Statute of limitations under the penal law of Bulgaria

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University of Plovdiv, Retired Bulgarian prosecutor and academic researcher

Girginov Anton Tonev, Doctor of Judicial Sciences, Full university Professor in Criminal Law, Former lecturer

Ukraine carries out intensive judicial cooperation in criminal matters with other European countries. A typical impediment to granting Ukrainian requests for such cooperation (e.g. extradition from another country, taking over Ukrainian criminal proceedings by the requested foreign country, recognition and enforcement of Ukrainian criminal judgments abroad) is the expiry of the time limitation period [lapse of time] not only under the Ukrainian law but also under the law of the foreign country that Ukraine requests for cooperation.

The problem is that the criminal statute of limitations of most European countries is significantly different from the Ukrainian one. In view thereof, Ukrainian criminal lawyers are interested in having some general knowledge of the statute of limitations of other European countries, esp. such as Bulgaria. On the one hand, this foreign country has always been a steady partner of Ukraine in international judicial cooperation. On the other hand, the Bulgarian statute of limitations constitutes a good example of the different type of legal framework for lapse of time that requesting Ukrainian authorities shall necessarily consider.

All penal laws of the contemporary Bulgarian state contained some statute of limitations. These laws are the 1896 Penal Law (repealed), the 1951 Penal Law upgraded to the 1956 Penal Code, after the full codification of this branch of law in Bulgaria (also repealed), and the existing Penal Code of 1968.

The criminal statute of limitations outlines periods when competent state authorities have been inactive. The expiry of these periods (the lapse of time under law) extinguishes the immediate legal consequences of crimes or the punishments imposed by the court for them.

In Bulgaria, the statute of limitations consists of substantive penal law provisions. This is a legislative recognition of its substantive nature. The concept that the criminal statute of limitation is a procedural legal institution has been overcome in Bulgarian theory, law and judicial practice. The statute of limitations produces procedural consequences also but they derive from its direct substantive law results as secondary effects.

As in most other countries, the penal law of Bulgaria prescribes two types of limitation periods. The first one runs after the commission of the offence. It is also called ,limitation of the offence`; its expiry entails the extinction of the offender's criminal liability preventing both the imposition of punishment on him/her and his/her conviction status as well.

The second type of limitation period occurs after the imposition of an executable punishment. It is also called limitation of the punishment `; its expiry entails the extinction of the punishment imposed only. It does not eliminate the fact that the offender has been convicted.

Under the Bulgarian Penal Code, each of the two types of statute of limitations includes not only general time limitations but also absolute ones as well. The former is applicable when the competent state authorities have not undertaken required activities whereas the latter applies only if the competent state authorities have failed to achieve a required result, namely: the imposition of punishment on the offender or the execution of his/her punishment.

Keywords: Bulgarian; Penal Code; criminal liability; extinguishment; limitation period; punishment.

Гіргінов Антон Тонєв, доктор юридичних наук, професор кримінального права, колишній викладач Пловдівського університету, болгарський прокурор у відставці і науковий дослідник, Болгарія, Пловдів.

Термін давності відповідно до кримінального законодавства Болгарії

Гиргинов Антон Тонев, доктор юридических наук, профессор уголовного права, бывший преподаватель Пловдивского университета, болгарский прокурор в отставке и научный исследователь, Болгария, Пловдив.

Срок давности в соответствии с уголовным законодательством Болгарии

Ключевые слова: Болгарский Уголовный кодекс; уголовная ответственность; погашение; срок давности; наказание.

Introduction

The statute of limitations in penal law is a set of legal rules on limitation (lapse of time) periods - Articles 80-82 of the Bulgarian Penal Code [PC]. They provide terms for the extinction of the legal consequences of committed crimes. Once such a term expires, all or some of the consequences extinguish. Thus, the expiry of the limitation period for the prosecution of the offender (actually, for the imposition of punishment on him/her) for the crime s/he has committed extinguishes all of its legal consequences - the criminal liability, the punishment and the conviction, whereas the expiry of the limitation period for the execution of the imposed punishment extinguishes only it. It is worth noting that no individual limitation period may be prolonged on a decision of the judicial or administrative authorities.

