RECOGNITION, EXECUTION AND TRANSMITTING OF CONFISCATION OR SEIZURE DECISIONS AND DECISIONS IMPOSING FINANCIAL PENALTIES

RECOGNITION, EXECUTION AND TRANSMITTING OF CONFISCATION OR SEIZURE DECISIONS AND DECISIONS IMPOSING FINANCIAL PENALTIES Chief Assistant, PhD Mila Ivanova Republic of Bulgaria, Burgas, Bourgas Free University ARTICLE INFO Received 07 April 2018 Accepted 23 April 2018 Published 12 May 2018 KEYWORDS Financial penalties, confiscation, Seizure ABSTRACT The article examines the European standards on the application of the principle of mutual recognition to financial sanctions and confiscation orders between EU Member States. The rules and conditions for the recognition, execution and transmitting of confiscation or seizure decisions and decisions on the imposition of financial sanctions between EU Member States in Bulgarian legislation are analyzed. 2018 The Author. European standards. In 2005, the Council Framework Decision 2005/214 / JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties was adopted, the principle of mutual recognition should apply to financial penalties imposed by judicial or administrative authorities for the purpose of facilitating the enforcement of such penalties in another Member State of the European Union (EU). For the purposes of the Framework Decision, a "decision requiring a financial penalty" means a final decision of a judicial or administrative body imposing an obligation to pay a sum of money or the obligation imposed in the same decision to pay: compensation for the benefit of victims of criminal offences, a sum of money in respect of the costs of court or administrative proceedings leading to the decision, or a sum of money to a public fund or a victim support organization, (Article 1 Framework Decision 2005/214 / JHA). The Framework Decision applies to all offenses for which financial penalties may be imposed under national law and also covers financial penalties imposed in respect of road traffic offences. The Framework Decision does without verification of the double criminality of the act, give rise to recognition and enforcement of decisions for 39 offenses listed therein (Article 5 Framework Decision 2005/214 / JHA). One year later, Council Framework Decision 2006/783 / JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders was adopted. It establishes rules on the mutual recognition and execution of confiscation orders between EU Member States. A confiscation order means a legally enforceable penalty or measure imposed by a court following proceedings in relation to a criminal offence or offences, resulting in the definitive seizure of property. The rules introduced support the efforts of the Member States to fight crime by laying down provisions on seizing and confiscation of instrumentalities and the proceeds from crime and property acquired or served to carry out criminal activity. The Framework Decision applies to all offenses for which confiscation under national law may be imposed. The Framework Decision removes the verification of the double criminality for the 32 offenses listed in Art. 6 if they are punishable in the issuing State by a custodial sentence of a maximum of at least three years. The purpose of the Framework Decisions is to facilitate cooperation between Member States as regards the mutual recognition and execution of orders to confiscate property or custodial decisions and decisions imposing financial penalties. It also obliges EU Member States to recognize and execute in their territory confiscation orders, seizure of property or imposition of financial sanctions issued by a court with jurisdiction in criminal matters of another Member State. The Framework Decisions has also the purpose to ensure that all EU Member States have effective rules governing the confiscation and seizure of criminal proceeds and the enforcement of financial sanctions. Pursuant to Art. 20 of Council Framework Decision 2005/214 / JHA of 24.02.2005 and Art. 22 Council Framework Decision 2006/783 / JHA of 6.10.2006, the National Assembly introduced them into the national legislation of the Republic of Bulgaria with the Act on the Recognition, Execution and Transmitting of Decisions on Confiscation or Seizure and Decisions on the Imposition of Financial Sanctions (ARETDCDDIFS, SG No. 15 of 23.02.2010). These Framework Decisions have been amended by Council Framework Decision 2009/299 / JHA of 26 February 2009, which strengthens the procedural rights of individuals and promotes the application of the principle of mutual recognition to decisions rendered in absentia of the person concerned. In Council Framework Decision 48 4(11), May 2018 https://ws-conference.com/

2009/299 / JHA of 26 February 2009, by supplementing and amending existing rules, the procedural rights of citizens are protected by ensuring a clear and consistent approach as regards the criteria for the application of the grounds for non-recognition to judgments rendered in absentia in the various EU Member States. The optional grounds for non-recognition or non-execution of confiscation orders or seizure decisions and decisions imposing financial sanctions rendered in proceedings in absentia are extended and refined, in these cases the competent authority of the executing State is obliged to consult the competent authority of the Issuing State. Amendments to the formulas annexed to the relevant Framework Decisions are also foreseen. In connection with this, the amendment of ARETDCDDIFS (Amended and supplemented, SG No. 55 of 19.07.2011) followed. It clarified the provisions on the recognition, execution and transmitting of confiscation orders or seizure decisions and decisions imposing financial sanctions in order to avoid practical difficulties in their application. General provisions. 