4. Administrative penalty proceedings in Bulgaria

The AVPA does not contain rules for proving the administrative violation and the identity of the offender. The only rules for proving the administrative violations are those for the seizure of material evidence by the act for establishing an administrative violation. The rules of the Criminal Procedure Code apply by virtue of the restrictive reference contained in Article 84 of AVPA. However, these rules do not apply in the out-of-court phase of the proceedings and regulate the proof of the crime, which is why they presuppose significant formalism. The need to ensure the availability of the full range of investigative tools of the Criminal Procedure Code, including special intelligence means, in proceedings against legal persons was also underscored by the OECD Working Group on Bribery in relation to foreign bribery investigations (OECD, 2021[1]).

The AVPA could explicitly provide that the rules of the Code of Criminal Procedure apply accordingly in relation to the proof of offences, by laying down exceptions to these rules. Such exceptions are for example the involvement of witnesses of the procedural actions, for judicial review of measures of inquiry, etc. However, future codification could provide the detailed rules on proof in administrative criminal proceedings.

A good basis for concrete legislative proposals can be found in the draft Code of Administrative Violations and Penalties of 2015. Taking that text as basis, the specific wording of the provisions in the codification act could be as proposed in Box 4.1.

With regards to the related issue of the ascertainment of the offender´s identity, the curret wording of Article 43 of the AVPA provides that “when the identity of the offender cannot be established by the issuer of the act it shall be established by the closest municipal administration or division of the Ministry of Interior.” According to the interviews carried out within the fact-finding mission with key ministries and agencies making use of the administrative penalty framework, this text creates practical difficulties because it requires the intervention of the Ministry of Interior´s officials each time there are problems in establishing the identity of the offender. To overcome this challenge and swift the process of ascertaining the offender´s identity, Bulgaria could amend the relevant text by giving the right to require a personal document to any official issuing an act for establishment of the committed administrative violation along the proposal illustrated in Box 4.2.

For the purposes of the administrative penalty proceedings, when establishing administrative violations the issuer of the act can seize and keep the material evidence related to the establishment of the offence, as well as the objects subject to seizure in favour of the state (Article 41 of the AVPA). This requires that they are being described in the act establishing the administrative violation.

In these proceedings, unlike in the criminal proceedings, there is no need for judicial approval of the actions of the organ seizing the property, although searches and related seizures significantly restrict the legal sphere of the person subject to that investigative measure. Furthermore, the law does not explicitly regulate the possibility for seizing and attaching the material evidence after drawing up the act and during the proceedings.

Another issue concerns the safekeeping and disposal of the material evidence contained in the file until the case is solved. The procedural administrative penalty law is extremely laconic on this issue. For example, there are no rules as to whether the seized material evidence should be kept until the end of the administrative criminal proceedings, neither are there rules as to whether it is permissible to dispose of these items outside the hypothesis of Article 46, paragraph 4 AVPA, before the end of the proceedings before the sanctioning body. The law does not contain any reference to the Criminal Procedure Code on these issues either.

At the same time, the seized items may include ones that are important for the offender or items of value significantly exceeding even the maximum amount of the proprietary sanction provided for the violation. It is also possible that the items are not relevant to the subject of proof, but the administrative authority nevertheless wrongfully refuses to return them to the person against whom the act has been drawn up.

In the absence of explicit regulation, the possible conclusion is that the matter is left to the discretion of the sanctioning authority. This circumstance hides a serious risk of unjustified return of items attached as material evidence or means of proof to an entitled or non-entitled person. There is also a risk of unjustified detention of items that are not relevant to the proceedings (not a source of relevant facts) in order to motivate the entitled person to dispose of the service intended by the administrative body. Additionally, it may lead to corrupt administrative practices.

This legal gap could be addressed by creating a more robust gal framework regulating the power of the sanctioning body to dispose of items seized in the file before the end of the proceedings and preventing the sanctioning body from refusing to return the irrelevant items.

