CASE-LAW UNDER ARTICLE 83а EI SEQ. AVSA Svetozara Petkova

CASE-LAW ANALYSED

DISTRIBUTION OF THE CASES BEFORE THE ADMINISTRATIVE COURTS Sliven AdmC Burgas AdmC Shumen AdmC Razgrad AdmC Yambol AdmC Sofia AdmC Pleven AdmC Ruse AdmC Kardzhali AdmC Haskovo AdmC

DISTRIBUTION OF THE CASES BEFORE THE DISTRICT COURTS Varna DC Burgas DC Sliven DC Yambol DC Razgrad DC Silistra DC Stara Zagora DC Sofia City Court Shumen DC Targovishte DC

DISTRIBUTION OF THE RELEVANT CRIMES IN THE CASES BEFORE THE ADMINISTRATIVE COURTS

DISTRIBUTION OF THE RELEVANT CRIMES IN THE CASES BEFORE THE DISTRICT COURTS

OUTCOME OF THE CASES HEARD BY THE ADMINISTRATIVE COURTS

OUTCOME OF THE CASES HEARD BY THE DSITRICT COURTS

SPECIFICITIES OF THE CASE-LAW BENEFIT AND SANCTION Legal entities are sanctioned for having benefited from a crime. Only in one case has a sanction been imposed on a legal entity which could have gained a benefit. All cases are initiated for a direct pecuniary benefit. There is no case-law for indirect and/or non-pecuniary benefits. The property sanction amounts to the benefit received or with a minimum rounding to a higher amount. When the benefit exceeded BGN 1 million, the court imposed the maximum under Article 83а, para 1 AVSA.

SPECIFICITIES OF THE CASE-LAW EFFECT OF THE SUBSTANTIVE LAW IN TIME With regard to the effect of the substantive law in time, there are certain contradictions. For example, Yambol District Court takes that, inasmuch as the crime entailing the undue benefit was completed before its inclusion in the taxonomy of crimes under Article 83а, para 1 AVSA, the legal entity may not bear liability under the said provision. The appellate instance was not of the same opinion and takes: “However, the understanding of the first-instance court that the said amendment to Article 38a AVSA is in effect solely forward, i.e. after its entry into force on 27 May 2011, is inaccurate.”

SPECIFICITIES OF THE CASE-LAW TERMS OF STATUTE OF LIMITATION By a ruling in case No. 641/2014, Sliven District Court takes that the prosecutor is to make a proposal under Article 83b AVSA within the term under Article 34, para 1 AVSA. Judgment in case No. 6405/2016 of the Supreme Administrative Court: “The terms under Article 34, para 1 AVSA do not apply to the proceedings to impose the present sanction” – it takes that the terms under Article 80 CC apply Judgment in case No. 535/2014 of Burgas Administrative Court takes that “the term elapsed should not be considered in view of the provision of Article 80, para 1, item 5 CC but in view of the provision of Article 81, para 3 read in combination with Article 80, para 1, item 3 CC – relevant to the crime committed“ Judgment in case No. 287/2016 of Burgas Appellate Court takes that the prosecutor’s power under Article 83b, para 1 AVSA is not limited in time

SPECIFICITIES OF THE CASE-LAW NON BIS IDEM There are indications in at least 3 cases that legal entities referred to this principle in their defence when a sanction under the Tax and Social Security Procedure Code had been imposed. In all three cases, the court rejected the argument citing interpretative judgment 3/2015 of the General Assembly of the Criminal College, Supreme Court of Cassation, according to which the principle non bis idem is applicable only in criminal proceedings (“Engel” test). The test is set out in Engel and Others v. Netherland (1976, ECHR). It lists three criteria to determine a case to be criminal within the meaning of the Convention: Qualification of the act under the national law; Nature of the offence; Gravity of the possible sanction.

APPEALS AGAINST THE JUDGMENTS OF ADMINISTRATIVE COURTS BY LEGAL ENTITIES

APPEALS AGAINST THE JUDGMENTS OF DISTRICT COURTS BY LEGAL ENTITIES

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