1. In order to ensure the uniform interpretation and application of execution procedures surveyed in this report, ARETDCDDIFS explicitly defines key concepts and terms. Art. 2, para. 1 of ARETDCDDIFS stipulates that a confiscation order or seizure decision means a legislative act of a court having jurisdiction in particular in criminal matters, which has entered into force, issued in an EU Member State resulting in the definitive seizure of property. A property liable to confiscation or seizure is property for which the court in the issuing State has accepted that: it constitutes the proceeds of crime or is equivalent to the full value or part of the value of the benefit; constitutes a means of crime; is subject to confiscation or seizure resulting from the application of extended confiscation powers under Council Framework Decision 2005/212 / JHA of the Council of the European Union on Terrorism or participation in a criminal organization, defined as counterfeiting currency, laundering of the proceeds of crime, trafficking in human beings, facilitation of unauthorized entry, transit and residence, sexual exploitation of children and child pornography and trafficking in narcotic drugs and psychotropic substances; the offense can lead to a financial or other gain and a custodial sentences or measures involving deprivation of liberty with a maximum of 5 years are provided for it, and for money laundering - a maximum 4 years, or is liable to confiscation or seizure under any other provisions relating to extended powers of confiscation under the law. According to Art. 3, para. 1, p. 1 of ARETDCDDIFS, a decision to impose financial penalties is a legislative act, which has entered into force, issued by a court having jurisdiction in criminal matters or by an administrative body in an EU Member State, to impose an obligation to pay: a fine, property sanction or any other type of financial penalty imposed by an act of a judicial or non-judicial authority in respect of a criminal or administrative offence, including the financial penalties imposed in respect of road traffic offences; compensation for the benefit of victims; costs of court or administrative proceedings leading to the decision in favor of a public fund or a victim support organization. Paragraph 1 of the Additional Provisions of ARETDCDDIFS defines the terms "issuing State" - this is the EU Member State in which a confiscation or seizure decision or a decision to impose financial sanctions on a natural or legal person has been issued; "Executing State" means the EU Member State to which a confiscation order or a seizure decision or a decision imposing financial sanctions has been transmitted for the purpose of execution; "Affected person" means a natural or legal person who has been the subject of a confiscation or seizure decision or a decision to impose financial penalties, and "Benefit" means any economic gain obtained as a result of a criminal offense. The benefit may result out in property of any kind. 2. The competent Bulgarian authorities responsible for the Recognition, Execution and Transmitting of confiscation orders or seizure decisions as well as decisions imposing financial sanctions are: District courts which deliver a judgment for enforcement issued in another EU Member State; The National Revenue Agency, for the purpose of execution of the acts of art. 2 and 3 ARETDCDDIFS; The competent authority for the transmitting of decisions given by our court is the regional or district court that has delivered the decision as first instance and the National Revenue Agency to send ordinances issued by an administrative body in the Republic of Bulgaria. Where the authority which has received the confiscation or seizure decision or the decision to impose financial penalties is not competent to recognize it, it shall transmit it to the relevant competent court of its own motion and notify the authority in the issuing State (Article 6 (3) ARETDCDDIFS). In cases the direct contact between the competent authorities of the issuing State and the executing State is not possible, the Ministry of Justice is empowered for the administrative transmitting and receipt of confiscation or seizure decisions and decisions to impose financial penalties. All official communications are made directly between the said competent authorities. If the authority competent to execute the confiscation order is not known to the competent authority of the issuing State, the latter has to make all necessary enquiries, including via the contact points of the European judicial network, in order to obtain information from the executing State. Correspondence can be made by post, e-mail, fax or by any means which leaves a written record under conditions allowing the executing State to establish its https://ws-conference.com/ 4(11), May 2018 49

