Article 251 of the Bulgarian Penal Code – draconian or democratic?

Democracy or return to the old norms of the Penal Code

Next time you travel from Bulgaria to Greece or Germany, count the money in your wallet carefully. Otherwise you risk ending up behind bars without even knowing why. The changes to Article 251 of the Bulgarian Penal Code are imposing a “sustainable” presumption of guilt in Bulgarian law.Alexander Dobrinov
Alexander Dobrinov

The 1995 and 2015/2017 editions of Article 251 of the Penal Code.

In our view, one of the most odious provisions in the Bulgarian Penal Code was the old, blanket provision of Article 251 of 1995. It provided for imprisonment of up to six years for any violation of the currency laws as long as the amount of the offence was more than 140 minimum wages. Additionally, the amount of the offence was subject to forfeiture to the State. Many “criminals” who had not submitted statistical declarations to the Bulgarian National Bank, for example, fell under the guillotine of this article. Fortunately, under pressure from the EU, this rule was completely changed in 2015 and 2017. The latest 2017 revision of Article 251 of the Penal Code only concerned the non-declaration of funds transferred across the EU external border:

Whoever fails to comply with the obligation to declare cash, precious metals, precious stones and articles with and made of them carried across the border of the country which is an external border of the European Union, and the value of the object of the offence is particularly large (more than 140 minimum wages at the time of the offence), shall be punished by imprisonment for a term not exceeding five years or by a fine of one fifth of the value of the object of the offence.

art. 251, par. 1 from the Bulgarian Penal Code of 2017

In other words, after 2017, in order for the offence under Article 251 of the Criminal Code to be constitutive, two conditions had to be present simultaneously:

  1. the person to carry cash, precious metals, precious stones and articles with and from them between Bulgaria and a non-EU country, and;
  2. the funds carried over under point 1 must be of a particularly large amount, i.e. at least 140 minimum wages at the time of the carry-over.

So far so good. For there to be a crime, the person must be transporting undeclared funds between Bulgaria and a third non-EU country. If undeclared funds are being moved between Bulgaria and Germany, for example, there will be no offence under Article 251 of the Penal Code, regardless of the amount of the undeclared funds.

But democracy requires sacrifices and Bulgarian citizens obviously should not enjoy great freedoms. Even more so if they want to carry their own money.

The amendment of Article 251 of the Penal Code from 2023.

In line with the principles of the recent changes, in 2023 the Bulgarian legislator again amended the provision of Article 251 of the Penal Code. However, instead of the expected further liberalisation of the regime of transfer of valuables across the border (didn’t we all want Schengen without borders), the norm made a sharp 180 degree turn and took the path of the old texts of 1995. With the amendments published in State Gazette No. 82 of 2023, the provision took the following form:

(1) Any person who fails to comply with the obligation to declare cash carried across the border of the country and the value of the object of the offence is particularly large shall be punished by imprisonment for a term not exceeding five years and a fine of one fifth of the value of the object of the offence.
(2) Any person who fails to comply with the obligation to declare cash transferred across the border of the country and fails to establish their lawful origin shall be punished by imprisonment from one to six years and the funds shall be forfeited to the State.

art. 251, par. 1 & 2 from the Bulgarian Penal Code of 2023

What do the 2023 changes mean?

Let us see in practice what has changed in Article 251 of the Penal Code.

The good news

First of all, the norm of Article 251 of the Penal Code from 2023 partially excluded from its scope “precious metals, precious stones and articles with and made of them”. But why is this exclusion partial? The current 2023 provision only mentions “cash”. The definition of cash is not given in the Penal Code but rather in the Currency Law:

“cash” is a term within the meaning of Article 2(1)(a) of REGULATION (EU) 2018/1672 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL;

§ 1. p. 6 of the Additional Provisions of the Currency Law

For its part, the EU Regulation cited in the Currency Law states:

  • ‘cash’ means:
    • i) currency;
    • ii) bearer-negotiable instruments;
    • iii) commodities used as highly-liquid stores of value;
    • iv) prepaid cards;
art. 2, par.1, „а“ of Regulation (EU) 2018/1672

In Annex I of Regulation (EU) 2018/1672, coins with a gold content of at least 90% and bullion such as bars, nuggets or clumps with a gold content of at least 99,5 % are defined as highly liquid store of value.