The Bulgarian penal legislation has always followed the example of the European countries belonging to the German law family. Bulgaria borrowed their national rules on the legal consequences of the expiry of the limitation periods, the moment when the periods commence running, their interruption and suspension, as well as the deriving procedural effects. Besides, in producing the national legal framework for the statutory limitations the Bulgarian penal legislation considered the popular legal theories relevant to this topic, such as the disappearance/staleness of evidence theory, the inevitable change of the offender's personality theory, the theory of the already forgotten crime.

The application of the penal law provisions on limitation periods has always been mandatory rather than optional. It is a matter of legality rather than any opportunity in Bulgarian criminal justice.

The expiry of the first type of the limitation period, the one which extinguishes the criminal liability, is a post-criminal circumstance that benefits the offender by solely exempting him/her from punishment. In general, the PC does not attribute to any of the post-criminal circumstances, incl. the expired limitation period, a retroactive legal effect, namely: to affect the already committed crime by depriving its criminality; the amnesty under Article 83 PC, in both modalities is the exception. Such circumstances bar only the imposition or the execution of the already imposed criminal punishment for the crime.

Many post-criminal circumstances exempt the offender from punishment by terminating his/her criminal liability before the conviction. However, despite their favourable effect on him/her, these circumstances do not result from any positive activity of the offender. Bulgarian law, at least, does not require him/her to perform any such activity for obtaining the expiry of the limitation period and eventually, benefiting himself/herself from the produced favourable effect: the termination of the criminal liability for the crime that s/he has committed. The limitation period's expiry is a legal event entirely. This is why the offender does not “release himself/ herself from criminal liability” at all in the cases when the limitation period runs out.

It is noteworthy, though, that a positive activity of the offender is legally required for other post-criminal circumstances terminating his/her criminal liability, esp. for voluntary withdrawals. Such withdrawals are possible in cases of punishable preparation and attempt - Article 17 (3) and respectively, Article 18 (3) PC. Apart from them, voluntary withdrawals are provided for a limited number of accomplished criminal offences, such as non-provision of alimony under Article 183 (3) and autocracy under Article 323 (3) PC. This is a socially useful behaviour of the offender, contrary to his/her previous criminal activity. Penal law allows the offender to relieve himself/herself from criminal liability when and because s/he successfully neutralizes (prevents or removes) the dangerous consequences of his/ her criminal activity.

Offenders undertake voluntary withdrawals soon after they commit their criminal activity. In any case, the voluntary withdrawals are performed before the expiry of the limitation period. This is why withdrawals are the first ones to terminate the offender's criminal liability. After their completion, no such liability exists. Therefore, there is no room for the application of any statute of limitations, in particular. The provisions on limitation periods have become inapplicable.

Finally, under Bulgarian law, the statute of limitations has nothing to do with the will of the injured party, if any, either. This party has no legal authority to pardon the offender in any way. An exception exists but it is not related to the statute of limitations. The exception concerns punishments imposed for the petty offences which are prosecuted on a complaint by the injured party. If a punishment is imposed, this party may prevent its execution. Pursuant to Article 84 (3) PC, “for such crimes the punishment shall not be enforced, provided the complainant has not so requested before the beginning of its enforcement” [2 and 3].

1. The Legal Nature of the Limitation Periods under the Law of Bulgaria

1.1 The limitation period in criminal law designates a time frame when the competent state authorities have been inactive. This period expires because of their inactivity

The legal framework for all such limitation periods in Bulgarian penal law is a substantive law phenomenon. It directly affects the substantive legal consequences of committed criminal offences. The consequences, however, are affected in different ways depending on the type of the limitation period.

Two types of limitation periods exist. The first one concerns the time after the commission of the offence. Often called /imitation of the offence', it entails on expiry the extinction of the criminal liability for the offence. This result excludes the other consequences of the committed offence also. It excludes, in particular, not only the punishment as it shall not be imposed on the offender, but a fortiori his/ her conviction as well.