authenticity. The original of the decision, or a certified copy of it, and the original of the certificate, have to be sent to the executing State if it so requires. 3. The applicable law, governing the execution of confiscation or seizure decisions and decisions imposing financial sanctions, is the law of the Republic of Bulgaria, decisions made with regard to legal persons are also subject to recognition and execution. According to Art. 12 ARETDCDDIFS where it is not possible to enforce a confiscation, seizure or financial sanction decision, either totally or in part, alternative sanctions, including custodial sanctions or a measure involving deprivation of liberty, may be applied by the executing State if its laws so provide in such cases. This is only possible if the issuing State has allowed for the application of such alternative sanctions in the certificate accompanying the decisions, referred to in Art. 2 and 3 ARETDCDDIFS and the law of the executing State allows for the imposition of alternative sanctions. The severity of the alternative sanction has to be determined in accordance with the law of the executing State, but must not exceed any maximum level stated in the certificate transmitted by the issuing State. Recognition, execution and transmitting of decisions for confiscation or seizure. 1. The conditions for the recognition and execution of confiscation or seizure orders issued in another EU Member State are regulated in Art. 14 ARETDCDDIFS. First is the condition of "double criminality", that is, to refer to offences that constitute crimes under the Bulgarian legislation, for which confiscation is prescribed, regardless of the constituent elements thereof under the law of the issuing state. A verification of the double criminality of the act is not required for the exhaustively listed in Art. 14, para. (2) criminal offences if they are punishable in the issuing State by a custodial sentence or a measure involving deprivation of liberty for a maximum period of at least three years. Second is the condition that the property - subject of the decision - be located in the territory of the Republic of Bulgaria or the person against whom a decision has been passed has income or is domiciled or habitually resident in Bulgaria, or, in the case of a legal person, has its registered seat, management or postal address within our territory. Thirdly, besides the two mandatory conditions, the provision of Art. 19, para. 1 ARETDCDDIFS regulates the grounds on which the competent court may refuse recognition and execution. The reasons are: the certificate under Art. 4 ARETDCDDIFS is not submitted, is incomplete or manifestly does not correspond to the decision; a confiscation or seizure decision against the sentenced person in respect of the same acts has been delivered in the Republic of Bulgaria or in any State other than the issuing or the executing State, and, in the latter case, that decision has been executed; the execution of the decision has been time-barred under Bulgarian law and the decision relates to acts which fall within the jurisdiction of Bulgarian law; there is immunity or privilege under Bulgarian law, which makes it impossible to execute the decision; the decision relates to acts which are regarded by Bulgarian law as having been committed in whole or in part in the territory of the Republic of Bulgaria or in a place treated as such, or have been committed outside the territory of the issuing State and Bulgarian law does not allow prosecution for the same offences when committed outside its territory; according to the certificate provided for in Art. 4 ARETDCDDIFS the person concerned did not appear in person and was not represented by a legal counselor in the proceedings resulting in the confiscation order, unless the certificate contains explicit information in compliance with one of the following conditions under the law of the issuing State: a) the person was summoned personally or informed in due time of the scheduled of the time and place of the proceedings, or has been formally informed otherwise, undoubtedly proving the notification of the scheduled proceedings, as well as the possibility of rendering a judgment; b) after having been informed of the scheduled proceedings in due time, the person has authorized a defense counsel or such has been appointed by the court and defense has actually been given; c) after the decision was served in person and the person had been expressly informed about the right to a retrial or to an appeal in which he or she would have the right to participate, at which the merits of the case, including fresh evidence, would be (re)examined and which could lead to the original decision being quashed, expressly stated that he or she did not contest the decision or the person did not request a retrial or appeal within the applicable timeframe; the rights of any interested party, including bona fide third parties, under Bulgarian law make it impossible to execute the confiscation order, including where this is a consequence of the application of legal remedies in accordance with Art. 20 ARETDCDDIFS; under the conditions referred to in Art. 14, para. 1 ARETDCDDIFS, the confiscation order relates to acts which do not constitute an offence permitting confiscation or seizure under Bulgarian law; he confiscation or seizure order, in the view of that authority, was issued in circumstances where confiscation or seizure of the property was ordered under the extended powers of confiscation under the law of the issuing State. The grounds for refusal listed are not imperative, which leads to the conclusion that the court, when establishing some of them, has the option to decide whether to refuse recognition or to recognize and allow the execution of the decision. 50 4(11), May 2018 https://ws-conference.com/