Proposals to regulate matters relating to the keeping and disposal of material and documentary evidence in a future codification act have already been referred to in Box 4.1. Under the current AVPA, the provisions could be worded as proposed in Box 4.3.

The procedural rules in the AVPA only regulate the case when the act establishing the administrative violation concerns for a single violation and this violation is the subject of the final law enforcement act issued by the sanctioning body. However, there are also cases when it is possible or even appropriate from the perspective of procedural economy that the act is drawn up for two or more violations. In these cases, it is not always possible to launch proceedings for both offences. For example, if the offences fall within the scope of competence of different enforcement authorities, it may be that one of the offences requires collecting of evidence or there are grounds for suspension of proceedings, etc., and for the second one it is not necessary. It is therefore appropriate to develop provisions for the separation of files in the procedural law. This could also be done within the court phase of the proceedings, but in such case, the rules of the Criminal Procedure Code will apply.

It is also possible that there is a connection between two or more administrative penalty files. In such case, it is appropriate to provide for the possibility of merging proceedings in the general administrative law. The provisions concerning the exercise of the powers of the sanctioning authority in this respect could be worded as proposed in Box 4.4.

It is also necessary to provide for the possibility of bringing together two or more administrative penal cases at the stage of judicial review of administrative acts, where there is an objective or subjective link between them, as it is possible with criminal cases. Such a need would arise, for example, when contesting:

  • two or more acts of the sanctioning authority issued against two or more persons concerning their involvement, even in a different administrative-punitive capacity, in the commission of the same administrative offence (for example, as perpetrator and supporter, as perpetrator and as an admitter, in simultaneous sanctioning the legal person and the legal entity representing it, etc.);

  • two or more acts of the sanctioning authority issued against the same person for two or more violations committed in the same factual context (e.g. two or more violation of the Road Traffic Act committed in the same time, place and circumstances, two or more infringements of the VAT Act in two consecutive tax periods, etc.);

  • two or more acts of the sanctioning authority against the same person for the same violation, issued contrary to the principle non bis in idem (in order to ensure a lawful assessment of which of them should be annulled);

  • main and additional penal orders.

Similarly, it would also be important to provide for the opposite possibility of splitting of proceedings, which would be needed when:

  • the proceedings are initiated following an appeal or protest against a penal order sanctioning the offender for two or more offences committed in different judicial districts;

  • the proceedings are initiated following an appeal or protest against a penal order sanctioning one or more persons for offences with no connection between them;

  • the conditions for the stop of proceedings against one or more of the persons pecuniary sanctioned are met, and the other conditions are not met.

Box 4.5 proposes two articles on splitting and consolidation of cases.

A separate but related issue pointed out in the Phase 4 report of the OECD Working Group on Bribery concerns the fact that, where sanctions against legal persons are imposed in the course of the criminal proceedings against natural persons, the AVPA provides for separate proceedings for natural and legal persons. While this is justified by judges participating in the review process with the fact that proceedings against legal persons tend to be faster and more flexible, and may continue independently in cases where the natural person is later acquitted, the report notes that evidence gathered in the criminal proceedings against natural persons may be used in the proceedings against legal persons and, more generally, that evidentiary activity on the two set of proceedings cannot be isolated. Based on this the report concludes that, where appropriate, Bulgaria consider combining proceedings against natural and legal persons in the same case following the practice of some other OECD Working Group members with non-criminal corporate liability. (OECD, 2021[1])

Currently, the possibility to suspend the administrative penalty proceedings is regulated in Article 43, para. 6 of the AVPA, as follows:

When the offender, after a thorough inquiry, cannot be found it shall be noted in the act and the proceedings shall be terminated.