The second type of limitation periods occurs after the imposition of an executable punishment. Called /imitation of the punishment', it entails on expiry the extinction of the punishment imposed only. The expiry of this limitation period does not affect the fact that the offender has been convicted; it is the rehabilitation that erases the offender's conviction and thus, expunges his/her criminal record.

Given their substantive law nature, the limitation periods are regulated by the PC. Articles 80-81 PC constitute the legal framework for the periods for the extinction of the criminal liability of the offender whereas Article 82 of the same Code constitutes the legal framework for the limitation periods for the extinction of the criminal punishment imposed on the offender. It is noteworthy that the texts of these Articles begin with the words: “Criminal prosecution shall be excluded by lapse of time where it has not been initiated in the course of ...” {Article 80 (1)} and respectively, “The punishment imposed shall not be served where the following terms have elapsed...” {Article 82 (1)}. Nevertheless, no such lapse of time (limitation period expiry) affects directly and solely legal procedures, namely: the criminal prosecution and the criminal proceedings against the offender, in general, or respectively, the legal proceedings for the execution of the punishment imposed on him/her. criminal statute limitation bulgarian

Firstly, when it comes to criminal prosecutions and the criminal proceedings against the offender, in general, the only period, the expiry of which may bar them is the one under Article 84 (1) PC. This Paragraph reads: “For crimes prosecuted on the grounds of a complaint by the injured party, criminal prosecution shall not be instituted, even where the lapse of time period has not expired, if no complaint has been lodged within six months as from the date on which the injured party has come to the knowledge of the committed crime”. However, this six-monthly term is applied solely to the consequences of the limited number of petty crimes where the prosecution is not subject to any ex officio initiation. No such term exists for the vast majority of crimes where the prosecution shall be initiated ex officio. The only existing term is the first type of limitation period. But this is a term that extinguishes the criminal liability of the offender to eventually deprive the state authorities of the competence to punish him/her. As his/her criminal liability is implemented by the imposition of criminal punishment on him/her In view thereof, the more precise text of Section 78 (1) of the German PC reads: “The imposition of a penalty and the ordering of measures (section 11 (1) no. 8) are ruled out following expiry of the limitation period...” Similarly, Article 153 (1) of the Romanian PC stipulates that “limitation removes criminal liability'' (the state bodies are not authorized to impose punishment on the offender and s/ he is not obliged to stand the imposition of the punishment). A similar provision exists in the Bulgarian administrative-penal law. According to Article 34 (1) (ii) of the Administrative Violations and Penalties Act, “Administrative-penal proceedings shall not be instituted if a statement of establishment of the violation has failed to be drawn up within three (3) months following the detection of the offender, or if one (1) year has elapsed since the commission of such violation...” Apart from this, a term for the imposition of the administrative punishment exists - Articles 34 (3) and 54 (1) (vi) of the same Act. This term is comparable to the limitation period extinguishing criminal liability., it follows that the statute of limitations in the issue bars his/her conviction only. Hence, the limitation period, which on expiry extinguishes the criminal liability of the offender, is not any deadline for commencing the prosecution against him/her and does not become irrelevant after its initiation. Unlike the time period under Article 84 (1) PC which is for initiation of prosecution per se², the limitation period, the expiry of which extinguishes the criminal liability, may run also during the criminal proceedings against the offender and may even run out if s/he is not convicted. This is indisputable, nowadays Also Decision No. 28/1959 of the General Assembly of the Criminal Collegia of the Bulgarian Supreme Court of Cassation, Decision 328/1997 of the Third Detachment of the Criminal Collegia, etc. [1 and 5].

Conversely, if the criminal proceedings for a petty crime, mentioned supra, have been instituted within the six months, the term under Article 84 (1) PC can never expire as it does not count afterwards. This term becomes irrelevant as soon as the institution of the criminal proceedings takes place. In contrast, the limitation period is expirable even if the criminal proceedings have been instituted; it may expire until the judgment with criminal punishment enters into force. Therefore, only the failure of punishing the offender within the limitation period causes the expiry of this period. Its expiry, in turn, excludes the possibility of imposing any punishment for the same crime in the future as the offender's criminal liability has extinguished.