2. The proceedings for recognition and execution of confiscation or seizure orders issued in another EU Member State must be at two-instances. The competent authority to recognize the confiscation or seizure decisions is the District Court of the person's domicile or habitual residence, and for a legal person of its registered seat, management or postal address. Where the decision is for confiscation or seizure of a specific property or sum of money - the district court of the place where the property is located or the place of the source of the income (Article 15 AREFTCDDIFS). Immediately upon receipt of the confiscation or seizure decision and of the certificate, the court must institute proceedings and schedule the case within 7 days of their receipt. The case is heard before a public sitting with three judges with the participation of a prosecutor and by summoning the sentenced person. Participation of the sentenced person is not mandatory. This follows from from the provision of Art. 16, para. 2 ARETDCDDIFS, which stipulates that the person's absence when summoned on a regular basis is not an obstacle to the hearing of the case. Nevertheless, for the purpose of guaranteeing his or her right of defense, the legislature has established that when a person cannot be found to be summoned on a regular basis, a counsel is being appointed. The participation of a counsel in this case is obligatory, if one is not appointed, respectively, a substantial procedural infringement will be committed, which I believe would be grounds to annul the proceedings judgment. At the public sitting hearing, the court is required to acquaint the sentenced person or his counsel with the judgment, after which he or she is afforded the opportunity to give an opinion. Where applicable, the court may also require additional information from the issuing State and specify time limit for its receipt. If the requested information is not supplied within the time limit set by the court, it should decide on the basis of the initial information at its disposal. During the initiated proceedings, Art. 18 AREFTCDDIFS, the court has the power to rule on: two or more confiscation or seizure decisions relating to a sum of money which have been issued against the same natural or legal person where the person concerned does not have sufficient resources in our territory to enable the execution of all decisions; two or more confiscation or seizure decisions relating to the same property. Prior to ruling, the court should hear the parties involved in the proceedings. The act terminating the court proceedings is a decision. By the decision, the court can recognize the act by transmitting it immediately to the respective executive body; may refuse recognition or execution of the act and to cease proceedings; may recognize the act and postpone its execution. In accordance with Art. 21 AREFTCDDIFS the court may postpone the execution of the decision: at the request of the National Revenue Agency, in the case of a confiscation order concerning an amount of money, if it has considered that there is a risk that the total value derived from its execution may exceed the amount specified in the confiscation order because of simultaneous execution of the confiscation order in more than one EU Member State; for a reasonable time determined by the court, when the execution of the confiscation order might be prejudicial to ongoing criminal investigation or proceedings, until such time as it deems reasonable; where it is considered necessary to have the confiscation order or parts thereof translated, for the time necessary to obtain its translation; where the property is already the subject of confiscation proceedings in the Republic of Bulgaria - at the request of the National Revenue Agency. In case of postponement the court must, for the duration of postponement, take all the measures to prevent the property from no longer being available for the purpose of execution of the confiscation order. As soon as the grounds for postponement have ceased to exist, the court must forthwith take the necessary measures for the execution of the confiscation or seizure decision. The act of the district court for the recognition to the confiscation or seizure decision may be appealed before the respective court of appeal within 7 days of its being announced. The circle of individuals entitled to appeal is not limited to the participants in these proceedings. This follows from Art. 20 AREFTCDDIFS, the provision allows the rights to appeal against the act, first to any interested party and second to any bona fide third parties. The appellate court must hear the case at a public sitting. The decision of the appellate court is final. The decision on confiscation or seizure and the grounds for it may be subject to revocation only by a court of the issuing State in accordance with its national law (Article 20 AREFTCDDIFS). The recognized decision is to be transmitted to the National Revenue Agency for execution under the National Revenue Agency Act and the Tax- Insurance Procedure Code. The National Revenue Agency must immediately notify the relevant court of the action taken for executing the decision (Article 22 AREFTCDDIFS). 3. The conditions for transmitting decisions on confiscation or seizure issued in the Republic of Bulgaria for recognition and executing in another EU Member State are regulated in Art. 25 AREFTCDDIFS. The Bulgarian court transmits its decision to the competent authorities in another EU Member State when: a) it finds that the location of the property subject to the decision is in the other EU Member State; b) the person against whom the decision has been passed, owns property, has income, domicile or habitual residence in the other EU member country, and for a legal person - registered, managing office or postal address in that country. It must also provide the certificate under Art. 4. AREFTCDDIFS. When there are reasonable grounds to believe that different https://ws-conference.com/ 4(11), May 2018 51

