Minor offences in Bulgaria: Art. 28 ЗАНН and court practice

Decision No. 4 of 30 April 2025 of the Constitutional Court declared unconstitutional the ban on applying Art. 28 of the Administrative Violations and Sanctions Act (ЗАНН) to road traffic violations under the Road Traffic Act (ЗДвП). At the same time, the 2020 amendments to the ЗАНН (in force since 23 December 2021) fundamentally changed the institution of the minor case (маловажен случай), turning it from a discretionary option into an obligation for the penalising authority.

What do these changes mean in practice? When is an administrative violation a minor case, and how is judicial review of the penalising authority’s assessment exercised? This analysis covers the legal framework, the interpretative practice of the Supreme Court of Cassation (ВКС) and the most recent practice of the Constitutional Court.

Legal framework: Art. 28 ЗАНН after the 2020 amendments

The amendment of the ЗАНН by State Gazette (ДВ) issue 109/2020, in force since 23 December 2021, turned Art. 28 from a discretionary provision into a mandatory rule. The words "may refrain from imposing a penalty" (може да не наложи наказание) were replaced by "does not impose a penalty" (не налага наказание). This change is of fundamental importance in practice, because where the conditions for a minor case are met, the penalising authority no longer has a choice and must apply Art. 28.

The new wording also introduced an entirely new procedure for drawing up the warning. Under Art. 28(2) ЗАНН, the written warning is now a formal document with 11 mandatory elements, including a description of the violation, the provisions breached and a warning about the consequences of a repeat violation.

The definition of a minor case: § 1, item 4 of the Additional Provisions of the ЗАНН and the link with the Criminal Code

The legal definition of a "minor case" is in § 1, item 4 of the Additional Provisions of the ЗАНН. A case is minor where the violation committed, in view of the absence or insignificance of harmful consequences or in view of other mitigating circumstances, represents a lower degree of public danger compared with the ordinary cases of violations of the relevant kind.

Art. 11 ЗАНН provides for the subsidiary application of the general provisions of the Criminal Code (НК) on guilt, criminal capacity, circumstances excluding liability and forms of complicity. In this respect Art. 93, item 9 НК gives additional guidance for assessing whether a case is minor, although administrative violations have their own specifics.

Two alternative criteria for a minor case follow from the definition: (1) the absence or insignificance of harmful consequences, or (2) the presence of other mitigating circumstances that lead to a lower public danger. The basis of comparison is always the "ordinary cases" of violations of the same kind: the specific violation must stand out from the typical one.

Interpretative Decision No. 1/2007 of the General Assembly of the Criminal Chamber of the ВКС: lawfulness, not expediency

Interpretative Decision No. 1 of 12 December 2007 in interpretative case No. 1/2007 of the General Assembly of the Criminal Chamber of the ВКС is fundamental to understanding Art. 28 ЗАНН. Before this decision there was a dispute over whether the penalising authority’s assessment under Art. 28 was an act of expediency (that is, operational discretion not subject to judicial review) or an act of lawfulness subject to full judicial review.

The ВКС holds that the word "may" in the previous wording of Art. 28 does not create operational discretion but confers competence. This means that where the objective conditions for a minor case are met, the penalising authority must apply Art. 28. Its refusal to do so is subject to full judicial review, and the court may revoke the penal decree if it finds that the case is minor.

In its reasoning the ВКС relies on the principle of equality before the law (Art. 6(2) of the Constitution) and on the case law of the European Court of Human Rights (ECtHR). The court cites the judgments in I.D. v. Bulgaria, Chevrol v. France and Zlinsat v. Bulgaria to show that judicial jurisdiction cannot be limited to checking only certain aspects of the administrative act.

Constitutional Court Decision No. 4/2025: Art. 189з ЗДвП is unconstitutional

On 30 April 2025 the Constitutional Court issued Decision No. 4 in constitutional case (к.д.) No. 29/2024 (published in State Gazette (ДВ) issue 38 of 9 May 2025), declaring unconstitutional the provision of Art. 189з of the Road Traffic Act in the part that prohibits applying Art. 28 ЗАНН to violations of the ЗДвП.

The Constitutional Court’s decision has direct and immediate practical significance. Until the declaration of unconstitutionality, the penalising authorities under the ЗДвП (the Traffic Control Service (КАТ), the Road Police (Пътна полиция) and the municipal services) were not allowed to apply Art. 28 ЗАНН to road traffic violations, however insignificant the violation was. After Decision No. 4/2025, Art. 28 ЗАНН again applies to all violations under the ЗДвП, except where the exception under Art. 29 ЗАНН applies.

It should be noted that Decision No. 4/2025 does not affect Art. 29 ЗАНН, which excludes the application of Art. 28 to violations committed while intoxicated or under the influence of narcotic substances, where the violation is connected with transport safety. This ban remains in force after the Constitutional Court’s decision.

Criteria for assessment: when is a violation minor?

The assessment of whether a case is minor is concrete and individual. It cannot rest on abstract and general considerations, but must take into account the specific circumstances of the particular case. Court practice has outlined a number of factors that are taken into account, none of which is decisive on its own.

Court practice consistently rejects general and abstract arguments for a minor case. For example, the argument "the pandemic required stricter compliance with the rules" is not an individual assessment. It is always necessary to point to concrete circumstances: no previous violations, insignificance of the harm, a specific life situation, cooperation with the control authorities.

Current court practice: examples from 2021-2025

An analysis of court practice since the new wording of Art. 28 ЗАНН came into force shows that the courts actively apply the institution, but require concrete and individualised reasoning. We look at typical examples in which Art. 28 was applied or rejected.

The case of the Burgas Administrative Court is indicative of the correct approach. The court carried out a concrete and individual assessment of all the circumstances: the person was alone, outdoors, close to their home, walking a pet, with no objective risk to the health of others. Each of these circumstances on its own may not be enough, but together they justify a lower degree of public danger compared with the ordinary cases of the relevant violation.

After Constitutional Court Decision No. 4/2025, a wave of cases is expected in which Art. 28 ЗАНН will be applied to road traffic violations under the ЗДвП. Practice will have to outline specific criteria for a minor case for the different kinds of road traffic violations, from an insignificant speeding to formal violations with no real risk to safety.

Art. 28 and the special laws: where it applies and where it does not

As a general rule, Art. 28 ЗАНН applies to all administrative violations established both in the ЗАНН and in special laws. The ЗАНН is the general law in the field of administrative penal law and its provisions apply subsidiarily, insofar as a special law does not provide otherwise.

Practical tips for lawyers

When defending a client penalised by a penal decree for an administrative violation, checking whether Art. 28 ЗАНН applies should be a standard part of the procedural strategy. The mandatory nature of the rule since 2021 makes the Art. 28 argument considerably stronger than before.

The institution of the minor case under Art. 28 ЗАНН is undergoing a substantial evolution. The 2020 amendments turned it from a discretionary option into an obligation. Constitutional Court Decision No. 4/2025 confirmed its constitutional necessity and removed the broadest ban on its application. Knowing these changes is necessary for every lawyer practising in the field of administrative penal law.