This is the only hypothesis when the administrative penalty proceedings can be suspended, which is addressed later on in the report when discussing the servicing the summons, papers and notices (section 4.5) and the possibility of in absentia proceedings (section 4.11). Beyond this option, the legal framework could provide for the possibility to suspend proceedings in other cases such as when, after the offence has been committed, the offender has been affected by a short-term mental disorder, which precludes his sanity, and in cases where a response to a request for international co-operation is expected. In particular:

  1. 1. The offender's short-term mental disorder, which excludes his sanity after committing the violation, is not an obstacle to his administrative penalty liability. This circumstance only temporarily impedes his ability to participate in the proceedings and to exercise his right to defence. In case the person recovers, the sanctioning body would have the power to resume the proceedings and to ascertain the responsibility of the suspected offender. In case the person does not recover by the expiration of the limitation period, the sanctioning body should be obliged to terminate the proceedings.

  2. 2. If a response to a request for international co-operation related to summoning a person from another EU member state or obtaining evidence relevant to the subject of the file is expected, there is again reason to suspend the proceedings because no other procedural actions are required during this period, and because the suspension of the proceedings is necessary so that the preclusive term for issuing a penalty ruling provided for in Article 34 of the AVPA does not expire.

The power to suspend proceedings should belong to the sanctioning body and not, as before, to the authority which issued the act. On the one hand, the exercise of the power of suspension of the proceedings is a decision on the merits, which is solely a competence of the sanctioning authority. On the other hand, this creates a legal guarantee against possible illegal procedural actions on the part of the authority, which issued the act. A closely related gap concerns the lack of a procedure to resume the suspended administrative penalty proceedings, both when the grounds for suspension cease to exist and when there is a need to perform additional actions to collect evidence.

Legal amendments to address the gaps in this area could be establishes both under the current AVPA and in a future codification act. The provisions could be worded as proposed in Box 4.6.

Other procedural areas where rules could be further clarified are the ones concerning the procedural representation of persons and for translation of documents of procedural significance.

In 2014, Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings was transposed into Bulgarian law by introducing, in Article 55 par. 4of the Code of Criminal Procedure governing the rights of the accused, a new paragraph 3 under which an accused person who does not speak Bulgarian has the right to interpretation and translation in criminal proceedings in a language which he understands. The defendant shall be provided with a written translation of the decree for bringing the accusations, of the court rulings for a constraint measure, of the act of indictment, of the judgment delivered, of the decision of the Court of appeal and of the decision of the cassation instance. A defendant shall be entitled to refuse written translation pursuant to this Code where he/she has a defence counsel and his/her procedural rights are not being violated.

However, there is no provision in AVPA on the right to translation of participants and before the court. Apart from this, the failure to ensure the right to translation at the out-of-court stage of the procedure may have an extremely negative impact on the rights of defence of the persons against whom an act for establishment of the administrative violation has been drawn up in the proceedings. To address these gaps it is necessary a set of provisions in the procedural law to be established.

In the first place, it is necessary to create a provision which explicitly states the language in which proceedings are conducted (Box 4.7).

Secondly, an explicit regulation of the rights of the person against whom the act for establishment of the administrative violation has been drawn up is necessary (Box 4.8).

The need to regulate the issue of costs at the extra-judicial stage of the proceedings emerged during the interviews during the OECD fact-finding interview. In this context, it could be provide that the remuneration of experts, the interpreter and the interpreter in Bulgarian sign language should be determined by the act issuer, the sanctioning authority or the court, and that the costs are to be borne by the budget of the administration to which experts and interpreters are assigned.

It is also necessary for a provision similar to that of Article 142 of the Code of Criminal Procedure to be provided (Box 4.9).

Additional rules could be developed in the AVPA with regards to the serving of summonses and notices to the person against whom an act establishing an administrative violation is to be drawn up, or against whom an act has been drawn up and is to be filed and served. The only provision on these procedures is contained in the first subparagraph of Article 43, para. 4 of the AVPA. The same applies to the summoning of the persons against whom a penalty ruling has been issued according to Article 58, para. 1 of the AVPA. Furthermore, there are no special rules for the summoning of legal entities and sole entrepreneurs and of persons who have suffered damages as a result of the violation.