This is why the limitation period produces a substantive law result. It is not any procedural term. This period does not set up a deadline for the institution of the criminal proceedings for the alleged crime, petty or not, and in particular, a deadline for the initiation of the prosecution against the offender. As explained, such a procedural term exists but it is only the one under the mentioned supra Article 84

1) PC: for petty offences prosecutable on the initiative of injured parties.

Likewise, the second type of limitation period, the expiry of which extinguishes the criminal punishment imposed on the offender, is not a procedural term either. It does not bar solely the legal proceedings for the execution of the punishment. Actually, it is a preclusive term. The immediate result of its expiry is that this punishment ceases to exist. This result makes the limitation period in the issue different from the prescription in civil law (law of obligations). Prescription extinguishes only the action but not the substantive right of the creditor; hence, if s/he is paid per his/her right, this payment would be valid Thus, according to Article 118 of the Bulgarian Law on obligations and contracts, „Should a debtor perform his obligation after the expiration of the limitation, he shall not be entitled to claim back what he has paid, even though at the time of payment he might not have known that the limitation had expired''.. But in the case when the limitation period runs out, no state body is authorized to proceed, in any way, with the execution of the punishment even if, in theory, the convicted offender so agrees. Therefore, the expiry of the second type of limitation period not only affects the powers of the competent state bodies towards the convicted offender. The expiry of this limitation period also relieves, in full and unconditionally, the convicted offender from the main consequence of his/her conviction, the punishment imposed on him/ her, because this consequence is erased ex lege.

Obviously, no impediment has been found to the retroactivity of unfavourable penal provisions which do not affect criminality or punishment but concern solely issues beyond them, especially posterior rules on limitation periods for extending or abolishing them. There is no uncontentious justification for prohibiting the retroactivity of such unfavourable rules. The prohibitions under Article 15 (1) of the International Covenant on Civil and Political Rights guarantee the principles of nullum crimen sine lege, nulla poena sine lege preavia but they are not supportable by any potential prohibition of the retroactivity of other unfavourable rules, not affecting criminality or punishment. No such prohibition would guarantee any of these two principles or another recognized legal principle at all.

Sometimes, it is argued that the broader interpretation of Article 7.1 of the European Convention on Human Rights, substantiates the conclusion that no provision, detrimental to the offender, shall be applied retroactively {See ECHR, Kononov v. Latvia, N0. 36376/04, Grand Chamber judgment of 17 May 2010, § 185; ECHR, Del Rho Prada V. Spain, N0. 42750/09, Grand Chamber judgment of 21 October 2013, § 78}¹. However, there is no serious justification of any such broader interpretation of Article 7.1 of the Convention which, like Bulgarian national law, envisages and prohibits only criminalizing provisions and provisions prescribing heavier punishments. Actually, the proposed interpretation equals this Article 7.1 to provisions that prohibit the retroactivity of all detrimental penal provisions, unexceptionally. Such a provision is Article 10 (1) (ii) of the Russian PC: “Penal law that establishes the criminality of a deed and increases punishment or in any other way worsens the position of a person shall have no retroactive force.” But even if this rule is the best legislative solution, it is inapplicable beyond the issuing country.

In the end, one cannot easily find any solid arguments against the retroactivity of detrimental provisions that have come into force after the imposition of the punishment to eventually, extend the limitation period for its execution, especially if it has not yet expired. Despite their detrimental nature, they affect neither the committed crime nor the punishment itself.

2. Limitation Period for Imposition of the Punishment

2.2 This first type of limitation period is for extinguishing the criminal liability of the offender for a given criminal activity

Understandably, it commences running as soon as the offender's liability comes into existence. This occurs at the moment when the specific criminal activity concludes. No special rules exist for crimes against children. Under-aged persons are not in any privileged position at all, even until the time they reach full age. Hence, it is not necessary to wait until the under-aged victim reaches full age to prosecute, try and punish the offender. The limitation period starts running in accordance with the general rules even for crimes against children.