items of property covered by the confiscation order are located in different executing States; the confiscation of a specific item of property covered by the confiscation order involves action in more than one executing State, or that a specific item of property, covered by the confiscation order, is located in one of two or more specified executing States, the court has the possibility to transmit a confiscation order concerning specific items of property to more than one executing State at the same time. A confiscation order concerning an amount of money may be transmitted to more than one executing State at the same time, where the court deems there is a specific need to do so, for example where: a) the property concerned has not been frozen for the purposes of confiscation or seizure and b) the value of the property which may be confiscated in Bulgaria and in any executing State is not likely to be sufficient for the execution of the full amount covered by the confiscation order. (Article 26 AREFTCDDIFS). Transmitting the confiscation or seizure decision to one or more executing States does not limit the right of the Republic of Bulgaria to execute it alone (Article 27 AREFTCDDIFS). 4. Art. 28 AREFTCDDIFS contains rules related to the disposing with the subject of the decision in cases when the Republic of Bulgaria is an executing State by distinguishing whether the subject of the decision is an amount of money or property other than money. The rules referred to it are the following: if the amount obtained from the execution of the confiscation order is below EUR 10 000, or the equivalent to that amount, the amount is to accrue to the Republic of Bulgaria, in all other cases, 50 % of the amount is to be transferred to the issuing State. Property other than money, obtained from the execution of the confiscation order, must be disposed of in one of the following ways, which is to be decided by the competent Bulgarian authority: a) the property may be sold. In that case, the proceeds of the sale shall be disposed of in the same way as when disposing of cash; b) the property may be transferred to the issuing State; if the confiscation or seizure decision relates to a sum of money, the property may only be transferred to the issuing State if that State has given its consent; c) in another way, in accordance with Bulgarian law. In cases where Bulgaria is an issuing State, the manner of disposing of the object of the confiscation or seizure decision must be agreed with the executing State. Recognition, execution and transmitting of decisions to impose financial sanctions. 1. The conditions for recognition and execution of financial sanctions decisions which have been imposed in criminal or administrative criminal proceedings in an EU Member State are regulated in Art. 30 ARETDCDDIFS. First is the condition of double criminality, i.e. to refer to offences that constitute crimes or administrative violations under Bulgarian legislation, regardless of the constituent elements thereof under the law of the issuing state. A verification of the double criminality of the act is not required for the exhaustively listed in Art. 30, para. 2 AREFTCDDIFS. These are referred to in Art. 14, para. 2 t. 1-32 AREFTCDDIFS, as well as offences constituting one or more of the following crimes or administrative violations under the law of the issuing State: conduct which infringes road traffic regulations, including breaches of regulations pertaining to driving hours and rest periods and regulations on hazardous goods; smuggling of goods; infringement of intellectual property rights; threats and acts of violence against persons, including violence during sport events; criminal damage; theft; offences established by the issuing State and serving the purpose of implementing obligations arising from instruments adopted under the EC Treaty or under Title VI of the EU Treaty. (OJ C 115/47 of 9 May 2008). Secondly, the person against whom the decision has been passed must possess property, receive income or be domiciled or have his habitual residence in the territory of the Republic of Bulgaria, or, in the case of a legal person, has its registered seat, management or postal address in our territory. Thirdly, besides the two mandatory conditions, the provision of Art. 35 AREFTCDDIFS regulates the grounds on which the competent court may refuse recognition and execution. The reasons are: the certificate under Art. 4 ARETDCDDIFS is not submitted, is incomplete or manifestly does not correspond to the decision; a confiscation or seizure decision against the sentenced person in respect of the same acts has been delivered in the Republic of Bulgaria or in any State other than the issuing or the executing State, and, in the latter case, that decision has been executed; the execution of the decision has been time-barred under Bulgarian law and the decision relates to acts which fall within the jurisdiction of Bulgarian law; there is immunity or privilege under Bulgarian law, which makes it impossible to execute the decision; the decision relates to acts which: a) are regarded by Bulgarian law as having been committed as a whole or in part in the territory of the Republic of Bulgaria or in a place treated as such; b) have been committed outside the territory of the issuing State and Bulgarian law does not allow criminal proceedings against such offenses; the financial penalty imposed is less than EUR 70 or the BGN equivalent of that amount; in some cases referred to in Art. 30, para. 1 AREFTCDDIFS the decision relates to acts which do not constitute a criminal offence or an administrative violation under Bulgarian law; the decision has been passed against a natural person who cannot, owing to his or her age, be held criminally liable for the acts in respect of the decision; according to the certificate, in the case of written proceedings and in accordance with the law of the 52 4(11), May 2018 https://ws-conference.com/