The respondents to the OECD questionnaire point out that the existing legal framework is insufficient to ensure the normal exercising of the powers of the controlling and sanctioning bodies to serve the relevant acts and the participation of legal entities in the out-of-court phase proceedings, for example in relation to the Traffic Law. A related issue has been raised by the OECD Working Group on Bribery, which expressed concern about the limited circumstances in which a legal person’s representative is duly summonsed before court proceedings can commence and recommended that Bulgaria ensure that these limited circumstances do not prevent court proceedings against legal persons being commenced. (OECD, 2021[1]).

Participants to the workshop organised by the OECD to discuss preliminary recommendations proposed to simply the procedure for service of summonses and papers, especially in the cases when a low penalty is envisaged. Although this may be appealing it is important to ensure the same rules apply, since the right of defence and the right of the person to be informed of the penalty should not depend on the gravity of the violation and the amount of the sanction. However, legal changes on this topic is needed and the AVPA could provide for detailed rules for summoning and serving summonses, papers and notices, both to individuals and to sole entrepreneurs, legal entities and companies without legal personality.

Proposals in this direction were also made in the development of the latest amendments to the AVPA from the end of 2020, but their final adoption has not been achieved. Indeed, these rules need to be upgraded and their possible drafting could be as proposed in Box 4.10.

The adoption of such a regulation will also lead to the repeal of the special rules for service of the penalty order referred to in Article 58 par.2 AVPA (SG. 109/2020 AVPA), the application of which, according to some of the respondents to the OECD questionnaire, gives rise to contradictory case-law. These proposed rule would contribute to address difficulties in summoning and serving documents to persons who do not have an address on national territory, which was also referred to as a problem in the data collection exercise as well as the concerns expressed by the OECD Working Group on Bribery on the limited circumstances for duly summonsing a legal person’s representative. (OECD, 2021[1])

The analysis of the legal framework also evidenced a possible gap in the law concerning the costs and remuneration in the out-of-court phase of the administrative penalty proceedings. Indeed, in this context there a two possible approaches.

The first one would be to consider that the costs incurred by the act issuer and the sanctioning authority during the pre-judicial stage of the proceedings in order to prove the violation and the identity of the offender remain at the expense of the establishment or organisation to which the sanctioning authority belongs, regardless of the act by which that stage of the proceedings ended. This is the current solution adopted by Bulgaria, which is similar to the one of Germany (Box 4.11).

The second one would be to assess whether the costs incurred in the pre-judicial phase of the proceedings may be charged to the offender in cases where the final law enforcement authority rules in favour of the question of his involvement in the violation for which the proceedings are initiated, where the proceedings end with a penal order, a warning under Article 28 AVPA or an agreement between the sanctioning authority and the offender. Should Bulgaria decide to take this approach, similar to the solution adopted by Austria, the possible legislative solution could as proposed in Box 4.13.

A significant part of penalty orders are subject to appeal in front of judicial bodies (Figure 4.1). Penal orders are subject to challenge before the regional courts, which act as courts of first instance appeal in such proceedings. They review cases under the Criminal Procedure Code. At the same time, the decisions of the district courts are subject to cassation appeal before the administrative courts on the grounds, provided for in the Criminal Procedure Code (PPC) and following the procedure under Chapter Twelve of the Administrative Procedure Code (APC).

The reference to both the PPC and the APC in the current provision of Article 63, para. 1 of the AVPA creates a number of difficulties in the practice of administrative courts. One of the questions is whether in cassation proceedings the administrative court has the power to re-classify the violation described in the penal decree, bringing the facts established by the administrative sanctioning authority under another provision of law which has been infringed (point 2 of the proposal to institute interpretative case No 1/2020 of the Supreme Administrative Court’s has not been decided yet). There is also the contradiction between the reference to Chapter Twelve of the Administrative Procedure Code and the reference to the provisions of the PPC in Article 84 of the AVPA in connection with unresolved issues related to the reviewing of cassation appeals by the administrative court.