The PC contains no general definition of the time of the commission of the crime or the time of its conclusion, in particular. This is why the time of the conclusion of the criminal offence has been specifically defined in Article 80 (3) PC to designate starting point of the limitation period, the expiry of which extinguishes the criminal liability. This Paragraph reads that the limitation period “shall commence as from the completion of the crime, in the case of attempt and preparation - as from the day of completion of the last act, and for continuing crimes as well as for continuous crimes - as from the moment of their termination”.

Thus, the limitation period commences running when the entire legal description of the given crime has been filed out. This is why it is important to know what the legal description of the committed crime includes exactly and, most particularly, whether it contains a legal indication of the necessary detrimental consequences. Such an indication is defined as a `criminal result'.

All crimes produce some detrimental consequences: by creating a danger to an interest of another person, at least, or more often, by harming such an interest (see Article 10 PC). Otherwise, the perpetrated activities would not be socially dangerous and shall not be considered crimes at all - Article 9 PC.

However, not all crimes have a legal description containing an indication of the detrimental consequences. There are crimes, called `formal' or of `simple perpetration', that produce detrimental consequences which are not mentioned, explicitly or tacitly, in their legal descriptions. It is a legislative decision to avoid their inclusion. Two are the typical reasons for not mentioning them in the legal description of the crime, namely: that their inclusion is not necessary as such consequences inevitably follow from the proscribed conduct in the given circumstances See Article 95 PC: „A person who, for the purposes of overthrowing, undermining or weakening the state power in the Republic, takes part in the perpetration of an attempt of coup for forceful seizure of power in the centre or locally, or in rebellion or armed uprising, shall be punished by...“ and/or that their inclusion is not possible because of their significant variety and impossibility of their proper outlining See Article 135 (5) PC: „A person suffering from venereal disease, who refuses to be treated or evades regular obligatory treatment, shall be punished by...“. This is why, when it comes to such crimes, it is the completion of the criminal conduct that determines the beginning of the limitation period, the expiry of which extinguishes the criminal liability of the offender. The detrimental consequences produced, regardless of their nature and significance, are irrelevant because they are not mentioned in the legal description of the crime.

Most of the crimes, however, have a legal description containing an indication of the detrimental consequences also. Such crimes are called `material' or `result' crimes. If their detrimental consequences occur to complete the crime description in full, this moment determines the beginning of the limitation period. Criminal conduct does not count. The time between the end of the criminal conduct and the occurrence of the consequences is not relevant either. On the other hand, if the negative effect of these consequences lasts longer, e.g. a broken leg, it is not necessary to wait for their expiry, e.g. the leg recovers in full. Solely their occurrence is sufficient to trigger the limitation period.

It must be borne in mind that the criminal result might be complicated. It may include more than one kind of detrimental consequences. This is a peculiarity of the so-called result crimes. They cause some additional result, e. g. arson causing also the death of a person - Article 330 (3) PC. The legal description of arson under Paragraph 3 contains a main criminal result - the burning of the property, and also an additional one - the death of another person. If the two results occur at different times, the limitation period commences running after the occurrence of the second one. Otherwise, the statute of limitations would be only for the reduced crime with the first criminal result.

Further on, if the crime is not accomplished, the limitation period for criminal liability shall start running on the day of the last act - the quoted supra Article 80 (1) PC. This is understandable when it comes to the attempt because, according to its definition in Article 18 (1) PC, it does not produce any desired consequences and solely the last act indicates its completion. However, this is not valid for the punishable preparation as its definition always requires consequences. Under Article 17 (1) PC “Preparation shall be the getting ready of the means, the finding of accomplices and the creating of conditions in general for the perpetration of intended crime, before the commencement of its perpetration.”, the preparation is completed and becomes punishable only if some condition for the perpetration of the intended crime has been successfully created, e.g. an accomplice has been found (agreed to participate, not just received a proposal); a device for the commission of the planned offence has been obtained (not just sought). In view thereof, the former kind of preparation, the intellectual one may become punishable not on the day when the actor invites another person to join him in the commission of the future offence but later only, on the day when this other person gives a positive response. Respectively, the latter kind of preparation, the physical one may become punishable not on the day when the actor orders the device, e.g. a knife to commit a murder, but only later, on the day when he receives it if he does not provide any assistance; for example, because the provider has access to the place where the knife should be left.