issuing State, the person concerned has not been expressly informed personally, or through an authorized representative, about the right to a retrial or to an appeal and its applicable timeframe; according to the certificate referred to in Article 4 AREFTCDDIFS, the person concerned did not appear in person in the proceedings resulting in the decision, unless the certificate contains explicit information in compliance with one of the following conditions under the law of the issuing State: a) the person was summoned personally and thus was informed in due time of the scheduled time and place of the proceedings, or has been formally informed otherwise, undoubtedly proving the notification of the scheduled proceedings, as well as the possibility of rendering a judgment in his or her absence b) after having been informed of the scheduled proceedings in due time, the person has authorized a defense counsel or such has been appointed by the court and defense has actually been given; c) after the decision was served in person and the person was expressly informed about the right to a retrial or to an appeal in which he or she would have the right to participate, at which the merits of the case, including fresh evidence, would be (re)examined and which could lead to the original decision being quashed, the person expressly stated that he or she did not contest the decision or did not request a retrial or appeal within the applicable timeframe; according to the certificate referred to in Art. 4 AREFTCDDIFS the person concerned did not appear in person unless it has been stated that he or she has expressly renounced his or her right to be heard and has explicitly stated that he or she will not contest the decision after being duly informed of the proceedings and the possibility of appearing there personally. Here too, as stated above, the grounds for refusal listed are not imperative, and this leads again to the conclusion that the court, when establishing some of them, has the opportunity to decide whether to refuse to recognition or to recognize and execute the relevant decision. 2. The proceedings for recognition to decisions imposing financial sanctions delivered in another EU Member State have to be at two instances. The competent court to consider the decisions to impose financial penalties is the District Court of the person's domicile or habitual residence, and for a legal person - of its registered seat, management or postal address in the territory of the Republic of Bulgaria. In case they are not specified in the certificate under Art. 4 AREFTCDDIFS, the decision to impose financial penalties is to be recognized by the district court where the property is located, or the place of the source of income of the person concerned in the certificate (Article 31 AREFTCDDIFS). The proceedings for recognition to decisions imposing financial sanctions are to be carried out in the same manner as the proceedings for the recognition and enforcement of confiscation or seizure orders issued in another EU Member State. Where it is established that the decision relates to acts which were not committed within the territory of the issuing State, thus falling under the criminal jurisdiction of the Bulgarian courts, the district court may reduce the amount of the financial sanction enforced to the maximum amount provided for acts of the same kind under the Bulgarian law (Article 32 AREFDCDDIFS). The act of the district court for recognition to the financial sanctions decision is subject to appeal before the respective court of appeal. The provision of Art. 34 AREFDCDDIFS limits the circle of individuals that have the right to appeal, stating that this can only be the person concerned. The decision of the appellate court is final. The decision to impose financial penalties and the grounds for it are subject to revocation only by a court of the issuing State in accordance with its national law (Article 34 AREFDCDDIFS). The recognized decision must be executed by the National Revenue Agency, after it has been forwarded to it, as defined by the National Revenue Agency Act and the Tax-Insurance Procedure Code (Article 36 AREFDCDDIFS). 3. The conditions for transmitting decisions, imposing financial sanctions, pronounced in the Republic of Bulgaria for recognition and execution in another EU Member State are regulated in Art. 39 AREFDCDDIFS. The Bulgarian court transmits a confiscation order to the competent authority of a another EU Member State in which it has reasonable grounds to believe that the natural or legal person against whom the confiscation order has been issued has property or income, domicile or habitual residence, or, in the case of a legal person, has its registered seat, office, or postal address. The National Revenue Agency transmits ordinances to be recognized and executed by the competent authority of another EU Member State under the same conditions. This applies also to the case where the financial penalties decision has been imposed as compensation for the benefit of a victim of a crime. However, in this case a formal application should be lodged by the injured party with the court which issued the decision, on the basis of the application the court has to transmit the decision for recognition and execution to a competent authority in another EU Member State. Unlike the possibility a confiscation or seizure order to be transmitted to more than one executing State at the same time, in case of a decision imposing financial sanctions, the court imposing the sanctions may transmit it to one executing State only. 4. The consequences of the recognition, executing and transmitting decisions, imposing financial sanctions are manifested in two ways. Firstly, the transmitting of the decision to impose financial sanctions to another country limits the Bulgarian authority, which can not start executing the https://ws-conference.com/ 4(11), May 2018 53