In particular, Article 84 of the AVPA, following the last amendment in 2011, states that:

Inasmuch as this Act contains no special rules for subpoena and presentation of subpoena and announcements, making inventory lists and seizing objects, determining expenses of witnesses and remuneration of experts, calculation of periods, as well as for the proceedings in court for consideration of complaints against penal prescriptions, of cassation claims at the administrative court and proposals for resumption shall apply the provisions of the Penal Procedure Code.

And in Article 63 (1), 2 (after amendment — Article 63c), it is stated that:

The decision of the Regional court shall be subject to cassation appeal before the Administrative court on the grounds, provided for in the Penal Procedure Code and under Chapter Twelve of the Administrative Procedure Code.

The reference to two different procedural regulations applicable to the same procedure was not removed by the 2020 amending law, although in the course of the discussion preceding the submission of the draft law to the National Assembly, such proposals were made by interested parties. To address these inconsistencies, the AVPA could provide for the reference to the procedures laid down in the Code of Criminal Procedure only (Box 4.15). The procedure under the Code of Criminal Procedure should be preferred given the origins of the administrative penalty system in Bulgaria, whose structure and concepts derive from criminal law . Furthermore, this would be in line with the model adopted by Germany, which is also informed by criminal law and has been influencing Bulgaria’s administrative penalties system since its inception Box 4.14.

Should Bulgaria decide to codify administrative penalty law, it should be recommended that the questions relating to the pleas in cassation and the procedure for dealing with the appeal on a point of law should be laid down in detail (see next para), avoiding a reference to procedural rules laid down in other legal acts which govern different procedural relationships in nature.

With the entry into force of the new amendments to the AVPA adopted in December 2020 the regulation of the judicial review of the sanctioning act of the administration was updated through explicit regulation of the powers of the district court, the procedural representation of the parties before the regional court and the regulation of abbreviated court proceedings

However, the AVPA has not yet regulated in detail the proceedings before the administrative (cassation) courts, so additional rules may be considered to clarify the grounds for cassation appeal and powers of the cassation court. A comprehensive regulation of cassation proceedings under the AVPA could be implemented by means of a comprehensive codification of the rules on administrative penalties. Concrete proposals were made with the 2015 draft Code of Administrative Violations and Penalties, which is the basis for the rules proposed in Box 4.16.

These rules would maintain the competence of administrative courts over cassation proceedings as this is part of a broader judicial policy of Bulgaria. However, a reflection and discussion could start among representatives of the executive and judicial branches to evaluate advantages and disadvantages of maintaining the current division of competence or transfer the cassation review back to the district courts. The comparative experience seems to go into the direction of having either administrative or criminal judges reviewing administrative penalties at the appeals and cassation levels (Box 4.17).

One of the points raised by public entities during the workshop was how to proceed in case, after the issuance of the final act of the sanctioning authority and before the initiation of a judicial review of this act, a legal basis for termination occurs, i.e. death of the offender, expiration of the statute of limitations, deletion of the sole proprietorship/legal entity.

Detailed regulation of the powers of the district court in the proceedings for judicial control over the acts of the sanctioning body partly addressed this issue. According to new amendment law the court has the power to revoke the act under Art. 58e and to terminate the administrative penalty proceedings (Art. 63, para. 6, item 2, item 3 AVPA) in case the death of the person or termination of legal entity occurs after issuance of penal order. However, there is still legislative gap in cases when the person has died or the legal entity has been terminated after issuance - but before the entry into force - of a penal order. In this case the penal order will enter into force.

Considering this gap a new ground for resuming proceedings could be included. This should be a possibility, but not obligation for the prosecutor: if the prosecutor considers that there are no grounds for resumption, the act will enter into force and will give rise to its legal consequences in the legal sphere of the person's heirs. It is not necessary in any of the cases to reopen the proceedings, because if the violation is established in an unequivocal manner and no substantial violation of the procedural rules is committed, it is logical for the legal entity to be sanctioned, even if the fine is collected from the property, left after his death. However, there should also be the possibility of resuming the proceedings where there are the reasonable grounds that the penalty order could be revoked and there is no other option for that because of the death of sanctioned person or termination of the legal entity within the period between the issuance of penal order and enter into force.