The problem is that, under the general rule in Article 80 (3) PC, the limitation period commences on the day of the occurrence of the consequences, if required for the completion, as in the particular case of preparation also, rather than the day of the last act. Should the decision relating to preparation comply with the general rule to be consistent with the solutions for all other cases, the limitation period in case of preparation must also commence on the day when the condition for the intended crime occurs. Otherwise, the period would run before the completion of the preparation.

Because the penal law relevance of the accessory participants (inciters and assistants) depends on the perpetration of the crime by the main participant, their liabilities start to exist and are, therefore, subject to extinguishing when the crime is perpetrated. This is why the limitation periods for the accessory participants shall commence running once the perpetration of the crime is over, namely: when the crime is completed by the perpetrator or, in cases of attempt, when its last act is committed by the perpetrator See also Section 34 (2) (ii) of the Czech Criminal Code.. Therefore, the limitation periods for all participants shall commence running, simultaneously.

The principle that the limitation period starts running once the crime is accomplished apply to complicated criminal activities as well. Two of them are mentioned in Article 80 (3) PC. They are the continued crime and the continuing (permanent/uninterrupted) crime. The limitation period commences when their last act is committed. Certainly, if the act causes negative consequences legally required for its completion, their occurrence determines the start of the limitation period.

The continued crime [Lat.: delictum continuatum] is defined in Article 26 (1) PC as a series of two or more similar acts, which, taken separately, are also criminal, such as theft, embezzlement, fraud. The acts are committed within short periods of time (up to a year), in similar conditions, and with the same form of a guilty mind (either intent or negligence only). In this complicated criminal activity, the subsequent acts appear as a continuation of the preceding ones. Although the whole activity may last for years, it is punished as though were committed by a single act/ omission. It is a single crime with only one limitation period for the criminal liability of the offender.

However, this complicated crime might be broken into pieces. Article 26 (6) PC excludes the continued crime when the constituting acts are committed against the personality of different victims All these criminal offences against the person are proscribed in Chapter II of the Special Part of the PC. The continued offence is not broken up only if the acts are against the same victim.. Besides, Paragraph 6 removes from the continued crime all offences committed after the submission of the indictment in court, and the offences committed before the submission of the indictment, which have not, however, been therein included. In such cases, the excluded acts are regarded as separate offences with their own punishments and limitation periods for each of them.

The continuing (permanent) crime also lasts longer, usually. It uninterruptedly fulfils its legal description for a certain period of time. Such crimes are the illegal possession of firearms or narcotics and the hiding of stolen items, for example. The continuing crime may include a multiplicity of combined acts and omissions, e.g. aircraft hijacking - Article 341b PC, but it may be a simple omission only, e.g. non-prevention of a subordinate's crime - Article 285 PC. There is no definition of this complicated crime in Bulgarian law. No legal exceptions exist to it either. As a result, there is no exception, in particular, to the general rule that the limitation period always commences running once the crime is accomplished, namely: on the day of the last action.

There are also some other complicated criminal activities that cannot be found in the text of Article 80 (3) PC. These are compound crime, double-act crime and crime of systematic perpetration. Although these three complicated criminal activities are not mentioned as a starting point of the limitation period, they cannot be excluded from the principle that this period starts running once the crime is accomplished.

A. The compound (or composite) crime consists of the two underlying criminal acts, usually. They are of different nature but connected functionally: one of them is enabling, whereas the other is an enabled act. The robbery under Article 198 (1) PC is a typical example of a compound crime. Its first, enabling act is a compulsion which, taken separately, is a crime on its own (under Article 143 PC). The other act of robbery, the enabled one, is theft which is also a crime on its own (under Article 194-196a PC). If the included criminal acts are perpetrated on different days, the limitation period commences running once the crime is accomplished in full, namely: on the day of the completion of the second act.