In other words, the carrying of precious stones and articles with and made of them, as well as precious metals such as silver, platinum or palladium, do not fall within the scope of Article 251 of the Penal Code. Also excluded from the scope of the criminal provision are gold coins with a purity of less than 900 (21.6 carats), bullion with a purity of less than 995 (23.88 carats), and gold ornaments, jewellery, etc., regardless of their purity.

The bad news

So far with the liberalisation of the norms. Let’s see what we have to be careful about when crossing the border after the changes to Article 251 of the Bulgarian Penal Code in 2023.

First of all, the amended Article 251 of the Penal Code now criminalises the transportation of funds not only between Bulgaria and third countries, but also between Bulgaria and other EU Member States. And this is very dangerous, given the huge volume of people travelling between Bulgaria and the other EU countries. While prior to 2023, citizens travelling to Greece, Germany, etc. could not commit an offence under Article 251 of the Penal Code under any circumstances, it is quite different now.

With a minimum wage of 933 BGN at the time of writing, “particularly large amounts” in the meaning of the Penal Code is an amount of 140 minimum wages or €66784,95. That is, if you travel to Greece with a sum of €66785 and do not declare it (on request) at the border, you will be committing an offence under Art. 251 par. 1 of the Penal Code. This offence is punishable by up to 5 years imprisonment plus a fine of 20% of the undeclared amount.

The worst is foreseen in Article 251, paragraph 2 of the Penal Code

However, the real “devil” in the 2023 amendments to the Penal Code is hidden in paragraph 2 of Article 251. Here, criminal liability is already engaged even if the amount is not in “particularly large amounts”, as long as its lawful origin cannot be established. Moreover, the penalty provided for is even more severe than that in par. 1, namely from 1 to 6 years’ imprisonment plus confiscation of the entire undeclared amount. This provision also imposes a presumption of guilt, as the person who failed to declare any amount will have to prove that the funds are of lawful origin. And how this will be done, at the border, is an absolute mystery to us. Will this provision of the Penal Code also be a precondition for corrupt practices at the border? In our opinion yes…

A graphic example of the insanity of Art. 251, par. 2 of the Penal Code

The Journey

Ivan, a Bulgarian citizen, is travelling to Greece carrying €9900 in cash. At the border, when asked by the Bulgarian authorities, Ivan states that he has nothing to declare, knowing that only amounts of more than €10000 are declared. When asked to show the cash he was carrying, Ivan was found to be carrying another 200 BGN “pocket money” in his wallet. This brings the total amount carried to €10002,26 (€9900 + 200 BGN). And here Ivan’s situation becomes serious, very serious.

The Crime

Since the undeclared funds are far below the threshold of €6784,95 for “particularly large amounts” within the meaning of the Penal Code, Art. 251(1) of the Criminal Code is not applicable. However, under Article 251(2) of the Penal Code, if the “lawful origin” of these funds is not established, then Ivan would have committed a crime.

The evidences

And how can, at the border, the lawful origin of the money be established? Even if Ivan carries a note from his bank that he has withdrawn the amount in cash, will that be sufficient proof? Certainly not. The presence of a sum in a bank account does not guarantee its lawful origin. What if Ivan has a note that he exchanged levs for €9900? That proves nothing too. Because the origin of the levs remains unclear.

What if Ivan carries a tax return that he declared a million leva income and paid the tax, will that be enough? Of course not. Because the €9900 and 200 BGN may not be from the very same money of the income received and declared, but from a completely different source, potentially illegal.

The punishment

And so far with Ivan, his trip to Greece, and his current life. Ivan will be interrogated as a tough criminal and he will have to prove the ” lawful origin ” of the particular money he is carrying. Yes, specifically those banknotes he was carrying, not just that he had in principle €10002,26 of legitimate income. The burden of proof will be on him, since only he can prove the origin of his own funds. And if Ivan’s guilt is proven, i.e. if he fails to prove that he is not guilty, Ivan will be sentenced to 1 to 6 years in prison and the money he has carried will be confiscated by the state.

Let’s be “happy” with the change to Article 251 of the Penal Code and next time you travel abroad from Bulgaria, BEWARE!

Leave a Reply

Your email address will not be published. Required fields are marked *