According to the provisions of Article 45, para. 1 of the AVPA, in its current wording, until the penalty ruling is issued, the victim can submit a request to the sanctioning body for compensation for damages to the amount of up to two BGN (in comparison, up to 01.05.2021 the minimal salary set for the country is in the amount of BGN 650), unless the relevant law or decree provides for the possibility of claiming a larger compensation for damages before the same body.

The possibility for a person who has suffered harm as a result of the violation to bring a civil action for damages in the course of administrative criminal proceedings derives from the general principle of law that everyone is obliged to repair the damage wrongfully caused by them to someone else. Where the offence is also a tort, the injured party has two possibilities: to bring a civil action for recovery of the damage caused to them before the civil court, in accordance with the Code of Civil Procedure, or to submit a claim for compensation to the sanctioning authority.

Despite the relatively detailed arrangements for civil claim in administrative criminal proceedings, the analysis of administrative penalty cases shows that this provision does not find real practical application for two reasons: first, due to the principle that administrative violations affect the established order of government, therefore they may not cause substantial damage to individual citizens or economic operators, and secondly, due to the outdated amount of compensation for damages that can be claimed under this order.

This conclusion is also based on the answers to during the OECD fact-finding mission whereas interviewees have not been able to rule on a civil claim brought jointly with administrative criminal proceedings, and they agree that dealing with a civil claim, especially for compensation for material damage, would constitute a significant difficulty for them, as it would require an assessment of whether the violation concerned has caused damage, of what type and to what extent. Bulgaria could thus consider discontinuing the possibility of examining a civil claim in administrative criminal proceedings. A number of recommendations have also been made in the course of the discussion for the draft of AVPA adopted at the end of 2020. This can be achieved by repealing Articles 45 and 55 of the AVPA and amending the other provisions of the Act governing the procedural rights of the victim.

Most of the respondents to the OECD questionnaire have pointed out that a serious problem for engaging the responsibility of legal entities is establishing their current location, their summoning to participate in the proceedings, respectively presenting and serving the drafted act. It is pointed out that in many cases the violators do not want to receive summonses and messages, they do not appear when summoned, and their current address cannot be established. This significantly delays the administrative penalty proceedings and creates impunity.

According to current art. 43, para. 6 of the AVPA, when the violator cannot be found after a thorough search, this shall be noted in the act and the proceedings shall be suspended. The administrative penalty authorities have faced the same problem. In art. 58, para. 2, however, when the offender or the person requesting compensation is not found at the address indicated by them, and their new address is unknown, the sanctioning body shall mark this in the penalty ruling and it shall be considered served from the day this has been marked.

Provisions for the default service of administrative infringement notices issued and penalty orders issued are also laid down in the special administrative legislation such as:

  • Article 233 par.4 of the Consumer Protection Act, which provides that notices establishing administrative violations and penal orders within the meaning of the Administrative Violations and Penalties Act, as well as individual administrative acts within the meaning of the Administrative Procedure Code, may be served to any natural person who is in the business premises and who has a civil or employment relationship with the person against whom they are issued.

  • Article 232 of the Customs Act, which lays down two exceptions to the rules on the lodging and service of the document and the penal order. Where the offender is unknown, the act is to be signed by the act issuer and one witness and not to be served. In this case, a penal order shall be issued, which shall take effect from the time it is issued. Where the offender is known but not found at the address indicated when the administrative offence was served, or has left the country, or has indicated an address abroad only, the law again provides that the penal order shall not be served and shall be deemed to have entered into force two months after it was issued.

In this context, Bulgaria could consider introducing limited cases in which the proceedings may continue, even if the offender is not found to be presented and served the act. A similar possibility is regulated for the persons who have committed a crime in art. 269 of the Criminal Procedure Code and in other EU countries (Box 4.18).

