenger transport without a permit, registration or license, which is required by a regulatory act or an act of the European Union. There is a pity imprisonment for two to five years, and the motor vehicle used to commit the act will be confiscated in favor of the State, regardless of whose property it is.. The act committed by two or more people who have previously agreed to their commission is more severely punishable, either through the use of a false or forged document or a document with false content. In these cases the punishment is imprisonment of five to ten years and a fine of five to fifteen thousand lev, and the court can order the confiscation of up to half of the guilty party’s assets, the head of state cited the changes.
It does not discuss the public danger of unregulated passenger transport, but it does not discuss the public interest in the provision of transport services. The criteria according to which unregulated public passenger transport will be distinguished from the so-called shared ride. The reason for these questions is the broad definitions of the concepts “public transport “and” passenger transport “, contained respectively in § 1, articles 1 and 2 of the Additional Provisions of the Road Transport Law.
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“Public transportation “within the meaning of this law is transportation carried out on behalf of another person or against payment or economic benefit.which is done with a motor vehicle. “Passenger transportation “is defined as” the activity of a person who provides services for the transportation of passengers. with a motor vehicle at the expense of another person or for a fee or economic benefit ”. Despite the repetition in this definition, its wide limits become evident, said the head of state.
The changes adopted in the Road Transport Law, which in § 19 of the CPC Law are reduced only to the addition that the administrative sanction applies if the act committed is not a crime, you don’t give the necessary guarantees. They do not set a precise limit on when a person can share the cost of traveling to a particular place., freely exercising their rights over the respective motor vehicle, from the 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, there is too much freedom for the evaluation of the police authorities, and citizens are not clear about the qualification of the act committed by them. Both consequences are incompatible with the requirements of the rule of law.
The confiscation in favor of the state of the motor vehicle, used to commit the act, regardless of the ownership over it, provided for in § 18 of the CPC Law, may constitute an unjustified violation of the property right, 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 in 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 has not committed the crime, nor participated in its commission.
According to the European Court of Human Rights, When misused possessions are confiscated, this balance depends on many factors., including the owner’s behavior. 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 adopted amendment to the Penal Code Confiscation of property is established along with imprisonment., it is explicitly stated that this effect occurs regardless of who owns the motor vehicle. It is noteworthy that in qualified personnel under art. 234, para. 2 of the Penal Code the code does not provide for the confiscation of property of the motor vehicle, confiscation of up to half of the offender’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.
It was presented to the National Assembly on February 6, 2020 Bill that complements the Penal Code, which proposes the criminalization of unregulated passenger transport.. 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, that is, the fast, lasting and safe cessation of the unregulated transport of passengers, which is done 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 indicated that “It does not comply with the principle of criminal protection as the definitive and most serious form of state response to socially dangerous illegal acts, and justify the extension of its scope when the other types of responsibility could not objectively guarantee the respective public and personal interest. Furthermore, 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 ”.
In 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, or the responsible committee, the Committee on Transport, Information Technology and Communications. After months of inaction, the amendments to the Penal Code are approved by another law, which has nothing to do with their purpose.. It is unacceptable to compensate for this inaction by adopting provisions that call into question its accuracy but introduce criminal liability.wrote the head of state.
He insists that the search for the “gray economy” must It must be done with the mechanisms of the rule of law, respecting the principles of necessity, justification, predictability, openness, coherence, proportionality and stability..
These are your motives for challenging changes in the Penal Code and the Road Transport Law. They were submitted between the two votes of the Law to reform and supplement the Code of Merchant Navigation.without being related to its main provisions and scope. So they were adopted without public discussion and without data on the affected public relations, which require criminal protection..
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