transmitted decision. This can only be done when transmitting a confiscation or seizure decision to one or more executing States. This limitation is not absolute. The competent Bulgarian authority may take the necessary measures to execute a decision to impose financial penalties only if: (a) the competent authority in the executing State has notified it of an amnesty or pardon granted, or has refused to recognize and execute the confiscation order totally or partially if it is established that execution of the confiscation order would be contrary to the principle of ne bis in idem or (b) has informed the competent authority in the executing State that it withdraws the financial penalty decision or if there is any other reason as a result of which the decision ceases to be enforceable, according to the Bulgarian legislation is (Article 41 AREFDCDDIFS). Secondly, there is the question of who the proceeds, obtained from the execution of the confiscation order, go to. The principle is that they remain in the executing state, but that is not unconditional. Where the Republic of Bulgaria is an executing State, the revenue obtained from the execution of the confiscation order accrue to it. The disposing of the proceeds has to be in accordance with Bulgarian law, unless otherwise agreed, especially in the case of compensation to a victim of a crime. In the cases where the Republic of Bulgaria is an issuing State, the disposition of the proceeds obtained from the execution of the decision to impose financial penalties are to be agreed with the executing State. Conclusions. With the adoption of AREFDCDDIFS (promulgated SG No. 15 of 23.02.2010, amended and supplemented, SG No. 55 of 19.07.2011) the principle of mutual recognition between EU Member States to decisions of crime-related proceeds, imposing confiscation, seizure and financial sanctions was established. It has extended the existing instrument of mutual legal assistance. However, we should all be aware that the effectiveness of the recognition and executing of decisions depends to a large extent on how and to what extent the other EU Member States have transposed the Framework Decisions as a result of which the AREFDCDDIFS was adopted by the National Assembly. The existence of a uniform mechanism for mutual recognition is necessary to make it possible for a Member State to recognize and execute decisions issued by another Member State without intermediate formalities. Such a mechanism would cover the mutual recognition to all types of decisions delivered in criminal proceedings. This can be achieved through the adoption of a Regulation of the European Parliament and of the Council by which legal instruments can be directly implemented, the scope of existing ones extended, clear end-dates introduced, thus ensuring that decisions are recognized and executed within the Union without delay; guarantee standard certificate and standard form; communication between the competent authorities. REFERENCES 1. The Act on the Recognition, Execution and Transmitting of Decisions on Confiscation or Seizure and Decisions on the Imposition of Financial Sanctions (promulgated SG No. 15 of 23.02.2010, amended and supplemented, SG 55 from 19.07.2011 y); 2. Reasons on the draft Act on the Recognition, Enforcement and Delivery of Decisions on Confiscation or Seizure and Decisions on the Imposition of Financial Sanctions (No 902-01-54 of 7.12.2009, 41st National Assembly); 3. Report of the Committee on Legal Affairs on the Draft Act on Amendment and Supplement to the Act on the Recognition, Enforcement and Delivery of Decisions on Confiscation or Seizure and Decisions on the Imposition of Financial Sanctions (No. 102-01-28 of 10 May 2011, 41st National Assembly); 4. Opinion of the Commission for European Affairs and Oversight of the European Funds on the Draft Act on the Recognition, Enforcement and Delivery of Decisions on Confiscation or Seizure and Decisions on the Imposition of Financial Sanctions (No 902-01-54 of 7.12.2009, 41 the NA); 5. Council Framework Decision 2005/214 / JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties; 6. Framework Decision 2006/783 / JHA of 6 October 2006 implementing the principle of mutual recognition to confiscation orders; 7. Council Framework Decision 2009/299 / JHA of 26 February 2009 amending Framework Decisions 2002/584 / JHA, 2005/214 / JHA, 2006/783 / JHA, 2008/909 / JHA and 2008/947 / JHA, which strengthens the procedural rights of persons and encourages the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned during the proceedings; 8. Proposal for a Regulation Of The European Parliament And Of The Council on the mutual recognition to decisions on freezing and confiscation {SWD (2016) 468 final} {SWD (2016) 469 final} 9. Interpretation Decision 3 Sofia, 12.11.2013. HCV, OSHA. 54 4(11), May 2018 https://ws-conference.com/