The AVPA does not contain provisions regulating the execution of penalties imposed abroad or the execution abroad of penalties imposed by Bulgarian administrative bodies. Furthermore, as some of the respondents to OECD questionnaire have pointed out, the issue of international legal co-operation in administrative penal cases is becoming more and more relevant. The number of cases of violations of cross-border nature or committed by foreign citizens or Bulgarian citizens with permanent residence in another country is increasing. This is particularly relevant for legal entities without a registered office and address in Bulgaria, as well as for violations that have affected a Bulgarian citizen or violated the interests of the Bulgarian state or a Bulgarian municipality.

The legal framework could thus explicitly regulate these cases, including when another EU member state or a third country has imposed an administrative penalty for a violation that is subject to sanction or has already been sanctioned by the Bulgarian law enforcement authorities. In this sense, the draft Code of Administrative Violations and Penalties of 2015 proposed a regulation of international legal co-operation in administrative penalty proceedings which Bulgaria could consider to regulate this are (Box 4.19). However, before recommending such provisions to be adopted in the AVPA or in the relevant codification act, a deeper exploration of the opportunities for collaboration between the different administrations and the relevant competent bodies from other countries is necessary, both at the pre-judicial stage of the procedure and at the enforcement stage.

In developing such regulation, Bulgaria could also consider the broader European context of mutual assistance in administrative penalty cases, as well as examples of regulations from single countries (Box 4.20).

According to Art. 79, para. 1 of AVPA, the penal decrees and decisions of the court, by which fines have been imposed or monetary compensations have been awarded in favour of the state, shall be fulfilled by the order of collecting the state takings. This is also the procedure established for the collection of the fine imposed as a penalty under the Criminal Code. In particular, Article 416, para. 4 of the Criminal Procedure Code, establishes that when the sentence includes a pecuniary sanction or compensations, or if court costs and fees are awarded in favour of the state, the court issues a writ of execution and sends it to the respective enforcement body.

The body authorised to collect state takings is the National Revenue Agency, which, however, does not have the competence to carry out actions for compulsory collection of debts arising from fines or pecuniary sanctions imposed on foreigners who have no permanent or known address in the Republic of Bulgaria and legal entities who have their registered office and address abroad. Indeed, neither the Criminal Procedure Code nor the Law on Administrative Offences provides for rules for the execution of sentences and rulings when the person against whom they are issued is a foreigner without permanent or known address in the Republic of Bulgaria. The only provision to that sense is that laid down in Article 79a of the AVPA, according to which, “when with the penal decree a pecuniary sanction was imposed to an offender without permanent address in the Republic of Bulgaria, the offender shall transfer the sum to an account noted in the penal decree.” As a consequence, Bulgaria could develop a mechanism for collecting costs and pecuniary sanctions in administrative penalty cases from foreigners without permanent or known address in the territory of the Republic of Bulgaria.

Additionally, if the fine is not paid within a specified period, the debt is sent to the National Revenue Agency (´NRA´) for enforcement. However, if after that, the fine is paid to the authorities issuing the fine, they do not have the obligation to notify the NRA. As highlighted during the fact-finding interviews, this gaps creates a problem – in practice - because the debt is paid but the NRA continues the process to collect it. This situation does not only lead into a duplication of efforts, but it also creates uncertainty in citizens and businesses, which eventually undermines their trust in the enforcement system as a whole efficiency. To address this challenge, Bulgaria could introduce the compulsory notification, for the authority issuing the penal decree to notify the NRA if payment of the fine has been received, so that the NRA can terminate the proceedings to collect the fine. It is necessary also to be provided for an obligation of NRA to notify the authority issuing the penal decree in case the sanction has been collected.

In order to address these challenges, which were also pointed out in OECD questionnaires and interviews, the AVPA could be amended as proposed in Box 4.21.

The regime on preclusive time periods and statutory limitations is regulated by Art. 34 AVPA.

According to some respondents to the OECD questionnaire, the one-year period in Article 34, para. 1 (c) AVPA for initiating administrative criminal proceedings in some cases is too short, also taking into account that there is no provision in the AVPA analogous to Article 81 para of the Criminal Code laying down an absolute limitation period after which administrative liability is extinguished, depending on the severity of legislative sanction provided by law but not on the penalty imposed.

In order to address these weakness Bulgaria could firstly establish a clear definition of preclusive time periods and statutory limitation periods. Preclusive time periods should have a disciplinary effect on the administration in order not to cause undue delays in proceedings and expiry of statutory limitation periods. The increase in the length of the period aims to guarantee that the evidence shall be lawfully gathered and, if the violation is established at the time it is committed or it is proved in a short time, it would not preclude to establish the liability in a shorter period of time.

Secondly, in order to address a challenge pointed out in Interpretative Decree No 1 of 27.02.2015 of the Supreme Court of Cassation and the Supreme Administrative Court, there should be a differentiation between ordinary limits (which may suspend and interrupted) and absolute limits (which are not affected by suspension and interruption).

Thirdly, the limitation period should be explicitly regulated for the attempt to commit an administrative violation that is punishable in the cases referred to in Article 9 para. 1 AVPA, as well as in the case of an offence of negligence (for example, failure to submit a declaration, failure to co-operate and the like). Limitation periods also need to apply to the liability of sole traders and legal entities. Until now, the principle of limitation applied to the category of legal entities analogically.

Based on these recommendations the wording of the relevant provisions could be amended as proposed in Box 4.22.

The establishment of provisions in the general law which exclude its application in special situations is necessary to ensure that special legislation takes into consideration sector specificities. Such longer time periods are laid down, for example, in Article 153 of the Credit Institutions Act, according to which acts for the establishment of the administrative violation shall be drawn up by officials authorised by the deputy manager of the Banking Supervision Administration within one year of the day on which the offender is found, but no later than 5 years after the violation was committed.

The Act amending and supplementing the Payment Services and Payment Systems Act, promulgated in SG No 13/2020, provides in Article 188 (1) that the acts for the establishment of the administrative violation under Articles 187-185 shall be drawn up by persons authorised by the deputy manager of the Bulgarian National Bank managing the „Bank Supervision“ within 6 months of the day on which the offender was found, but no later than 5 years after the offence was committed, and penal orders shall be issued by the deputy manager or by a person authorised by him.

Should Bulgaria decide to codify administrative penalty law, it is appropriate that the questions relating to the extinction of the administrative responsibility to be systemised into a separate section, which regulates the legal facts justifying the termination of proceedings for natural persons, sole traders and legal entities, as well as the statutory limitation periods for the liability of those entities. For this purpose, Bulgaria could consider the relevant comparative experience in this context (Box 4.23).

Under the current regulation of administrative liability, there is no institution similar to the rehabilitation of protected persons under Article 86 and the following articles of the Penal Code. In other words, the fact that an administrative penalty has been imposed is not deleted from the record even after its application.

It is noteworthy that such a mechanism is provided for those who have committed a crime, but not for those who have committed administrative violations. This legal gap also impacts the legal status of the persons who have committed a crime and have been released from criminal liability by having an administrative penalty.

A possible solution would be to create a new Article 82b with the wording as proposed in Box 4.24, which would be in line with the practice in other EU countries like Slovenia (Box 4.25).


[2] European Committee on Crime Problems (2020), Replies to Questionnaire on Administrative Sanctions, https://rm.coe.int/cdpc-2019-1-replies-to-questionnaire-on-administrative-sanctions/168093669b (accessed on 24 June 2021).

[1] OECD (2021), Implementing the OECD Anti-Bribery Convention. Phase 4 Report: Bulgaria, OECD, Paris, https://www.oecd.org/corruption/bulgaria-oecdanti-briberyconvention.htm (accessed on 27 October 2021).

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